A response to Julian Huppert’s analysis of the Justice and Security Bill
We learned on Wednesday this week that the Justice and Security Bill is being rushed into Report Stage in the Commons. The government has now published its latest proposed amendments to the Justice and Security Bill. Astonishingly I have been told that Conservatives are saying the Bill has been moved forward to conclude in the Commons on 7th March to avoid a further motion at our Spring Conference.
Julian Huppert and Mike Crockart worked very hard during the Committee stage of the debate, and voted (supported by Labour) to defeat secret courts when their attempts at amendments were unsuccessful. Yesterday Julian wrote about his views of the Bill. I disagree with him about the current shape of the Bill, about the reasons we have opposed it for the past year, and about what should happen now.
As a starting point, the autumn Conference decision to oppose secret courts specifically and to call for the withdrawal of Part II generally was not based on the lack of safeguards within the legislation. The rejected amendment proposed by party leaders was about safeguards and last resorts. For Liberal Democrat members the issue was one of our core values trampled upon by this Bill and we voted against it entirely on that basis. I would suggest Julian is wrong to hint that this Bill might ever be in any way acceptable to the Liberal Democrat membership.
Current position
The last set of government amendments removed the following sensible and clear safeguards which were passed with overwhelming majorities, by the Lords after the JCHR report recommended them:
- That Judges should refuse CMP’s where the public interest in the fair and public administration of justice outweighed the likely damage to national security.
- A provision that CMPs should be a measure of last resort.
- That the judge must first consider PII before ordering a CMP.
- That the citizen must have the same right to apply for a CMP as the State.
The position now is no different, save that it appears that CMPs may now be made available on the same terms for any party. This is welcome but does not make this is anything other than a bad Bill.
A new government amendment (in clause 6(7)) appears to give the government the ability to rely upon evidence not relevant to the proceedings as the basis for its application for a CMP (closed material procedure – or secret court). This is shocking.
It is essential that our MPs vote the right way on this Bill. Labour’s position is hardening after months of dithering. It is unimaginable (isn’t it?) that we would vote to the right of Labour on an issue of civil liberties. Principled Conservatives and some nationalists are also voting against this Bill. Amendments have been tabled by MPs from other parties which delete Part II altogether. Are our MPs going to find a red line?
To respond directly to Julian’s points from his post yesterday:
PII / last resort
The government amendment to the Bill does not require a judge to consider whether the PII process is more appropriate. The only thing it requires is for a judge to be satisfied that the Secretary of State has considered whether PII should be used. This is not using CMPs as a last resort or anything close to it.
The Joint Committee on Human Rights called for the use of CMPs to be as a “last resort” in both of its reports. This safeguard has been deleted from the Bill and must, if nothing else, be restored. The government say this measure is only for an exceptionally small number of cases – so then the last resort provision should be stated on the face of the Bill.
The “Wiley test” – the balancing exercise of the public interest in protecting national security and the public interest in the open and fair administration of justice – has been removed and must be restored. Again this is one of the JCHR recommendations. Judges are well used to having their decisions guided by statute. If this is what the government intends by the Bill again it should say so, both at the point of deciding whether a declaration permitting a CMP should be made (section 6), and at the point of the proceedings when the use of a CMP has to be considered specifically (section 8).
Review “every five years” ?
There is no commitment to a review of the legislation every five years. By the government’s new clause there would be a review once, five years after the Bill is enacted. There is no provision for review after that. Given the extremely serious implications of this Bill, at a minimum there should be an annual sunset clause. The JCHR called for the Act to lapse every year unless parliament decides to renew it. That would ensure proper scrutiny of legislation with such far-reaching constitutional effects.
Return to open court provision
This is a welcome change, but is not the same as retaining the principle of open justice and the ability to know the case one is facing. In other words, the fair trial guarantees that have existed in our legal system since the Civil War.
Conclusion
The Joint Committee on Human Rights reported again on 28th February 2013. The Report reminds the reader that “In our first Report we were unpersuaded that the Government had demonstrated by reference to evidence that there are a significant and growing number of civil cases in which a closed material procedure (“CMP”) is essential for the issues in the case to be determined.” This remains the case.
As the Special Advocates (the security cleared lawyers who work in secret courts that exist in very limited cases) said in their paper to the JCHR we “reaffirm our view that no compelling justification for the proposals in Part 2 of the Bill has been made out”. They reiterated “CMPs are inherently unfair” and that there is “No case for CMPs”.
Julian Huppert is right to say that the Bill is not one we Liberal Democrats would want. We didn’t before and we don’t now. It was not part of the coalition agreement, was not in any party’s manifesto and it is not necessary. It runs contrary to Liberal Democrat core values which prompted most of us to join the party and become involved with campaigning. Our parliamentarians must lead the fight against this Bill, as we would be in opposition, before it is too late. Currently some parliamentarians’ reaction appears to be “We’ve done all we can.” I respectfully disagree with this. To me, it seems the most parliamentarians can do, and what we are entitled to expect, is to vote against this Bill.
The Justice and Security Bill was, is and will always remain a bad Bill. No amount of amendment will make it anything other than a full assault on fair trials in this country. It must be defeated, and we are watching Liberal Democrat parliamentarians, including Mike Thornton, to see they do everything they can to defeat it at every opportunity.
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66 Comments
as I said the other day, while I absolutely respect all the efforts Julian and Mike have made, we will end up with a law we don’t agree with – but because of our efforts to water it down from where it started, one we are seen to own . It’s the NHS bill all over again http://aviewfromhamcommon.blogspot.co.uk/2013/02/what-worries-me-about-revised-justice.html?m=1
We must reject Part 2 of this bill.
