One-sided courts and secret law – David Howarth demolishes Tom McNally’s LDV article defending secret courts

David Howarth has posted an excellent article rebutting Tom McNally’s article on secret courts over on Lib Dem Voice.

It provides a useful summary of many of the biggest problems with the ‘secret courts’ proposals:

  • They lead to one-sided justice.
  • They don’t just cover cases where ex-prisoners are claiming financial compensation. Civil procedures are the base for a wide range of areas including judicial review and habeas corpus
  • Despite Government claims, under the current proposals, they will not be a last resort
  • They establish secret precedent and therefore – as a direct consequence – secret law.

To quote David:

The most fundamental objection is that they lead to secret law. Judgments in existing closed material proceedings cases (e.g. control order or TPIM cases) have passages that are only shown to the government and the special advocate (for an example see Secretary of State for the Home Department v CC and CF [2012] EWHC 2837 (Admin)). These cases create precedents that only the government can fully understand.

This is bad enough in the limited field of TPIMs, but the Justice and Security Bill threatens to extend secret precedent into the very heart of the law. Consider, for example, the torts of assault and battery and false imprisonment, torts on which our freedom from state oppression are built. The defences to these torts include necessity and self-defence. Those are precisely the defences that would be in issue in the most profound and difficult of cases, for example a torture and ticking time-bomb case or a case of holding a potential terrorist’s family as hostages. Are we really to have secret precedents in these areas of law? The very thought should make any liberal, or indeed anyone who believes in the rule of law, shudder.

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