Nick Pickles is Director of civil liberties campaign group Big Brother Watch. Follow Nick on Twitter.
This afternoon, Ken Clarke and James Brokenshire go before the Joint Committee on Human Rights to try and explain why after 800 years it is time to ditch Magna Carta and put politicians in charge of what evidence goes before the courts.
The Justice and Security Green paper would mean not only would it be in a Minister’s gift to decree what evidence should be kept secret, without any judicial approval, but this would apply in any civil case brought against the Government.
It’s a long way from "sunlight is the best disinfectant", and is arguably an unprecedented attack on the British legal system. As Lord MacDonald QC told the Today programme yesterday, the proposals represent a broad rebalancing of civil justice system against fundamental principles of open justice.
The last Government fought very hard to limit the way that inquests exposed the failures to equip our troops properly. The attempts to stifle them failed and they performed an invaluable public service to those risking their lives for their country.
Think of the Stephen Lawrence enquiry, the Hutton enquiry, the de Menezes inquiry, the inquest into the deaths of 14 RAF personnel in the 2006 Nimrod crash or the 7/7 inquest, all of which posed difficult questions for the authorities. They have all raised embarrassing and difficult questions for the Government, but they were all absolutely in the public interest.
These proposals would give Ministers the power to gag the evidence these inquests could hear. Indeed, the proposals would put in the hands of political figures the ability to stifle embarrassing or inconvenient investigations into the actions – and failings – of the state.
Indeed, there has already been one known incident – reported in evidence to the Joint Committee on Human Rights – where evidence was redacted on national security grounds, only to be shown as nothing to do with national security and in fact relating to maladministration in the responsible department.
Or consider another case: the action brought by Binyam Mohammed claiming mistreatment in foreign prisons. Material, already disclosed in American courts, confirmed this – and yet the then Labour Government sought to exclude this evidence on the grounds of national security. When the Court of Appeal forced the disclosure of the evidence, not a single word was sensitive to national security.
The reality was not about protecting the public, but protecting officials from embarrassment. Or put another way, a deliberate effort to escape accountability. There is an existing system, one which has been in operation for decades, known as public interest immunity. Neither the Green Paper nor any Minister has identified a single court judgment which has undermined national security.
Furthermore, 59 of the 69 Special Advocates who work in sensitive cases already using a "closed material procedure" – for example, immigration decisions – have condemned the proposals. The wider legal community has also asked the entirely fair question of how a justice system based on precedent can operate when decisions and the facts they are based upon are only available to the Government and as Lord Kerr has noted, "evidence which has been insulated from challenge may positively mislead.”
Balancing national security against the principle of open justice is certainly not easy, and clearly there needs to be a procedure in place. The fundamental issue is who decides what is, and is not, evidence for the court to consider. It cannot be right that a politician makes that decision. We absolutely need to protect our national security and ensure the intelligence services can do their jobs. The way to achieve that is not for government to be above the law.