by Stephen Tall on November 29, 2012
I was a guest this week on Voice of Russia radio to discuss the issue of secret courts. (Like almost all Lib Dems, I’m opposed to them.) You can hear the discussion here:
The British Government wants to introduce Closed Material Procedures or ‘secret courts’ for civil cases involving sensitive information about national security. In the controversial procedures, the defendant won’t know what evidence is brought against them and neither will their lawyer. Critics say the principles of fair and open justice would be eroded by the Bill, currently before Parliament. But the Government says it would only affect a small number of cases currently settled out of court and though not ideal, some justice is better than none.
The Voice of Russia’s Vivienne Nunis discusses the conflict between open justice and national security with the QC Lord Edward Faulks, a member of Parliament’s Joint Committee on Human Rights; Keith Best, a former Conservative MP and the Chief Executive of Freedom from Torture; and Stephen Tall, the co-editor of the Liberal Democrat Voice.
In prepping for the discussion I had a read of some of the debate in the House of Lords last week. It was high-quality, as you might expect. In particular, Lib Dem peer Lord Strasburger‘s speech is an absolutely brilliant dissection of the Government’s case for secret courts, and well worth reproducing in full here:
Lord Strasburger: My Lords, when I spoke to your Lordship’s House on Second Reading, I highlighted how the injection of closed material procedures into our civil justice system would infect it with unfairness and corrupt it with secrecy. Currently, the British people hold their courts in high regard, and respect their decisions. This is partly because our judges are seen as incorruptible, independent and wise, but the main reason is that court decisions are the result of a fair and transparent process. In an adversarial system such as the English one, the right to know and challenge the opposing case is not merely a feature of the system-it is the system.
Judges do not have the resources or power to investigate the merits of the case themselves. They depend upon the process in which both sides assemble and present their evidence, and then challenge each other’s cases. They then judge which case is the stronger in the light of those mutual challenges.
The Government have stated that,
“protecting the public should not come at the expense of our freedoms”.-[Official Report, 19/6/12; col. 1660.]
This seems to be precisely the cost that the Government wish to exact in the name of greater security. In fact, the Bill does very little to provide the public with greater security, while giving an unacceptably high level of protection to the security services from exposure of their alleged wrongdoings by the civil courts.
The Government would need to advance the most persuasive reasons to justify such serious damage to our civil justice system. They have completely failed to do so. That is the conclusion that the Joint Committee on Human Rights came to. It stated:
“We remain unpersuaded that the Government has demonstrated by reference to evidence that there exists a significant and growing number of civil cases in which a closed material procedure is ‘essential'”.
Listen to the clear opinion of the special advocates, the government-appointed lawyers who spend much of their time working at the coalface in this dark and murky part of our legal system. A memorandum about the Bill, which was signed by 59 out of 67 of them, states that,
“the Government would have to show the most compelling reasons to justify their introduction”,
referring to the CMPs. It went on to say,
“that no such reasons have been advanced; and that, in our view, none exists”.
The Government have completely ignored this highly authoritative condemnation of the need for the Bill. The only comments that I can recall are an admission by the former Lord Chancellor that,
“the evidence of the special advocates most unsettled me”.
But he has done nothing to correct his unsettled condition and I presume that he is still unsettled, as I am.
The Minister has not responded to the special advocates’ strong evidence but instead has showered them with praise for the work that they do. I say to my noble and learned friend that if he respects the special advocates so much, listen to them, stop ignoring them and drop CMPs from this Bill. In case that idea falls on deaf ears, I will carry on.
What are the Government’s justifications for all the damage that they want to do to our civil justice system? Many justifications have been and gone. However, one keeps coming back but without any evidence to support it. It is this: the Government argue that the Bill is necessary because otherwise they will be forced to settle claims and to pay damages, even when they have a good defence, because they cannot use secret evidence without risking harm to national security. That sounds very beguiling and plausible, does it not? However, it is flawed as a matter of principle and is factually incorrect.
The Government usually point to the Guantanamo litigation as their example of a case which had to be settled because they could not defend themselves without a closed material procedure. I am not aware of any other identified case that they have put forward. As a matter of principle, it is no answer to the claim that the system is unfair to the Government to introduce a procedure which means that they can use the secret material, but that the other side cannot see it and is therefore unable to rebut it. All that has been achieved is to substitute one form of unfairness for another, and the new unfairness is much worse.
Under the existing PII system, which works very well, the inability to use a document affects both sides equally. But a closed material procedure will always give the Government an unfair advantage. It destroys the fundamental principle of equality of arms, as well as one of the pillars of natural justice.
In any case, defendants and claimants settle claims every day of the week because they do not wish to disclose confidential, damaging or embarrassing documents, or do not want particular evidence to be given in court and reported publicly. There is no good reason why the Government should be uniquely entitled to bypass this normal and salutary part of the pressure of civil litigation by having at their disposal a procedure that enables them to fight their case in secret and in the absence of the other side
The Government’s reliance on the Guantanamo litigation as an example of a weak claim against them-that they were forced to settle because they could not use a closed material procedure-is disingenuous for two reasons. The Government settled the Guantanamo claims, by mediation, before the Supreme Court had ruled that closed material procedures were not permissible. The Government can hardly assert that they had to settle because they could not invoke CMPs. The decision on whether a CMP was permissible or not had not been taken when the Government chose to settle.
Furthermore, a significant quantity of evidence had already been disclosed in the case and it was apparent that the Government did not have a good defence to the claims. In fact, they were very far from having a good defence to the claims. That is likely to have been the real reason for the settlement, together with the desire to avoid the public embarrassment that would have followed exposure of the fact that, while publicly condemning rendition and Guantanamo in Parliament, the Government were actively involved in interrogating prisoners and assisting the USA in its torture and rendition programme. Therefore, the Government’s star case-in fact, their only case-to support the assertion that they are having to settle cases that they could have won with CMPs just does not stand up and is discredited.
So where are all these cases on which the Government rely? The JCHR was told that the Government had a number of other cases that were “posing difficulties”. This number was at different times put at 27, 15, six and three-and, since the JCHR reported last week, it has become 20. I do not know what noble Lords think, but to me this sounds more like parliamentary bingo than rational law-making. In any event, the Home Secretary declined two requests from the JCHR to let the special advocates evaluate these cases. We should remember that the special advocates are government-appointed security-cleared lawyers. The Home Secretary refused to see whether any of them supported the Government’s contention.
The special advocates’ response to the JCHR was as follows:
“There is as yet no example of a civil claim involving national security that has proved untriable using PII and flexible and imaginative use of ancillary procedure”.
That is coming from the special advocates, who are the people who really know what they are talking about, and really understand these cases. And still the Government keep repeating their claim that there are cases where PII cannot cope and which need CMP, as if saying it often enough will make it come true. It is not true; there is no evidence to support it, and there is no evidence to support this claimed justification.
As to the JCHR amendments, they address the regime around CMPs, tighten it up and will reduce the frequency with which the Government can use CMPs-and I voted for all those amendments. But with all those JCHR amendments, we still end up with CMPs inserted into our civil justice system, where they have no place. They are still unfair, still secret and still incompatible with our adversarial common-law system. Only one set of amendments tonight deals with the unfairness and secrecy of CMPs-only one that ejects them from this Bill. That is the one led by Amendment 45, and I commend it to the House.