on the world: a view on human rights
Published almost one week later than anticipated, the government’s controversial Justice and Security Bill finally saw the light of day in the Lords on 29 May. The source of the delay was alleged disagreement between the Coalition partners on some of the provisions of the proposed Bill; upon publication, closed material procedures (CMP) or “secret hearings” for inquests were removed, and the scope of the use of such measures was restricted to national security cases only, two measures that had been opposed by Deputy Prime Minister Nick Clegg. Hailed as a good result for the Liberal Democrat leader and a “climb down” by the government, Tom Brake MP described the bill as published as “a good result for the Lib Dems and civil liberties”. The bill, however, has continued to be the subject of criticism and concern for other quarters, including human rights NGOs, other political parties and former Director of Public Prosecutions, Liberal Democrat peer, Lord MacDonald, who said the changes did not go far enough.
The Bill, introduced into the House of Lords, had its first reading on 28 May. Similar to the green paper, the Bill looks at three important areas of security and intelligence handling in the UK: the work and organisation of the Intelligence and Security Committee (ISC), the disclosure of sensitive material (use of secret evidence), and disclosure proceedings (use of Norwich Pharmacal principle). Only the second part, sections 6-11, of the Bill are of relevance here. Section 12 also seeks to expand the jurisdiction of the Special Immigration Appeals Commission (SIAC), which already has the power to use CMP under a 1997 act, to include exclusions from UK territory, naturalisation and citizenship decisions, meaning that secrecy in such matters will be subject to existing procedural rules at SIAC, which currently apply to national security deportations.
Plans to introduce secret proceedings in civil cases, albeit restricted to national security matters, have thus far proved the most controversial area of the proposals. This would effectively see the use of special advocates, and open and closed courts and judgments, with the power given to ministers to choose between applying for a public interest immunity (PII) certificate to withhold disclosure of sensitive information, which is then excluded from the case altogether, or a CMP where the evidence is withheld from one party and its counsel. When such sensitive material is considered by the court, this party is represented by a security-vetted barrister, a special advocate, who cannot thereafter discuss or disclose any information to this party about this evidence. The Justice Secretary, Kenneth Clarke, has argued that secret evidence (CMP) would allow sensitive cases to be heard in full.
Fairness is part of the purported aim of the proposals, yet it is the inherent lack of fairness in the use of CMP, the restriction on the powers of the judiciary in matters such as deciding on the use of CMP or PII, for example, and the affront to the constitutional principles of open justice and natural justice that form a large part of the controversy.
Prior to the second reading of the Bill in the Lords on 19 June, the special advocates, a key part of the proposals, submitted a memorandum on the recently published Bill to the Joint Committee on Human Right (JCHR) on 14 June. Although considering the restriction of the scope of the use of CMP to national security cases an “improvement” on the green paper’s proposal, the memorandum was otherwise critical of the proposals in the Bill. The special advocates reiterated their view in their response to the green paper consultation that there is no need for CMP, which are “inherently unfair and contrary to the common law tradition.” The government’s pretext of using CMP to protect international relations and intelligence sharing with other states, as in the Guantanamo Bay-related cases mentioned in the green paper, was criticised as being relied upon, in the special advocates’ experience, “in circumstances where the harm caused by disclosure is in reality little more than diplomatic embarrassment.” They also criticised the failure to define national security and the balancing of powers in favour of the government.
On 15 June, the House of Lords Constitution Committee published its report on the Bill. The report called CMP a “constitutionally significant reform, challenging two principles of the rule of law: open justice and natural justice.” It questioned the fairness of the proposals and whether or not further CMP are necessary. It also questioned the power given to the government under these measures to act as the “sole gatekeeper to the use of CMP in civil cases”, by simultaneously being a party to the proceedings and deciding on how the case is to be conducted, as well as the power given to the Home Secretary to decide what evidence is made available to the party bringing a case against the government.
Speaking to the Guardian newspaper on 18 June, one day prior to the second reading of the Bill, Conservative MP and Chair of the All Party Parliamentary Group on Extraordinary Rendition Andrew Tyrie stated, “The crucial offence to justice remains. The most important of which is that material will be presented to the court without the claimant or even his lawyers being able to see it. Instead he or she will be represented by special advocates – who have told us it’s inherently unfair.
