GOVERNMENT use of controversial new powers to hold civil cases in secret have raised fresh concerns after a high court judge ruled that a damages claim brought by undercover agent Martin McGartland, shot by the IRA 15 years ago, be heard behind closed doors. Furthermore, neither he nor his lawyers will have access to government evidence in the case.
McGartland, who worked for the Royal Ulster Constabulary and MI5, has been living in England under a false identity ever since his cover was blown in 1991 and he became an IRA target. Eye readers will remember he is suing the government for negligence and breach of contract, alleging he has been denied crucial medical treatment and support after he was nearly killed and left disabled. His full-time carer, Joanne Asher, is also claiming she has been denied support and respite, which has affected her health.
Closed material procedures
It is hard to see how McGartland’s care and treatment could ever be a matter of national security – any threat is surely to McGartland himself, and that horse has long bolted. Yet earlier this year Theresa May made a written application to the high court under the contentious “closed material procedures” (CMPs) in the new Justice and Security Act. She said she could not “confirm or deny” that McGartland was an agent because it would threaten lives and national security – a dubious claim given that McGartland’s story is the subject of books and films. In any case, his role has already been publicly acknowledged by the Home Office, Crown authorities, the police, MPs and the Bloody Sunday inquiry.
But Mr Justice Mitting said that because “sensitive material relating to the means by which protection can be afforded and the training of handlers” featured in the case, he was granting the home secretary permission to have a closed hearing in the interests of “national security”. Which, one might conclude, proves that which May wished to neither confirm nor deny – that McGartland was indeed an agent.
The judge said he had “principled and pragmatic” reasons for allowing the home secretary’s application. But McGartland’s solicitor, Nogah Ofer, described the ruling as “perverse”. She said McGartland’s case was no different to that of any other police informer given a new identity – when CMPs cannot usually be invoked. The case did not expose any aspect of undercover work and “sensitive” evidence could be dealt with by excluding press and public if necessary.
She told the Eye that the judge had deferred to unfounded claims of national security, and not even paid lip service to the principle of open justice or the right of a claimant to have sight of the evidence in his own case. Watch this space for the appeal.