So who’s forcing the Liberal Democrats to vote for this bill? This is supposed to be the party of personal liberty, isn’t it?
what Richard said
There is no way that LibDems can realistically expect to be elected into government if they refuse to address difficult issues of national security. The electorate receive regular news of someone somewhere plotting some outrage in the UK, and there is memory of the London bombings and riots, for example, and of how Northern Ireland used to be. There are some bad people in this world, and some of them are in or from the UK.
Section 1 of the Bill sets up a parliamentary oversight committee (the ISC) that is to be composed of nine members appointed from the House of Commons or Lords. This does give the opportunity for review – and at even more frequent intervals than one year. Section 2 does not exclude the operation of CMPs from the committee’s review functions. Section 3 of the bill ensures that the committee must report to Parliament annually.
Can we not trust judges in the UK to make proper legal judgments on difficult issues? Section 6(6) means that a court will only be able to authorize CMP if it considers that to be the way to administer justice fairly and effectively. Does that not in effect require judges to consider the first three issues – public interest, last resort, and the PII alternative? Is there provision to challenge their decision? Section 7 requires the court to keep the matter under review.
“Julian Huppert is right to say that the Bill is not one we Liberal Democrats would want.”
This discussion is getting surreal.
PLEASE can someone explain why, if the Liberal Democrats do not want this bill, they are going to vote in favour of it? It’s not as though it’s in the Coalition Agreement. If anything, it contradicts the commitments to civil liberties in the coalition agreement. So why?
It does seem that whilst 1000s of party activists were giving up their time to go to Eastleigh (and in part ensuring that Nick’s leadership doesn’t go further into the brown stuff) Nick was discussing how to bring this bill forward so the party couldn’t discuss it further at conference.
Richard wrote: “There is no way that LibDems can realistically expect to be elected into government….”
If you’d just stopped there, Richard, you might have had an intelligible thesis. Instead you’re arguing for policies based on fear and emotional reactions to “someone somewhere committing some outrage”. “There are some bad people in the world…” Yes, and that’s why there exists a system of laws and regular courts to deal with them. There is no reason to establish a parallel system which arbitrarily deprives defendants of many of their rights. The existing system is perfectly adequate — unless all you care about is quick convictions without having to bother proving a case.
“Can we not trust judges in the UK to make proper legal judgments on difficult issues?”
The whole point of this bill is to skew the court in favour of the prosecution. Even judges cannot be expected to be impartial when they are only getting one side of the story.
David, you appear to be technically incorrect. Section 6(6) requires judges to make a decision on CMP based on fairness and effectiveness of justice. Isn’t one of the requirements of fairness that those in judgment be presented with all relevant sides of a story? So your objection does not stand – the judges have to satisfy themselves that that is so.
Unlike many bills, the Justice and Security Bill is quite easy to read and understand. The full text is here
http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0134/cbill_2012-20130134_en_1.htm
David & Richard. This bill only relates to civil proceedings so I’m not sure where talk of bombings and outrages or skewing toward the prosecution come in.
It was not thought necessary to introduce such measures to protect national security at the height of the 1970s mainland bombings, after 9/11 or after the 7/7 bombings when the Government of the day brought in new (and some would say draconian) legislation.
“It was not thought necessary to introduce such measures to protect national security at the height of the 1970s mainland bombings, after 9/11 or after the 7/7 bombings when the Government of the day brought in new (and some would say draconian) legislation.”
I don’t think anyone (or anyone who knows what they are talking about) is claiming this has anything to do with national security. The purpose is simply to enable to government to win more civil actions. It’s about saving money.
I should not have said “prosecution”, but rather, whatever side the government has an interest in. The fact remains that the proceedings are skewed against the side that cannot examine the evidence.
If certain evidence — or what is claimed to be evidence — is available only to the judge, and one side is not permitted to know what it contains or challenge it, then it is impossible for the judge to render a fair decision, because he or she cannot know what that side might say to explain or refute it.
Well in that case, David, Section 6(6) sorts it out, doesn’t it?
Is this bill about bringing our response to security issues into line with a system of justice? Is that why it is called the Justice and Security Bill? Some of the activities that this bill addresses would presumably include planning a bombing campaign, assembling materials, etc? Would it not be irresponsible to pretend that these activities are innocuous?
Those acts are already offences – besides coming under more general things like conspiracy to murder they are covered by specific offenses of planning or possessing materials preparatory to an act of terrorism – see Terrorism Act 2006.
Richard, you are wrong I’m afraid. This Bill is absolutely nothing to do with the criminal activity you list in your final comment here. This Bill is about victims of torture, kidnap, negligence of the armed forces being able to bring an ordinary civil claim. Clause 6(6) is not the answer to this point. It is a subversion of a test in an earlier version of the Bill which required the judge to balance “the fair and open administration of justice”. You will note the crucial change in the removal (by the government amendment) of the word “open”.
