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’s response to my article posted on 25th February 2013 contains as many misconceptions and myths as his first. I list some of them below. But first it is important to be clear about what is still wrong with this Bill. Here are two of its most serious flaws.
The first serious flaw
First, the government is resisting the inclusion of words that would ensure that “secret courts” (“Closed Material Procedures” or “CMPs”) would only be used as a last resort. Under the amendments recommended by the Joint Committee on Human Rights (“JCHR”), passed by the House of Lords, the court must be satisfied that a fair trial “would not be possible by any other means” before ordering a CMP.
Ken Clarke, in his evidence to the JCHR last week said that he agreed with the “last resort” principle, but the Bill still doesn’t make that clear. The JCHR and the security cleared Special Advocates have pointed out that –
“If the last resort principle is not spelled out, there is a risk that the court will not address its mind to the question whether the case could be tried fairly under existing procedures. There is a risk that CMPs will become the default option and that what was justified as an exceptional procedure will come to be accepted as the norm”
The JCHR is right. If Mr Clarke means what he says, he should concede the “last resort” amendments that have been tabled.
The second serious flaw
Secondly, the government is resisting JCHR amendments, backed by the House of Lords, which would ensure that the court could refuse a secret hearing in cases where the public interest in fair and open justice outweighed the interests of national security.
For example, suppose the secret evidence disclosed extreme governmental wrongdoing whilst only having a marginal impact on national security. These amendments would retain the judge’s power, in a proper case, to expose the scandal in the interests of democratic accountability. At present, the Bill prevents the judge from doing that. It is essential that the Government and the Bill permit the judge to do this job.
Misconceptions in Mr. Buckland’s article
Mr Buckland’s response to my article posted on 25th February 2013 contains a number of misconceptions. Here are three of them.
- Gisting secret evidence Mr Buckland engages in pure Orwellian doublethink, straight out of Nineteen Eighty Four. Mr Buckland says it is “clear” that the Bill allows the disclosure of a summary of national security sensitive material if this is necessary for a fair trial under Article 6 of the Human Rights Convention.
But the express words of clause 8(1) (e) of the bill say the precise opposite:-
“…. the court is required to ensure that such a summary does not contain material the disclosure of which would be damaging to the interests of national security”.
There is no clear ruling from the Strasbourg court that Article 6 gives any right at all to a summary of national security sensitive evidence in civil cases.
- Evidence of torture. Mr. Buckland suggests that the evidence in Serdar Mohammed about flogging with steel rods would be disclosed even in a CMP regime because it would not be regarded as damaging to national security.
He is mistaken. The case-law shows that this very same evidence was successfully suppressed by the government on the grounds that it would damage national security in the Mayer Evans case.
- David Anderson QC’s views. Mr Buckland wrongly suggests I misquoted him in relation to the views of the Independent Reviewer of Terrorist Legislation, David Anderson QC.
On the contrary, I corrected his misapprehension that Mr. Anderson was somehow confirming the Government line that there were 20 cases in which a CMP might be a preferred option. Mr Anderson asked repeatedly to see the papers in those cases, but his requests were denied. Mr. Anderson was only allowed to see threee damages cases which as he, somewhat caustically observed, had been “chosen” to “illustrate the government’s point of view”.
Myths peddled by Mr. Buckland
In his first article, Mr Buckland accused people of peddling (unspecified) myths about the Bill. But it is Mr Buckland who is peddling myths. Here are four of them.
- Myth 1: Mr Buckland says that a vote against the Bill is a vote for “silence”. This again is Orwellian doublethink. The reverse is true. A vote for the Bill is a vote for more secrecy and unaccountability. Under the present system of PII, the judge has power to order expose scandal where the public interest demands it. Under CMPs he would have none.
- Myth 2: Mr. Buckland says “secret courts” are necessary to protect our intelligence sharing relationships. This is a complete myth. It has been branded a “scare tactic” by David Anderson QC, the Independent Reviewer of Terrorist Legislation:-
“I have.. deprecated the tendency of Ministers to characterize their CMP proposals as justified by national security…it would be unfortunate if the Government were to use well-founded fears of a reduction in intelligence sharing…..as a scare tactic in order to achieve its…. proposals on secret civil trials. Existing PII procedures do not risk compromising foreign intelligence.”
- Myth 3: Mr. Buckland alleges (as did Mr. Clarke in the Sunday Times today) that without secret courts, damages will be paid to terrorist suspects who, by implication, might spend it on terrorism. In rebutting this myth, I can do no better than quote the words of the former Director or Public Prosecutions, Lord Macdonald, who is not known for his softness on terrorism –
“Ken Clarke is being thoroughly misleading. If someone is financing terrorism, the police can arrest them and the CPS can prosecute them, because it’s a crime. This happened all the time when I was DPP. Ministers also possess far-reaching asset-freezing powers that allow the courts to freeze the funds of anyone simply on the basis that they’re suspected of being involved in terrorism”.
- Myth 4: Mr. Buckland says that CMPs will enable “all relevant material to be seen”.
This is untrue. This is because the citizen will not hear the secret evidence and therefore won’t know what evidence to adduce in rebuttal. The judge will be deprived of that rebuttal evidence. As Supreme Court Justice Lord Kerr said –
“ The central fallacy of the argument however, lies in the unspoken assumption that because the judge sees everything he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial”.
Mr Clarke’s smokescreen
Unfortunately it is not a myth that our secret services were involved in facilitating torture and in lying to the court and Parliament to cover it up. This was the ruling of the Court of Appeal in Binyam Mohammed. As former DPP Lord Macdonald says –
“The sad truth is that Mr Clarke’s comments look like a smokescreen for plans which are aimed not at keeping the British people safe, but at sparing the embarrassment of the security services when they get mixed up in wrongdoing. Instead of promoting this thoroughly un-British legislation, which is designed to make our courts secret as though we were living in Europe in the 1930s, Mr Clarke and his colleagues in government should concentrate on holding the security agencies to account when they break the law.”
A wide range of people agree with this view including the former top Legal Advisor to the army in Iraq, Colonel Nicholas Mercer –
"The justice and security bill has one principal aim and that is to cover up UK complicity in rendition and torture. The bill is an affront to the open justice on which this country rightly prides itself and, above all, it is an affront to human dignity.
"The fact that some of those individuals who are complicit in rendition and torture can not only assist in the drafting of the bill but also vote to cover their tracks is a constitutional scandal.”
A very un-British Bill
Mr Buckland nowhere acknowledges the damage this Bill does to the central plank of British justice and democracy.
This is the right of anyone to bring a private civil action against even the highest official in the land for violation of their personal rights; and the right to challenge that official’s evidence in front of an impartial judge, who will treat both parties equally, and who will never allow the official the improper privilege of whispering secretly in his ear.
These rights are so fundamental that for centuries they have been called the rules of “natural justice”. This brand of justice has “Made in England” stamped all over it. It is our proudest and most enduring national product. This Bill would tarnish the brand for ever.
Over 700 lawyers, including 38 QC’s, and a cross-party committee of both Houses of Parliament have made clear that this Bill won’t do. It is now up to MPs to protect our system of law. One does not need to be a legal expert to see that. As Andrew Tyrie MP has repeatedly said, this is about what kind of a country we want to be.