Robert Buckland MP: The Justice and Security Bill strikes the correct balance between openness and the need to preserve our national security

Robert Buckland is the Member of Parliament for South Swindon. He is also the Chair of the Conservative Party Human Rights Commission. Follow Robert on Twitter. 

Although the debate about the Justice and Security Bill has now reached the stage when, to quote Kenneth Clarke "we are dancing on the head of a pin", I thought that Anthony Peto's provocative article deserved a response.

Today, the Government have tabled some further, important, amendments which ensure that both the claimant and the Government have the right to apply to the judge for a Closed Material Procedure (CMP) and that the judge then has full discretion over whether or not to allow it.  There will also be a further test before a CMP can be ordered: the judge must be satisfied that PII has been considered as an alternative.

These are sensible changes which the Joint Committee on Human Rights will welcome, and which should now satisfy all reasonable concerns about this proposal. Continued opposition to the Bill is a vote for silence on serious issues of kidnap and torture, serious further damage to our intelligence sharing relationships, and potential payouts to suspected terrorists.

Mr Peto says that the Government removed four sensible and clear safeguards introduced by the Lords, only to replace them with a “vague” judicial role as a gateway to CMPs. which is of uncertain meaning or value’. On the contrary, the role of the judge in the Bill could not now be much clearer.  The judge may consider ordering a CMP only if:

• he determines that there is material that would damage the interests of national security if it were disclosed, which is relevant to the case.

• he believes it would be in the interests of the fair and effective administration of justice in the proceedings, taking into account questions like the relevance of the sensitive material to the issues in the case, whether all parties consented to a CMP, and whether alternatives to a CMP would enable the case to be effectively tried without damaging the interests of national security.

• If the judge is satisfied that these conditions are fulfilled, he may then order a Closed Material Procedure.  He doesn’t have to. At any point during the proceedings he can revoke this decision if he believes that it is no longer in the in the interests of the fair and effective administration of justice in the proceedings.

Mr Peto also suggests that PII does not rely on the exclusion of evidence from the courtroom because judges can “redact documents; anonymise witnesses; and use confidentiality rings.”. With respect, this misses the fundamental difference between PII and CMPs. Under Public Interest Immunity, if the public interest in protecting national security outweighs the public interest in the administration of justice the material will not be disclosed.  All the actions Mr Peto describes simply mitigate the consequences of excluding relevant material.  In some cases it is possible to summarise material it in a way that reduced or avoids that damage, but that is not possible in every case.  In those cases the material is excluded from the case. With CMPs, all relevant material, including that which might well have been subject to PII, will be available for the Judge to use in assessing the merits of the case.

Mr Peto suggests that Lord Woolf disagrees with the Government over the deficiencies of PII. If this is correct, why did Lord Woolf put his name to a joint letter to The Times explaining that, “In national security matters our legal system relies upon a procedure known as public interest immunity (PII). Under PII, evidence which is deemed to be national security sensitive is excluded from the courtroom. The judge may not take it into account when coming to his or her judgment.  This procedure is resulting in a damaging gap in the rule of law.”? 

Lord Woolf did vote for amendments to the Bill but at its Report Stage in the Lords he said this: "In generality, the proposals contained in the Bill have a great advantage over the existing process of public interest immunity: they allow the judge to have the material in a way which ensures that the interests of national security are protected." 

Mr Peto says that the United States would allow highly sensitive national security material to be disclosed to the claimant’s lawyers in a confidentiality ring.  This is to confuse apples with pears.  The main way of protecting sensitive material from disclosure in civil cases in the US is “States Secret Privilege” which enables material to be excluded from proceedings on the basis of damage to national security.    Mr Peto is talking about the special procedures for handling classified material in the Guantanamo habeas cases which are unique to that set of cases. There are no equivalent procedures in other civil law contexts in the US.  Lord Carlile, who has looked deeply into the American system say, “I do not want the American system. I have some experience from my years as Independent Reviewer of looking at the way in which the American Executive exert power over secret matters, and I think it is completely counterintuitive to our common law tradition.”

Mr Peto argues that under the Justice & Security Bill the judge will have no power to order a summary of any material touching upon national security by the application of PII.  This is incorrect.  Firstly, it is only national security material that can be held in a CMP, nothing else.  And then it is clear in the Bill that the judge has the power to order a summary to be made available to the claimant – even if it would damage national security – in order that the hearing is fair under Article 6 of the Convention of Human Rights.  Summaries are not always provided if material is excluded under PII. 

Mr Peto, somewhat unfairly, has misquoted me in attempt to imply that the Independent Reviewer of Terrorism, David Anderson, has said that there is no need for the Bill .  In fact David Anderson said, “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.”

Mr Peto also suggests that ‘PII will lead to the disclosure of more material than CMPs. PII revealed MI5’s involvement with CIA rendition in Al Rawi; and PII revealed evidence that our Afghan allies were flogging prisoner transferees with electric cables and steel rods in Serdar Mohamed. None of this material would have been revealed in a CMP.’ This is not accurate. 

That material will have been released because in all likelihood its disclosure wouldn’t have damaged the public interest.  If the court ordered disclosure notwithstanding the damage that would be caused the Government would have sought to settle the case instead of putting the lives of agents or sources on the line.  It is worth pointing out here that if disclosure wouldn’t be damaging to national security, the material couldn’t be heard in a CMP under the Bill.  In the case of Al Rawi, people have made assumptions about what the UK may or may not have done, on the basis of a small amount of material openly disclosed, without the court ever having considered 250,000 relevant national security-sensitive documents and with no judicial findings ever made.

The Government have moved a very long way from the first iteration of its proposals in this sensitive area. They have listened to and acted upon the opinions of Committees of Parliament and others. They have been anxious to act reasonably and circumspectly. Rather than continuing to wave shrouds, it is time for the Bill's opponents to accept that the correct balance between openness and the need to preserve our national security is being struck, and that dancing on the head of a pin is neither useful nor elegant.