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Index on Censorship letter to Joint Committee on Human Rights

Index on Censorship letter to Joint Committee on Human Rights

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Published by: IndexOnCensorship on Feb 02, 2012
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04/04/2012

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Free Word Centre, 60 Farringdon Road, London EC1R 3GATel: 020 7324 2522 www.indexoncensorship.org
Chief Executive: John Kampfner Editor: Jo GlanvilleTrustees & Directors: Jonathan Dimbleby (Chair), Anthony Barling, Rohan Jayasekera,John Kampfner, Katie King, David McCune, Lord Ken McDonald QC, David Membrey, Matthew Parris.Index on Censorship works to pursue the charitable objectives of its founding charity, the Writers & Scholars Educational Trust.It is a UK registered charity no. 325003 VAT registration no 241 0075 16
Dr Hywel Francis MPChair of the Joint Committee on Human RightsHouse of CommonsLondon, SW1A 0AA2 February 2012Dear Dr. Francis,
Re: The Justice and Security Green Paper
At
Index on Censorship
we believe that far too little information is in the public domain, rather thantoo much. In the prelude to the invasion of Iraq, the government
’s
allusion to secretdocumentation as evidence to send British troops into combat with little public proof, wasindicative of how a culture of secrecy can be especially corrosive.
Index on Censorship
believes that the Green Paper lays the groundwork for the UK government towithhold information from open scrutiny that would demonstrate the complicity of the UKsecurity services with human rights violations including torture; cruel, inhuman or degradingtreatments or violations to the fundamental right to freedom of expression. By preventing thevictim of such violations from seeking remedy through civil proceedings in an open court(through the withholding of key evidence), it will in turn reduce the ability of the media to hold toaccount the government for violations of human rights.We should not be complacent. It has taken centuries for the right to a fair trial and the right toopen justice to be established in English law. The number of civil cases where genuinely sensitiveintelligence material is relied upon is tiny and can already be catered for through public interestimmunity, which will continue to apply in all criminal cases. Where sensitive national securityissues are involved, the courts already have ample powers to hear evidence in private. A hearingin which the parties cannot challenge the evidence against them and which precludes allpossibility of public scrutiny is not one which any civilised country should adopt. The case for thisradical departure from the most fundamental principles of English law has simply not been made.It is also important that your committee views the Green Paper in its broader international context.The publication of US State Department cables by Wikileaks has demonstrated how the urge toover-classify documents is present even in established democracies. The breadth of the term
‘sensitive material’ could easily set a precedent in other areas such
as access to informationthrough the Freedom of Information Act (and note that post-legislative scrutiny of the Act is inprogress now).
We see no need for the government’s approach as outlined in the Justice and Security Green
Paper. The case has simply not been made for such powers
and there is considerably oppositionto closed material proceedures (CMPs) from your committee in previous reports as well as the UNHuman Rights Committee,
 Amnesty International
, the
BBC 
,
Human Rights Watch
, the
Guardian
,
 
 
 Justice
,
Liberty
,
Reprieve
and
The Times
. The 7/7 inquests show that in complex scenarios involvingboth time-sensitive intelligence and national security issues, the judiciary (or coroners) have thepower to investigate without putting at risk public safety. We also believe there is much still toexpose, intelligence personnel from the UK conducted or witnessed over 2,000 interviews inAfghanistan, Guantanamo Bay and Iraq. The circumstances of these interviews are not wellknown.
1
 
Index
has a number of specific concerns which we hope your Committee will investigate:
The excessive power to suppress public interest information by the Security Services
According to the approach outlined in the Green Paper, the Home Secretary will use a publicinterest test based on evidence provided by the Security Service that may preclude evidence ofmalpractice by the Security Services being shown to the defendant in a trial. It is not only ourcontention that this gives the Security Services an incentive to opt for a closed material procedureswhere they have breached the law; but without proper scrutiny from the accused this lack ofscrutiny may suppress evidence being heard leading to Ministers being misled.
As the government’s lawyer Jonathan Sumption QC wrote in his letter to the court of appeal
oncriticism of MI5 in the draft copy of the Binyam Mohamed judgement:
2
 
