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Buckland RobertRobert 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.

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