As for your point about clause 6(6) “Does that not in effect require judges to consider the first three issues – public interest, last resort, and the PII alternative?” The answer to that is “No it does not.” Don’t take my word for it. The Joint Committee on Human Rights (which is made up of representatives from both Houses and from all main parties) said on 28th February 2013 :
“10. The purpose of our recommended amendment inserting the Wiley balance [this test balances the public interest in fair and open administration of justice against the public interest in the protection of national security information] into the Bill was to ensure that the court considers the public interest in the fair and open administration of justice when deciding whether to order a CMP. In our view, that purpose is not served if the Bill does not contain any express requirement that the court conduct such a balancing exercise before deciding whether to allow a CMP to be used. We recommend that the Bill be amended to delete the Government’s new condition that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration and to reinstate the Wiley balance as a precondition of a CMP.” (JCHR report page 30)
Furthermore, previously the Bill did include the last resort provision “a fair determination of the proceedings is not possible by any other means” but the government deleted it. The last resort provision has gone and the JCHR wants it put back in (see paragraph 11 page 30 of JCHR report)
As for PII, as I said in the post above, the only requirement by the government’s latest attempt at amendment is not that the judge has considered whether PII should be used, but whether the judge is satisfied that the Secretary of State has considered using it. That is a completely different test. It does not leave the decision about PII being the most effective and fairest means of conducting the proceedings up to the judge.
In other words, this Bill, even after further amendment by the government next week, fails the JCHR tests which formed the basis of the Lords amendments. Even if those amendments were reinstated this would still be a bad Bill which offends against the Rule of Law and the liberal principles our party is founded upon.
Good Lord, Jo, then this bill is seriously misnamed, and I apologize for and take back all previous criticisms. But also, some of the objections to it seem odd. On your interpretation, there seems to be no sense in which a CMP can be used by government in prosecuting a citizen.
But, if, on the contrary, a citizen is suing a government agency, the citizen’s gain from success would usually be money, wouldn’t it? Are you saying that an individual’s monetary gain would, in all cases, be more important than the security of the whole population? Quite a few voters might feel it wouldn’t be.
We accept that proof is required “beyond reasonable doubt” in criminal matters, because the consequences of getting a judgment wrong are significantly serious. But in civil cases, don’t we accept “on the balance of probabilities”, partly because the consequences of getting it wrong are not so bad? Shouldn’t this accepted principle be applied here?
Is this really about “secret courts” in the sense that most people think of them? For me, “secret courts” conjures up visions of being sent to prison on some accusers’ whim, without being able to defend myself or know what I am accused of. That vision seems to be what some objectors are objecting to. But your helpful clarification, Jo, suggests that this bill has nothing to do with that vision at all.
Is this really about “core values” being “trampled on”? I hope that national security is a core LibDem value, and that we do not mistakenly trample on it. Where do we stand on openness in relation to decisions about financial compensation?
Richard, the secret court provisions will apply to habeas corpus provisions (confirming by Lord Wallace in the House of Lords in July 2012). So yes, it could involve people losing their liberty and not knowing the case against them. http://www.guardian.co.uk/law/2012/jul/13/secret-court-habeas-corpus-reprieve
These cases are nothing to do with national security – this is accepted by everyone. David Anderson, the government Independent Reviewer of Terrorist Legislation wrote this last year “I have also deprecated the tendency of Ministers to characterise their CMP proposals as justified by national security – whereas in fact the debate is about procedural fairness and open justice. The JCHR agreed with me on all these points.”
As for compensation you are right. This is about claims for money for victims of torture and kidnap or government negligence (eg injured service personnel). And claims for judicial review. It would also apply to civil proceedings for contempt of court, for example. It is also about the truth, and accountability. Secret courts don’t deliver either of these things. The government has been unable to prove to the satisfaction of the Joint Committee on Human Rights that the measures contained in this Bill are necessary. The government has been unable to point to a *single case* where national security has been compromised or where the current arrangements (PII etc) have been unable to provide an effective hearing.
There are some prices we decide not to pay. It would, for example, have been handy for the police to have the ability to detain someone prior to charge for 42 days. We were not prepared to accept that. And it would also be useful for some people if we all carried ID cards. We don’t do that either. This Bill is unnecessary, unfair and illiberal. It must be stopped before irrevocable damage is done to our constitutional rights.
Jo Shaw, thank you for your efforts to stop this highly dubious measure getting through. Your comments have been well-reasoned and very insightful and I for one wish you all the very best in persuading the Parliamentary Party to oppose this Bill. It wasn’t in the Manifesto or the Coalition Agreement and it will alienate a huge number of Party members and supporters and remove yet another distinctive quality of Lib Dem identity. There is absolutely nothing to be gained from Lib Fem support if this wretched Bill and nothing good at all. As for changing the timetable so that Conference is denied the opportunity to discuss this at the weekend – words fail me. What on earth is going on with the leadership and the Party? This is not the way Lib Dems ‘do business’.
Oops fat fingers! ” There is absolutely nothing to be gained from Lib Fem support if this wretched Bill and nothing good at all” is of course gibberish and should read ” There is absolutely nothing to be gained from Lib Dem support of this wretched Bill and everything to lose” .
This is an appallingly illiberal Bill. For justice to deserve that name, all courts must be ‘open’. Ergo, no LibDem MP should support secret courts.
Back in Septmber 2012 Mary Reid was happy to report….
At most conferences there is at least one debate which proves how different we are from the other main parties. Different because we entrust Conference to decide party policy, in open debate, even where that may be at odds with the views of our parliamentarians. Today’s debate on the ‘Secret Courts’ motion was a good example…
Well the line that this proves how very different the party is from all the others is looking pretty threadbare at the moment.
peebee
How much the party differs from all the others depends totally on the extent to which the ordinary members are prepared to allow its leaders to behave in an illiberal manner. If the bill goes through before next week, Brighton will be interesting to see how good the leadership is at bulldozing through its agenda at the expense of the principles of Liberal Democracy, or whether the party will finally say enough.
