Robert Buckland is the Member of Parliament for South Swindon, Joint Secretary of the 1922 Committee and Chairs the Conservative Party Human Rights Commission. He has also recently joined the Joint Committee on Human Rights. Follow Robert on Twitter.
Tyrie’s concerns about the need for open justice are understandable, but in his
criticism of the Justice and Security Bill in yesterday’s
Times (£), he underestimates the seriousness of the situation that faces
both taxpayers and the Government.
just remind ourselves of the problem the Bill seeks to fix. The former Lord
Chief Justice, Lord Woolf – who only this week displayed his independence when
he made trenchant criticism of the Home Secretary – put things very well
indeed. During debate in the House of Lords he explained that the current
system for protecting national security evidence from open disclosure in court
(known as public interest immunity, or PII) has “the very unfortunate effect that you cannot rely on the material that
is in issue, whereas both the claimant and the Government may want to rely on
does this mean? It means that, under PII, national security evidence is
excluded entirely from the courtroom. As a result, some of the actions of
our security and intelligence agencies are not being scrutinised in the
courts. It means that former detainees who bring cases against the
Government alleging mistreatment are simply not able to access justice
properly. And it means that we cannot get to the bottom of the shocking
allegations made about British involvement in kidnap and torture.
damagingly, because the Government cannot bring national security evidence in
its defence it is forced to settle claims with individuals who have not proved
their case and may well in fact be terrorists. Millions of pounds in
pay-outs are being handed out to these people. That there is a high risk
of this money making its way back into funding terrorist activities is a quite
– and many would disagree with me – I believe that if the British Government is
guilty as claimed, these men should be compensated. But the current
system is not capable of establishing that. The cases are simply not
being fought. And this is reflected in the growing number of cases: at
the last count the Government was facing 20 live claims for compensation in
which national security evidence was central. If we do not get a grip of
this we will turn our country into a global magnet for this sort of litigation.
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.” I agree with this.
agree with Andrew Tyrie that “the
judge should be relied upon to balance justice and the interests of security in
deciding what can be disclosed.” The Government agrees with us
too. Far from “all but shredding” the amendments made by the House of
Lords, they have now given the judge full discretion to order a CMP if he
believes that it would be “in the interests of fair and effective justice.”
That couldn’t be much clearer.
also says that “a huge amount of material…has been made
public only because of PII.” This
is because, under PII, the judge has the power to order redaction, witness
anonymity or in camera hearings to try to declassify some of the
evidence. But the judge has these same tools at his disposal in a
CMP. In fact crucially he will also be able to order summaries of
previously totally undisclosable evidence to be given. This is powerful
stuff – and that is before we even get a judgment. Remember Abu Qatada
did win his case against the Government in a CMP.
it is a non sequitur to say, as Andrew does, that the introduction of CMPs “would immunise government wrongdoers from
such exposure.” In fact, without CMPs I cannot see how it would
ever be possible for a court to find the Government in the wrong in these sorts
of cases. In my view, PII is quite simply a much more “secret” option
than a CMP.
does then have to question why it is that the human rights lobby have been so
stirred up by this Bill, and why they are peddling more myths at us poor
politicians than I have seen in some time. Particularly as it was their intervention in the case
of Chahal in the late 1990s that actually saw the system of closed hearings
developed. Certainly, it is true that lawyers will always have a
financial interest in retaining the status quo, which encourages inconclusive
hearings with large payouts at the end of it. Partly they have been
stirred up by campaigning organisations which need something to campaign
Lord Woolf should be listened to. This is a system
which doesn’t work properly. It urgently needs fixing. Parliament
must pass the Justice & Security Bill.