on the world: a view on human rights
The Joint Committee on Human Rights has today published its second report on the Justice and Security Bill, which reaches its most critical stage next week: report in the House of Commons on 4 March and third reading on 7 March …an update so far on the situation in 2013
As the Justice and Security Bill heads to report stage in the House of Commons and critically closer to being passed as an act of law, the controversy surrounding it is as frenzied as ever, with almost everyone realising how potentially damaging the provisions it contains are, with the exception of a large number of politicians from the three main political parties, in whose hands the future of the bill now lies.
Neither Just nor Secure: 28 January:
One of the exceptions is Andrew Tyrie MP (Con: Chichester), head of the All Party Parliamentary Group on Extraordinary Rendition, who has campaigned tirelessly for transparency on issues concerning the UK intelligence services’ actions abroad over the past few years. One day before the Bill was debated by the Public Bill Committee on 29 January, Mr Tyrie and Anthony Peto QC issued a new report, Neither Just nor Secure, published by the Centre for Policy Studies. The 132-page report looks at all three areas of the Bill: the expansion of “secret justice” through the introduction of Closed Material Procedures (CMPs) to civil cases, removing the courts’ power to hear Norwich Pharmacal applications, which seek the disclosure of information held by UK authorities in cases deemed to be “sensitive” and, inadequate proposals to strengthen the Intelligence and Security Committee (ISC), which is supposed to oversee the intelligence services but which failed to uncover the truth about rendition. The authors state that “The Bill will not give the ISC the visible independence from the executive that it needs.”
In the report summary, they state the practice of “secret justice” will make it more difficult to uncover the truth” of British involvement in torture and international crime. They also state that the “Government has not yet provided adequate justification for much of this legislation” and that while the House of Lords provided “valuable” amendments, these do not go far enough. Instead, they suggest further amendments, including having CMP as a last resort, and where a CMP is approved, the judge should be able to balance the interests of justice against those of national security in deciding if information should be disclosed; a five-year sunset clause should also be included.
The report also provides an outline of the trajectory of the Bill and how it came into being, as well as dealing with the problems it raises in detail. The authors argue that, particularly given the failure to define what “national security” means within the scope of the Bill, in view of the delicate balance it is purported to strike, “Freedom is precisely the cost that the Government could inadvertently exact in the name of greater security.” They also state that: “Too many features of the Bill appear designed to address the awkward consequences of disclosure of wrongdoing; too little is being done to ensure that Britain closes the chapter on extraordinary rendition.”
Citing the case of Afghan prisoner Serdar Mohammed, who was tortured by the Afghan authorities after being handed over to them by British soldiers, the report makes the case that “The wider implications of introducing CMPs into civil cases have largely been neglected. If Part 2 of the Bill were enacted, any type of civil case could be subject to a CMP”, as well as mentioning some of the unfairness that could result from the use of CMP.
Commenting on the report, Mr Tyrie said, “The problem with the Bill is that the Government has been looking down the wrong end of the telescope. After years of revelations about the British authorities’ role in rendition and maltreatment, it seems to have concluded that its biggest problems relate to civil lawsuits and information uncovered using the so-called Norwich Pharmacal jurisdiction.
“Part 2 of the Bill, with its proposals for secret justice, have been shredded by the House of Lords and should not have been brought before Parliament. Not only must all of the Lords’ amendments remain in the Bill, they need to be underpinned by further improvements. The proposals for removing the courts’ ability to order the disclosure of information held by the UK Government need a good deal of improvement, too. In addition, we need stronger parliamentary oversight of the intelligence agencies through a more credible reform of the ISC than the Government has proposed. The Lords’ amendments have given ministers a second chance. They should take it.”
Public Bill Committee: 29 January – 7 February:
It appears that Mr Tyrie’s advice was not heeded when the Public Bill Committee met the next day or at any of its sessions over the next couple of weeks. At this stage, the Bill is given a thorough line-by-line reading by a group of MPs from different parties. The Committee was expected to report to the House of Commons by 14 February. The government only published its amendments on 29 January, not giving MPs on the committee sufficient time to consider them. Clause 6, possibly the most controversial area, which contains the provisions on the use of CMP was discussed on 31 January, starting with discussion on who can apply for a CMP. In opening the discussion on the motions and the government’s planned amendments, Mr Brokenshire reiterated the government’s unwavering position: “The Government continue to believe that closed material procedures are the right way to treat cases involving national security material that the courts recognise as too sensitive to disclose. In those cases, the alternative is silence—no final judgment from a judge, none of the questions posed by the claimant answered.” Mr Brokenshire further stated that “The Government have listened to the views, expressed during the passage of the Bill so far, about judicial discretion and in particular about who may apply for a closed material procedure”; however, the amendments that were put forward undid the intended effect of those proposed by the House of Lords to ensure a “fairer” process using CMP and leaving the use of CMP as a measure of last resort.
