10 April 2012

Proposals for secret courts and internet spying in the UK reflect worrying trend

The United Kingdom is considering proposals that would allow secret court hearings in intelligence-related cases and extend state surveillance of citizens on the internet.

If the proposals become law, security and intelligence ministers will decide what materials can be concealed from the public, the media and even claimants during civil trials. These ‘sensitive materials' would only be shown to lawyers known as ‘special advocates' who could not discuss the content of the materials with the claimants or their lawyers.

These extensive ministerial powers to decide what could and could not be seen by those suing the government would not be subject to ordinary judicial review, a judge could only overrule the decision of a minister to keep a document secret if the minister was acting ‘irrationally' or ‘disproportionately'.

Ultimately, if introduced, the process would allow the government to use evidence against citizens that they cannot see or challenge; against the fundamental principles of the rule of law.

At the same time the government is proposing to broaden the powers of the intelligence services to monitor ordinary communications of the public; permitting the government to monitor the public's emails, phone calls and social media communications.

These proposals are part of a worrying trend toward secrecy across many countries, including in South Africa where the Protection of State Information Bill (commonly known as the secrecy bill) and the General Intelligence Laws Amendment Bill (commonly known as the spy bill) threaten to diminish the hard-won right of access to information.

The amendments proposed for the monitoring of citizen electronic communications in the UK are similar to that currently being proposed in the South African spy bill, which threaten the privacy of ordinary citizens. SAHA has made submissions to parliament opposing the spy bill in respect of both this privacy threat and the failure to provide for the transparency of the intelligence services within the bill.

Thankfully at this time South Africa has not made any proposal for the introduction of ‘secret courts', however, with the current trend of secrecy in the country one has to wonder whether it is far from the mind of our government.