Secret Courts remixed: any better than the original? – Angela Patrick

26 November 2012 by Guest Contributor

This coming Wednesday sees the end of the first stage of the Justice and Security Bill’s passage into law. The Bill which would introduce Closed Material Procedures (CMP) – where one side of a case is excluded with his legal team and represented by a security cleared special advocate in cases involving national security – has become widely known as the Secret Courts Bill. Its progress has been closely scrutinised in this blog over the past six months.

As it completes Third Reading and passes to the House of Commons, we reflect on last week’s Lords amendments to the Bill. While there are still issues ripe for discussion at Third Reading, it is broadly accepted that the key Lords votes have passed.

Peers from all three parties joined to defeat the Government in three key votes by a wide majority, with further changes accepted without a vote to save further embarrassing counts. The amendments were recommended by the Joint Committee on Human Rights (JCHR) and tabled by members of the Committee and Lord Pannick QC, a member of the Lords Constitution Committee. Labour peers were encouraged to abstain from a vote which would remove CMP from the bill entirely unless the JCHR amendments passed. Proposed by Lord Dubs and supported by Baroness Kennedy, Lord Macdonald and others, deletion amendments were defeated (25 to 164).

These votes have variously been described as creating “chaos” for the Government’s secret courts plans; exposing major coalition tensions; as a major win for the Government and as going no-where near far enough. Lord Lester of Herne Hill QC, dismissed the debate on scrapping the CMP provisions in the Bill as a “tragic comedy” (Col 1898).

So, where is the debate on the Bill? Have the Lords scored a win; lose or a draw? Indeed, have the efforts to resist the expansion of CMP simply been just a bad joke?

Dissecting the debate

There is no doubt that the latest Lords defeats send a strong message that their proposals as drafted were unacceptable to members of all political persuasions. Similarly, it is clear that the amendments proposed by the JCHR and accepted by the House of Lords temper some of the worst excesses of the proposals on CMP. Notably, they would remove CMP from the sole instigation of the Secretary of State, would make CMP only available as and when required by the interests of justice and would introduce judicial discretion to consider alternatives to preserve the public interest in open and equal justice. However, the amendments do nothing to address the key conclusion of the JCHR, that the case for change had not been made (para 45).

As Lord Pannick stressed, introducing the amendments:

Strong views are held on all sides of this House about whether closed material procedures should be introduced. This is a difficult and sensitive issue. The amendments in my name do not – I repeat, do not – seek to resolve the dispute … The amendments…seek to ensure that if CMPs are to become part of our law, careful controls are needed to limit their application to ensure balance and fairness. In particular they seek to ensure that a judge in an individual case should have a discretion not a duty to order a CMP (Col 1814).

It is noteworthy that Lord Pannick went on to vote to scrap the CMP provisions from the Bill, despite the overwhelming support for his own amendments. Speaking in favour of deletion, Lord Macdonald, the former Director of Public Prosecutions identified three clear dangers in proceeding, none of which have been addressed by the Lords amendments, to public confidence in the judiciary, to fairness and to justice (Cols 1898 – 1900). Nothing in the Lords amendments addresses these concerns or the inherent injustice in CMP:

• Public Confidence: Lord Macdonald eloquently said “Not least of the damaging effects that closed material procedures may have…will be to damage public confidence in our judiciary. Who is to trust a judgment …made on the basis of material that he has never seen…The question of public confidence is not simply a question of public confidence in the system, it is a question of public confidence in the most important people who populate the system, the judges.”

While the Lords amendments would give the judges greater control over the instigation and process of CMP, including through looking at alternatives and exercising greater control over the initiative of the process, they do nothing to address the underlying unfairness of the system and the impact it may have on the credibility of the judiciary. It does not take a leap of imagination to consider the likely press speculation about material being considered behind closed doors in CMP in a high profile case, nor the likely comment on the role of the judge sitting. Where a judgment is given in favour of the Government, the perception, however ill-deserved, may be that the judge has been co-opted through the use of CMP in a miscarriage of justice.

• Fairness and Justice CMP remain inherently unfair. The respected views of Lord Reid and Lord Woolf are that judges remain capable of identifying weaknesses in the Government’s case as presented in CMP with the assistance of Special Advocates and able to temper this unfairness. Thus, they believe justice may be done in an individual case under CMP. However, the Special Advocates themselves maintain their criticism of the proposals and the wider use of CMP. That some, consider these skilled practitioners are simply underselling their contribution neglects the constancy with which they have publicly addressed the limitations of their role without any clear engagement by Government. The Lords amendments would do little to address the inherent danger identified by Lord Kerr in Al-Rawi. That is, that evidence and submissions unchallenged are likely to mislead. As Lord Macdonald emphasised:

I have spent many years in criminal courts watching evidence that at first sight seemed persuasive, truthful and accurate disintegrating under cross-examination conducted upon the instructions of one of the parties…Perhaps the key task facing a judge in evaluating evidence is to determine accuracy and reliability. This determination is the product of a process of testing, usually by cross-examination.