My worry is that if the party doesn’t say enough is enough this time, yet more members will leave, leaving the leadership again with just enough support to limp on to its next disaster. Clear democratic controls over the ballot to select emergency motions will be key, and I am very worried that they are only there in theory and not in practice.
Sorry if I appear rude, Jo, but this looks to me like an error on your part. Well, people make errors, as indeed I am proof of! The fears you raise about freedoms and rights and unlawful arrest do not seem to be warranted by the bill. LibDems are not automatically opposed to national security or to the police – quite the reverse.
First, this is NOT about secret courts in the normal meaning. The Guardian article you refer to says that Lord Wallace said: “Cases about a person’s release from detention in the UK will generally be in the context of a criminal cause or matter where CMPs [will] not be available. But should this not be the case, it is important that all of the material is before the court, if possible, rather than being excluded.” That is a far cry from saying that habeus corpus will be affected.
Second, this clearly IS about national security. In deciding whether to allow a CMP, judges are required to check two things. The first is – whether there would be significant damage to national security without CMP, see Section 6(4) and 6(11). Sure, people may try to misuse CMPs, but these clauses and the judges are there to prevent that. One does not reject a law on the grounds that someone may try to break it!
So, the proposals are not trampling on core values. They are not about habeus corpus, or loss of freedom at all. They are not about ID cards, or 42 days detention. They are about making sure that civil claims don’t jeopardize national security. We should support that. We should go with what Huppert and his colleagues have produced.
Yes Jo Shaw has told us all we need to know to scrap this illiberal bill. It creates a dangerous precedent all to avoid government embarrassment when their complicity in rendition and torture becomes public knowledge in civil cases.
Richard, I don’t think you’ve understood my points so I haven’t made them clearly enough. It is accepted by all parties that habeas corpus proceedings would be covered by this Bill. Ask Lord Wallace himself. Or simply read what he said in the House of Lords on 11th July 2012 column 1242. http://www.publications.parliament.uk/pa/ld201213/ldhansrd/text/120711-0003.htm
Please don’t make the mistake of misrepresenting this Bill. It’s implications are too serious.
Finally, I would argue that fairness (the CMP procedure is not fair and no one asserts that it is), freedom (CMPs make it much more difficult for citizens to challenge misuse of power by the state – a hallmark of freedom) and openness (by definition CMPs are “closed”) are core values for us as Liberal Democrats. They are, after all, written on the membership card as the reason for our party to be in existence.
“Second, this clearly IS about national security.”
No, it’s not. Not in the sense that civil claims are “jeopardizing national security” as you seem to think.
It’s not about national security in the sense that anyone is claiming there is a threat to national security because of the current rules, or that the introduction of CMPs is necessary to protect national security. Obviously there is no question of material being released under the current system, if that would threaten national security.
The purpose of CMPs is simply to save the government money. Because the government is currently having to settle cases which it thinks it could win if the rules were changed. (Whether that would happen in practice is another question.)
The issue is a very simple one – whether the principle of open justice should be sacrificed in order to try to save the government some money. NOT whether it should be sacrificed in the interests of national security.
One of the important words that is written on my LibDem membership card is the word “balance”. This bill is about balancing the needs for openness in court, with the needs for a society to achieve freedom with security.
CMPs won’t make it “much more difficult” to challenge state decisions. Quite the reverse. They facilitate such challenges, but ensuring that challenges can be made without damage to national security or to the freedoms that that security supports.
but -> by
Clause 1242 is available here.
http://www.publications.parliament.uk/pa/ld201213/ldhansrd/text/120711-0003.htm
Please don’t misquote it, Jo! The clause starts with the following statement by Lord Wallace “The Bill is designed to increase justice for claimants and defendants in all civil cases where national security means that, otherwise, information could not be put into open court.”
This clause 1242 is discussing a proposed amendment which would means that cases for wrongful detention could not be considered for a CMP. Here is what Lord Wallace said “This amendment would take that justice away from claimants who bring a national security case against the police or law enforcement agencies, or where … the case is about a person’s release from detention”
This is what Lord Thomas, who is one of the proposers of the amendment, said in response to Lord Wallace, a little way down in 1242 “I am not saying that habeas corpus applications should be completely open … It is a matter that we can discuss. On that basis, I beg leave to withdraw the amendment” It seems clear therefore that Lord Thomas was satisfied with what Lord Wallace said.
This Lordy discussion recorded in Hansard suggests to me that there is a clear intention by the Lords to protect habeus corpus. This intention can perhaps be used in the judicial procedure of statutory interpretation, and therefore have the desired protective effect in practice. But even if not, the parliamentary oversight committee will have the duty and power to look into cases of possible mis-interpretation, and correct them – see Clauses 1 and 2 of the bill.
May I therefore respectfully suggest, Jo, that you should follow Lord Thomas, and withdraw your objections to the bill?
“This bill is about balancing the needs for openness in court, with the needs for a society to achieve freedom with security.”
No, Richard. You have completely misunderstood.
The government doesn’t release information that would endanger national security under the current system. That’s not the issue.
The issue is that as because of that, the government loses (or settles out of court) civil cases that it thinks it could win if the rules were changed. That costs money. The proposals are intended to save some of that money. But either way, there’s no question of information being released that would endanger national security. That’s true now, and it will remain true whether secret courts are introdcued or not.
Lord Thomas has absolutely not withdrawn his objections to this Bill. He voted against clause 6 in the Lords vote on 21st November 2012.
