Lords “Reform”: The Justice and Security Bill – Angela Patrick

Lord Pannick

Last night saw the latest round of Lords debate on the Justice and Security Bill.  It should be required reading for the Secretary of State.  Peers from all benches challenged the Government’s case for the breadth of reform proposed in the Bill.  A number of amendments have been tabled jointly in the names of members of the Joint Committee on Human Rights and the Lords Constitution Committee, both Committees having already castigated the Government’s proposals as potentially harmful to the common law principles of open, adversarial and equal justice.  

JUSTICE hosted Ken Clarke, QC MP, Lord Chancellor and Secretary of State for Justice in conversation earlier this week.  One of the topics on the table was the Justice and Security Bill.  During the evening – helpfully tweeted by the Human Rights Blog’s own Adam Wagner and others (you can read the time line of tweets here) – Ken Clarke stressed his view that the opposition to the Justice and Security Bill posed by JUSTICE together with most other human rights organisations and the Special Advocates is misguided.

He reiterated that by introducing CMP (where one party and his legal team are excluded from litigation but Special Advocates are instructed) the Government sought to enhance fairness.   We should be reassured, he argued, that nothing that could be published under public interest immunity (PII) would be withheld under CMP.  Special Advocates underplayed their importance, he thought.  In any event, he was after a Bill that contrived to allow a judge to properly consider cases that wouldn’t otherwise be heard.

Putting to one side the question whether a case can ever “properly” be considered when a judge hears only one side of the story, the Bill seems very far away from Mr Clarke’s aspiration.

As it stands, where a Minister asks for CMP, on evidence of a risk to national security the judge’s hands are tied.  Under the proposals in the Bill, CMP follows.  No matter how significant the risk, the court is precluded from considering any competing public interest in disclosure (as under PII decisions applying the so-called Wiley balance).  The Bill expressly bars the judge from considering the potential for a trial to proceed under alternative measures which are explored in PII applications (such as redaction, anonymity etc) (Clause 6(3)).

Last month, when Angus McCullough QC, Special Advocate and one of the editors of this Blog gave evidence to the Joint Committee on Human Rights on the scope of the Bill, he suggested that the Secretary of State for Justice had either misunderstood or misrepresented the role of the judge under the Bill.   The Secretary of State’s assessment earlier this week suggests that officials have not taken steps to update his understanding.

A lesson from the Lords

The Committee Stage debate will continue later this month.  However, the CMP debate has focused on a number of key groups of amendments which would ensure the Bill better reflects the Secretary of State’s understanding of its effect:

  • “The last resort”:  The first group of amendments to be debated would require the Government to exhaust or at least apply for PII before CMP could be considered.  Members of the JCHR and the Constitution Committee would place PII on a statutory footing and would require material to have been declared inadmissible following a PII application before CMP were available (see amendments 39 and 40).  Lord Hodgson takes a similar approach but without codifying the current common law (amendments 43-44).  Lord Lester of Herne Hill QC stressed that these should always be measures of last resort.  Although some – notably Lord Woolf and Lord Falconer expressed some concern over the need either to codify PII or to require it as a necessary precursor – it appears that most Peers have reservations that a judge should consider CMP as entirely distinct from PII.  Lord Woolf argued that PII and CMP should never be in separate “watertight containers” and that the if the judge is going to do justice, it must be open to him to consider the best way of achieving justice in the circumstances.   The Minister argued that Clause 6(3) of the Bill, which requires that the court be satisfied that a party would be required to disclose the relevant material, would be adequate to require that the court consider whether redaction or other means could adequately protect national security.  This is far from clear and Lord Pannick has called for absolute clarity that a judge will only order CMP “that there is no other lawful, proper means of resolving the question”.
  • “The judge decides”:   The principal focus of Lords’ concern is the extremely limited role for judicial discretion in the Bill.  A range of amendments have been produced to reintroduce a degree of judicial control.   These include amendments to allow both parties to trigger an application for CMP (the Bill reserves this trigger for the Secretary of State) (see amendments 40, 49, 50) and to reintroduce a degree of Wiley balance where a judge can balance the competing public interests in play in any application for CMP (see amendments 40, 47, 48).   There appears to be a significant degree of support among Peers for enhanced judicial discretion. Baroness Berridge expressed concern that the Bill would significantly limit the “tools at the judge’s discretion”.  The Minister argued that greater judicial scrutiny at this stage was unimportant, as each individual document or category of evidence would be subject to judicial scrutiny to consider whether it should be open or closed according to the rules of court (Clause 7).  Unfortunately, this neglects that Clause 7 also binds the court to ensure secrecy whenever national security is at risk, without any opportunity for consideration of any competing public interest.
  • “It’s all about protecting the work of our spies”:  Another group of amendments to be debated include a range of proposals to exclude from the scope of application of CMP certain cases where national security concerns outside the work of the intelligence services.  At present, national security is the trigger for CMP, undefined by the Bill.  Lord Thomas and Baroness Hamwee would exclude claims against the police and habeas corpus cases (amendment 52) and Lord Hodgson would limit the Bill’s application to cases involving the intelligence agencies (amendment 53).
  • “The role of the Special Advocates”:  A final group of amendments seek to provoke debate on the limited role of the Special Advocate, and the need for clarity on enhanced disclosure (following AF (No 3) in existing CMP cases which engage Article 6 ECHR, a party is entitled to as much disclosure as needed to allow them to understand the case against them) (amendments 56 – 63, 67).

The House has not yet reached these amendments, but arguably they will be crucial.   The Green Paper accepted that there were significant limitations to the work of the Advocates, but the Bill and its accompanying material makes no reference to reform or changes to the existing rules.  This debate will provide an essential opportunity for Parliament to understand the extremely difficult position that Special Advocates occupy.  If their role is to be expanded, it is essential that it is done in full understanding of their existing concerns about their functions.

Later proposed amendments would remove or significantly restrict the proposed ouster of Norwich Pharmacal jurisdiction.  Lord Pannick would cut these sections of the Bill entirely.  However, he also joins with members of the JCHR, including Lord Lester of Herne Hill QC, to call for the scope of the restriction to be significantly limited to only those cases which engage confidential intelligence obtained from a third state and for judicial discretion over disclosure even in those cases to be reinstated (amendments 71 – 87).  Other amendments would provide for review and reporting on the operation of these controversial parts of the Bill, and for the possibility for review and reopening of closed judgments when the risk to national security subsides (amendments 67C, 88 – 89).  Debate on these proposals is expected in the next 10 days or so.

What  next?

JUSTICE remains unpersuaded by the Government’s case for reform and we share the concern expressed by some Peers that the introduction of CMP wholesale into ordinary civil procedures could damage public confidence in the fairness of our system of justice and could harm irreparably the credibility of our judges.  Growing cross-party consensus suggests that the Bill as drafted is fundamentally flawed.  Even those most supportive of the Government’s case for change – most notably, Lord Woolf – say it needs significant amendment, specifically to clarify the role of the judge.  Ministers’ responses to last night’s debate do little to shore up Government claims that CMP will be closely confined to a handful of cases.   Not least, it was clear that the Government intends that CMP should be available in actions against the police, including for unlawful detention.

A final word from Ken Clarke may give power to the Lords’ elbows.  On Tuesday night, the Secretary of State confirmed that he was “not doubting the word of MI5 and MI6” that the reforms in the Bill were essential.  He hadn’t examined the evidence cited in support himself.  These debates are an opportunity for the House of Lords to show that the upper house can provide an essential backstop for any possible lack of Ministerial diligence.  When the Supreme Court refused the Government’s case for CMP, it looked for “compelling evidence” for change and found it lacking.  Peers debating the Bill must continue to apply the same exacting standards.

Angela Patrick is Director of Human Rights Policy at JUSTICE. . Follow JUSTICE on Twitter (@JUSTICEhq

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