Everything you need to know about the secret trials coming to a courtroom near you – Angela Patrick

3 March 2013 by Guest Contributor

While the press (and the rest of us) were preoccupied by the debate on equal marriage and the public dissection of the Huhne marriage, the Justice and Security Bill completed its next stage of passage through the Parliamentary process.    Largely unwatched, a slim majority of Conservative members supported by Ian Paisley Jr., reversed each change made to the Bill by the House of Lords restoring the Government’s original vision:  a brave new world where secret pleadings, hearings and judgments become the norm when a Minister claims national security may be harmed in civil litigation.   

The Bill will return to the Commons for its crucial final stages on Monday.   In anticipation of the debate, the Joint Committee on Human Rights (JCHR) has published a third damning critique of the Government’s proposals.  The cross-party Committee was unimpressed by the Government rewrite of the Lords amendments.  Most of Westminster was busy in Eastleigh and few political commentators flinched.

The history of the Bill’s intention to introduce closed material proceedings (“CMP”) – where one party and his legal team is excluded from part of a case, hearing or judgment and replaced by a security cleared Special Advocate – has been dissected at length in this Blog over the past year.   Legal commentators, the Law Society, the Bar Council, the Equality and Human Rights Commission, the UN Special Rapporteur on Torture, the Liberal Democrat Party and the very Special Advocates on whom CMP will rely, have all criticised the Bill as a danger to open, equal and adversarial justice and to transparency and accountability.  Anthony Peto QC, has issued a rallying cry to the legal community:  “If any issue should bring lawyers out onto the streets, this is it.”

The Lords’ changes – passed with cross party and cross bench support by Peers including Lord Pannick, Baroness Kennedy, Lord Lester and Lord Macdonald – were designed to insert basic safeguards identified by the Joint Committee on Human Rights (JCHR) and the House of Lords Constitution Committee as essential to afford greater protection for judicial discretion, ensuring equality of arms and that CMP would be a measure of last resort.    Labour peers abstained from a vote to delete the CMP provisions from the Bill in light of these changes.

Yet, Ken Clarke’s response to this widespread criticism is beginning to sound too familiar.  Before the JCHR Report, he argued that the “Government had moved completely” to meet the Committee’s concerns and could go no further.  The Minister dismissed further criticism as “slightly legalistic hair-splitting” with the continued debate focused on “semantics” and “quibbling”.   Introducing the Government’s final amendments, published on Thursday – timed to coincide with the JCHR’s latest critical report – the Minister without Portfolio said the Government had gone to “extreme lengths” to meet criticism and it would be impossible to please “hardline critics”.  He promised “Final amendments should now resolve all right thinking citizens of Middle England that this is a sensible, worthwhile Bill“.

So, should lawyers be outraged or embarrassed by this debate?

What is on the table now?

Broadly, there are three sets of amendments to watch.  Each will be debated on Monday and there are votes expected:

• The JCHR wish-list:  Amendments tabled by the Labour front-bench echo the Lords amendments which the JCHR have recommended be reinstated.  These include a requirement that the Court apply the Wiley balance when considering whether to open the gateway to CMP (balancing the competing public interests in protecting national security and open justice); and requirements to consider whether PII were available and to limit CMP to circumstances when justice can be achieved by no other possible means.   Further amendments would provide that the Wiley balance will apply when determining whether evidence is open or closed; a statutory provision for summaries to be provided sufficient to allow for the instruction of Special Advocates in any CMP (“gisting”) and for the Bill to be subject to annual renewal by both Houses of Parliament.

• The Government’s “final” concessions:  The first group of amendments would overturn the current Government language in the Bill, which triggers CMP on evidence that material would have to be disclosed to another person which is damaging to national security subject to the assessment whether CMP would be “in the interests of the fair and effective administration of justice in these proceedings”.  The Government does not propose to change this language.  However, it accepts that the Court should be satisfied that the Secretary of State has “considered” PII before making an application for CMP.  The Government belatedly accepts that both parties should have equal access to CMP and that the Bill should make provision for annual reporting on their operation.   It would also concede a single post legislative review – most likely by the Independent Reviewer of Terrorism Legislation – of the operation of CMP after 5 years.

• The bottom line:  A final series of amendments would scrap the provision for CMP entirely.  By the time of the relevant vote, whether on Monday or at Third Reading, it will be clear whether the Government has persuaded the House that CMP should stay, and if so, in what form.

What did the JCHR say?

• The Government had not provided evidence to support its case for reform.  The Committee had seen nothing further to change its assessment.

