It is often said in jest that justice in the UK is open to all, just like the Ritz Hotel. The irony, however, is not lost on those loitering in the bowels of Britain’s ‘secret justice system’. A legal system that was once the envy of the world is fast losing plaudits as the government continues its assault on some of the most basic principles of justice. The highest Court in the land has launched a scathing attack on the Government’s use of secret justice, describing it as ‘not justice at all’.
The past decades have seen some notable miscarriages of justice. The ‘Birmingham Six’; the Hillsborough Disaster and the racially motivated murder of Stephen Lawrence all stand out as ugly stains on the reputation of British justice. In a direct challenge to the Magna Carta, Guardian v AB and CD threatens to set a precedent for further miscarriages of justice. The case of two men known to us only as AB and CD was held behind closed doors; the first secret trial in British history. The Justice and Security Act, passed last year, already allows for the use of ‘closed material procedures’ to be extended on the dubious grounds of national security, clearly violating the key principles of natural and open justice. “Not only must Justice be done; it must also be seen to be done” is a legal maxim that may soon be confined to the corridors of British legal history. Dark days lie ahead for British justice. Miscarriages of justice may no longer be the exception but the norm.
Another deeply worrying attack on the rule of law is the use of the Special Immigration Appeals Commission (SIAC), arguably the most unjust and unfair court in Britain. As well as using secret evidence that is not disclosed to the defendant, SIAC reserves the almost tyrannical power to deport foreign nationals on spurious grounds of national security despite them being previously cleared of wrong doing in an ordinary criminal court. Its proceedings have rightly been described as ‘Kafkaesque’ by the joint committee on human rights. With the same exclusive access to secret evidence, the Home Secretary also has at her disposal the controversial use of Terrorism Prevention and Investigation Measures (TPIMs), which include restrictions on overnight residence, travel and finance. The door to justice is slammed shut and fundamental tenants of the rule of law violated when forced to defend your liberty in such iniquitous circumstances. One is reminded here of Benjamin Franklin’s immortal phase; ‘He who would put security before liberty deserves neither.’
Britain’s secret justice system also brings into considerable disrepute the cardinal rule of law principle that all are equal under the law. ‘Let no one be in any doubt, the rules of the game are changing’, Prime Minister Blair warned ominously in 2005. He was not bluffing. No longer are we all subject to the same laws of justice. ‘Non-citizens’ are vulnerable to having their due process rights trampled on in the name of anti-terror laws. Clive Stafford Smith has described the Home Secretary’s rendering stateless terror suspects as the most ‘pernicious’ of all counter terror policies perused by governments either side of the Atlantic. Relying again on secret evidence that the defendant is unable to access, the Home Secretary often waits for the targeted individual to leave the country before revoking citizenship. Leading human rights lawyer Gareth Peirce has likened this process to ‘medieval exile’. Along with their citizenship and identity, their rights as citizens of Britain – including due process and the presumption of innocence – are also revoked. Stripping citizenship from individuals and rendering them stateless thus makes their assassination at the hands of American agents less politically complicated. The policy director of Liberty, Bella Sankey describes the citizenship-stripping policy as ‘lawless’ and a hallmark of ‘oppressive and desperate regimes.’ Once stateless and a ‘noncitizen’, all rights owed to the individual by the state are dissolved and they become fair game for American drones.
From Guy Fawkes right up until the troubles with Irish Republican Army (IRA), Britain had always treated terrorist violence as a civil emergency rather than an out-and-out war. As a result, due process and the rule of law were (somewhat) respected. A potential terrorist, under a criminal model based on justice and due process, is treated as a criminal suspect and therefore subject to criminal law. A potential terrorist, under a security model based on fear and suspicion, is treated as a war criminal and therefore subject to much harsher laws with lower standards of proof. Professor Conor Gearty has described the post 9/11 supersession of the former model by the latter as ‘the single greatest disastrous legacy of the war on terror from a human rights point of view.’ Fundamental and basic legal principles like the right to a fair trial and the presumption of innocence are being violated as a two-tier legal system emerges seemingly designed to victimise Muslims in Britain. Britons are being detained unlawfully without charge or trial; stripped of their nationality and smuggled out of the country through secret Immigration courts.
‘One of the most dangerous temptations for a government facing violent threats is to respond in heavy-handed ways that violate the rights of innocent citizens. Terrorism is a criminal act and should be treated accordingly – and that means applying the law fairly and consistently.’ These were the words of US Secretary of State Madeleine Albright on 17 April 2000. Drone warfare, crippling economic sanctions and extraordinary rendition have since become the hallmarks of the US’ belligerent flouting of the rule of law on the international stage. Britain has chosen instead to tiptoe around the rule of law and due process by prioritising draconian security measures over civil liberties. The guiding principle behind the Government’s counter terrorism efforts has been Cicero’s phase: ‘Salus populi suprema est lex’ (the safety of the people is supreme law). Tony Blair described it as a ‘dangerous misjudgement’ to put civil liberties first. To do so was ‘misguided and wrong’. Rights and liberties that were fought hard for throughout history are under serious threat as the State, exploiting the often illusory threat to national security, usurps more and more power.
As an overbearing executive, then, encroaches further and further into judicial territory, we are forced-fed the same efficacious lies about how there is an exceptional need for ordinary justice to be suspended in order to avert the threat of global terrorism. Our movements are monitored by an invasive government; ‘for our own good’, we are told. We need not worry about having our emails read by the Security Services; if we are innocent we have nothing to fear. Mothers are requested to spy on their sons; doctors on their patients. Justice is supposedly dispensed behind closed doors as the Government deals fatal blows to a legal system that once produced the Magna Carta. Is this the new face of justice in Britain?
Syed Aun Mohammed 