He went on to discuss the challenges faced by the Special Advocates:

Of course, the danger of a closed material procedure is that this essential process is compromised, disastrously….precisely because one party, the very party who wishes to engage in this process of challenge to defeat the Government is expelled…and must fall silent. He must rely on an advocate he is forbidden to speak to – he is represented by a lawyer who is forbidden to speak to him and to whom he is forbidden to speak. That lawyer then goes into the closed room with the judge and the Government lawyer and is expected to test the evidence on behalf of the claimant. Again, the special advocates themselves attested to the limits and the precariousness of their position in this situation.

Lord Macdonald was unpersuaded of the case that “some evidence is better than no evidence”. However, many Peers were so persuaded, including those with years of security and intelligence or judicial experience (for example, Baroness Manningham-Buller and Lord Woolf).

Lord Lester of Herne Hill QC suggested that the very system of CMP had been championed by civil society organisations, including JUSTICE, in the context of the litigation in Chahal, as a least unpalatable solution to the deportation of individuals on national security grounds without effective judicial review (See Cols 1821, 1897). With respect, this rewrites the history of JUSTICE. JUSTICE intervened in Chahal in order to highlight the unfairness posed by the now largely defunct class based system of public interest immunity operated outside criminal proceedings. Nothing in our case referenced closed proceedings or special advocates. Other interveners did refer to a Canadian system which was in our view, misunderstood by the Court, but we were not among them (See Secret Evidence, 2009, para 328).

In any event, the relevance of support for the use of these exceptional procedures to introduce even a degree of procedural fairness where none had existed before to the debate on this Bill is limited. The Justice and Security Bill would create CMP as an ordinary part of the judicial toolkit. CMP would no longer be confined to a limited number of tribunals, but open to use across our system of civil justice. Even for those who may have supported the case for CMP in a handful of immigration cases – including the Labour party – this is a step-change and a challenge to the credibility of our justice system of a wholly different magnitude.

Where next?

A number of issues remain ripe for debate at Third Reading in the Lords. However, the deletion amendments having been pushed to a vote and defeated will not be raised again. The issue of a sunset clause and compulsory reporting on CMPs remains extant. No amendments have addressed the Government’s failure to grapple with the impact which CMP would have on the practicalities of litigation, including on assessment of prospects of success, Part 36 offers and advice on appeal. Equally, the Government has said it has been most affected by the criticism of the Special Advocates, and yet, there are no concrete proposals to improve their position in the Bill or the Lords amendments. The heart of the principled debate on CMP now moves to the House of Commons.

Government reaction to the Lords amendments should by all accounts have been contrite. Indeed, the Bill as amended would integrate CMP into our civil justice system in a manner which looks very similar to the system the Government was refused by the Supreme Court in Al-Rawi (had the Government succeeded in establishing that CMP were within the inherent jurisdiction of the Court, they would have remained entirely within the discretion and control of the judiciary). In this, the Lords amendments do look very much like a win for Government.

However, the Minister without Portfolio and former Lord Chancellor, Ken Clarke MP, has already committed the Government to “modify” the amendments at the House of Commons stage. The original draft of these proposals were patently a big ask; each concession made by Government has been a minor one. If Ministers now move to defeat amendments made with near-consensus across the major parties’ back benches, in the face of coalition tensions, this could be seen as a move designed to occupy the likely limited time for debate with issues already well-dissected.

Criticism of the Government’s proposals has been dismissed as hyperbole. However, opposition comes not only from organisations like JUSTICE, but the Law Society, the Bar Council and the Equality and Human Rights Commission. These voices are joined by the UN Special Rapporteur on Torture, Juan Mendez. The realpolitik solution offered by the Lords amendments is no solution at all. That further critique and rational discussion might be dismissed by the political equivalent of name-calling is closer to tragic than comic.

The Lords amendments shouldn’t be allowed to stifle, but should stimulate debate in the Commons. The JCHR ultimately concluded that the Government had not made its case for reform. Commons members, including prominent voices from the back benches of the Government parties and the opposition, have increasingly questioned whether the case can be made at all. The Government plans for the Bill to become law in the New Year. Whether it will be introduced into the House of Commons before or after the Christmas recess is as yet uncertain. However, the debate is not yet over.

Angela Patrick is Director of Human Rights Policy at JUSTICE.

Copies of the JUSTICE intervention in Chahal are available on request from apatrick@justice.org.uk. A summary of the Court’s consideration of the issue of closed proceedings is available in JUSTICE’s 2009 Report, Secret Evidence, at para 328.

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Read more:

• Time to untangle the debate over secret courts – Angela Patrick
• Government has still not made case for “inherently unfair” secret trials, say Special Advocates
• Criticisms remain as dust settles on secret trials bill
• Key Justice and Security Bill resources
• Secret evidence proposals – time to reflect

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• Time to untangle the debate over secret courts – Angela Patrick