“This is what Lord Thomas, who is one of the proposers of the amendment, said in response to Lord Wallace, a little way down in 1242 “I am not saying that habeas corpus applications should be completely open … It is a matter that we can discuss. On that basis, I beg leave to withdraw the amendment” It seems clear therefore that Lord Thomas was satisfied with what Lord Wallace said.”
I know that as usual you are trying to provoke an argument, but it has to be pointed out that you removed the words “but it is inappropriate to apply the strictures and limitations contained in the Bill to applications of that sort” from that quotation. Clearly Lord Thomas did not accept that habeas corpus applications should be subject to CMPs.
And you know perfectly well that Jo did not misquote or misrepresent anything. The discussion she linked to makes it crystal clear that habeas corpus proceedings would be covered by the bill, precisely as she said. You were mistaken in thinking that they wouldn’t be covered, and you should simply accept that you were wrong.
This is an important issue and the discussion shouldn’t be disrupted by this kind of nonsense.
Jo, I think you are referring to as shocking the part of draft clause 6(7) which reads “and an application under
subsection (2)(a) need not be based on all of the material that might meet the conditions”.
but it does not say “the Secretary of State may rely upon evidence not relevant to the proceedings as the basis for its application for a CMP (closed material procedure” which is your interpretation of it. Why do you think it means that?
Why should an application under subsection (2)(a) be based on all the material that might (or might not) meet the conditions? If the applicant were required to go through all the material that might or might not meet the conditions, would this not prolong the proceedings unncessarily?
The essential point made by Julian Huppart is that the closed material procedure is necessary in the interests of justice to enable civil proceedings to be brought against the government by the victims of torture etc (who may be suspected terrorists but still have the right to complain and seek compensation) when at the moment the government can close down the proceedings by issuing public immunity certificates to prevent evidence of wrongdoing by government agents being disclosed. As clause 6 provides that such closed material procedure orders can only be made in the interests of justice, how is it that we are against justice being done? Surely our party supports the idea of justice.
“As clause 6 provides that such closed material procedure orders can only be made in the interests of justice, how is it that we are against justice being done? Surely our party supports the idea of justice.”
That’s a rather Orwellian argument, isn’t it? The Bill says these powers are to be used only in the interests of justice, therefore anyone who opposes the introduction of these powers must be against justice …
Surely the question is whether it can ever be just for a judgment to be reached on the basis of secret evidence, which by its nature cannot be tested, questioned or contradicted by the party affected. it’s like no form of justice I’m familiar with. How can any liberal support it?
It is wrong to state that these provisions do not entail cases where national security is at issue.
CMP already exists in cases before SIAC relating to TPims, indefinite detention per Abu Qatada situations and such-like. What this bill is about is extending the use of CMP from a limited set of (largely tribunal proceedings, typically initiated by an executive act which is then challenged or subject to routine review in the national security sphere) to court proceedings more broadly, where, for example, the government is being sued for alleged human rights violations or complicity in human rights violations perpetrated by other states or actors outside of the UK.
It is claimed that there are several cases similar to Al Rawi which are on hold, pending the reforms, which contain information which, because of the Secretary of State’s obligations under public interest immunity (PII) could not be allowed, ordinarily, to be admitted into proceedings (and would be declared inadmissible by a judge). They claim that this evidence which, owing to its substance, would be utterly essential to the government having the opportunity to disprove allegations that they had committed an actionable wrong, but that they are not permitted, under the status quo, to disclose, since PII is not discretionary. Moreover, the information might be sensitive for reasons other than that immediately material to the issues at hand.
For example, if the intelligence services were investigating a suspected terrorist cell, and they could disclose some sort of documentary evidence obtained by (say) a double-agent which showed that they were not complicit in the action, but they were unable to disclose that information because the document could only be made sense of by revealing the identity of the double-agent, which in turn would jeopardise that agent’s ability to continue to provide information to the UK, and would alert the individual (say, a suspected terrorist) to the fact that this person was a UK agent, thereby allowing them to communicate that information to others within the suspected terror cell, it would prejudice their diplomatic links which help counter-terrorism and would make tracking the cell more difficult.
A PII exercise would render that information inadmissible. That then means that the government cannot provide the necessary evidence to disprove the case put forward by the litigant, creating an inequality of arms. The government then has the choice of continuing futilely on to lose a case/settle it out of court for actions in respect of which they are not complicit, or to deny a hearing of the evidence completely citing an imminent miscarriage of justice.
This is why I don’t buy the idea that these provisions will easily be used to “cover up” torture complicity. The new proposals are extending CMP from SIAC proceedings (where it’s usually in response to an executive act routinely reviewed like a TPim or indefinite detention pending deportation) to court proceedings more generally where evidence could not otherwise be disclosed by reason of PII (i.e. national security) or it would be disallowed for being (e.g.) illegal wire-tap information. CMP cannot be invoked on a whim under the proposals, There is already a requirement that such a request will only be acceded to where it is in the interests of fair and effective justice and the declaration must be rescinded if at any time it appears to be the case that that is no longer true. Much like in other situations, the judge must make an assessment whether holding courts in camera is justified by the circumstances.
If anything, these proposals will only serve to allow cases which would not have otherwise been heard at all to be heard under CMP. The real problems with this bill are actually problems which are inherent to CMP itself, namely the inequality of arms that IT perpetuates, both inherently and in who is allowed to seek to have it invoked. The inherent problems with CMP concern the extent to which, notwithstanding Strasbourg endorsing imitations of the Canadian model, the special advocates are not an adequate source of representation owing to the extremely limited circumstances in which they can consult the person they are appointed to represent after receiving closed evidence. At best, their job is becoming more a question of trying to get as much of the information in closed session shifted into open session, rather than being able, adequately, to challenge prima facie legitimate claims made by the government in respect of the evidence.
