Time is running out to ensure that the British legal system is not fundamentally altered in favour of the State’s desire to keep secret what it chooses. Today several amendments to the Justice and Security Bill are before the House and we urge MPs to back them, if they are unwilling to vote against Part 2 of the Bill.
The House of Lords amendments to safeguard the use of Closed Material Procedures were a reasonable and practical way of ensuring that legislation did not put undue power in the hands of the Executive to keep inconvenient and embarrassing matters secret. Anthony Peto QC, co-Head of Blackstone Chambers, has perfectly highlighted how the Government removed “four sensible and clear safeguards introduced, with overwhelming majorities, by the Lords” – they were:
- That Judges should refuse CMP’s where the public interest in the fair and public administration of justice outweighed the likely damage to national security.
- A provision that CMPs should be a measure of last resort.
- That the judge must first consider PII before ordering a CMP.
- That the citizen must have the same right to apply for a CMP as the State.
The latest assessment from the Joint Committee on Human Rights, publishing its second legislative scrutiny report, warned that there were still a number of significant issues that had not been addressed by the Government. Andrew Tryie MP wrote a damning paper for the Centre for Policy Studies ‘Neither Just nor Secure’ while former Labour Minister Chris Mullin joined critics arguing the Bill “will be deeply damaging to the integrity of our legal system in the eyes of the world.”
A letter signed by 702 legal experts called the Bill ‘dangerous and unnecessary’ while the latest analysis by the Special Advocates currently involved in closed hearings argues there is “no compelling justification for the proposals in Part 2 of the Bill has been made out, notwithstanding the Government’s assertions to the contrary“.
The Government has claimed that it is forced to settle cases because under the existing system of Public Interest Immunity it cannot defend them without damaging national security. 20 such cases were identified. However, David Anderson QC, the security-cleared Independent Reviewer of Terrorist Legislation, was not permitted to review them. He was only eventually allowed to see 3 of these cases, which he complained were “chosen” to “illustrate the government’s point of view”.
As the specialist group of security cleared Special Advocates reported: “There is as yet no example of a civil claim involving national security that has proved untriable using PII and the flexible and imaginative use of ancillary procedure”.
The former Director of Public Prosecutions, Lord MacDonald, said in the Lords debate:
“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…That is the risk that we are facing, that we are introducing into civil justice—in the most sensitive and controversial cases, where deeply serious allegations are made against the Government and the security services—a process that expels the claimant and gives him a form of justice that is not better than nothing. It is worse than nothing because it may be justice that is based on entirely misleading evidence.”