Anthony Peto QC is co-Head of Blackstone Chambers and co-Author with
Andrew Tyrie MP of Neither Just nor Secure, published by the Centre for
Policy Studies. This article represents his personal views.
Robert Buckland wrote an article on this site last Friday that Andrew Tyrie’s concerns about “secret courts” are wrong. In fact, it is Mr Buckland who is comprehensively mistaken in a number of important respects. Here are some of the most significant errors.
Mr Buckland repudiates Mr Tyrie’s suggestion that the Government “has shredded the Lords’ amendments” to this Bill. However, this is exactly what they did at the Committee stage. They removed four sensible and clear safeguards introduced, with overwhelming majorities, by the Lords:
- That Judges should refuse CMP’s where the public interest in the fair and public administration of justice outweighed the likely damage to national security.
- A provision that CMPs should be a measure of last resort.
- That the judge must first consider PII before ordering a CMP.
- That the citizen must have the same right to apply for a CMP as the State.
These have been replaced by a vague “fair and effective” test as a gateway to CMPs which is of uncertain meaning or value.
- Mr Buckland misrepresents Public Interest Immunity (“PII”) in many respects. He thinks that CMPs are necessary because under PII “national security evidence is excluded entirely from the court-room”.
- This is an understandable error. Even the Lord Advocate made it. Lord Pannick QC corrected it in the House of Lords:
“[The Advocate General] wrongly presents PII as a mechanism which, when it applies, necessarily means that the material is excluded from the trial. It is on that premise—a wrong premise, with respect—that he suggests that a CMP is preferable…… The reality…is that the court has an ability applying PII to devise means by which security and fairness can be reconciled by the use of [other] mechanisms."
- PII may not be perfect, but it is an effective mechanism whereby relevant evidence can be included to ensure a fair trial whilst filtering out any sensitive features – for example by redacting documents; anonymizing witnesses; and using confidentiality rings.
- Mr Buckland cites Lord Woolf as if he supports the government’s position on PII. He is incorrect. Lord Woolf voted against the Government in the Lords and in favour of the amendments which the Government is now seeking to scrap.
- As it happens, the very scenario described by Lord Woolf, as quoted by Mr Buckland where “both the Claimant and the government want to rely on [the same security sensitive material]”, could probably be dealt with by the use of a confidentiality ring and without a CMP. The CIA and American courts have regularly used confidentiality rings in terrorist cases.
- Mr Buckland says that a judge “will be able to order summaries of previously totally undisclosable evidence to be given”. This is erroneous on two counts. First, under PII, such edited, summarized and redacted evidence has always been disclosable. Secondly, under clause 8(1)e) of the Bill, the judge will have no longer have any power to order a summary of any material touching upon national security by the application of PII.
- Mr Buckland claims that the government is forced to settle cases because under PII it cannot defend without damaging national security. The government initially claimed that there were over 20 such current cases. David Anderson QC, the security-cleared Independent Reviewer of Terrorist Legislation, asked to see them. Permission was refused. After persistent pressure he was permitted to see only three examples of damages cases which, as he somewhat drily observed, were “chosen” to “illustrate the government’s point of view”.
- It is therefore incorrect for Mr. Buckland to suggest that David Anderson QC has “confirmed” that there are 20 cases in which CMPs are necessary. He hasn’t been allowed to see them. Mr Buckland can be forgiven for getting this wrong. The same mistake was made by the Prime Minister in his recent evidence before a Parliamentary Committee. As the specialist group of security cleared Special Advocates reported: “There is as yet no example of a civil claim involving national security that has proved untriable using PII and the flexible and imaginative use of ancillary procedure”.
- Mr Buckland is concerned that without CMP’s we “cannot get to the bottom of… shocking allegations”. In fact, 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.
- Mr Buckland says that the Government has been forced to settle and pay millions of pounds to “men” who “may well in fact be terrorists”. This is unfair. As far as I am aware, none of the recipients of compensation in the Al Rawi, Binyam Mohammed and Al-Saadi litigation have been charged or convicted of terrorist offences before our courts or are subject to anti-terrorist restrictions. Mr. Al-Saadi’s wife and young children were rendered to Gaddafi’s Libya. No-one is suggesting that they are terrorists.
- Mr Buckland suggests that compensation monies may have been used to fund terrorism. If the Government really thought this was a risk, it could and certainly should have frozen the compensation monies. They have the powers under existing legislation. They did not do so.
- When major changes are made to our justice system, it is the unintended consequences which are the most fearful. For example, CMP’s could be legally applied in actions for damages by disabled servicemen, actions for mistreatment of children, actions for false imprisonment, applications for habeas corpus; and also by the state against the individual for the civil confiscation of assets, for the gagging of the press, and for imprisonment for civil contempt. This has not been fully appreciated.
- Mr Buckland is incorrect when he, somewhat unworthily, accuses lawyers of supporting the status quo because they have a financial interest. If the Bill became law, the Special Advocates would stand to gain because the CMP system would depend upon them to operate it, but they have recommended something contrary to their sectional and financial interests. They have been speaking up for justice, not their pockets. They vigorously oppose CMPs, saying:
“The introduction of such a sweeping power could only be justified by the most compelling reasons, and in our view none exists.”
- Mr. Buckland says “one must question why the human rights lobby has been so stirred up by this Bill and why it is peddling myths”. However, people who have been “stirred up” by the prospect of “secret courts” include the former Attorney General, Lord Goldsmith, 59 Special Advocates, Supreme Court Judges, The Times, The Daily Mail, The Independent and the Daily Telegraph. They include several traditional Tories such as Andrew Tyrie MP, David Davis MP and Lord Hodgson of Astley Abbots (who said the Bill failed the “sniff” test)
- The former Director of Public Prosecutions, Lord MacDonald, has not often been accused of peddling myths. In his speech opposing CMP’s in the House of Lords, he said:
“I have spent many years in criminal courts watching evidence that at first sight seemed persuasive, truthful and accurate disintegrating under cross-examination conducted upon the instructions of one of the parties…That is the risk that we are facing, that we are introducing into civil justice—in the most sensitive and controversial cases, where deeply serious allegations are made against the Government and the security services—a process that expels the claimant and gives him a form of justice that is not better than nothing. It is worse than nothing because it may be justice that is based on entirely misleading evidence.”
- The holding of secret hearings in common law actions – that is, hearing one party in the absence of the other and preventing them from hearing the evidence against them – has been outlawed for many centuries. Rightly so. This is what is meant by British justice. This is the “myth” that Mr. Buckland says is being peddled. Britain successfully peddled this myth to a quarter of the surface of the earth. It has been one of our better exports. As Mrs Thatcher said: “the price of freedom has always been – and still is – eternal vigilance”.
- Most worryingly of all, Mr. Buckland makes the best case for the Bill I have yet seen.