Debate on the Address

Debate between David Davis and Tony Baldry

Wednesday 9th May 2012 Commons Chamber

[Mr Davis]

No, I am about to finish that part of my speech. The prior warrant process would ensure that we stop the great overuse of the new powers, which has happened dozens of times in the past decade. If we do not, the public reaction will be one of outrage, because the measure will affect not just a few people, but tens of millions of people, and they will not take it quietly.

My last point is on a justice measure, but it is not a measure like the snooper’s charter, which will create a tsunami of reaction as it goes through the House—I am confident of that, because we already have 137,000 signatures on the online petition. Secret courts affect only tens and perhaps hundreds of people, but they bring against those people a serious injustice. I take the view—a very unfashionable one in modern politics, with too many polls and focus groups—that an injustice against one is an injustice against all, and the secret court proposals undoubtedly propose an injustice.

I say that with complete confidence, but for a rather obscure reason. A secret court procedure is proposed, but we already have such procedures. They are called special immigration appeal courts—SIAC—and they have existed since 1997, when the Labour Government introduced them to deal with people they thought they could not deal with in open court. Of course, no hon. Member has ever been in one or seen one in operation. No hon. Member knows how they work, including all Ministers of this Government and the previous one.

One group alone understands how those courts work: special advocates. There are 69 special advocates, of whom 32 have had detailed exposure to the proposed closed material procedure. The procedure involves the Executive—a Minister—saying to a court: “This information can be heard only in very close camera.” It cannot be heard in court as a whole in secret: the judge and the Government advocate of the argument can hear the evidence, but only the special advocate—a lawyer who cannot talk to the defendant or litigant in the case—can challenge it.

[Tony Baldry]

We had a system of special advocates in courts in Northern Ireland for a very long time—a number of members of my chambers were special advocates in such circumstances—and I do not recall my right hon. Friend when we were in government ever complaining about those procedures, which we had to use in Northern Ireland given the particular circumstances there.

[Mr Davis]

I am sorry to correct my hon. Friend’s memory, but I did complain. I actually appeared in a Diplock court as a witness, so I know exactly how they work from that point of view.

The simple truth is not my view, but the view of the 32 special advocates who have had such experience. Virtually all of them signed a document that challenged the Government’s Green Paper, in quite robust terms. The special advocates said that closed material procedures

“represent a departure both from the principle of natural justice and from the principle of open justice. They may leave a litigant having little clear idea of the case deployed against him, and ultimately they may prevent some litigants from knowing why they have won or lost. Furthermore, and crucially, because the SA appointed on his behalf is unable to take instructions in relation to that case, they may leave the SA with little realistic opportunity of responding effectively to that case. They also systematically exclude public, press and Parliamentary scrutiny of parts of our justice system…Our experience as SAs involved in statutory and non-statutory closed material procedures leaves us in no doubt that CMPs are inherently unfair; they do not ‘work effectively’, nor do they deliver real procedural fairness. The fact that such procedures may be operated so as to meet the minimum standards required by Article 6 of the ECHR, with such modification as has been required by the courts so as to reduce that inherent unfairness, does not and cannot make them objectively fair.”

That is the view of the only people who understand this system.

The secret courts measure is being held up as a proposal to improve our security. It would undermine and corrode our justice system, and it would not improve our security, because the other point made by special advocates is that the public interest immunity system as it now stands—again this is not properly understood by Ministers—works perfectly well, and much better than what is proposed. Indeed, one special advocate has pointed out that this proposal is less good than that available to the terrorist suspects in Guantanamo Bay. That is how poor this procedure is. In fact, there are many other procedures abroad that would work better than this one. Sadly, this is not a measure that I will support in the coming months.

The Government came in with a grand, important and liberal—both small “l” and big “l”—tradition to uphold. That tradition supported both freedom and justice in this country. These two measures—putting the Lords to one side, as that is a matter for argument—would, if we are not very careful, undermine that tradition and our reputation, and do nothing to improve the protection of Britain against terrorism. Indeed, just the reverse—they would make it worse.