The claim

“The Bill…ensures that no evidence given openly in court at the moment can be given in secret in future.”
Kenneth Clarke unveiling the Justice and Security Bill, 29 May 2012


The background

Justice Secretary Kenneth Clarke says his new Justice and Security Bill is firmly in the public interest.

Under current laws, he says, the government has its hands tied when faced with allegations that intelligence agents have been involved in the mistreatment of terror suspects.

Fears that disclosing evidence in open court would damage national security have led to the state paying out millions in out-of-court settlement instead of fighting cases.

But that’s all set to change under plans to let judges hear secret evidence in closed trials.

Mr Clarke says the reforms will save the state millions and make it easier to hold rogue agents to account.

After a campaign led by the Daily Mail, he’s agreed to drop plans for secret inquests – pleasing some of his critics who feared the British tradition of open justice was under threat.

But FactCheck wonders whether the publicity surrounding that concession might be deflecting attention from what else is in the bill.
The analysis

Buried at the bottom of today’s Ministry of Justice press release announcing details of the bill is a footnote which says that one specific legal order will no longer apply.

Known as the Norwich Pharmacal order, it was used to demonstrate that Guantanamo Bay detainee Binyam Mohammed had been tortured while being held by the US authorities – and that MI6 knew what had happened.

The order came into play well before the war on terror – it was first used in 1974 in a case over chemicals. The House of Lords said that where an innocent third party had information relating to unlawful conduct, a court could compel them to assist and release that information.

In Binyam Mohamed’s case, the legal charity, Reprieve, applied for the British government to release correspondence with the US to his security-cleared lawyers to defend him at Guantanamo Bay.

The government fought the case, saying they couldn’t release the documents for national security reasons, but judges said the government had been involved in wrongdoing and ordered the release of the documents.

Under the new system, his lawyers would not be able to get access to them, as the government is getting rid of the Norwich Pharmacal order in cases where material comes from the intelligence agencies or where it “would cause damage to national security or international relations”.

Professor Paul Craig, of the University of Oxford, said: “The reality is, if you’ve applied for Norwich Pharmacal in the past…it couldn’t be used as we go forward. If you’re trying to bring a Norwich Pharmacal action in future, and if you’re trying to get material disclosed, you’re going to fail.”

Not only would Binyam Mohamed’s lawyers been denied access to vital evidence, it’s unlikely that the public would ever have heard anything anything about the judge’s ruling.

In Mohamed’s case the judge was able to release a redacted statement revealing evidence of “cruel, inhuman and degrading treatment” by US agents, under the public interest immunity order.

The new bill will replace that with the Closed Material Procedure – under which the secretary of state can keep the details of the evidence secret if they say its disclosure risks national security.

“It’s the secretary of state that holds the initial trigger for that gun,” Professor Craig said.

If a judge agrees that the evidence breaches national security, he or she can make a judgement without the complainant or the press ever seeing it, although a special advocate may see it on the victim’s behalf.

Cori Crider, legal director of the secret prisons team of Reprieve, said: “In public interest immunity, you can get redacted versions or a gist. Here, it’s likely you are not going to get anything.”
The verdict

Based on what FactCheck’s been told, we’re not convinced that Mr Clarke’s right when he says “The Bill…ensures that no evidence given openly in court at the moment can be given in secret in future”.

We’ve been told by a number of sources that evidence of Binyam Mohammed’s mistreatment wouldn’t have seen the light of day had the bill been in place at the time of his court hearing. His lawyers wouldn’t have had recourse to the order which allowed it to emerge.

Instead, the government could provide evidence which may have detailed his mistreatment in private, and it would have been ruled upon in private – if the judge had agreed it would damage national security.

There would also be little chance of any redacted evidence being released to the courts because the secretary of state would decide in advance that it can only be heard in secret, and the judge can only decide whether to withold it or to release it.

FactCheck asked the Ministry of Justice to comment on this position. A spokeswoman said: “Reforms to Norwich Pharmacal will not alter the evidence that is considered during court proceedings.”