Robert Buckland MP: Andrew Tyrie’s concerns about the Justice and Security Bill are understandable but wrong
Robert Buckland is the Member of Parliament for South Swindon, Joint Secretary of the 1922 Committee and Chairs the Conservative Party Human Rights Commission. He has also recently joined the Joint Committee on Human Rights. Follow Robert on Twitter.
Andrew Tyrie’s concerns about the need for open justice are understandable, but in his criticism of the Justice and Security Bill in yesterday’s Times (£), he underestimates the seriousness of the situation that faces both taxpayers and the Government.
Let’s just remind ourselves of the problem the Bill seeks to fix. The former Lord Chief Justice, Lord Woolf – who only this week displayed his independence when he made trenchant criticism of the Home Secretary – put things very well indeed. During debate in the House of Lords he explained that the current system for protecting national security evidence from open disclosure in court (known as public interest immunity, or PII) has “the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government may want to rely on that material.”
What does this mean? It means that, under PII, national security evidence is excluded entirely from the courtroom. As a result, some of the actions of our security and intelligence agencies are not being scrutinised in the courts. It means that former detainees who bring cases against the Government alleging mistreatment are simply not able to access justice properly. And it means that we cannot get to the bottom of the shocking allegations made about British involvement in kidnap and torture.
Personally – and many would disagree with me – I believe that if the British Government is guilty as claimed, these men should be compensated. But the current system is not capable of establishing that. The cases are simply not being fought. And this is reflected in the growing number of cases: at the last count the Government was facing 20 live claims for compensation in which national security evidence was central. If we do not get a grip of this we will turn our country into a global magnet for this sort of litigation.
So it is clear to me that something must be done to reform the system. The Independent Reviewer of Terrorism Legislation, David Anderson has confirmed that, in this very small number of civil (not criminal) cases, “it is preferable that the option of a Closed Material Procedure (CMP) should exist.” I agree with this.
I also agree with Andrew Tyrie that “the judge should be relied upon to balance justice and the interests of security in deciding what can be disclosed.” The Government agrees with us too. Far from “all but shredding” the amendments made by the House of Lords, they have now given the judge full discretion to order a CMP if he believes that it would be “in the interests of fair and effective justice.” That couldn’t be much clearer.
Andrew also says that “a huge amount of material…has been made public only because of PII.” This is because, under PII, the judge has the power to order redaction, witness anonymity or in camera hearings to try to declassify some of the evidence. But the judge has these same tools at his disposal in a CMP. In fact crucially he will also be able to order summaries of previously totally undisclosable evidence to be given. This is powerful stuff – and that is before we even get a judgment. Remember Abu Qatada did win his case against the Government in a CMP.
So it is a non sequitur to say, as Andrew does, that the introduction of CMPs “would immunise government wrongdoers from such exposure.” In fact, without CMPs I cannot see how it would ever be possible for a court to find the Government in the wrong in these sorts of cases. In my view, PII is quite simply a much more “secret” option than a CMP.
One does then have to question why it is that the human rights lobby have been so stirred up by this Bill, and why they are peddling more myths at us poor politicians than I have seen in some time. Particularly as it was their intervention in the case of Chahal in the late 1990s that actually saw the system of closed hearings developed. Certainly, it is true that lawyers will always have a financial interest in retaining the status quo, which encourages inconclusive hearings with large payouts at the end of it. Partly they have been stirred up by campaigning organisations which need something to campaign against.
Lord Woolf should be listened to. This is a system which doesn’t work properly. It urgently needs fixing. Parliament must pass the Justice & Security Bill.