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Dr Hywel Francis MP Chair of the Joint Committee on Human Rights House of Commons London, SW1A 0AA 2 February 2012

Dear 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 than too much. In the prelude to the invasion of Iraq, the government’s allusion to secret documentation as evidence to send British troops into combat with little public proof, was indicative 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 to withhold information from open scrutiny that would demonstrate the complicity of the UK security services with human rights violations including torture; cruel, inhuman or degrading treatments or violations to the fundamental right to freedom of expression. By preventing the victim 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 to account 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 to open justice to be established in English law. The number of civil cases where genuinely sensitive intelligence material is relied upon is tiny and can already be catered for through public interest immunity, which will continue to apply in all criminal cases. Where sensitive national security issues are involved, the courts already have ample powers to hear evidence in private. A hearing in which the parties cannot challenge the evidence against them and which precludes all possibility of public scrutiny is not one which any civilised country should adopt. The case for this radical 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 to over-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 information through the Freedom of Information Act (and note that post-legislative scrutiny of the Act is in progress 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 opposition to closed material proceedures (CMPs) from your committee in previous reports as well as the UN Human Rights Committee, Amnesty International, the BBC, Human Rights Watch, the Guardian,
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Justice, Liberty, Reprieve and The Times. The 7/7 inquests show that in complex scenarios involving both time-sensitive intelligence and national security issues, the judiciary (or coroners) have the power to investigate without putting at risk public safety. We also believe there is much still to expose, intelligence personnel from the UK conducted or witnessed over 2,000 interviews in Afghanistan, Guantanamo Bay and Iraq. The circumstances of these interviews are not well known.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 public interest test based on evidence provided by the Security Service that may preclude evidence of malpractice by the Security Services being shown to the defendant in a trial. It is not only our contention that this gives the Security Services an incentive to opt for a closed material procedures where they have breached the law; but without proper scrutiny from the accused this lack of scrutiny 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 on criticism 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 often necessarily 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 civil proceedings meet or exceed international fair trial standards. Yet, as we know the Security Services 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 and Pakistan, where the detention and interrogation powers of the intelligence services in counterterrorism operations and investigations have no clear statutory basis.3 We know from the Binyam Mohamed case that our Security Services have worked closely with the above-mentioned countries, and it is not unreasonable to suspect that evidence from these intelligence 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 to trigger 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

http://www2.ohchr.org/english/bodies/hrcouncil/docs/10session/A.HRC.10.3.pdf [65] http://www.guardian.co.uk/world/2010/feb/10/binyam-mohamed-torture-annotated-letter 3 http://www2.ohchr.org/english/bodies/hrcouncil/docs/10session/A.HRC.10.3.pdf [40] 4 http://www.official-documents.gov.uk/document/cm81/8194/8194.pdf, p. 21

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 suggest why this is necessary. We are concerned that such a definition may creep into other areas of law namely the Official Secrets Act. The broadness of this approach could lead to a significant reduction in the publication of records in the public interest, with a subsequent chilling effect on open discussion. That the Green Paper frames the disclosure of such material around ‘risk’ and not 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) process incentivises the government to disclose more rather than less in order to defend against the claim in 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 want to produce as much material as it can in order to defend the claim and therefore will not be too quick to have resort to PII. Under the closed material procedure, all the material goes before the judge and a claim that all of it involves national security or some other vital public interest will be very tempting to make. Special Advocates believe they will not be in a position to challenge the government’s argument on CMPs. The current arrangement, the “Wiley balance”, is a proper balance between the public interest 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 a diminishment in the open administration of justice. Index would like to emphasise to the committee the importance of the media in holding power to account through an open court system, demonstrating to the public that the open administration of justice is upheld. As Lord Neuberger pointed out in his lecture last year “Open Justice Unbound”,5 as fewer members of the public sit through court cases the importance of the media reporting 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 the Binyan 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 and Commonwealth Affairs contains extremely powerful statements which recognise the fundamental importance of the media in an open judicial system. Lord Judge CJ in the judgements of the Court of Appeal in Binyam Mohamed v. Secretary of State for Foreign and Commonwealth Affairs recognises the 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 the media, whether newspapers or television, acting on behalf of the body of citizens. Without the commitment of an independent media the operation of the principle of open justice would be irremediably diminished…

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http://www.scribd.com/doc/50968052/Lord-Neuberger-on-Open-Justice-Unbound

In litigation, particularly litigation between the executive and any of its manifestations and the citizen, the principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression. Ultimately it supports the rule of law itself… Expressed in this way, the principle of open justice encompasses the entitlement of the media to impart and the public to receive information in accordance with Article 10 of the European Convention of Human Rights.”[38-40] Without open justice, the fundamental right to freedom of expression to challenge authority will in turn be curtailed. Index on Censorship hopes the Joint Committee on Human Rights will recognise the serious impact on the article 10 right to freedom of expression the proposals contained within the Green Paper would have if implemented. We will be writing to the Home Secretary with a copy of this letter separately. If you would like oral evidence to the committee we would be very pleased to oblige. Yours sincerely,

Mike Harris Head of Advocacy Index on Censorship

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