During the last term, I attended the Martin Dockray Inaugural lecture at City University, with the subject being secret justice.  Many people will have heard the name Martin Dockray, but some may not be familiar with the nature of the man in relation to the creation and success of City Law School, or in relation to his beliefs on open justice and the rule of law. 

Professor Dockray was instrumental in creating the current City Law School we have today, including being an innovator in bringing the Inns of Court School of Law into the fold, bringing his dream of creating a London legal school that had education at all stages of legal education into reality.  Professor Dockray joined in 1989, after having taught at Kings College.  He came with a Ph.D in law and a successful career as a solicitor, bringing that knowledge and experience into what was an excellent academic career unfortunately cut short by his untimely death.  In accordance with his far ranging legal views, this inaugural lecture has chosen Lord Ken Macdonald to speak about the need for open delivery of justice in the face of expanding secretive justice now in the UK.

Can secrets get in the way of justice? Credit: stevendepolo

Lord Ken Macdonald is uniquely qualified to give this lecture, having been Director of Public Prosecutions (DPP) from 2003 to 2008.  Prior to that, Lord Macdonald was a Queen’s Council (1997) and was also a founder of Matrix Chambers.  After leaving his position as DPP, Lord Macdonald was a frequent contributor to The Times, and in 2010 was made a Liberal Democrat peer in the House of Lords. In addition to this, he also resides as Warden of Wadham College, Oxford.

Lord Macdonald has been a tireless supporter of human rights throughout his career as a barrister to his public service, from positions standing against increases in pre-charge detention and inappropriately long prison sentences.  His positions on the “War on Terror”, government prosecution of terror suspects, and the Iraq war in particular are well known and well reasoned.  In the House of Lords, he has reviewed and continues to work on government reviews of security powers and the supervisory powers over the secret service.  Lord Macdonald continues to be a voice in the debate for reasoned oversight of the counter terrorism powers in the UK, and is well suited to discuss secret justice and the closed material proceedings that are of concern here.

The lecture primarily concerned itself with three pillars of discussion, the secret justice often employed in the search for national security and in counter terrorism, the supervisory role over the secret service or sufficient lack thereof, and the concerns over closed material proceedings (CMP) and conflicts with the rule of law. 

It would perhaps be surprising to most people to learn the front line position the House of Lords has taken on these and other civil liberties issues.  This is due in part to the nature of the House of Lords, where a lack of pressure by a voting electorate allows a more long term and rational debate on the issues.  The policy makers in the executive and the legislative branches beholden to the voters and concerned for their offices are so risk adverse that civil liberties are often at risk of being sacrificed to the swaying public mood.

Closed Material Procedures

The most central topic of this lecture, Closed Material Procedures (CMP) are the government’s response to what they would call national security concerns in sensitive trial matters.  This reason for the CMP’s existence is suspect, however, when judged in the light of the events that have brought the procedure into existence, and the facts that surround the situations the government claims to be a risk. 

At the heart of this matter is the case of Binyam Mohamed, who was subjected to extraordinary rendition by the US special forces, in which the British secret service had been complicit, even to the point of having MI-5 officers meet with him on at least one occasion.  After Mr. Mohamed’s eventual release and lawsuit, which he won after the courts decided against the government’s argument that Mr. Mohamed’s case would damage the national security, the government argued an ingenious position for future Closed Material Procedures.  They claimed that many cases were becoming “miscarriages” of justice because the agencies involved were not able to provide evidence which would prove their case without violating national security and risking agent assets.

When they were interrogated as to how many cases had been lost to this inability to provide evidence, their response, which one might be forgiven for not taking seriously, was “It’s too complicated to explain and count.”  The security services even went so far as to argue that it would improve the justice of the courts, because it gave the courts the ability to view all evidence, albeit in these proceedings without the claimant.  This is however, obviously at odds with our current system whereby the judge sits as the referee who “tests” the evidence as it is placed into the adversarial system.  Without that full and open system, the evidence itself is suspect, and perhaps given weight unfairly towards the security services.

Whenever this procedure, already in place but being debated for expansion in the Justice and Security Bill, is debated on those points, a second argument arises.  Officials aligned with the executive and the security services argue that this bill is essential to our agreement with the United States for intelligence sharing.  They insist that this bill shores up potential concerns the American security services have over open courts.  This argument is suspect, not only because the relationship between the UK and US security services is a relationship closer than any other allies in terms of collaboration, but also because there is not now any incident where a UK judge has ordered the revelation of security sensitive material in an open court proceeding.  It is simply a situation that has not ever taken place. 

Credit: Malakh Kelevra

So we can see now that this bill seeks to expand a procedure that has dubious reasons for existing: a wish by the executive and their security services to avoid future embarrassment, and a potential concern over an ally’s misconception of our justice system.

So what exactly is entailed by this purportedly necessary reform?  When enacted, a minister may require a judge to go into the closed proceedings, without press or public, to review evidence which may not be viewed by the claimant or the claimant’s legal counsel. 

This reform takes away the judge’s ability to make his own determination on whether the national security is at risk, or whether he can assess the impact the secret proceeding will have on the fairness of the trial.

