Balancing act

Jeremy BeechamJeremy Beecham on squaring justice and security in the use of closed material proceedings 

The run up to Easter has the Lords engaged over three days with major issues affecting our legal system. 

Yesterday, we had both the Crimes and Courts Bill’s return from the Commons and scrutiny on the Job Seekers (Back to Work Schemes) Bill – rushed and retrospective legislation designed to repair the self-inflicted damage caused by Government incompetence in regulating the sanctions regime. And tomorrow, three regret motions will be debated on issues arising from the savage reductions in the availability of legal aid and advice to victims of domestic violence and welfare claimants – part of the closing off of access to justice in an estimated 650,000 cases a year.

Today however, the House returns to the Justice and Security Bill, with its introduction of ‘secret courts’ trying civil claims against the government, where national security is involved, by means of closed material procedures (CMPs). These will allow the use of material not disclosed to the other party, who is therefore unable to instruct even security-vetted special advocates appointed to assist to take adequate instructions. The government has effectively accepted some of the amendments carried by three figure majorities in the Lords, but two areas in particular remain of deep concern.

Ministers proposes dispensing with a requirement that , in effect,  CMPs should only be used as a  last resort after a court has considered whether a fair determination is not possible by other means, such as the Public Interest Immunity (PII) process. Under this, a variety of techniques can be used to examine the case in ways which do not risk national security, for example ‘gisting’ (i.e., summarising), redaction, and security service personnel giving evidence from behind a screen.  

The government wrongly asserts that this would be an unduly prolonged process, and moreover that it might feel compelled to settle cases rather than disclose information.

Ken Clarke has, characteristically, made sweeping, unsubstantiated, claims about millions of pounds being paid, or potentially to be paid, to unidentified numbers of unidentified terrorists to be used for unidentified purposes.

But the principle that a party should know the opponent’s case is core to our system of justice and should only be restricted in the most serious of cases, after all other methods have been deemed inappropriate. Lord Woolf, who voted for the amendments, now seems content with the amended Bill, saying: ”[in] a minority of cases the interests of justice are not served when the courts are blindfolded”.  Yet under CMPs, claimants are both blindfolded and gagged. To say the Court has merely to be satisfied that the Secretary of State has “considered whether to make or advise another person to make” an application for the PII procedure is to set the bar too low.

The government proposes changing the provision that the Court should allow CMPs “if the degree of harm to the interests of national security were the material to be disclosed would be likely to outweigh the public interest in the fair and open administration of justice.” They will have a condition that “it is in the interests of the fair and effective administration of justice in the proceedings”. Openness will therefore be replaced by effectiveness – a very different concept. And effective from whose perspective? Presumably the government.  Thus openness counts for nothing, and the phrase “in the proceedings” is added, excluding wider considerations of the public interest in open justice.

Amendments will be pressed today, both on this issue of balancing the interests of justice and security, and of making this innovation in civil law a matter of last resort. It is to be hoped that, in a week in which our legal system faces a triple whammy of change and concern, Peers on all sides of the House give the Commons the opportunity to think again.

Lord Jeremy Beecham is Labour’s Shadow Justice Minister in the Lords 

Published 26th March 2013 

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