The specific problems with the JSB include who can actually ask for information to be disclosed. s6(5) allows the Secretary of State to apply to have information upon which they rely subjected to CPM, but it does not (despite appearances) allow other parties to the action to do the same. Indeed those other parties can only make an application in respect of evidence that *they*, not the *government* would otherwise be required to disclose. In practice, the evidence they would want subjected to CMP would be evidence held by the state itself and the state could simply choose not to rely on the evidence if they don’t want it to be brought within the scope of any potential order in an action for an alleged wrong. There is an inequality of arms there that essentially requires applicants to rely upon a judge initiating a CMP on their behalf to bring that evidence to a hearing. For these people, having CMP may in fact be more useful if the alternative is no hearing at all, but only if they too can invoke it in respect of material held by other parties.
I am against the JSB not because it expands the possibility of court proceedings which are secret. I’m against it because it doesn’t facilitate a fair hearing even if you accept that CMP is not, in and of itself, a questionable procedure to claim to facilitate justice whilst protecting national security. It specifically creates a situation where CMP can be used as a weapon when the state wants to prove its innocence, but not necessarily when another litigant wants to have their complaint against the state heard properly with all the evidence before a court of law.
Readers might also like to have a look at this post that has just appeared online:
http://ukhumanrightsblog.com/2013/03/03/everything-you-need-to-know-about-the-secret-trials-coming-to-a-courtroom-near-you-angela-patrick/
Again the conclusion is that these proposals are a fundamental threat to open justice. The Government has completely failed to take seriously the widespread criticisms of these proposals and has failed to make a decent case for the need for change.
Does the bill really create such inequality? It’s not obvious at all.
On the government side, Section 6(4) surely is recognizing that “the Secretary of State” is a placeholder for the actual defendant. The Secretary is probably rarely going to be the actual person who did the claimed wrong – for instance the person who did the claimed torture – and will perhaps rarely give evidence in person. Instead, it would normally be some person in on of the services managed by the Secretary of State. But whether the actual defendant is the Secretary or a service managed by the Secretary, section 6(4) allows that defendant to put its case.
On the other side, Section 6(5) gives the same right to the litigant – to put its case.
This looks like equality to me. It looks like the actual defendant and the litigant are being given the same opportunities and rights. If not, how not?
Richard: they’re not being given the same right because the litigant’s right vis a vis information is only in respect of that they THEMSELVES would be required to disclose. Virtually all of the information in these cases concern information that the government, not the applicant, possesses. In practice it means that s6(5) provides no useful power for someone who is not the Secretary of State (who is virtually always the or one of the named respondents in these cases) to ask the court to admit evidence in CMP which is held by the Home Department or a connected body but which would otherwise be subject to PII. In practice, short of some pretty extensive judicial activism which is unlikely, CMP declaration will only be made on the request of the Secretary of State, and the SOS will only seek a declaration where it is more useful to them than to leave it to a PII assessment. The only circumstances when that will in practice be the case is when the evidence helps the state clear its name or cast doubt on the other party’s assertions.
Graeme: I’m not convinced. Why can a competent lawyer not solve that issue within the present wording of the bill? For instance, as a litigant, I might for instance make a statement to the court that I was arrested on such and such a date and taken to such and such a place and tortured there. Within the criteria of proof required in a civil matter, a court would perhaps need to take this as true unless the defendant demonstrates otherwise. If the defendant needs a CMP in order to call witnesses to make that demonstration, then the litigant’s counsel will be able to obtain testimony from those witnesses under cross examination, including testimony that can lead to the calling of other relevant witnesses.
The present wording of the bill specifically ONLY allows non Secretary of State appellants to seek a declaration of CMP if there is evidence that *they* would be required to disclose but for PII, not that the state would be required to disclose but for PII.
The civil standard of proof is no aid here. Unless the litigant can submit actual evidence to show a prima facie case of complicity, no presumption can be made. The civil standard of proof requires more than mere assertion of the wrong. Balance of probabilities isn’t discharged simply by claiming something.
“Within the criteria of proof required in a civil matter, a court would perhaps need to take this as true unless the defendant demonstrates otherwise. ”
The usual rule is “he who asserts must prove” so the burden of proof would lie on you in that situation.
“It is wrong to state that these provisions do not entail cases where national security is at issue.
…
A PII exercise would render that information inadmissible. That then means that the government cannot provide the necessary evidence to disprove the case put forward by the litigant, creating an inequality of arms. The government then has the choice of continuing futilely on to lose a case/settle it out of court for actions in respect of which they are not complicit, or to deny a hearing of the evidence completely citing an imminent miscarriage of justice.”
Isn’t that what I said above? That it’s not about preventing the release of information which could endanger national security, but about the government trying to avoid losing civil cases which it thinks it could win if the rules were changed.
Richard suggested that the proposals were about “making sure that civil claims don’t jeopardize national security”. They’re clearly not.
“The present wording of the bill specifically ONLY allows non Secretary of State appellants to seek a declaration of CMP if there is evidence that *they* would be required to disclose but for PII, not that the state would be required to disclose but for PII.”
Does that not make a nonsense of Michael Hall’s argument above, that “The essential point made by Julian Huppart is that the closed material procedure is necessary in the interests of justice to enable civil proceedings to be brought against the government by the victims of torture etc (who may be suspected terrorists but still have the right to complain and seek compensation) when at the moment the government can close down the proceedings by issuing public immunity certificates to prevent evidence of wrongdoing by government agents being disclosed.”
