This morning a case will come before three appeal judges in London in which seven men are seeking damages against the government for mistreatment during what they say was their "extraordinary rendition" and torture facilitated by the British security services.
The men include former Guantánamo Bay detainees Binyam Mohamed and Moazzam Begg. But the government is seeking to have the case held in secret, less than two weeks after the court of appeal ruled that seven paragraphs of secret evidence in the case of Mohamed should be made public.
Lawyers for the men say that if successful, the government's application would extend closed proceedings into findings of fact in the civil courts for the first time.
"This would set a very serious precedent," said Louise Christian, a partner at Christian Khan who represents Martin Mubanga, one of the claimants, who was also detained at Guantánamo Bay. "If you allow evidence in ordinary civil cases to be kept secret, there is no doubt it will be endlessly used by the government. As the Binyam Mohamed case illustrated, this is really about the government avoiding embarrassment for the reality of their collaboration with the US and all that happened, rather than any real national security issues."
The claimants have never been charged with an offence and are pursuing a claim for a range of civil wrongs including torture, false imprisonment and misfeasance in public office.
Last month the court of appeal heavily criticised the security services in a ruling in Mohamed's case. Publicising their judgment after an attempt by government lawyers to have damaging remarks about the security services edited out, three of England's most senior judges said British agents "appear to have a dubious record when it comes to human rights and coercive techniques".
The government responded furiously to the comments, and to the court's decision to release the seven paragraphs, which it said had damaged intelligence-sharing with the US.
But today lawyers for the men bringing the civil claim will argue that the attempt to hold an entire damages case in secret goes far beyond any previous rulings. The government applied to have the case heard behind closed doors last July, when lawyers for government bodies including MI6 the Secret Intelligence Service, the Foreign Office and the attorney-general, argued that more than 250,000 documents would have to be provided, more than half of which were marked "secret", and disclosure would take up to 10 years.
If successful, the application could open the way for a range of civil claims to be held in private using a system of "special advocates" – specially vetted lawyers appointed by the court – who would not be able to discuss the case with clients
"This would have serious implications for other actions against the state, such as civil actions against the police or immigration services where they are accused of breaches of human rights or unlawful detention, actions against police usually about assault and imprisonment," said Christian. Experts are describing the attempt as a challenge to open justice – a central principle of English law strengthened by the European convention on human rights, and to the adversarial nature of English trials, which dates back to at least the 13th century.
The claimants will argue that such changes would have to be approved by parliament, with strong safeguards in place. Lawyers also say the case would have drastic implications for the rest of the UK's legal system, creating "severe practical difficulties," because they would be unable to advise clients or reach settlements out of court. Concerns have also been raised that English common law – which depends on precedents from previous cases being followed by lawyers and judges – will be unable to develop if hearings and judgments are kept secret.
Last November the high court judge Mr Justice Silber said the government could have the case heard in secret, stating that the court had the power to order a closed hearing because of the scale and complexity of the case, and the "high proportion of very sensitive material".
The government will defend that decision today, and denies that the attempt to have the case heard in secret was part of a cover-up. "The government is not seeking to cover up information or relevant material in these cases. Quite the opposite," a Foreign Office spokesperson said. "We applied for a closed procedure so that the court will be able to fully consider the large volume of relevant material already identified that cannot be disclosed openly without a real risk of causing substantial harm or real damage to the public interest."
But today lawyers for the men bringing the claim will argue that Silber's judgment was "founded on a misunderstanding"."Allegations of collusion in torture and extraordinary rendition are some of the most serious that could possibly come before a court and the government," Christian said. "The court is very aware of the tactics in trying to avoid proper disclosure in these sorts of claims."
Th Guardian
