The Justice and Security Bill: judges, not ministers, must decide what's heard in secret

By Paul Goodman
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When civil liberties and national security clash, the old, old Gilbert and Sullivan saying holds good.  The little liberals go off into one corner, citing threats to individual freedom.  Their fear comes from above: the state abusing the rights of the individual.  The little conservatives go off into the other, claiming collective security is in danger.  Their nightmare comes from below: terrorists endangering public safety.  Either vision can be noble; both can degenerate.  The civil libertarian love of liberty can morph into adolescent revolt against authority figures, or the special interest pleading of fat-cat lawyers with a financial stake.  The national security preoccupation with terror can degenerate into an obsession with order and control rooted in inadequacy and paranoia, or another kind of specal interest pleading: that of public servants who don't want to serve anyone - that's to say, who want ultimately only to be accountable to themselves.

Each time my emotions jolt in one direction or another, something tug me back.  I hope that I'm as committed to civil liberties as the next man, but the Islamist terror threat has touched my former constituency, and I'm contemptuous of those who suggest that people whose hate is sparked by religious ideology would stop hating us if we were nicer to them.  I hope, too, that I'm mindful of national security, but experience has taught me that the security services or the police shoudn't get something just because they ask for it - such being able to hold suspects without charge for 42 or even 90 days.  None the less, we should be grateful to both.  There has been a merciful lack of terror attacks since the failed nail-bomb assault in Exeter.  I'm sure that the former in particular stand foursquare behind the Justice and Security Bill - or the secret courts bill, as some civil libertarians put it - which has now come before the Lords.

William Hague put the case for it yesterday in the Daily Telegraph.  He wrote that bad people are suing the Government, which can't make its case in open court for security reasons, and which therefore has no option but to settle - besmirching the reputation of the security services and leaving taxpayers out of pocket.  David Davis put the argument to the contrary in the Daily Mail: he said that we already have a system that works well, that of Public Interest Immunity (PII).  The Foreign Secretary's answer is that "if a PII claim is successful, the Government may well have excluded the material it needs to rely on, and that can mean no case being heard at all, and - once again - an allegation will be left answered".  Mr Davis's counter-response is that the Government's proposed replacement for Public Interest Immunity - Closed Material Procedures (CMPs), under which judges see all the evidence in private rather than hear some of it in public - is unfair to the defence, because the Government's evidence can't then be challenged.

These are dingy, murky waters.  I have heard wildly irreconcilable claims: that security is compromised in court; that judges are skilled at protecting it.  That people are suing with no real case and ripping off the taxpayer; that no-one has sued without good reason, which is why the Government is settling cases.  That the United States has already held sensitive information from us; that this is chaff thrown up by spooks to stop light being shone on their misdeeds.  The most incompatible claims of all are about who will decide whether a CMP is to be made.  Ken Clarke, who has kept charge of the bill despite his departure from the Justice Department (it is very useful for the Government to have a Minister with his liberal credentials in charge, rather than the "tough Justice Secretary", Chris Grayling) has claimed that "judges and not the executive will have to take the key decisions about whether a closed hearing is justified".

Note that phrase: "key decisions".  It is contested.  The bill's critics argue that the legal framework that the bill sets out leaves judges with no choice but to grant a CMP if Ministers want one.  This is the sticking-point: it should be unacceptable, even to the sharpest-clawed security hawk, to have Ministers decide what evidence is held in court.  The solution surely lies in the way in which Mr Clarke has already treated the bill.  He has made concessions on the way in which cases will be conducted, on evidence heard in open proceedings such as military inquests and on CMPs being extended to other courts by secondary legislation.  I suspect more will come - and that he knows it, gnarled old hand that he is.  In particular, peers will press for judges to have full control over whether or not to order a CMP.  If so, the Government should take their advice.  True, we already have closed courts for terrorism cases.  But should not be extended to civil ones without judges, not Ministers, being firmly and fully in charge.

judges to see all the evidence in private than to hear most of it in public

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