Secret Courts – A Regrettable Necessity
November 22, 2012
Mark Field is the MP for the Cities of London & Westminster and currently serves as a member of the Intelligence and Security Committee.
In the battle to keep British citizens safe and our streets secure, we rely on intelligence not just from UK agents but from those of our allies too. That intelligence gathering can be highly risky. Agents often work alone, with only their handlers to trust. In return for making those considerable sacrifices, for taking those risks, they ask only one thing: a guarantee that the intelligence they provide is protected. The absence of such a guarantee not only puts lives at risk but undermines the trust that is the essential lubricant to intelligence sharing. For decades we were able to guarantee that protection.
But then something changed.
Lawyers began to see ‘money’ in civil actions by suing the British government on their clients’ behalf. Claimants were able to make all sorts of wild allegations, safe in the knowledge that the government would never be able to produce secret agents or share allies’ secrets in open court.
In tackling such actions, the government has had only two choices: collapse the case and settle or attempt a defence with any compromising evidence removed. The latter could be done through a Public Interest Immunity Certificate (PII). But the problem with PIIs has been that in many cases, so much evidence is removed as a result of it being allies’ intelligence or placing at risk the identity of an informer, that the case becomes unwinnable. Under the PII route, evidence is discarded or redacted, it is not scrutinised. This has left the government unable to defend itself and forced to settle.
Much of the media focus when it comes to secret courts has been to examine their Orwellian implications. I can understand that – I consider myself to have a strong libertarian streak and appreciate an instinctive discomfort about the notion of closed trials. But those quarters in the press and in the House of Lords that oppose changes ought to be clear with the public about what settling entails. It has frequently involved giving millions of pounds of taxpayers’ money to some pretty unsavoury people on the basis that the current system is too risky for Her Majesty’s Government to defend herself.
Many human rights lawyers (who often fail to point out their generous fees from such cases) and our enemies point to settlements as a mark of the government’s guilt. Those that threaten our security are quick to turn such cases into propaganda coups. “Cover up!” they cry. Settling cases also relies on the claimant’s agreement. What happens if the purpose of the action is not money but information? Will the courts be forced to reveal intelligence in that case?
Unless we wish to continue doling out huge sums of money to those with less than clean hands, the PII system simply cannot be sustained. Like the last government, the current administration wants to do something about this unsatisfactory state of affairs. The Justice and Security Bill is an attempt to put things right by improving scrutiny, yet at the same time strengthening security. Building on Labour’s SIAC immigration tribunals (where intelligence on immigration cases is heard in secret) the government wants to introduce Closed Material Proceedings (CMPs). This is where secret evidence can be scrutinised by a judge and two special appointed advocates. There will be no hiding from scrutiny in these courts and allegations will be able to be challenged. I have no doubt the government will win some cases and lose others. But at least a full defence can be offered if the government has done nothing wrong.
The judge in such cases will be given total discretion to determine whether evidence is ‘national security sensitive’ or not before allowing a CMP, ensuring that CMPs are not used to hide embarrassments. CMPs are often better than trials that proceed when a PII is in force because CMPs will ensure a judge sees all of the evidence.
But the government is right to resist attempts to give the judge the power to order that a piece of evidence deemed ‘national security sensitive’ be disclosed. Even some judges acknowledge that this proposal goes too far. Ministers have to be able to guarantee that the government will protect secrets shared with them confidentially. Those who champion this additional discretion for the judge cannot guarantee that sensitive evidence will not be made public because the need for “public interest in the fair and open administration of justice” may trump national security. Such discretion provides cold comfort to an agent risking life in Pakistan.
At present there is no justice. The government wishes to be able to defend itself in court. It wants evidence to be examined and our security services to be held to account. But above all it wants to be able to continue to guarantee our agents and allies the security they are owed. Without that guarantee we will not have the full benefit of shared intelligence nor will we find it easy to recruit informers.