Dear Mr Fitzpatrick MP,
I write to you in the hope that you will use your power to oppose the extension of secret justice that will result from the passing of Part 2 of the Justice and Security Bill and its creation of Closed Material Procedures (CMPs). As I am sure you are aware, the common law of England and Wales is founded up the principles of the Rule of Law and the Separation of Powers. "Justice must not only be done, it must be seen to be done." Furthermore, it is the charge of the judiciary to uphold the law as it is for Parliament to set it down. Accordingly, justice requires that citizens can seek vindication of their rights, not least their right to bring agents of the State to account for their actions - a right upon which any claim to democracy necessarily depends. The Bill provides neither justice nor security. It is an anathema to any such notions.
As the Bill continues its passage through Parliament, civil liberties campaigners, lawyers and concerned citizens have joined together in opposing the creation of Closed Material Procedures because it is clear to us that the consequences of the Bill's passing will do irrevocable damage to our democracy and system of justice. Indeed, it is in this image that successive governments have purported to justify military intervention abroad, at the cost of millions of innocent lives , whilst simultaneously eroding the foundations of that system at home. As the Joint Committee on Human Rights have consistently noted, the case for CMPs has simply not made out. That view is supported by the Special Advocates that seek to bring what fairness they can to the system of CMPs already in operation, typically (but by no means exclusively), for immigration cases in the Special Immigration Appeals Commission (SIAC). The government rely on a meagre number of cases in support of its proposals. These include cases such as Al-Rawi, where the Home Secretary agreed to pay the claimant a substantial sum in damages rather than disclose evidence against him that was considered to impinge upon our national security interests. This, Ken Clarke has said, is not in the interests of justice. It should not be the case that either the government must disclose sensitive information or abandon proceedings. This is despite the fact that other legal alternatives (such as Public Interest Immunity) were not even considered before the proceedings were conceded.
Paradoxically, what is apparently in the interests of justice, according to the the Minister without Portfolio, is a system in which the judge is precluded from considering the wider "public interest in open justice". The individual is not able to communicate with their legal representatives in the usual way and rely on a Special Advocate, legally obliged not to disclose the substance of sensitive evidence against them, to make submissions on their behalf with the barest of instructions. And lest we forget, these are proceedings that will not just be closed to the public, the public will not even be aware that they are happening. There will be a prohibition on reporting their very existence. There will be no equality of arms, the parties to litigation will not be on an even footing. The Secretary of State will be able to pursue an application for CMPs, whether or not they are a party to proceedings, where there is the potential that senstive information will be disclosed whereas the other party will only be able to do so where they themselves would be required to make asuch a disclosure. They cannot seek one in order to at least have a judge evaluate material held by the Secretary of State. Third- parties will only be able to seek CMPs on similarly narrow grounds, again constraints not suffered by the Secretary of State. This is but the barest summary of some of the fundamental problems with the Bill. Part 2 should be abandoned. Even the amendments agreed last year and recently put forward by Lord David Pannick QC, one of the most eminent practitioners in the country, have been rejected by the government.
The campaign against the Bill is unrelenting. This week alone, the JCHR, in its second reading of the Bill, was withering in its critical analysis of the government's purported justification for its continued pursuit of this legislation, highlighting the points that I have set out. (http://www.publications.parliament.uk/pa/jt201213/jtselect/jtrights/128/12806.htm). It has been condemned by numerous NGOs, of which JUSTICE (http://www.justice.org.uk/news.php/93/justice-and-others-condemn-governments-rewrite-of-the-secret-courts-bill) and Liberty (http://www.liberty-human-rights.org.uk/media/press/2013/secret-courts-threat-graver-than-ever-after-government-o.php) are but two of the most widely known. Whilst a coalition of 700 legal professionals, including Ian MacDonald QC, who resigned as a Special Advocate in protest at these proposals, and of whom I am proud to be a member, has also called for the Bill to be scrapped (http://www.dailymail.co.uk/news/article-2285603/Scrap-dangerous-unnecessary-secret-justice-hundreds-lawyers-QC-urge-Government.html and http://www.telegraph.co.uk/news/uknews/law-and-order/9899041/Secret-courts-condemned-by-700-legal-experts.html )
It is worth recalling that Al-Rawi was one of a number of citizens accusing the government of complicity in renditions to foreign agencies, in this case our "allies" at the CIA. This, despite the threat and infliction of torture and other ill-treatment, again, contrary to the common law and in flagrant disregard for our international obligations. That being so, perhaps, the Bill is really about protecting the State from embarrassment. In the words of Liberty:
The Bill must be seen in the wider context of an executive committed to reducing access to justice, whether by cutting welfare, obliterating legal aid or scaling-back judicial review. The prospect of a government conducting its business shielded from scrutiny and accountability is the very contradiction of justice and will provide only the security one enjoys in ignorance. If you entered the House with any commitment to serving the public and leaving behind a legacy of which you can be proud, you must vote against this Bill.
Yours sincerely,
Michael Etienne
------------------------------
You can find out more about Liberty's campaign to write to your MP here - it's not too late
Reprieve's briefing to MPs here
An article by AdamWagner (UK Human Rights Blog/ 1 Crown Office Row) charting recent developments and highlighting some useful resources here
You can find you local MP by going to the Parliament website here
No comments:
Post a Comment