29 May 2012
Lawyers for Guantanamo detainee Binyam Mohammed and Abdel Hakim Belhaj, former leader of the Tripoli Military Council currently taking action against the British Government and the former Foreign Secretary Jack Straw, have called the Justice & Security Bill, published today (29 May 2012), draconian, unnecessary and offending the fundamental principles of justice.
Sapna Malik from law firm Leigh Day & Co has also accused the Government of ‘rushing’ the Bill through Parliament, bypassing a White Paper and a further round of consultation following the publication of the Justice & Security Green Paper last autumn.
Although some concessions have been made in response to the furore over the Green Paper, the core elements remain. The Justice & Security Bill seeks to allow civil claims concerning the security and intelligence services to be held behind closed doors. In particular:
- Closed material procedures (CMPs) would allow sensitive evidence to be given in court by the Government but not seen by any other parties or their legal representatives, who would be barred from the courtroom.
- The Bill would effectively abolish proceedings against Government Departments, which seek to uncover wrongdoing of third parties in which the UK may be involved (known as Norwich Pharmacal proceedings). These were the very type of proceedings which exposed the UK’s role in Binyam Mohamed’s rendition and torture by the United States.
Combined, these changes will put the Security Services – as well as other bodies like the Ministry of Defence – above the law in civil actions involving wrongdoing by the UK Government.
Ms Malik argues that the proposals put forward in the Bill can be seen in a new light following the discovery of documents, following the fall of the Gaddafi regime, implicating MI6 in the illegal rendition of 2 Libyan dissidents and their families to Tripoli in 2004, where the men were brutally tortured. These documents, offering real and substantial evidence against the security services , has already led to a Met police investigation opening into the potential criminal conduct of those involved.
Ms Malik said: “If this Bill were to become law, the documents discovered in Tripoli since the fall of Gaddafi would not see the light of day, if our government was being relied upon to disclose them. At least we have those, but what else will remain hidden? What would happen in the cases of those women and children rendered to Gaddafi’s Libya in 2004, merely for being related to Libyan dissidents?
“They deserve the government to be held to account – or absolved of the allegations against it – in an open court where they play a full part in the proceedings. They do not deserve to be subjected to the same sort of secret sham trials, which condemned their husbands or fathers to death back in Tripoli.”
However it was the work of Leigh Day & Co partners, Richard Stein and Sapna Malik and their colleagues, representing inmates of Guantanamo Bay, including Binyam Mohammed, which, they believe, has prompted the government to take action.
It was during the legal action for Guantanamo inmate Bisher al Rawi that the government previously tried to introduce ‘closed material procedures’ which were dismissed by the Supreme Court.
In giving judgment in the al Rawi case Lord Kerr said: “To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead.”
He continued: "this would not be a development of the common law, as the [government] would have it. It would be, at a stroke, the deliberate forfeiture of a fundamental right which … has been established for more than three centuries."
It is this fundamental right, which Ms Malik believes is most at risk. Ms Malik said: “The government’s proposal is a radical and unnecessary departure from the existing law, for which no compelling reasons have been identified.
“As the law currently stands, material relied on by one party and presented to the judge must be provided to the other party, who then has the opportunity to challenge it. This is the crucial difference from the government’s proposals, which would enable judges to decide cases on the basis of the government’s account alone, heard in secret. ”
“Under the current system, if it is believed that material will harm national security, it is either withheld from the proceedings entirely or procedures are put in place to protect the most sensitive parts, from redacting documents to witnesses giving their evidence anonymously. Lawyers, such as myself, in security-sensitive cases, already regularly use these methods. They are not ideal, but they are workable.”
Richard Stein, Head of Human Rights at Leigh Day said: "As the lawyers who represented the unlawfully imprisoned Guantanamo inmate Binyam Mohammed, in which the Government resisted public disclosure of serious allegations against them, it is critical the public know what is being carried out in their name."
"The cloak of national security is lowered far too often in an effort to cover up the embarrassment caused by the actions of the Government and the intelligence services."
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