The Constitutional and Administrative Bar Association (ALBA) hosted an invigorating debate on Tuesday night, pitting Minister without Portfolio Ken Clarke against Shami Chakrabarti, Director of Liberty, over the question of Closed Material Procedures (CMPs) in civil claims, as proposed in the Justice and Security Bill.
The Bill is currently going through the parliamentary process, having reached the report stage in the House of Commons on 4 March 2013. Of particular note to those with an interest in human rights are the proposals to introduce CMPs into civil damages actions, where allegations such as complicity in torture by the UK intelligence agencies are made.
Ken Clarke defended the proposals in the Bill to use CMPs in civil damages claims. He argued that the government is currently forced to settle claims, because to make a defence would require public revelation of information of high value to those who wish to harm the UK, in particular by posing a threat to national security. In claims of this type, he argued, it is in effect impossible for the government to permit a defence to be made, resulting in expensive settlements being paid out to claimants.
He explained that the status quo, where the government can apply for a public interest immunity (PII) certificate, allowing it to withhold material from disclosure, is inadequate for a number of reasons, including that the judge deciding the case never gets to see the material, even though it may be highly relevant to the issues being argued about. The current proposals for circumstances where CMPs may be held, he argued, have several important safeguards built into them and the judge retains discretion not to hold a CMP even if those hurdles are overcome.
His crucial point was that CMPs allow trials to occur, testing the evidence, rather than the government settling cases to prevent the risk of information of a highly sensitive nature escaping. This would make intelligence agencies “more accountable” because a judge would be able to test their defences.
Shami Chakrabarti on the other hand described the proposals as an “odious bill”. Her central attack was based on the fact that CMPs do not allow claimants to see the evidence used to defend against their claims. This allows “one side in civil litigation to control the court room”. The debate, she believes, is about “equality of arms”.
She vehemently denied that the government currently has no option but to pay damages to settle civil claims of this nature: applications for PII certificates had not even been applied for in some cases, she said. This option is currently open to the government as a means of protecting national secrets, and she was not aware of a single case where a judge had been accused of making the wrong decision in relation to PII, endangering national security. The best way for security agencies to protect their reputations, she stressed, was not to “get mixed up in torture”.
She rebutted Ken Clarke’s argument that the Bill would lead to more trials, and that this would be beneficial for the administration of justice by allowing the real issues to be tested in Court, stating “fair trials don’t equal more trials”.
Who won the debate? Tell us what you think in the comments section below.
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