Aisha Maniar, London Guantánamo Campaign, explains how the Government is planning new restrictions on civil liberties.

Just weeks after the May 2010 General Election, the Government announced a series of measures to “get to the bottom” of the rising tide of litigation and allegations that the British intelligence services had colluded in the torture and abuse of prisoners abroad. The two main limbs of this were the Detainee (or Gibson) Inquiry, which collapsed at the beginning of this year, and the publication of a Green Paper on justice and security. Published in October 2011, the Green Paper contained sweeping measures involving in particular the extension of closed material procedures (CMPs) already used at the Special Immigration Appeals Commission (SIAC) potentially to all civil cases.

A public consultation ended this January, yielding highly critical responses to the proposals and their stated purpose. Given the potential threat posed to the judiciary by these measures as well as the human rights implications, the parliamentary Joint Committee on Human Rights (JCHR) held its own inquiry.

Its report, published in early April, was damning of the Government’s plans, stating that they provide “no case for extensive change”.  It questioned plans to replace common law Public Interest Immunity (PII) certificates, issued by the courts on a case by case basis to determine whether or not disclosure of sensitive material should be made, with statutory closed material procedures (CMPs) such as those used at SIAC.

Having tried to do this in the case brought by former Guantánamo Bay prisoners against the Government for its alleged collusion in their torture and rendition (which formed the basis of the Government’s argument), the JCHR inquiry found that the Government had failed to demonstrate that there was any need to do so.

Some of the harshest criticism of the Government’s plans has come from special advocates, the security-vetted barristers who are used in such procedures and who are in a better position than most to understand the true implications of their use. The JCHR strongly endorsed their view that CMPs are “inherently unfair”. The JCHR also dismissed the Government’s proposals for CMPs to be extended to inquests – the Government’s third attempt to do so over the past decade.

In spite of this barrage of criticism and opposition from all quarters, the Government is seeking to press ahead with its plans. Circumventing the White Paper stage which usually follows, the Justice and Security Bill was announced in the Queen’s Speech. On the date of publication of the JCHR report, Deputy Prime Minister Nick Clegg belatedly called for a rethink of the plans. However, whether he and the Lib-Dems will oppose the plans in Parliament remains to be seen.

One of the key criticisms of the plans is the Government’s sincerity in its alleged desire to protect national security and the public interest: many have accused it of acquiescing to the demands of the intelligence services and foreign intelligence agencies, such as the CIA. The proposals would put British intelligence above accountability and scrutiny and assign the powers of the judiciary to the very ministries likely to be under investigation.

During the JCHR inquiry, it was revealed that there are potentially 27 similar cases in which such measures could be used if the Government is allowed to. While offering protection to the Government and its friends, it renders the claims of crimes against humanity brought by the claimants ineffective, as the truth and justice they are seeking will be muted in the alleged interest of national security.

As cases at SIAC have demonstrated over the past 15 years, while it is a delicate balancing act between national security and sensitive material, secret evidence is really no evidence at all. The serious allegations made will not be addressed and, as stated by the JCHR chair Dr Hywel Francis MP, the proposals overall are a radical departure “from our longstanding traditions of open justice and fairness”.

Human rights and legal NGOs who have already put up stiff resistance to the plans will continue to oppose them as they pass through Parliament. At a parliamentary meeting in March held by several organisations, many MPs from across all parties attended to express their dismay at the proposals. What opposition they put up in Parliament remains to be seen once the Bill is published.