Criticisms remain as dust settles on secret trials bill
5 June 2012
Updated | In stark contrast to the pageantry surrounding the Royal Jubilee, here is a somewhat sombre update on the Justice and Security Bill, which was published on 28 May 2012 and is currently receiving its second reading in the House of Lords. The Bill aims to introduce Close Material Procedures, that is secret hearings, into civil trials.
Three key documents were published shortly after the Bill, presenting the Government’s case in response to the forceful criticism which the initial proposals generated. First is the Government’s response to the Joint Committee on Human Rights’ scathing report on the proposals. Secondly, the Government’s response to the 90 submissions received in response to the Justice and Security Green Paper consultation. Thirdly, a summary of European Convention on Human Rights issues relating to the Bill, also published by the Government.
I will not summarise the Government’s responses to the JCHR and Green Paper in detail, but a couple of points do stand out. First, it is notable how heavily the JCHR response relies upon the views of David Anderson QC, the Independent Reviewer of Terrorism Legislation. In that regard, it is worth reading his most recent comment on the proposals, which is set out in his comment to a previous UKHRB post, and which shows that his support for the proposals is more limited than you might think from reading the JCHR response:
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 to the Special Advocates’ proposals for improving the fairness of CMPs, I have described some of them as “difficult to resist” and in my report last month on control orders have recommended a forum chaired by a High Court judge with the power to recommend changes to the applicable rules and practice. As you know better than anyone, these concerns are especially acute where there is no guarantee of sufficient disclosure to allow effective instructions to be given to a special advocate.
In short, I oppose the proposals for the extension of CMPs as they are set out in the Green Paper.
The confidential enquiries referred to in my supplementary memorandum … do however suggest to me that there are two categories of High Court case so infused with national security evidence that a judge could take the view that a CMP for all its imperfections would be fairer than the alternatives of strike-out (cautiously endorsed by the Supreme Court in al-Rawi) or forced settlement. These are naturalisation/exclusion judicial reviews… and – more controversially – a small number of civil damages claims that, it is said by the defendants and their counsel, would be fought to a conclusion were a CMP available but which would have to be struck out or settled if it is not, in either case without the allegations being tested in court.
Another point which I would highlight is the controversial reliance on the case of al-Rawi and others, the Guantanamo Bay claims, to support the introduction of CMPs into civil trials for damages. It is important to keep in mind that, as Angus McCullough QC said in his most recent post on the issue:
the proposed extension of closed procedures to civil proceedings is not impelled by considerations of national security. In this particular part of the debate, asserted concerns about the risk that information that is harmful to national security may be disclosed, or that the absence of procedures would stifle the flow of intelligence from foreign powers, are essentially irrelevant. The purported justification for making closed procedures available in civil proceedings is based principally on concern for fairness, not national security.
This is what the JCHR said about al-Rawi:
that case simply cannot bear the weight being placed upon it by the Government. The claims to compensation in those cases were settled by the Government before the PII process had been exhausted, and before it had been finally decided whether the court had the power to order a CMP to take place. In our view, the Al Rawi cases are clearly not examples of cases which the Government had no choice but to settle because they would have been untriable without a CMP. Rather they appear to be examples of cases in which the Government would have preferred to have a CMP rather than the usual PII process.
In its response to the JCHR, the Government does not directly answer the point, namely why CMP would represent a more expeditious way to deal with a case involving a huge volume of documents:
The potential resource implications are large and it would considerably delay the delivery of justice in cases that could involve serious allegations about state action. For example, in the Guantanamo civil cases, it was estimated that it would take three years to consider PII on relevant documents… the CMP process already includes provisions for painstaking consideration of the material within the CMP to establish what must be disclosed in open court. The judge would then also decide how each individual piece of evidence should be dealt with – whether that be in closed session, or in open session
It is hard to imagine this process being any quicker than PII, and the point being made by the JCHR is that it is not possible to say whether it would have been fairer to the litigants in that case as it was nowhere near completed (it had hardly started) when the claims were settled. It is of note that the Government decided that the allegations made by the Al Rawi litigants amongst others were serious and extensive enough to be investigated by way of a full-scale Public Inquiry. As Hayley Hooper, a lecturer at Trinity College, Oxford, says in her excellent and clear post on the UK Constitutional Blog:
To date no justification has been offered that points to a CMP being more a more expeditious manner of dealing with alleged security sensitive material.
I highly recommend Hooper’s post, which amongst other things provides a very useful summary of what Closed Material Procedures are, why they matter and how the courts have addressed them in the various contexts they have arisen so far; for example, in immigration and control order cases. Hooper concludes that
If the Justice and Security Bill passes through parliament un-amended the consequences for open justice will be devastating and the prospects of holding government to account over allegations concerning the activities of the security and secret intelligence services will be severely diminished.
One of the striking aspects of this debate is how far apart the Government is from its critics. For example, the Justice Minister Ken Clarke’s introduction to the response to the JCHR report also appeals to scrutiny of the security services, but argues – contrary to Hooper – that the proposals will enhance scrutiny:
But it is also right that [the security services] are properly scrutinised in Parliament and beyond and – where serious allegations are made against the security and intelligence agencies – that they should be heard and resolved in a court of law. So no-one can be satisfied with the current situation whereby, in a small number of nonetheless important cases, no judgment is passed on very grave allegations.
Indeed, it might be said that the sides of this debate are so far apart that it is reasonable to assume that one of them is wrong.
Finally, below is a clip of a debate I had on BBC News with the University of Buckingham’s Professor Anthony Glees on the proposals (YouTube link here). Glees concentrated on two main arguments: that the proposals will preserve the secrets of the secret services and that they will prevent the need for secret service agents giving evidence in open court. You can make up your own minds, but these arguments seem to me to be a fair distance even from those being used by the Government itself to justify the changes.
This debate will continue as the Bill runs its course through Parliament. It is not clear whether the Daily Mail will now abandon its campaign following the concessions it “won”, according to the Justice Secretary at least. We will of course continue to follow the debate closely.
Update, 6 June 2012 – Barrister Tom Hickman has written an excellent post on the UK Constitutional Law Blog. He argus:
… it is hard to view the Bill in any way other than as a “win win” for the Government. Secrecy is absolute and scrutiny is in its gift. As drafted, the Bill seriously and needlessly exacerbates the departure from equality of arms that is already inherent in the proposed use of CMP in civil claims. Whether or not the Bill is justifiable at all—which, I emphasise, is not a point considered here—much work would need to be done by Parliament to bring the Bill into line with the justifications that have been advanced for it by the Government.
Joshua Rozenerbg’s Law in Action also considered the issue yesterday by way of an interview with Dinah Rose QC, counsel for Binyam Mohammed and others in the al-Rawi litigation.
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