Back in April, the Guardian, the Daily Mail and others reported that Nick Clegg, unhappy with the breadth and scope of the Justice and Security Green Paper, and having read the Joint Committee on Human Rights’ report into it, had written to Ministerial colleagues setting out his red lines for any Bill to be introduced in the second session.
These red lines, as reported at the time, were:
- That any use of Closed Material Procedures (CMPs) should be restricted to exceptional cases of national security only
- That they complement, not replace, the current system of Public Interest Immunity (PII) which has proven to be adequate in most cases
- That it must be a judge who decides whether such a procedure should be used, not a Minister
- That CMPs should never apply to coroners’ inquests
The Bill has been published today and all these conditions have been met.
CMPs will only ever be used as a last resort in cases of national security where secret evidence is so sensitive to the case, that the current system of PII makes it untriable.
CMPs will only ever be used after a judge has looked at all the material and decided that one is warranted.
CMPs will never be used in inquests.
Additionally, the Bill strengthens the Parliamentary Intelligence and Security Committee, something which Liberal Democrats have long called for. The ISC will have additional investigative powers and resources to hold the intelligence agencies to account, and a new status to bring it closer to Parliament.
Even though the Bill has been radically modified, it would be wrong of me to claim that it will generate no controversy. However, some of the claims that have been made today are inaccurate and overblown – for example that the Bill will move cases which are currently heard in the open into closed proceedings. That is simply not true: the judge will decide which pieces of evidence should be heard in open court and which in closed. Only that evidence which, if disclosed, would be damaging to national security will be heard in closed session. This is material which is currently not heard in open court at all – it is excluded altogether from proceedings. So no evidence that is currently heard in open court will be heard in secret in future.
This is, however, a complex area and one which will benefit immensely from parliamentary scrutiny. The Bill starts in the House of Lords and I expect the legal experts amongst our Peers to test the government’s arguments and make improvements where possible. The good news is that Nick’s intervention has ensured that the principle of open justice is preserved in every case possible and that CMPs are only ever used where a case could otherwise not be heard.
Will this be the occasion when even the Daily Mail has to acknowledge that this is a major victory for Nick and the Lib Dems?
* Tom Brake was the Liberal Democrat MP for Carshalton and Wallington from 1997 to 2019.
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3 Comments
“That any use of Closed Material Procedures (CMPs) should be restricted to exceptional cases of national security only”
good job the lib-dem’s.
While the contents of the Bill published today are much better than those proposed in the original Green Paper – and for that Nick Clegg and the Liberal Democrats should be heartily praised – the fact remains that Closed Material Procedures are inherently unfair, unjust and illiberal. Were we in opposition we would be decrying the idea of expanding CMPs as thoroughly objectionable and I don’t understand why we are not simply because we are in government.
Closed Material Procedure are the antithesis of open justice. The person involved will not know of the evidence that is being kept secret, will not be able to challenge it, will not even be able to talk to their lawyer about it. A decision will be made by the court without the person ever knowing the evidence on which the decision was made.
I am not naive. I understand the difficulty governments face when they are unable to challenge claims brought by people where to defend them would mean disclosing sensitive information. But I refuse to believe that CMPs are the only solution. What about allowing the use of intercepted material in court cases, for example? Can we look at what other countries done in this situation and follow their example? And even if the only alternative to CMPs is to continue to pay out instead of defend proceedings – and I doubt that it is – then I think that a unfortunate but necessary price to pay for a system that is open, just and fair.
Tom Brake and Nick Clegg have been fantastic on this, but the principle of CMPs is so inherently objectionable that it is a very, very bitter pill to swallow, knowing that Liberal Democrats will vote in favour of this Bill.
Thanks Tom. At the heart of this issue is the issue of intelligence and operations secrecy agreements between the UK and other countries. Some of these are with the US – their security institutions are dismissive of UK sovereignty on the subject. Some agreements are with especially dictatorial regimes, and there is a major embarrassment factor at times for UK security institutions. These international agreements are at the core of the issue of allowing intercept evidence in court. To unravel the CMP problem the UK political and administrative leadership must find a way round this ‘red line’ for security institutions in and out of tge UK.