Andy Slaughter MP (Lab: Hammersmith), Shadow Justice Minister, criticised the government’s proposed amendments, and its failure to incorporate many of the amendments tabled in the House of Lords. He stated, “I believe that the principles of open and natural justice, which need to be engaged in the debate on closed material procedures, are infringed by the Government amendments.” Mr Slaughter argued, as did the Joint Committee of Human Rights (JCHR) and the House of Lords previously, that while the use of CMP is always inherently unbalanced and unfair, measures can be introduced to mitigate that imbalance.
The discussion continued on 5 February (morning and afternoon) where committee members debated when a CMP could be used and which court proceedings it could apply to. At this meeting in which Mr Slaughter continued to criticise the government’s amendments as “a wholesale rejection of the approach that the courts, the House of Lords, Committees of both Houses, the official Opposition, special advocates and leading non-governmental organisations have taken to CMPs”, he asked the crucial question of “Why are the Government going to elaborate lengths to repeal the House of Lords safeguards, which is effectively what they are doing, while pretending not to do so?” At these fifth and sixth sessions of the Committee, and briefly at it session on 7 February, the Committee debated Part 2 of the Bill which contains the provisions on the use of CMP and voted on them, largely agreeing with the government’s original Bill and rejecting the amendments tabled by the House of Lords. The government’s amendments were agreed by 10 votes to 9 by Committee members.
In response to this setback, which will not see CMP employed as a last resort, four leading human rights NGOs – Amnesty International, Reprieve, Justice and Liberty – issued a joint press release on 6 February in which they warned that the threat of “Secret Courts is graver than ever” following the reversion to what is largely the original Bill in its most recent version (of 8 February). The press release stated that “following intervention by government ministers, the “last resort” amendment has been overturned – meaning secret hearings could become the default in cases where the existing system for fairly handling sensitive material could have been used. If Ministers get their way then secret material – never disclosed to the claimant, let alone public or press – could routinely be used to defend serious allegations. The only people allowed to be present would be the judge, the Government itself and a Government-appointed Special Advocate”. It also states that at report stage in the Commons, there is “likely to be a showdown vote” to scrap Part 2 of the Bill entirely (which contains the provisions for CMP and was mentioned by Andy Slaughter at the Committee sessions) or a reintroduction of the House of Lords’ original amendments.
Report stage will take place on 4 March in the House of Commons. The Justice and Security Bill Committee Stage report was published on 22 February. Concerning the government’s failure to heed the amendments made by the House of Lords, the report states that “The Government has claimed that its amendments to the Bill meet the same concerns as the amendments made in the House of Lords.” The report provides a succinct overview of proceedings at Committee stage, and various developments in the progress of the Bill over the past few months.
Joint Committee on Human Rights:
The Joint Committee on Human Rights (JCHR) has continued to scrutinise the Bill as it progresses, and its first report last year was key to the amendments proposed by the House of Lords. The government published its response to the JCHR’s report published in November last year in January. In it, the government largely reiterated its position, which was demonstrated in its amendments published on 29 January, many of which are now included in the Bill. The JCHR also wrote to Kenneth Clarke, Minister without Portfolio responsible for this Bill, to criticise the little time between the publication of the amendments and the Public Bill Committee sessions, as well as the government’s reversal of many of the proposals it had made, and endorsed by the House of Lords, in its own amendments. Kenneth Clarke provided the JCHR with further evidence on the Bill on 12 February. During his witness hearing, Mr Clarke stated that “The Government has moved entirely in line with the principles underlying the JCHR’s last proposals.” Many of the same issues dealt with at Public Bill Committee stage were discussed. In a debate which has been largely circular since the Green Paper was published in October 2011, Mr Clarke reiterated his views: “Normally, justice should be open to the public, the press and all the parties. It is by far the best way of resolving a civil dispute, let alone a criminal case, although this Bill does not apply to criminal cases. We are talking about that minority of cases where openness will do serious damage to the national interest. This Bill is an attempt to devise some way of allowing that evidence to be taken into account. At the moment, we pay out millions of pounds. I am not naïve, but certainly it is arguable that quite a lot of those people would not have got the damages had the defence been called against them. We do not know where the money goes. It is completely naïve if you think that some of that money, as you have busily paid it out, has not quite possibly made its way to terrorist organisations. You cannot say this is fair justice because there has not been any justice. No one has ever decided the case. The judge has not been allowed to hear the evidence. That is why we are moving in this difficult area that we are. That is why we need special advocates.”
