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Justice and Security Bill Goes to the House of Commons


This is a summary of various news and events around the Justice and Security Bill since my last post on the issue in September 2012. All dates relate to 2012 unless otherwise stated.

The following are covered (most recent and then in chronological order since September):

(i) Second Reading of the Justice and Security Bill in the House of Commons: (18 December)

(ii) Amnesty International report: (15 October)

(iii) JCHR report: (13 November)

(iv) Seminar: Justice and Security Bill: Covering Up State Crimes: (21 November)

(v) Third Reading in the House of Lords: (28 November)

(vi) David Cameron Gives Evidence to the Liaison Committee: (11 December)

(vii)  De Silva Report on the Murder of Belfast Solicitor Patrick Finucane/ Financial Settlement in Libyan Rendition Case of Sami Al-Saadi: (12/13 December)

(i) Second Reading of the Justice and Security Bill in the House of Commons: (18 December)

Amid continuing controversy, the Justice and Security Bill had its second reading in the House of Commons on 18 December. Having been introduced to the Commons formally on 28 November, it was first debated by MPs this week. The debate was introduced by former Justice Secretary Kenneth Clarke, currently a minister without portfolio, retained following the cabinet reshuffle in the autumn, to lead on this Bill, which demonstrates just how important it is to the government that the provisions of the Bill are pushed through.  In presenting the government’s case for the Bill, which will see the further expansion of closed material procedures (CMP), or secret evidence, “in [civil] cases in which national security will be jeopardised if evidence is given openly”, Mr Clarke reiterated the argument that while “it is less than ideal, […] it is justice, not secrecy.” He also maintained the argument that the provisions in the Bill will allow cases where “national security” concerns are identified to be heard – albeit with the exclusion of the claimant and their counsel, and in the presence of a security-vetted barrister called a Special Advocate – rather than result in an out-of-court settlement as happened in the case of several former British Guantánamo Bay prisoners over two years ago, one of the triggers of the ensuing green paper and this Bill. However, while admitting that some of the claims of abuse made by claimants are “really serious”, Mr Clarke and the government continue to ignore the roots of the problem – British intelligence services’ collusion in torture and abuse – and instead focus on the tabloid newspaper argument concerning the potential cost of out-of-court settlements when cases cannot be dealt with in open court. While stating that the “fact is that the reputational damage is probably more significant than the millions of pounds that have been involved in some of these cases”, Mr Clarke undermined the seriousness of the claims made by later stating that “claims are getting steadily more numerous as we have an attractive jurisdiction in which the person against whom one makes allegations will probably not be able to call any evidence and one will be paid millions of pounds.” Indeed, if there was no potential case to answer and no improper conduct by the government and its agents involved, there would be no need for such court cases or out-of-court settlements at all.

Mr Clarke looked at the amendments proposed by the Joint Committee on Human Rights (JCHR) in its fourth report on Legislative Scrutiny of the Justice and Security Bill of 13 November. The main issue concerned the discretion a judge has in using CMP and the procedures they should follow in doing so.  Some of the JCHR’s suggested amendments were included in the amended Bill that passed from the House of Lords to the Commons at the end of last month. Nonetheless, the JCHR chair, Dr Hywel Francis (Lab: Aberavon), while commending the various amendments that have been made, said that there “must be a recognition of how radical a departure from our common law constitution it is to extend closed material procedures to civil proceedings”, due to the undermining of the adversarial system used in the British courts and the principle of open justice. He also reiterated the JCHR’s continuing criticism that, shared by many in NGOs and in the legal profession, the government has consistently failed to provide a reasonable case for the introduction of CMP in civil cases or evidence the growing tide of relevant litigation against it. The JCHR remains unconvinced by the rationale for the bill.

David Davis MP (Con: Haltemprice and Howden) provided examples of how the use of CMP can fail, in a past control order case and in the recent case of an Afghan torture victim, Serdar Mohammed, which led to a moratorium on the handover of prisoners by the MoD to the Afghan authorities due to the risk of torture in Afghan jails. Mr Davis also stated, “The Justice and Security Bill is being sold as a fair way to protect our national security and justice. It does neither.”

From the various questions asked by MPs, it is clear that there is still considerable confusion among those who may well pass this Bill, with questions asked about fair trials and secrecy in criminal proceedings, whereas the provisions will only affect the civil law, as clarified by Kenneth Clarke.

In spite of vigorous and reasoned opposition to the Bill expressed by various MPs, including Steve Baker (Con: Wycombe) stating that, “There seems to be enormous momentum behind the Bill, but no particular enthusiasm to carry it through”, the motion to read the Bill a second time in the Commons was passed by 262 in favour with 18 against it.

