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.
The government’s Justice and Security Bill has this week entered a new phase of debate in the House of Commons as it is considered in detail by a 19-member Public Bill Committee over the next month. The critics of this Bill – and there are many – argue that it will make “secret justice” a standard part of our legal process. The latest set of amendments proposed by the government were revealed yesterday and within them lies a crucial and unjustifiable secrecy provision. The significance of the amendments becomes apparent when one looks at how the Bill has progressed so far.
In its original form the Bill said that a court “must” use closed material proceedings if there would be a disclosure of information that would harm national security interests. It would not matter how small the damage, it would not matter whether there were other public interests in disclosure of the material, and the court had no discretion.
Angus McCullough QC and Jeremy Johnson QC at the JCHR
The overwhelming majority of Special Advocates have responded to the Justice and Security Bill by stating that the case has still not been made by the Government for the introduction of closed material procedures in other types of civil litigation. The full response is available here (PDF).
Fifty Special Advocates have signed the response. This represents an overwhelming consensus of those with substantial experience of the current system of secret hearings.
They accept that the new restriction to national security cases is an improvement, but retain the view expressed in their initial response to the Green Paper consultation, that:
CMPs are inherently unfair and contrary to the common law tradition; that the Government would have to show the most compelling reasons to justify their introduction; that no such reasons have been advanced; and that, in our view, none exists.
Publishing the Justice and Security Bill this morning, the Secretary of State for Justice said “I have used the last few months to listen to the concerns of … civil liberties campaigners with whom I usually agree.”
There are many people who today would sorely like to agree that Ken has listened and has taken their concerns on board. Unfortunately, the Government’s analysis remains fundamentally flawed. The Green Paper was clearly a “big ask”. There have undoubtedly been significant changes made from the proposals in the Green Paper. However, the secret justice proposals in the Justice and Security Bill remain fundamentally unfair, unnecessary and unjustified.
The Justice and Security Bill, which proposes to introduce secret ‘Closed Material Procedure’ (CMP) hearings into civil trials, has been published. Here are some useful resources for picking your way through the controversy:
- The Ministry of Justice’s page on the Bill, including some ‘myth-busting’ (including ‘This is undermining the centuries old legal tradition’) is here.
- 84 responses to the Green Paper which led to this bill can be found here, and the Government’s response of 29 May is here.
- The Joint Committee on Human Rights’ highly critical report on the proposals is here.
- You can access all of the UK Human Rights Blog coverage of the secret trials proposals here, including our exclusive on the Special Advocates’ opposition to the proposals, which became the most damaging aspect of the case against the Green Paper.
More to come on the proposals soon…
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