The JCHR has today, 28 February, published its second report on the Justice and Security Bill, which will no doubt be instructive to the report stage and third reading in the House of Commons, particularly as it “scrutinise[s] the extent to which the Government’s amendments reflect the recommendations in our first Report. To the extent that we are not satisfied that they do so, we recommend further amendments to the Bill for consideration at Report stage”. The report welcomes some of the government’s amendments to the Bill, however it is of the view that the government’s “amendment enabling all parties to proceedings to apply for a CMP does not provide for equality of arms in litigation because it would unfairly favour the Secretary of State” and recommends that “the Bill be amended to restore equality of arms in the ability to apply for a CMP, or that an appropriate mechanism be found to ensure equality of arms between the Government and other parties to civil proceedings in their ability to apply for a CMP.” The JCHR did not “accept the Government’s reasons for removing the “last resort” amendments made to the Bill by the House of Lords, which are based on a misunderstanding of the effect of the provisions” and instead recommends that “the Bill be amended so as to reinstate the condition that the court is satisfied that a fair determination of the issues in the proceedings is not possible by any other means and the requirement that the court “consider” whether a claim for PII could have been made, both of which have been removed by the Government’s revised clause.” It also restated its recommendation for annual renewal of the Bill “in view of the significance of what is being provided for and its radical departure from fundamental common law traditions.”
The JCHR has continued to be highly critical of the Bill and the manner in which the government has proceeded with it; indeed, the report’s main purpose is to “subject to careful scrutiny the claim that the Government’s amendments reflect our recommendations in our first Report on the Bill.” The Bill essentially argues for stronger safeguards in the provisions of the Bill, further clarity and protection. It also maintains its position that the government has yet to provide a good argument for the Bill in the first place.
Concerning this report, Dr Hywel Francis MP, JCHR Chair, said: “We welcome the Government’s engagement with the substance of our first Report and with the issues we have identified, but call on them to go further in order to respect historic common law principles. We remain sympathetic to the problems faced by the Government in dealing with sensitive material, but the Bill as drafted does not put in place sufficiently robust safeguards to oversee the exercise of what are very wide-ranging powers. Indeed, the Government has softened many of the protections that amendments, recommended by this Committee in its first Report, introduced into the Bill when it was considered by the House of Lords. We urge the Government to think again and make sure that secret proceedings are used only in cases of pressing national security need, and are the last possible resort.”
With report stage and the third reading of the Bill taking place next week, this is a critical time for the Bill. The United Kingdom was listed as one of 54 states involved in the CIA’s extraordinary rendition published in a new Open Society Foundation report, Globalizing Torture, in February. The UK government “assisted in the extraordinary rendition of individuals, gave the CIA intelligence that led to the extraordinary rendition of individuals, interrogated individuals who were later secretly detained and extraordinarily rendered, submitted questions for interrogation of individuals who were secretly detained and extraordinarily rendered, and permitted use of its airspace and airports for flights associated with extraordinary rendition operations.” Given the poor level of debate on this issue, which has polarised views as it sprints through the legislative process, it is unfortunate that the government fails to realise that one of the most effective and cheapest ways of dealing with the litigation the Bill is purported to cover is to investigate and settle these allegations in open court, and then ensure that there is no cause for them to arise again. Rather than hiding it, it should be brought out into the cold light of day. Recent inquiries and lawsuits concerning Kenya and Northern Ireland show that the truth will not remain hidden forever. This would also promote confidence in the intelligence services and protect national security.
Please take time to take action before it is too late – write to your MP via Liberty: http://www.liberty-human-rights.org.uk/campaigns/for-their-eyes-only/for-their-eyes-only.php?dm_i=C3V,1B1LU,2H1O9Y,4FCU4,1
Long before the Justice and Security was in the pipeline, the London Guantánamo Campaign, in August 2008, when the Binyam Mohamed case was in its early day, held an event at Garden Court Chamber, Extraordinary Rendition on Trial, at which Zachary Katznelson from Reprieve, solicitors Gareth Peirce and Phil Shiner spoke and answered questions about some of the issues involved, court cases concerning Guantánamo Bay, Iraq, Afghanistan, and British involvement in extraordinary rendition and torture abroad. Many issues relevant to the current Bill and reasons why it should be opposed were raised. The hour-long event can be viewed at: http://www.humanrightstv.com/london-guantanamo-campaign/detention-torture/extraordinary-rendition-on-trial