This article originally appeared in VICE UK
The Investigatory Powers Tribunals (IPT) are the most secretive court cases in Britain. They are the only place you can go and complain if you think you're being illegally spied on by MI5, MI6, Government Communication Headquarters (GCHQ), or even by the police or local government. The only time they've actually found against the authorities was when Poole Borough Council spied on a family to see if they were lying about which school catchment area they lived in. Of course before you can make a complaint you have to somehow know that you're being secretly spied on, which is pretty tricky. Even if you do, the IPT most likely won't grant you access to the evidence against you, give you the right to cross-examine anyone, let you appeal or even tell you what their reasoning was when they hand down their verdict. Sometimes they won't even tell you whether you've won or not. Needless to say, they almost always meet behind closed doors.
That was until this year, when the IPT bowed to legal pressure and agreed to open its doors for a few select public hearings. Which is how I found myself at the Rolls Building in Holborn, London at 4:30 PM on a dreary Wednesday afternoon a few weeks back. The Rolls Building is a labyrinthine Ministry of Justice court complex which houses 31 courts and three "super" courts, but as you can see from this totally chill, deep house-soundtracked video, it's really just a rad place to hang out and lay down some justice:
When I arrived the security guards were in the process of turfing out the guy in front of me, telling him the building was closed. When I told them the name of the case I was visiting, and insisted that it was an open hearing, they allowed me through the metal detectors and I set off in search of Court 27.
It was an underwhelming find. The courts in the Rolls Building lack the history and grandiose formality of places like the Old Bailey. This was just a functional room with bright strip lighting, empty bookcases and too much formica. There's no public gallery, just a few stackable chairs stuck along each side. When I arrived they were all taken, so I stood quietly at the back until someone ducked out early for a pint and I stole his chair. There were maybe half a dozen journalists, including Ben Bryant from VICE News, and the same number of super keen law students. They're outnumbered by the number of lawyers and their advisors in the room—I make it 18 in all—making their case to a panel of three judges.
The IPT were hearing a case, brought by two Libyans, Abdel-Hakim Belhaj and Sami Al Saadi, accusing the British intelligence services of spying on privileged conversations that they had with their own lawyers. They're being represented by the legal charity Reprieve and the UK solicitors Leigh Day, who demanded that the intelligence services released their policies on whether or not they can use privileged information gathered through spying against claimants in court.
That Wednesday it became clear that the government was still stalling, so it ended up becoming an hour-long discussion about rescheduling—as if Google Calendars never existed. The judge ordered the intelligence agencies to hand over copies of their policies by 5 PM the next day, and put another date in the diary for the following Thursday morning.
There was still time for one big dispute, when it became clear that the government would not be producing the original polices, redacted where necessary, but rather new, retyped documents that make it impossible to see just how much they're keeping hidden. This is referred to as "gisting." Given that, "I'll just give you the gist of it," is the sort of thing that's barely acceptable to say to your boss if you haven't read an email properly, the idea that the government thinks this is an OK way to refer to court mandated legal documents is a tiny bit terrifying.
Dinah Rose QC, acting for the Libyans, told the judge she wasn't happy, so the Judge told the government's James Eadie QC to "bear that in mind." Eadie, the highly paid government litigation specialist who occupies a position known as the "Treasury Devil," simply leaned back and chuckled. Rose raised an eyebrow. "I can see him bearing it in mind, m'lud," she said.
When Thursday rolled around, there was a whole different vibe in the room. Reprieve knew they had a small victory on their hands—the revelation that intelligence agencies do indeed have policies on spying on people talking to their own lawyers—and even former Conservative minister David Davis turned up to watch proceedings from a little formica chair next to mine. It no surprise that he's interested in this case, given that Davis resigned and then re-won his seat in 2008 in protest at the erosion of civil liberties.
The intelligence agencies had acted like truculent schoolboys and only finally handed in their work at the last possible moment—some of it arriving 15 minutes before the hearing. No matter, thanks to the fact that this was a rare public hearing, as soon as the documents were referred to in open court they entered the public domain. It's through Reprieve's dogged pursuit of this case that we ended up with headlines such as "New Documents Reveal the UK's Policies on Spying on Attorney-Client Communications."
The really scary thing about Britain's secret courts is that these practices are only going to become more common. In 2013 the new Justice and Security Act rolled out something called "Closed Material Procedures" across the country's civil courts. The CMP codifies in law the ability of the government to talk shit about you behind your back in court without you ever finding out about it.
As the campaign group Liberty have warned, the government now has special access to judges to present evidence against you without telling the claimant what it is or even that they're doing it. The judges will examine this secret evidence in private and won't discuss it with you, even if it changes the outcome of your case. The fact that this is happening in secret is one issue here, but perhaps more importantly this is also eroding the idea of what lawyers call "equality of arms"—the legal principle that for a fair trial both parties should have equal access to the judge.
We're now a year on since the introduction of CMP, so at the end of July the Justice Minister Chris Grayling published an extremely short report seemingly designed to tell us as little as possible. We learn from the report that in five cases last year the Secretary of State showed judges secret, undisclosed evidence. Yet nobody knows what these cases were, and even charities like Liberty have been forced to admit they don't actually know which cases he's referring to. The government delights in obfuscation—yet if they've done nothing wrong, they have nothing to hide, right?
As we're currently seeing in the Belhaj case, the government isn't above hiding behind the cloak of national security whenever it has inconvenient information that it wants to keep hidden for whatever reason. As Dinah Rose QC told the court on Thursday, the government had said on three previous occasions that releasing those documents would "harm national security." This claim is now provably false, not just because the government eventually voluntarily released them, but also because now that we've been able to read them there is clearly, as Rose put it, "no conceivable way" they could harm national security.
These lawyers' battles in brightly-lit, nondescript rooms in Holborn don't make for the most exciting courtroom dramas, but they're the fights that will determine whether trials in British courts stay free. Before the Justice and Security Act 2013 were plenty of tools that previously existed in British law to protect national security where it was a genuine concern—like redacting documents, or appealing to judges to hold certain hearings behind closed doors. Closed Material Procedures tip this discretion away from judges towards the intelligence services. We now know from watching the IPT that those spooks will not resist the temptation to use that power to withhold information that is inconvenient to them.
Fair trials depend on open courts, and have been a cornerstone of the British legal system at least since Bentham wrote in 1834 that, "Publicity is the very soul of justice." Without them we could find ourselves condemned not just in ignorance, but in innocence too.
Follow Kevin E G Perry on Twitter.