The Bill will now move on to committee stage, where it will receive a thorough line-by-line reading by the Public Bill Committee, which is expected to report to the Commons by 14 February 2013. Given its current stage in the House of Commons, although further amendments are likely, it is now almost inevitable that the Bill will be passed into law.

(ii) Amnesty International report: (15 October)

In the run-up to the passage of the Justice and Security Bill from the House of Lords to the House of Commons, the Bill has continued to receive considerable criticism.

On 15 October, Amnesty International published a 57-page report entitled “Left in the Dark: The Use of Secret Evidence in the UK”, focusing on the growing reliance by the British government on the use of secret evidence “in the name of national security”. In the report, which includes interviews with individuals and families affected by closed material procedures (CMP) at the Special Immigration Appeals Commission (SIAC) and elsewhere, and lawyers involved in the process, “Amnesty International considers that closed material procedures undermine standards of fairness in the administration of justice; can deny individuals their right to a fair hearing, including with respect to claims that the government will expose them to the risk of serious human rights violations through deportation; and may prevent victims of human rights violations from accessing their right to an effective remedy.” In charting the history of the use of secret evidence, the report states, “The nature and spread in the use of closed material procedures represents the emergence of a parallel justice system in the UK for cases the government claims are related to national security.” In its thorough and comprehensive report on current secret evidence use in England and Wales, the report concludes that the government must abandon its expansion of the use of CMP and ensure fair trials and sufficient disclosure to individuals subject to such procedures.

(iii) JCHR report: (13 November)

Following the publication of the Justice and Security Bill in May this year, the parliamentary Joint Committee on Human Rights (JCHR) decided to continue its inquiry into the bill’s proposals, due to the continuing risk they pose to human rights. The report, following several oral evidence sessions with David Anderson QC, the Independent Reviewer of Terrorism Legislation, special advocates Martin Chamberlain and Angus McCullough and barrister Ben Jaffey, was published on 13 November. This fourth report, Legislative Scrutiny: Justice and Security Bill, is intended to focus on practical ways in which the Bill can be improved taking human rights into consideration. The report criticises the government for failing to provide data and evidence on the actual number of cases the bill is intended to cover and which include national security-sensitive materials. The JCHR consequently “remain[s] unpersuaded that the Government has demonstrated by reference to evidence that there exist a significant and growing number of civil cases in which a CMP is “essential”.

The recommendations that the report makes that were included in the amendments passed in the House of Lords on 28 November include those to grant the judge the discretion to decide on using CMP, a judicial balancing test in deciding on their use and a series of measures to ensure that CMP are appropriate in a case, as opposed to other available procedures, such as a public interest immunity (PII) certificate, which would exclude sensitive information from the proceedings altogether. The report also asks the Secretary of State “to report regularly to Parliament about the use of the exceptional procedures contained in the Bill, and providing for both independent review by the Independent Reviewer and for annual renewal”, in view of its “radical departure from fundamental common law traditions. Although the scope of the proposals have narrowed considerably from green paper stage – potentially all civil litigation – to the current bill – restricted to national security cases, the report raises concerns about the scope of what would fall within the definition of “national security” and call for the term to be defined as well as clarity from the government on what materials are to be protected under CMP.

Recommendations made in the report, as well as the amendments it has led to in the current Bill before the Commons, will be debated during committee stage over the next two months.

(iv) Seminar: Justice and Security Bill: Covering Up State Crimes: (21 November)

Simultaneous to the report stage debate in the House of Lords, on the evening of 21 November, CAMPACC, the Haldane Society of Socialist Lawyers and the Coalition Against Secret Evidence (CASE), held a seminar at Garden Court Chambers in London, “Justice and Security Bill: Covering up State Crimes”, to debate the issues of concern with a number of leading individuals and organisations. They included former special advocate and barrister in open proceedings at the Special Immigration Appeals Commission (SIAC) Dinah Rose QC, Richard Norton-Taylor, Guardian journalist, Clare Algar, executive director of Reprieve and Saghir Hussain, director of Cageprisoners. The meeting was chaired by Haldane member, solicitor Louise Christian from Christian Khan solicitors, who was personally involved in litigation involving former Guantánamo Bay prisoners; it was another case for disclosure of torture evidence in the treatment of British nationals and residents previously held at Guantánamo Bay, ending in an out-of-court settlement in 2010 to prevent disclosure, that largely provided the purported rationale of the bill.

All the speakers raised concerns about the government’s attempts to hide evidence of its involvement in international crimes, to protect diplomatic and intelligence-sharing relations as well as about provisions that undermine the traditions of the English legal system and the right to a fair trial. The potential complicity of lawyers and judges in such a system, the failure to explain or consider what the actual and practical use of closed material procedures will involve and the discriminatory nature of the proposals were all raised.

