Secret courts consultation is a cover up

'Nothing is so beautiful as spring '“

When weeds, in wheels, shoot long and lovely and lush;

Thrush's eggs look little low heavens, and thrush

Through the echoing timber does so rinse and wring

The ear, it strikes like lightnings to hear him sing.'

Gerard Manley Hopkins - Spring

There are words which lift the heart with their beauty; words which educate and inform; words which console and clarify; words which work honestly for truth and virtue, words which rouse body and spirit to do good and think right.

And there are sneaky weasel words which would, if they were people, smell bad and steal your purse. Gerard Manley Hopkins' love song to spring is at the top end of that literary spectrum, and this is heading towards the other: 'How can we best ensure that closed material procedures support and enhance fairness for all parties?'

Check out the buzz words: 'we' is there to imply consensus and community; 'Best ensure' suggests good faith; 'Support and enhance' is tree-hugging psychobabble with the added demerit of sounding like an advert for a cheap PIP implant; and 'Fairness for all parties', in the context of the question, is the very opposite of what it says.

The context is the justice and security green paper published last year, for which consultations have now closed (https://consultation.cabinetoffice.gov.uk/justiceandsecurity). The measures proposed in the green paper include extending closed material procedures into all civil litigation "in which sensitive material is relevant". Closed material procedures (CMP) is the highly contentious and litigious method of dealing with material thought to be risky to national security that can be summed up very shortly indeed: secret courts.

CMP was introduced in 1997 when the Special Immigration Appeals Commission (SIAC) was created, in itself a response to the judgment of the European Court of Human Rights in Chahal v UK. Chahal challenged the then entirely secret and closed procedure of deporting people felt to be a threat to national security. SIAC and CMP was an enforced backing off from total secrecy into near total secrecy: "fairness to all parties" does not even come close, however hard those weasel words work.

Hands tied

Specialist advocates (SA), instructed for the defendant in the limited number and type of cases where the procedure applies, have a truly tricky job. They have to act in their client's best interests with one limb tied behind their back. Not one, nor two, but several limbs tied behind their backs. The normal procedure for dealing with sensitive information is public interest immunity (PII), which in criminal cases involves the crown giving the judge sensitive information so that he can assess whether this is so relevant to the proper conduct of the defence case that it has to be disclosed. The defence barrister is excluded from court when that material is discussed, but allowed in to forage about in the dark, hoping that something he or she says will trigger disclosure.

The good thing about PII is that a judge can order it is disclosed to the defence if fairness requires that. If the crown don't want to disclose it, they drop the case. It is put up or shut up time.

Secret material under CMP on the other hand is never disclosed to the defendant. The SA, once they see the material, is not only not allowed to disclose it to him but is not allowed to even speak to him at all without specific court permission. No instructions, no ability to challenge '“ and the material can be relied on for the judgment the government seeks.

And the government wants to extend this system into any civil litigation where, in the opinion of a secretary of state, there is sensitive material which might cause 'damage to the public interest'. How is that defined? Public interest is not the same as government interest, however embarrassing to the powerful disclosures of cockups or conspiracies might be.

Inquests, actions against the police, criminal cases involving informers, claims against the state for cover ups or oppressive behaviour '“ all under threat that secret, hidden, unchallenged 'evidence' might be used to defeat just claims.

Enhancing and supporting the fairness of that procedure is some trick. The special advocates responded to the consultation in robust terms: CMP is not fair to begin with, it undermines public justice, and departs from the foundational principles of natural justice '“ there is no reason whatsoever to extend it as proposed. Their full response is essential reading, and a summary cannot do justice to it: will the people who really know how this dangerously illiberal system purports to work be listened to at all? Imagine if their words rinsed and wrung the ears '“ let us all hope for lightning.