• The Committee roundly rejected the Government’s rewrite of the Bill and called for the reinstatement of the Lords amendments.  In short:

• The Wiley Balance: Ken Clarke argued that the Wiley balance isn’t required for CMP because it isn’t as draconian as PII.  In fact, he said, the interests of open justice become irrelevant once the Minister has taken a decision to apply for CMP.  CMP are by their nature inconsistent with open justice; when considering an application for CMP, the interests of open justice should be irrelevant to the Court’s assessment (JCHR, paras 59 – 61).  This appears to show a basic misunderstanding of the common law.  As the Supreme Court in Al-Rawi recognised, all limitations to open justice must be justified in the public interest.  In the case of CMP, Lord Dyson explained, the deviation from the norm is so extreme, “compelling” reasons should be required.  If the Minister believes CMP are inherently in the public interest and no further proportionality assessment is needed, this underestimates the unfairness involved in their application and their long term impact on the credibility of the justice system.   The JCHR was similarly scathing.  It concluded that on the language adopted by the Government – the “fair and effective” test – the Minister was inviting the Court to conclude that:  “the only choice … is between a CMP and the case not being heard at all” (JCHR, para 61).

• Last Resort:  The Minister told the JCHR that making secret hearings a “last resort” would limit CMP unduly.   Exhausting other alternatives would be time-consuming and costly (JCHR, paras 66 – 70).  Putting aside whether administrative convenience can provide a compelling reason to impose a draconian measure such as CMP; this ignores the determination within CMP, whether any individual material should be open or closed (Clause 8).  The Special Advocates themselves have highlighted this inconsistency.  In asserting time and cost as a factor, the Minister inherently accepts that this exercise will be far less rigorous than the review involved in PII.   He stressed that despite the changes, CMP would be limited to the “most serious national security” cases.  However, without the limits imposed by the Lords amendments, there is no such restriction.  CMP becomes the default in all cases where any national security risk is raised.  The JCHR rejected each of the Minister’s arguments.  There was nothing in the requirement to consider whether a fair result might be achieved by other means which would require the exhaustion of a full PII exercise in every case (JCHR, para 77).

• Public Interest Immunity:  The Government has accepted a PII based amendment only after the JCHR published its report.  However, it is clear from the analysis adopted by the JCHR that it considered its PII, last resort and Wiley amendments part of an indivisible package (JCHR, para 77).  In any event the language proposed by the Government differs significantly from that of the JCHR.  The Minister would invite the Court to check whether the Secretary of State has considered PII.   The language of the JCHR amendment would permit the Court to go further and consider whether an application for PII could have been made.  These two involve qualitatively difference exercises, with the JCHR proposing a greater degree of control for the Court.

• Equality of Arms:  The Government now accepts that both parties should access CMP on an equal basis.   There remains a question over whether a Special Advocate should be appointed on every PII or CMP application to represent the public interest and/or the interests of any party whose interests may be affected by the Court’s determination.   Although the Government’s amendments will provide that any party may make an application for CMP, it is likely in most instances that it will be the Government who holds the relevant sensitive information.  In these circumstances during applications for PII or CMP it is likely that the Court will hear argument from the Secretary of State alone, unless a Special Advocate is appointed.

What are the key arguments for the changes, and are they convincing?

In light of the round JCHR rejection of the Government’s case, Ken Clarke’s appeal to Middle-England rests broadly on 2 arguments:

We should trust the judge to do right:  The Minister told the JCHR that by imposing their additional requirements, they were unduly tying the hands of the judge, in a way which could be costly and time-wasting.  Instead, he argued, the current draft leaves greater discretion with the judge.  We should trust British judges to do right.

While this is a superficially attractive argument, it neglects to ask, how the Court should exercise its discretion in light of the statutory provision made on the face of the Bill.  Nominally, the Bill requires the Court to be satisfied of only three things: disclosure, risk to national security, and that CMP is “in the interests of the fair and effective administration of justice in these proceedings”.  The question is having ticked these boxes and triggered the power to order CMP, the Bill gives no guidance on when the Court may refuse to exercise that power.  The “fair and effective” test places the emphasis on the effective disposal of the proceedings at hand, and as the Minister has explained, the public interest in open justice is irrelevant to the Court’s assessment.

