The MoJ also argues that “closed hearings won’t replace other proceedings”. But this Bill will effectively substitute the current system of handling sensitive material – Public Interest Immunity (PII) – with Closed Material Procedures (CMPs). While PII allows certain material to be excluded, that material isn’t admitted at all so, in the spirit of fairness, neither party can use it. But CMPs allow the Government to present evidence to the judge without disclosing it to the other side for scrutiny. They also suggest the proposals won’t mean that “less information is public”. In reality they’ll mean exactly that – the Court will be robbed of the ability to use the arsenal of tools at its disposal under PII to ensure that everything which can safely be made public will be.
Furthermore, the “Mythbuster” claims
that “Courts will have the power to decide what type of hearing is needed”. But
this is an illusion.
Not only does the Bill specify that the Court “must grant” a CMP application if it feels a party would be
required to disclose material damaging to “national security”. It also says the
Court “must ignore” the possibility of PII (the more limited and even-handed
tool) – making the judicial trigger a total façade.
The document also argues that the Bill does not undermine centuries-old legal traditions because “CMPs are not new”. Torture isn’t new either – does that make it right? Yes, CMPs are currently used in a very small number of cases in a very specific set of circumstances. But even this limited usage has proved controversial and has prompted endless litigation. Yet the MoJ seems to see no issue with introducing CMPs into our ordinary civil law. CMPs were first invented for certain national security immigration cases where people had no right of appeal at all. Then it was introduced to lock terror suspects up without trial in Belmarsh prison and subsequently to effectively place them under house arrest and other restrictions without charge under control orders (now TPIMs). There is a lesson here about how a contagion can spread across our political and legal system; but hardly a respectable argument for further corruption.
Finally, the MoJ says there’s a backlog of sensitive cases, and that extending CMPs will allow them to go ahead and for more information to be put before the Courts than PII – therefore boosting fairness. But secret evidence submitted by one party, not examined or tested by the other, is likely to be unreliable, one-sided and misleading. How will this boost confidence in either our legal system or security agencies? The Government has been unable to point to any credible examples of cases which could not proceed because CMP was unavailable.
In short, while our verdict is that this “Mythbuster” peddles many myths, it’s a nice try from the Ministry and one of which Orwell might have been proud.
- Now you're up to speed on the MoJ's "Mythbuster", e-mail your MP and tell them that you strongly oppose the Government's plan to introduce the controversial and highly-flawed system of Closed Material Procedures and Secret Justice into civil law. Tell them to urge the Government to abandon these dangerous and unnecessary plans.