Julian Huppert’s example was actually “a former intelligence officer may know for a fact that the Government has a document supporting their case against the Government, and wants to use it in court rather than having it silenced by PII.” But from what you have written it’s difficult to see how the proposals would apply in that situation either.
Graeme: I’m still not convinced, I still think a lawyer could get round it. I’m not one, so I can only imagine … What if, as a litigant, I wished to call someone as a witness whose testimony might damage national security? It’s not my job to ask for a CMP , but there’d normally be some way of ensuring that the person I called did actually appear in a civil case involving something as serious as unlawful imprisonment or harming, wouldn’t there ? If the state feels it’s necessary to ask for a CMP for that witness, then the state can then do so, so the CMP actually helps me because it means that my counsel are able to call the witness.
It’s interesting that we are now discussing precisely the kinds of cases that someone previously said were not relevant – it’s bomb-makers and other terrorists who are perhaps going to be the people most likely to have the bad experiences and bad motivations that might lead to them mounting these kinds of cases. It’s also interesting that comments on the Al Rawi and other cases seem to directly contradict the JCHR that Jo quotes so extensively – the JCHR apparently believe the bill is unnecessary since there will be few if any cases that it applies to!
“It’s interesting that we are now discussing precisely the kinds of cases that someone previously said were not relevant “
I’m not sure how many times this needs to be said, but these proposals simply are NOT about “making sure that civil claims don’t jeopardize national security”, as you claimed. They are simply about trying to reduce the number of successful civil actions against the government. I think you must realise that by now.
“It’s not my job to ask for a CMP , but there’d normally be some way of ensuring that the person I called did actually appear in a civil case involving something as serious as unlawful imprisonment or harming, wouldn’t there ? If the state feels it’s necessary to ask for a CMP for that witness, then the state can then do so, so the CMP actually helps me because it means that my counsel are able to call the witness.”
From what Graeme has written, the state wouldn’t ask for a CMP if that would be to the state’s disadvantage. Instead, it would seek to exclude the evidence through public interest immunity.
These sorts of cases don’t typically involve witnesses giving oral evidence, Richard. They almost exclusively concern written and surveillance evidence in respect of which legal submissions are made. When you’re looking to have evidence declared admissible, it will be things like an intelligence memo, phone taps, surveillance drone footage, international flight records, financial transactions etc. It’s highly unlikely that the appellant will even be able to identify a person who is associated with this sort of evidence, who is the author, or who can speak to it.
Court cases are not fishing trips, and all evidence can be interrogated, and normally is. Even paper and electronic evidence has to come with a human who certifies it and who can be questioned about it. So, an applicant in a normal civil suit for these kinds of serious matters will have rights to access to paper or electronic evidence that the applicant knows of. A CMP provides the applicant with a way of accessing and interrogating that evidence even though it involves sensitive material. This opportunity would otherwise be unavailable, and is therefore a Good Thing.
I suggest that many of the misinformed comments in this thread would not be made if people would read the explanatory note to the Justice and Security Bill:
http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0099/en/13099en.htm
Also I think people seem to be starting with the assumption that the Government has the worst of intentions which explains their attitude. For example Chris suggested that Parliament was using the word “justice” in an Orwellian double-speak sense. Obviously Judges do not assume that the word “justice” in Acts of Parliament is intended as Orwellian double-speak.
“Also I think people seem to be starting with the assumption that the Government has the worst of intentions which explains their attitude. For example Chris suggested that Parliament was using the word “justice” in an Orwellian double-speak sense.”
Actually I was suggesting that your argument was a rather Orwellian one, relying as it did on the concept of a fundamentally unjust procedure being used “in the interests of justice”.
Regarding your statement about misinformed comments, perhaps you could point out specifically which comments you think are incorrect. If people have misunderstood the proposals, it would be helpful to correct the misunderstanding.
Richard – the applicant cannot and does not know the evidence relied upon by the state in the CMP (closed hearing or secret court). That is the whole point of a CMP.
Precisely Jo.
Jo – I thought the applicant’s special advocate sees the evidence, and so can question it? Also, the applicant knows what the evidence is if it is the applicant that brings it forward.
The situation described in the following article is clearly unfair, because there is not equality of arms – the government cannot use evidence to defend itself because the evidence is sensitive. CMP’s would restore that equality.
http://www.guardian.co.uk/law/2012/sep/25/secret-courts-the-essential-guide
My first posting was to query Jo Shaw’s comment about clause 6(7) being shocking – having read it I do not understand how it is being interpreted as shocking. I have not had an answer to that query. I listened to the debate in Brighton, have read the draft Bill and much of Hansard and listened to the debate on the BBC Parliament channel this evening, and Ken Clarke in response to Julian has agree d to go away and consider the possibility of further amendments towards meeting the suggestions of the Joint Human Rights Committee. That is good and Ipay tribute to Julian and our other hard working parliamentarians. I do not like to see hard working Liberal Democrats such as Lord McNally, Lord Wallace of Tankerness and Sir Menzies Campbell attacked for working in the way they think best to improve our system of justice as they see it. I do believe that they have access to secret Government material and that we who do not cannot expect fully to understand why the CMP is being extended to all civil cases in the higher courts as we are not privy to Privy Council information. I have also responded to Julian’s original comment about the suppression of information of wrongdoing towards terrorist suspects by US interrogators. We are not a state of the Union and should resist international pressure to control our courts. I was criticised for pointing out that the judges are to be required to made declarations of CMP only if it is in the interests of justice. I make no apology for doing so. I do not believe that the sole purpose of the CMP is to save the Government money, though that is a laudable objective in itself if our money is being paid to those who have no legitimate claim to it.