The JCHR concluded that the “fair and effective” test is not a suitable alternative to requiring the Court to consider whether PII – or any alternative means – could have been used to protect national security.  This “fair and effective” test not a test of “strict necessity” and “may lead to CMPs being used in cases where the proceedings could still be heard sufficiently fairly by a claim being made by PII” (and thus, allowing for the consideration of other alternatives, such as confidentiality rings etc).  The Special Advocates consider that it is essential that the Bill spell out the test to be applied by the Court to ensure that the discretion is actively exercised:

If it is not spelled out, there is a risk that the court will not address its mind to the question of whether the case could be tried fairly under existing procedures.  There is a risk that CMPs will become the default option and that what was justified as an exceptional procedure will come to be accepted as the norm. (JCHR, paras 73 – 77)

Some have argued that the provision for the Secretary of State to consider PII taken together with the “fair and effective” test will allow the Court to consider alternatives to CMP, including confidentiality rings.   There is nothing on the face of the Bill or in this amendment which provides a solid foundation for this conclusion.  The Court need only be satisfied that the Secretary of State has considered PII.   Without an amendment akin to that recommended by the JCHR – to provide that no fair determination of the proceedings is possible without CMP – there is nothing on the face of the statute to require that the Court explore further any alternatives to CMP.

The Bill will restrict CMP to a handful of “the most serious national security cases”? (Or “isn’t this all about avoiding terrorists who cash in?”)  The Secretary of State has fallen back on the argument that CMP will allow the Government to avoid settling cases which it would otherwise have defended in CMP.  The JCHR – and commentators in this Blog – have roundly criticised this assertion.  There is no evidence that the Government has been forced to settle in any case.  In no case has it argued that the claim is so saturated with national security considerations that it could not be decided.  In the illustrative cases, the Guantanamo litigation, the Government did not wait for the decision in Al-Rawi before seeking settlement (and so, did not know whether CMP would be available or not).  This argument is further undermined by the concession of the Minister for Security during the Public Bill Committee debates that should PII and CMP be available, there may yet be cases where material is so “sensitive” that settlement is still seen as the most appropriate option (HC PBC Deb, 5 Feb 2013, Col 185).  This undermines its argument that CMP is essential; and that there is a compelling case for expansion.   On the Government’s own case, it would treat PII, CMP and settlement as alternative tools in its litigation strategy.

Ken Clarke’s statements increasingly refer to settlements which may be used to fund terrorism.  This type of veiled allegation of illegality is disappointing, again from a former Lord Chancellor.  The former DPP, Lord Macdonald, has publicly reiterated that the funding of terrorism is a criminal offence, with associated powers to seize assets.  If the Government suspected that lawfully paid settlement monies were used to fund terrorist activity, it has the power to recover that money.  That no steps have been taken suggests that the Minister’s statements are misleading bluster.

Focusing these provisions on counter-terrorism operations entirely is misleading.  Although the Bill refers to national security, the Government has been clear that this may include actions against the police; habeas corpus claims and even claims brought by the bereaved families of soldiers operating overseas.

What next? 

Before the next stages of political ping-pong, we should look to those at the heart of CMP, the judges and the Special Advocates.  The Supreme Court in Al-Rawi baulked at the notion it should make this kind of fundamental change to civil procedure without parliamentary approval.  Lord Kerr stressed that no-matter how good the judge, unchallenged material seen in CMP could positively mislead.  No less than “compelling” reasons were needed to justify the expansion of CMP.  In time for the final stages of this debate, the Special Advocates have reiterated that CMP are inherently unfair; and that they have seen no credible case for extension.

That the Minister in charge – a former Lord Chancellor no less – skates over the implications of CMP for open justice entirely should send alarm bells ringing.   Ken Clarke told the JCHR that he thought that Parliament had now moved beyond “general debate” on the principles in the Bill.   That may yet prove blasé, in light of the JCHR’s final report.

The JCHR’s suggested amendments are lightly draped over their conclusion that the Government had failed to make the case for their broad based proposals.   Labour Peers abstained on deletion amendments only because the JCHR changes had passed.  Grass-roots Liberal Democrat Party members continue to call for the parliamentary party to reject the expansion of CMP wholesale.  By reversing the Lords amendments, and standing his ground, the Minister has arguably taken the debate back to first principles.    If the Government continues to rebuff rational concerns and resist any significant change to the Bill, it may find back benches across the coalition persuaded that the price of secret courts is too high.

Failed to make the case

The Government has failed to make the case for change.  JUSTICE considers that none of the amendments on the table can remedy the limited case in support or ameliorate the danger posed to the credibility of our courts by making closed hearings an ordinary part of our civil justice system.  CMP is an affront to open, adversarial justice, not an administratively easy option.  The Minister’s failure to take seriously the implications of the Bill for centuries of common law principle highlights the Government’s failure to provide compelling reasons for reform.

It is now for Parliament to decide: will they accept the case for reform and rewrite the Bill or reject CMP?  That the Government has showed itself unwilling to compromise on the most basic of safeguards should foster a last stand against the roll out of secret courts.

Angela Patrick is the Director of Human Rights Policy at JUSTICE.  Further information about JUSTICE is available at www.justice.org.uk .  Follow JUSTICE on twitter @JUSTICEhq.

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