Dinah Rose QC, identified by Jack Straw as a “a leading critic of the proposals in the Bill” in the House of Commons on 18 December, stated that the government is using the proposals to create a “special procedure” for itself as well as expressing concerns that the use of CMP could still be extended to the whole common law system, which develops on the basis of case law, and cannot evolve with judgments made in secret. She criticised the one-sided nature of such procedures and the fact that one party, usually not the government, is excluded from parts of the case and judgment, as well as the lack of clarity on the practical implementation of the proposals. Indeed, in the second reading in the House of Commons, Kenneth Clarke focused on the principle of the proposals and not their substance (to be left to committee stage). Ms Rose said that the proposals would have a huge impact on common law rights and that there should be no compromise on the issue.

Clare Algar from Reprieve questioned whether the government can be trusted with the use of CMP, a view echoed by several MPs in the House of Commons on 18 December. She stated that it would be disingenuous and naïve to say that the issue is limited to a few cases. She expressed her organisation’s view that if the Bill progressed to the House of Commons, it would be passed and the amendments suggested by the JCHR and tabled in the Lords, if passed (at that stage), would make the bill more palatable to MPs. Indeed, from the debate in the House of Commons on 18 December, this has clearly been the case with a number of MPs stating that the amendments introduced to the Bill before its passage to the Commons, mitigating and narrowing some of its provisions, have made them more receptive to accepting it.

A podcast of the meeting can be heard at: http://backdoorbroadcasting.net/2012/11/justice-and-security-bill-covering-up-state-crimes/

(v) Third Reading in the House of Lords: (28 November)

The Justice and Security Bill had its third reading in the House of Lords on 28 November, the last opportunity for amendments to be made at that level before it was introduced to the House of Commons on the same date. Amendments passed by the Lords the previous week, drawn largely from the JCHR recommendations, were included in the new version of the Bill to include CMP being used at the discretion of the judge. However, in moving the motion to pass the Bill over to the House of Commons, Lord Wallace of Tankerness, who had introduced the Bill into the Lords on behalf of the government, stated “the Government want to give very careful consideration to amendments that were passed by considerable majorities in your Lordships’ House on Report. The Government will address them, give them serious consideration and no doubt make their position plain in the other place, bearing in mind that the amendments were based on the recommendations of the report of the Joint Committee on Human Rights. It is certainly the Government’s intention to respond to that report in a timely way.”

The upcoming debate in the House of Commons on this issue over the next two months will thus be of great concern to all interested parties.

(vi) David Cameron Gives Evidence to the Liaison Committee: (11 December)

On 11 December, Prime Minister David Cameron gave oral evidence before the parliamentary Liaison Committee on criminal justice and policing, and green issues. During the session, he was asked by committee member, Dr Hywel Francis MP, chair of the JCHR, about the Justice and Security Bill and judicial control over the procedures it proposes. Concerning the transparency of CMP, Mr Cameron stated, “Yes, of course a closed material proceeding is less transparent than an ordinary civil case. […] It is not making the system less transparent; it is extending justice.”

Mr Cameron was also questioned by Andrew Tyrie MP (Con: Chichester), Chair of the All-Party Parliamentary Group (APPG) on Extraordinary Rendition, about the Bill. In responding to a question put to him relating to concerns expressed by special advocates that existing measures such as PII are sufficient and about judicial control, Mr Cameron stated that the use of CMP “will only happen when the judge wants them to happen, not at the order of the Minister”. Appearing to accept one of the JCHR’s suggested amendments, that ministers alone are not in a position to order the use of CMP, and that the judiciary should retain its discretion, it remains to be seen whether the government will concede on this key controversy in the Bill, one which makes it very much tipped in the favour of the government and which would impact on the separation of powers. Commenting on this later, in a press release on the same day, Mr Tyrie stated: “It was clear from the Prime Minister’s evidence today that he has not yet had an opportunity to hear all the arguments on this. The House of Lords sent a strong and clear message that the Bill is not tolerable in its current form. The Government must now accept the amendments proposed by the Lords and allow the judge to have the final say on whether CMPs should be used in a case and to ensure that CMPs are used only as a last resort.”

(vii) De Silva Report on the Murder of Belfast Solicitor Patrick Finucane/ Financial Settlement in Libyan Rendition Case of Sami Al-Saadi: (12/13 December)

In the week before the second reading of the Justice and Security Bill in the House of Commons on 18 December, two relevant events happened that demonstrate the need for transparency in the judicial system, even where “national security” is concerned, the legitimate and not so spurious nature of claims made by victims of state crimes, and more importantly, that secret evidence is detrimental to the security of the nation.

