10:02, July 12 174 0 theguardian.com

2020-07-12 10:02:04
Ex-Tory whip calls for start of delayed review into secret courts

A former Conservative chief whip is demanding that the government implements an overdue review of secret courts, warning that they are being used to “hide embarrassing evidence of state wrongdoing”.

Andrew Mitchell has written to the justice secretary, Robert Buckland, asking to start the assessment, which is two years late and was promised at the time the controversial system was introduced in 2013.

“Open justice is a fundamental part of the UK’s constitution and its heritage,” the backbench MP writes. “I am concerned that the proliferation of secret courts within the legal system threatens to undermine the foundations of British justice.”

The intervention comes a fortnight after a court ruled that a legal challenge brought by two MPs and a human rights group into the involvement of British intelligence in torture and rendition must be heard in secret.

The Conservative David Davis, Labour’s Dan Jarvis and the charity Reprieve are seeking a judicial review of the government’s decision to ditch a promised judge-led inquiry into potential human rights breaches during the “war on terror”.

During an initial hearing it emerged that 15 potential cases of abuses may exist, but a court ruled in late June that a final hearing had to be heard in secret for national security reasons, with even the MPs and charity not allowed to be present.

A secret review undertaken by MI6 for the former prime minster Theresa May concluded that “none of these 15 cases presents an extant and unmet investigative obligation” – a form of words that does not rule out torture or rendition involving British intelligence.

Citing the case, Mitchell argued that the government should be “independently and transparently investigating these cases” about which little else is known, and complained it amounted to a constitutional abuse.

“Secret courts create a Kafkaesque procedure in which the government presents evidence which the individual can only challenge through a ‘special advocate’ with whom they are not even allowed to communicate,” he wrote.

Mitchell was a cabinet minister at the time the justice and security bill to implement the current secret court system was introduced in 2012, and said he should have listened to those who complained the system was unfair. “The government was warned of the dangers of these courts when introducing these changes, and I regret that I did not heed them at the time,” he admitted.

According to the most recent figures available in the year to June 2018, ministers applied to have crucial evidence heard in secret 11 times, a record. Although the number of cases are small, they are used in the most politically sensitive proceedings.

The review of the system was required by the Justice Security Act, five years after it became law in 2013. But Mitchell wrote that the government has been “unable to point to any steps it has taken” to introduce the required assessment, and complained that MPs had been fobbed off with promises to act “in due course”.

Dan Dolan, deputy director of Reprieve, said: “The use of secret courts has mushroomed since their introduction, and they are clearly being used in inappropriate ways such as sparing the government’s blushes around UK involvement in torture.”