It also offends the principle of open justice. However the government describes this, others will, with some justification, be able to describe this as ‘secret courts’. Secret courts and impunity for state officials involved in wrongdoing sound more like the tools of dictatorships than Britain.
We would have found far less out about rendition [under the system proposed by the justice and security bill]. We wouldn’t know that the UK facilitated rendition. The scope for the judges to decide whether or not here should be a CMP is much narrower than it has been represented [by the government].”
Mr Tyrie has been and is involved in a number of cases related to disclosure of information in rendition cases involving the UK and the USA.
Given the seriousness of the proposed measures, the JCHR decided to take further evidence on the Bill and held two oral evidence sessions on 19 June with David Anderson QC, the Independent Reviewer of Terrorism Legislation, immediately before the second reading began in the Lords and a second session on 26 June with lawyers. In giving his evidence, Mr Anderson QC added his voice to the criticism, stating that the Bill “addresses a genuine problem but in a disproportionate way.” He criticised the lack of control judges will have over such cases and the powers granted to the government, as the “judge should have the last word”.
Although at second reading, the Bill was discussed in broad terms, questions were again raised about the fairness of the measures and whether or not CMP are necessary as well as the envisaged role of judges and the clash with established, recognised legal principles.
At the JCHR’s second session on 26 June, Angus McCullough QC and Martin Chamberlain, both special advocates, and barrister Ben Jaffey gave evidence, and called for the role of judges and the independence of the judiciary, in light of the Bill, to be reviewed.
Full transcripts of both sessions can be read at:
In support of the Bill and following the oral evidence given to the JCHR by the special advocates, the former Independent Reviewer of Terrorism Legislation Liberal Democrat peer Lord Alex Carlile wrote the following comment piece, criticising the stance taken by the special advocates: http://www.guardian.co.uk/commentisfree/2012/jun/27/justice-security-bill-is-sound?INTCMP=SRCH
Following the first two readings, in July, the Bill moved on to committee stage, where each section is scrutinised carefully. Assisting peers with proposed amendments to the measures contained in the Bill, a number of organisations submitted their own briefings for this stage, including the Northern Ireland Human Rights Commission, the Bingham Centre for the Rule of Law (including a rather accessible definition of CMP), Justice and the Immigration Law Practitioners’ Association.
Sensitive material, section 6 onwards of the Bill, was debated for the first time on 11 July. Various amendments were tabled, grouped around several themes concerning CMP and PII, including whether or not a PII law should be passed to protect its use, granting more powers to judges to allow the use of CMP and making the procedure fairer. A summary of the amendments can be read at: http://adam1cor.files.wordpress.com/2012/07/11-july-lords-debate-committee-stage-2.pdf Further amendments were discussed this week as the committee stage progresses. The Bill will next be discussed on 23 July.
Although amendments have been discussed and are subject to discussion, the government has not really put forward a case, including through the Guantanamo Bay-related and industrial tribunal cases used in the green paper, to justify the need to expand the use of CMP. While the measures have been defended throughout by Justice Secretary Kenneth Clarke, whose view is that closed justice is better than no case at all, no actual proof has been provided of major failings in the way the courts currently handle sensitive materials through measures such as PII and in camera hearings, which are closed to the general public and media. Indeed, the amendments tabled are largely to provide safeguards should the Bill pass, whereas particularly from NGOs, the view is largely that the Bill should be scrapped. As a response to the size of the problem stated in the green paper, which has thus far been dealt with adequately by the courts, it is quite disproportionate. Quite simply, if the system ain’t broke, why attempt to fix it? Serious concerns have been raised about the government’s sincerity and interest in its alleged aims through the Bill.
In the meantime, at the end of June, judgment was handed down in a case concerning national security, and affected by such measures. In a case similar to the Binyam Mohamed case, which provides part of the rationale of the Bill, three Kenyan men currently held in Uganda and potentially facing the death penalty for alleged involvement in a terrorist attack in Kampala in 2010, sought evidence from the UK intelligence services, whom they claimed visited them in prison shortly after their “rendition” from Kenya to Uganda, which could see them cleared and freed. The men sought disclosure from the UK courts of what British intelligence knew about them. In a case involving closed hearings and the use of special advocates, the judges decided they would not compel the intelligence services to disclose what they know, however the issue of whether or not the UK was involved in their torture remains part of the closed evidence.
The Bill is likely to move on to the House of Commons in the autumn.
Produced for the Coalition Against Secret Evidence on 20 July