On 12 December, the government published the report of the De Silva Review into the murder of Belfast solicitor Patrick Finucane, who was shot 14 times as he sat down to dinner at home with his wife and three young children in 1989. Apologising to the family of Mr Finucane in parliament and admitting that there were “shocking levels of collusion” in his murder between the intelligence and security services and loyalist paramilitary groups, Mr Cameron refused to agree to a public inquiry into the murder in spite of growing pressure for one over the past two decades and in spite of Sir Desmond de Silva having “significant doubt” in his report that Mr Finucane would not have been murdered “had it not been for the different strands of involvement by elements of the State”, right up to potentially ministerial level. The Prime Minister referred to the excessive cost and time that would be taken up by such an inquiry. This case nonetheless demonstrates, as other have, that time does not extinguish the desire or need for justice, or that the victims of state crimes should be disregarded or treated as secondary. Commenting on the risks the Justice and Security Bill could pose to the Northern Ireland peace process in the summer, Brian Gormally, director of the Committee on the Administration of Justice (CAJ), stated, “The establishment of a parallel “anti-terrorist” justice system would lead to the kind of human rights abuses that fuelled the conflict in Northern Ireland and marginalised communities.”

A day later, it was announced that Sami Al-Saadi, one of two men who had been rendered to Libya with the overt collusion of British intelligence services in 2004, uncovered by a Human Rights Watch mission to the post-Gaddafi state in September 2011, had decided to drop his case against the British government through an out-of-court settlement for £2.2 million, stating that “his family had suffered enough”. In 2004, shortly after Britain decided to resume trade dealings with the Gaddafi regime, in a “deal in the desert” made between the then Prime Minister Tony Blair and the late Colonel Gaddafi, the families of two Libyan dissidents were forcedly “rendered” to Libya where they were imprisoned and tortured for several years. With British collusion, Mr Al-Saadi, his wife and four children were taken by force from Hong Kong to Libya in 2004. Under the settlement, the government accepts no liability; however, the payment itself is evidence of a cover-up. Another former dissident, Abdul Hakim Belhaj, whose family was also “rendered” from Thailand to Libya is continuing his claim, in which former minister Jack Straw MP and former MI6 official Sir Mark Allen are defendants. Possibly an element of the trade deal made with the then Libyan authorities, the UK also tried to deport, on national security grounds, several Libyan dissidents whom it had given asylum to previously. This was only blocked on appeal from SIAC following a judgment in a similar case against Italy at the European Court of Human Rights in 2008.

In his statement on his decision to settle out of court with the government, Mr Al-Saadi, who was only released from prison in 2011,said, “My family suffered enough when they were kidnapped and flown to Gaddafi’s Libya. They will now have the chance to complete their education in the new, free Libya. I will be able to afford the medical care I need because of the injuries I suffered in prison.

“I started this process believing that a British trial would get to the truth in my case. But today, with the government trying to push through secret courts, I feel that to proceed is not best for my family.  I went through a secret trial once before, in Gaddafi’s Libya. In many ways, it was as bad as the torture. It is not an experience I care to repeat.

“Even now, the British government has never given an answer to the simple question: ‘Were you involved in the kidnap of me, my wife and my children?’

“I think the payment speaks for itself. We will be donating a portion of the proceeds to support other Libyan torture victims. We look forward to the result of the police investigation and hope there will be a full and fair public inquiry into our case.” [Source: Reprieve]

In a press release about this rendition case, Andrew Tyrie stated, one day before the second reading of the Justice and Security Bill:

“For over six years, the APPG has been trying to get to the truth about alleged British complicity in the kidnap and torture of detainees.  We still don’t know it. Mr al-Saadi’s case highlights the need to hold a full judge-led inquiry as soon as possible.  Only then can we draw a line and move on.

This is the sort of case that could be caught by the secret courts provisions of the Justice and Security Bill.  In the future, if the Bill comes into effect unamended, a person suing the Government for his rendition and torture could be shut out of his own case.  So would the lawyers for the claimant, the press, and the public.  Any evidence deemed damaging to national security would require the case to be heard in secret.  The judge would only hear the Government’s evidence and the claimant wouldn’t be able to challenge it.  The claimant wouldn’t know why he or she won or lost; what allegations were made against him; or what case was made on his behalf by the Special Advocate.  This flies in the face of the fundamental principles of our legal system and is unacceptable.”

Robert Fisk commented on the collusion of the intelligence services (in the UK and US) and the Finucane, Al-Saadi and Khaled El-Masri rendition case in The Independent newspaper on 16 December 2012.

Take Action!

Although the Bill is now making steady progress through the House of Commons and is likely to become law, there is still action that can be taken. Amnesty International and Liberty both are running campaigns. Click on the links to see what you can do.

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