A special advocate will be appointed in the closed proceeding for the claimant, but it is worth mentioning that even when discussing this reform among current special advocates, most of whom are appointed, there is strong criticism.  In essence, it shifts the system in these specific instances from an open adversarial system such as the UK normally enjoys to a secretive justice where all of the parties in the room are there at some level because of the executive’s instruction.  The QC, quite obviously for the government, the special advocate who has been appointed, and the judge who has been required to chair the proceeding.  None of these individuals are the claimant, and only one can even tenuously be linked to the claimant’s position in the court case.

How did we get here?

In part, this is not the fault of the executive.  In everything in life, we cannot place too much blame on the nature of the beast.  The executive takes its cue in no small part from the electing public.  We as the people who give our voices to the MP’s and the governing ministers must be willing to understand the tradeoff in a free society.  There is no free society that must not accept risk as the payment, and there can be no doubt that the government of the day is responding to a level of concern and fear that has allowed the balance between freedom and security to become tilted.  This shift has allowed a state of perpetual low level conflict, which we must stand guard against, for surely any time when a nation is in a perpetual conflict, bad decisions about security risk and freedom are bound to arise.  These bad decisions frequently result in the accumulation of security power in the state.

How can we stand guard?

The answer to that is oversight of the security services, in addition to being hesitant to adopt measures like CMP in greater amounts.  The security services are a necessity in the modern world, as they have been for time immeasurable, but effective and democratic accountability for these agencies is not a simple task. There is even a positive reason in addition to a negative reason for providing oversight.  It is generally accepted that responsible oversight of intelligence services provides for a higher quality of intelligence, which leads to a more effective and safer employment of the agency’s assets and abilities. For the reasons stated earlier, the executive and even the House of Commons is loathe to initiate new reforms into the oversight for fear of looking soft on terrorism and national security in the eyes of the public.  Interestingly, the House of Lords is a prime player in this interest to provide responsible and comprehensive oversight of the security services, in great part because of their insulation from the public pressures of being voted into office.

Reform is necessary in this process, as evidenced by the traditional oversight system, the ISC or Intelligence and Security Committee, which although not a Parliamentary committee is nevertheless made up of Parliament members, of houses of both Commons and Lords.  All these members were appointed by the Prime Minister, and their reviewing force traditionally did not extend to commentary on operations. They also have no powers to compel attendance or to investigate within the security agencies. 

In addition, all of their reports were vetted by the Prime Minister before being released, and these aspects of the committee have led to a belief among many that it is mere window dressing for the security services.  Indeed this belief was held out in part in the Binyam Mohamed case, where the ISC played no role in exposing the contribution of the British Intelligence, rather, the civil rights violations were discovered in trial by the courts.  Some sections of the Justice and Security Bill seek to redress this flaw in the committee, turning it into a joint Parliamentary committee which reports to them as opposed to the Prime Minister.  They would be empowered to look at operations as well as finances and administration.  While it still lacks some investigative specific powers and summons and it is still staffed by members appointed by the Prime Ministers, it goes at least part of the way towards providing oversight of the security services. 

To make it better, it should have wider legal powers and independent legal advice.  For further reading on this subject and on the problem of poor and even misleading intelligence reports as a result of failure to oversee, a good read would be the Butler Report which, among other things, discusses the failings in intelligence that led to the war in Iraq. 

A parting shot on oversight of the security services might serve to cap off this part of the discussion: 

When one head of the security services was discussing oversight and also the limitation of their powers, he was to have said “Without that power, we cannot guarantee to protect the public” to Lord Macdonald, and Lord Macdonald replied by asking, “Are you saying that if we do give you this power, you can guarantee that you can protect the public?”, to which there was no direct reply.  It illustrates the point made earlier; a critical understanding that we as the public must communicate to the government of the day that we are willing to accept a measure of risk to preserve the freedom and the democracy we enjoy today.

Taking the right path forward

We see in the discussion several areas of concern, with a few areas of hope.  It becomes obvious that there are some risks on the road ahead of taking the wrong path.  The nature of elected officials makes it difficult for them to stand on positions that seek to limit the power of security services and the government to pursue national security issues in secrecy, and in line with that, it is also much more difficult for a party in control to executive responsible oversight and fairness than it is for the opposition, who does not have the weight of national responsibility upon their shoulders.  People experienced in this discussion can also see the role that the House of Lords takes in advancing the concerns of civil liberties, and that in itself perhaps gives a strong argument to keeping the role of elections out of the House of Lords, in order to preserve a body that can address itself to these issues without the pressures of elections. 

We may also look to areas where the ECHR may conflict with the bill itself, which would serve to quash parts of it.  The requirements for “proper representation” may not permit parts of the CMP to survive review.  Ultimately, a multi pronged attack will need to be followed in order to preserve and even bring back some of the civil liberties now being threatened by this imbalance between the pressures of national security and civil liberties.  The populace must accept and communicate that acceptance of risk to their respective MP, the courts must continue their pursuit of the rule of law in relation to national security proceedings, and Parliament must make strong attempts to install comprehensive and fully empowered oversight over the security services.  If we can manage to succeed in those endeavors, the mission creep of secret justice can be rolled back, if not entirely averted.  It is a difficult path to walk, but one with the reward of robust freedom and democracy as a destination, and that is a road worth walking down.

Many thanks to Sean Knight, an LLB1 student at The City Law School, for reviewing the Martin Dockray Inaugural Lecture for those unable to make it on the night.