Three of the country’s top judges are set to rule on whether secret evidence can be used by the Government in a damages claim being brought by six former Guantanamo Bay detainees.
The security services and Government want to use secret information in their defence at the High Court against a claim for damages for alleged complicity in the ill-treatment of the former detainees – Binyam Mohamed, Bisher Al Rawi, Jamil El Banna, Richard Belmar, Omar Deghayes and Martin Mubanga.
Dinah Rose QC, representing five of the six men, argued at a Court of Appeal hearing in March that the “closed material procedure” with specially vetted barristers was never designed for such civil actions.
She told the judges that using the procedure in damages cases was a “fundamental change” which could be made only by Parliament – “and by legislation in the clearest possible terms given its serious constitutional implications”.
The former detainees deny any involvement in terrorism and allege that MI5 and MI6 aided and abetted their unlawful imprisonment and extraordinary rendition to various locations around the world, including Guantanamo, where they say they suffered torture and inhuman and degrading treatment.
The intelligence services, Attorney General Baroness Scotland, the Foreign Office and the Home Office contest the claims.
The Master of the Rolls, Lord Neuberger, Lord Justice Maurice Kay and Lord Justice Sullivan will decide the issue of whether large parts of the security services’ and Government’s defence can be kept secret from the former detainees, their lawyers and the public.
Mr Justice Silber ruled in the High Court in November last year that there was no reason in law why the court could not allow a “closed material procedure” to be used in a claim for damages.
This would mean that the Government and security services would not have to disclose information to the claimants’ lawyers if they felt that doing so would damage the interests of national security, the UK’s international relations, the detection and prevention of crime, or was likely to harm the public interest in some other way. Instead, the material would be disclosed to “special advocates” – barristers who had been given security vetting and clearance.
Miss Rose said use of the procedure would mean that they would never know the case they were being asked to answer: “This is incompatible with the basic concepts of the civil trial.”