Conference voted against this measure and now the Parliamentary Party has ignored that and voted for it. I think this raises serious questions about democracy in the Lib Dem Party.
The first loyalty of a LibDem MP is surely to constituents, not to party? So if this measure is best for constituents, MPs should vote that way, even if a LibDem conference don’t like it. Or do LibDems not think that way about democracy?
Michael
So was it only that one comment about clause 6(7) that you disagreed with? If that was the case I don’t think it was very helpful to give people the impression there were “many” misinformed comments in the thread.
Did Nick ever meet with Jo and/or other people campaigning on this issue within the party?
Chris
You seem only to have read the first line of my last comment before replying.
Michael
No, I read every word. But getting you to explain what you mean seems to be like pulling teeth.
If you are still claiming people have made “many” inaccurate comments here, please:
(1) Be clear about what comments you are talking about
(2) Provide clear evidence that they are inaccurate.
Or must that information be kept secret?
The Government (Tories) want secret courts and I sure that’s all about more open justice for the people, Lib Dem party opposed to secret courts because its a party of values ?( pull the other one its got bells on it)
Result bill brought forward to avoid party conference and Cleggie getting some stick and only 7 Lib Dem MP’s have the backbone to stand up for those core values of the party which most of the party’s members believe in.
It’s now become a case of do what Nick says. I cannot wait for the first court which belly up on this rat bag of a government.
Chris
I thought I made it clear in my last comment that I do not have in depth knowledge of this issue and I am confusing by the conflicting statements we are hearing. I believe this is because secret information is being withheld from us and that others who are in the know are privy to that secret information. That may explain why there is the disagreement between the senior establishment of the party and the rest of us. I have previously expressed my views in response to Caron Lindsay’s comment: https://www.libdemvoice.org/secret-courts-nick-cleggs-refusal-to-meet-campaigners-is-not-helping-32372.html
My views have changed somewhat and I now understand better why people think that the CMP should not be allowed at all and support the 7 Libdem MPs who voted against Part 2 of the Bill. However the fact that the others took a different view shows that I was not the only one who was taken in by the forceful arguments about national security.
I think you are wrong to say that national security is not in issue, and I understand why the Wiley test was not agreed to, because, as you have yourself said, national security cannot be compromised and there is no way that the security services will be allowing information that is being kept secret for good reason into the public domain.
Also I do not think that you can have complete equality if arms between the Government which has a responsibility to defend the public and litigants who do not. Litigants cannot use the CMP to force the government to disclose information damaging to national security. I do not mean evidence of wrongdoing but information about the activities of the security services.
“I think you are wrong to say that national security is not in issue …”
Thank you. Just to be clear, what I’m saying is that this isn’t about preventing the release of information that could endanger national security, because under the present system such information is not released.
The proposals are meant to deal with the problem that – because sensitive information cannot be used in evidence – the government currently loses (or settles out of court) some of these cases, and that costs money. That might be an argument of a sort, but given that the government’s own ‘impact assessment’ reportedly says these proposals will cost more than they save, I’m left baffled.
Secret justice is not justice at all.
So much for Ken Clarke’s false promises of secret hearing being ‘kept to a minimum’ and only in a ‘small number of cases’. There are cases being reported, the Martin McGartland case for one, in the media that shows this is not the case. The government (and security service, mi5) are using secret hearings to cover up embarrassment and their own shortcomings. So far as I have read, the Martin McGartland case has nothing whatsoever to do with ‘national security’ It is a case of a failure by mi5 of a duty of care.
So far as ‘national security’ is concerned, Ken Clarke’s own definition of it can be read as follows,
Zac Goldsmith (Richmond Park) (Con):
I welcome my right hon. and learned Friend’s comments. Will he tell the House whether there is a clear and understood definition of the term “national security”?
Mr Clarke:
There is no definition, because all attempts to define it have got one into worse difficulties.
It is possible to exclude evidence from a case altogether under the existing public interest immunity procedure; the Bill does not touch that. The present PII law will be completely unaffected by the Bill, so people could still go for a PII. One is obviously being actively sought at the moment in the Litvinenko inquest, although I know that only from what I read in the press. That kind of exclusion could be claimed on the ground of damage to international relations, if the Government of some third-party state would be upset if certain evidence were to be published. That goes beyond questions of national security and into total secrecy, allowing the Minister to withdraw the whole blasted thing from the proceedings and not letting even the judge use it. That measure goes much wider. Such exclusions on wider grounds happened under the previous Government.
We are sticking to national security, however, and judges, using the completely unfettered discretion that we are now giving them, will no doubt have regard to what I say. What we have in mind are things that would
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cause damage to national security, by which we mean the safety of our citizens, our attempts to counter terrorism, and threats to international order among the wider public. I can assure the House that I am not in favour of excluding ministerial pigs’ ears. I am sure that the previous Government made more of them than we did, but I do not believe that that sort of thing should be put away in closed proceedings under any Government.
I took above from this website, http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm130304/debtext/130304-0002.htm
Martin McGartland case has been reported in belfast telegraph http://www.belfasttelegraph.co.uk/news/local-national/northern-ireland/six-tv-shows-on-him-two-books-and-a-hollywood-film-but-still-they-wont-admit-martin-mcgartland-was-a-spy-30018496.html