Justice and Security Bill [Lords]

Mike Crockart Excerpts

Tuesday 18th December 2012 Commons Chamber

[Mr Llwyd]

I believe that it does.

[Mike Crockart (Edinburgh West) (LD)]

Will the right hon. Gentleman give way?

[Mr Llwyd]

I would like to make some progress.

I have no time to deal with that at this stage. The hon. Member for Wycombe (Steve Baker) may be right; I do not know. I would like to discuss it with him on another occasion, perhaps in Committee.

If clause 7 goes through unamended, there will be no requirement to give excluded parties sufficient information about the case. I have heard the arguments about gisting, but surely in 99.9% of cases the gisting procedure will be the answer, coupled with other safeguards, one hopes.

Nicholas Blake QC, in giving evidence to the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, made the following comments on the situation that would arise after a judgment is given:

“If the special advocate thinks there is an error of law in the closed judgment, he gets permission to say, to pass the message out to the other team to say ‘I think that you should be appealing, I can’t tell you why’...So there is a sort of open appeal. ‘We think there is something wrong but we don’t know what it is.’ And then the court goes into closed session, so it is antithetical to every”

principle

“of due process and open justice.”

The Joint Committee on Human Rights has urged the Government to ensure that if CMPs are to be extended, there must be a

“statutory requirement in all cases to provide the excluded party with a gist of the closed material that is sufficient to enable him to give effective instructions to his Special Advocate.”

That is entirely reasonable, while taking on board what the hon. Member for South Swindon (Mr Buckland) says about avoiding breaches of national security, and so on. The Constitution Committee said in its report on the Bill published in June this year:

“In our view, the court should be required, for example, to consider whether the material could be disclosed to parties’ legal representatives in confidence and whether the material could be disclosed in redacted form.”

A related point that must be raised is the knock-on effect that clause 7 may have on appeals in civil cases, which is something that we really need to think through.

The Law Society has pointed out that the extension of CMPs will have wider implications for civil litigation and the professional ethics of solicitors. Solicitors will be impaired in advising their clients on the merits of a case and the prospects of success if they are unable to see the evidence brought by the other party. They will also be unable to advise on any prospect of an appeal, so undermining the client’s right to legal assistance in the determination of their civil rights and the fair trial guarantees under article 6 of the European convention on human rights.

The provisions contained in part 2 of this Bill will mark a departure—I am not saying that it will be radical, but it will be a departure—from the principles of open justice, and it will possibly undermine confidence in our justice system. I sincerely hope that this House will follow the example of the other place in seeking to amend what appears to be an unbalanced Bill. Discretion as to whether a CMP should be used must ultimately lie, of course, with a judge and not the Secretary of State. Although courts should be required to balance the interests of national security against those of fairness, either party in proceedings should be able to apply for a CMP and, perhaps most importantly of all, there should be a statutory requirement in all cases to provide the excluded party with a summary of the material to enable him or her to give cogent instructions to the special advocate representing his or her interests in court.

--- Later in debate ---

[Mike Crockart (Edinburgh West) (LD)]

I am very pleased, as a former member of the Joint Committee on Human Rights, to have the opportunity to speak in this debate. Importantly, I was a member when its report on the Bill was written and published. We spent a large amount of time examining the Bill, which was a difficult thing to do as a non-lawyer, but it has been a worthwhile, though arduous, journey from the first time I asked what Norwich Pharmacal actually meant.

When the original justice and security Green Paper was introduced in October 2011, there was understandable and justifiable concern about the proposals. In their original form, it was clear that they were very broad in scope, and some in the Government talked up the need for the powers through rather apocalyptic speeches about the danger to national security—a danger that, once examined, clearly did not exist. There was, as has been said, a perception of a danger to national security—there is one that needs to be dealt with in relation to Norwich Pharmacal—but an actual danger did not exist.

Since then, it is welcome that the Minister without Portfolio has issued many reassurances about the intended narrowness of the Green Paper’s application. It is unfortunate that, whether as a result of lax drafting or conflicting views within the Department, the circumstances allowed confusion to develop about what the Government’s intentions were for closed material procedures.

