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Consider the following example of how this might work in practice: a decorated NCO has his legs blown off in Afghanistan whilst using allegedly faulty MOD equipment. He sues the MOD for negligence. The MOD claims that the design and safety record of the equipment is national security sensitive. The MOD applies for a secret hearing of the case. The judge is obliged to grant it. The NCO and his legal team are unable to challenge effectively the MOD evidence and the judge is persuaded by the MOD case. As a result, the NCO never knows why he is denied compensation.
Just before Christmas, the House of Lords passed several amendments to the Bill which the Coalition now claims have rectified the faults in the original Bill. But Tyrie and Peto show that serious flaws remain. In particular, they stress that:
– Secret courts should be a last resort; a judge should have to exhaust the possible uses of the existing system of Public Interest Immunity (the current method for handling security-sensitive information in court) before considering the use of secret courts;
– The courts should still be allowed to hear ‘Norwich Pharmacal’ applications. These seek the disclosure of information held by UK authorities, in cases deemed to be ‘sensitive’. This was the principle used by Binyam Mohamed’s lawyers when he was contesting charges that could have resulted in the death penalty. Removing it will make it harder to uncover official wrongdoing in matters such as extraordinary rendition
– There should be a five year ‘sunset clause’ on the part of legislation that deals with secret courts;
– Proposals to reform the Intelligence and Security Committee should be strengthened, and its Chairman should be elected, subject to a Prime Ministerial safeguard, by secret ballot of Parliament, as recommended by the Wright Committee in 2009.
Yes, the intelligence services do a vital job. Yes, they are doing it in very difficult circumstances. Yes, they deserve our full support. But secret courts and ever-tighter restrictions on the disclosure of information in cases deemed ‘sensitive’ will damage Britain’s system of open justice and the reputation and effectiveness of the security agencies in the struggle against terrorism.
Tim Knox is Director of the Centre for Policy Studies.
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