The statements of ministers in this area, although embodying their own judgements, are oftennecessarily based on the information and advice of the Security Service.
The principles of open and natural justice are long-established in English common law, and civilproceedings meet or exceed international fair trial standards. Yet, as we know the SecurityServices often use intelligence based on foreign sources where human rights are violated.According to the report of the UN Special Rapporteur on counter-terrorism and human rights(2009):
The Special Rapporteur is gravely concerned about situations, for instance in Morocco, Jordan andPakistan, where the detention and interrogation powers of the intelligence services in counter-terrorism operations and investigations have no clear statutory basis.
3
 
We know from the Binyam Mohamed case that our Security Services have worked closely with theabove-mentioned countries, and it is not unreasonable to suspect that evidence from theseintelligence services may be used as the basis to apply for a closed material procedure.
The media’s watchdog function will be undermined
 
The proposals in the Green Paper are overly broad. It is not justifiable for the Home Secretary totrigger the use of secret evidence in
any
civil proceeding. The Green Paper establishes the term
‘sensitive material’
as follows:
4
 
 Any material/information which if publically disclosed is likely to result in harm to the public
interest. All secret intelligence and secret information is necessarily ‘sensitive’, but other categories
of material may, in certain circumstances and when containing certain detail, also be sensitive.
1
2
4
 
 
Diplomatic correspondence and National Security Council papers are examples of other categories of material that may also be sensitive.
The justification for such a broad definition is not given, nor is any evidence base given to suggestwhy this is necessary. We are concerned that such a definition may creep into other areas of lawnamely the Official Secrets Act. The broadness of this approach could lead to a significantreduction in the publication of records in the public interest, with a subsequent chilling effect onopen discussion. That the Green
Paper frames the disclosure of such material around ‘risk’ andnot the public’s right to know
underlines this concern:
CMPs reduce the risk of damaging disclosure of sensitive material.
In contrast to withholding information, the current PII (Public-interest immunity) processincentivises the government to disclose more rather than less in order to defend against the claimin Court. Lord Kerr notes in Al Rawi v Security Service [2011]:
 At the moment with PII, the state faces what might be described as a healthy dilemma. It will wantto produce as much material as it can in order to defend the claim and therefore will not be too quickto have resort to PII. Under the closed material procedure, all the material goes before the judge anda claim that all of it involves national security or some other vital public interest will be verytempting to make.
 Special Advocates believe they will not be in a position to challenge t
he government’s argument
on CMPs. The current arrangement
, the “Wiley balance”, is a
proper balance between the publicinterest in withholding evidence, and the proper administration of justice. The broadness of the
term ‘sensitive materials’
and the inadequate
replacement of the “Wiley balance”
will lead to adiminishment in the open administration of justice.
Index
would like to emphasise to the committee the importance of the media in holding power toaccount through an open court system, demonstrating to the public that the open administrationof justice is upheld. As Lord Neuberger
pointed out in his lecture last year “Open JusticeUnbound”,
5
as fewer members of the public sit through court cases the importance of the mediareporting such cases has increased.There is no doubt that pressure from the British media (and organisations like
Index on Censorship
 who sought publication) helped ensure that the deleted paragraph from the final judgement in theBinyan Mohamed case on Security Service participation in torture was made public.The judgment of the Court of Appeal in
R (Binyam Mohamed) v. Secretary of State for Foreign andCommonwealth Affairs
contains extremely powerful statements which recognise the fundamentalimportance of the media in an open judicial system. Lord Judge CJ in the judgements of the Courtof Appeal in
Binyam Mohamed v. Secretary of State for Foreign and Commonwealth Affairs
recognisesthe significant importance of the role of the media, and the strong interrelationship between open justice and freedom of expression:
In reality very few citizens can scrutinise the judicial process: that scrutiny is performed by themedia, whether newspapers or television, acting on behalf of the body of citizens. Without thecommitment of an independent media the operation of the principle of open justice would beirremediably diminished
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