It is clear that there is a theoretical need for change. One can imagine a situation—many such situations have been mentioned today—in which a fair trial of a civil claim cannot proceed because of the amount of material that cannot be disclosed on the grounds of public interest immunity. It has, however, been exceptionally difficult, even with access to many interested and experienced witnesses, to establish the likelihood of such a theoretical possibility actually materialising. The Bill is undoubtedly an extremely complex and difficult balancing act, but the judgment that must be made requires us to understand whether a problem exists and, if so, its scale, and whether this response is proportionate to the problem.

The Joint Committee was clear in its view that the proposed balance was not correct and, therefore, suggested amendments, which were tabled in the other place. I pay tribute to the excellent staff of the JCHR, who helped us to marshal the evidence and formulate the amendments to improve the Bill. In spite of those significant changes, the Bill’s proposals, particularly those in part 2 relating to closed material procedures, still constitute a radical departure from the UK’s constitutional tradition, which is one of open justice and fairness.

The JCHR report questioned whether the Government had

“persuasively demonstrated, by reference to sufficiently compelling evidence, the necessity for such a serious departure”

from those fundamental principles. Our conclusion was that the Government had

“failed to discharge that burden of justification”.

The Joint Committee suggested amendments to make the Bill compatible with the bedrocks of justice, openness and fairness, while recognising the national security concerns put forward by the Government. Our aim was to achieve a fair—or at least a fairer—balance. The Bill considered by the JCHR did not achieve the right balance. The Bill before us today is much closer to sitting within the parameters of natural justice and fairness protected by the common law, because of the excellent work in the other place. The amendments recommended by the JCHR and adopted to date are, as my noble Friend Lord Lester of Herne Hill said,

“designed to keep faith with the fundamental principles of justice and fairness in our common law system, within the rule of law, and national security protected by the independent judiciary.”—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1822.]

I do not intend to go through the entire list of amendments suggested by the JCHR, but I will mention the most substantive amendments that have led to successful changes. First, a judge will decide whether a closed material procedure should be used in any given case and the decision will not be taken in form or substance by the Secretary of State. Secondly, a CMP will be available only as a procedure of last resort if fairness cannot be achieved by other means. That allows judicial discretion first to consider alternative methods, such as the public interest immunity system and requiring the court to consider whether a claim for PII could have been made. Thirdly, the court will be required to balance the interests of national security against the interests of fairness and open justice in deciding whether to agree to the use of a CMP at the outset. Finally, it will be open to either party to apply for a CMP and the court will also have the jurisdiction to consider the request on its own motion.

If the Bill had come to this House without some of those measures, the case for throwing out part 2 would be significantly stronger. CMPs are not perfect justice, but they may have a place. David Anderson, the independent reviewer of terrorism legislation who has been quoted extensively today, has said that there is

“a small but indeterminate category of national security-related claims, both for judicial review of executive decisions and for civil damages, in respect of which it is preferable that the option of a CMP—for all its inadequacies—should exist.”

A number of the JCHR’s recommendations have not been adopted at present. The first is the introduction of a sunset clause. The second is the compulsory reporting on and review of the use of CMPs by the independent reviewer of terrorism legislation. The third is an undertaking that any litigant who is excluded from the open hearing by the CMP will be given, at the very least, a summary and the gist of the closed material sufficient to enable them to give instructions to their legal representative and the special advocates, so far as is possible. The absence from the Bill of such a disclosure obligation seriously limits the opportunities for special advocates to mitigate the unfairness caused by the Bill’s departure from open and, more importantly, adversarial justice. I hope that those issues will be given further consideration by Members of this House in Committee. I am fairly confident that that will happen.

Had it not been possible to write effective safeguards into part 2, I would share the concerns that are still being raised by many organisations such as the Bar Council, the Law Society of England and Wales, Liberty and Justice. Their concerns demonstrate that there is still significant review work to be done by a Committee of this House. In as reasonable a way as I can, I caution the Government against any attempt to remove the improving amendments that have been made in the other place.

I support the Bill’s passage into Committee, but with the words of Judge Learned Hand in mind:

“Justice is the tolerable accommodation of the conflicting interests of society, and I don’t believe there is any royal road to attain such accommodation concretely.”

The administration of justice is undoubtedly a balance, but it is the most important balancing act that the state carries out. We should proceed carefully in changing that balance.