The Government must make major changes to the Justice and Security Bill or risk prejudicing both Britain’s system of open justice and our moral standing in the world, according to Anthony Peto QC and Andrew Tyrie MP in Neither Just Nor Secure.
“That Britain allowed itself to be dragged into complicity in “extraordinary rendition” – the kidnap and torture of individuals as a matter of policy – is a disgrace. That, nearly a decade later, the extent and limits of Britain’s involvement are still unknown is almost as shocking…
Far from bolstering that confidence, the Justice and Security Bill... would weaken it. The effect of the Government’s proposals would make it more difficult to establish the truth about Britain’s complicity in kidnap and torture. The Bill would provide a route neither more just nor more secure.”
The authors explain how the Justice and Security Bill, in its current form, would be a step in the wrong direction. As the report explains: “Too many features of the Bill are designed to address the awkward consequences of disclosure of wrongdoing; too little is being done to ensure that Britain closes the chapter on extraordinary rendition.”
Neither Just Nor Secure sets out three major areas of concern in the Bill:
- The expansion of ‘secret justice’ through the introduction of Closed Material Procedures (CMPs) to civil cases. This would mean that the government would be able to present its evidence in secret session in the absence of the other party, his or her lawyers, the press and the public
- Removing the courts’ power to hear Norwich Pharmacal applications, which seek the disclosure of information held by UK authorities, in cases deemed to be “sensitive”. This was the principle used by Binyam Mohamed’s lawyers when he was contesting charges that could have resulted in the death penalty. Removing it will make it harder to uncover official wrongdoing in matters such as extraordinary rendition
- Inadequate proposals to strengthen the Intelligence and Security Committee (ISC), which is supposed to oversee the intelligence services but which failed to uncover the truth about rendition. The Bill will not give the ISC the independence from the executive that it needs
The Bill is now at a crucial stage in Parliament. The House of Lords has voted for major amendments, introducing more discretion for judges and making the use of CMPs much more of a last resort. These changes are necessary but not sufficient to make the Bill less unacceptable. When the Bill goes into Committee stage in the Commons (from Tuesday 29 January), it must undergo further major amendment:
- CMPs should be a last resort; a judge should have to exhaust the possible uses of the existing system of Public Interest Immunity before considering the use of a CMP;
- Even where a CMP is approved, the judge should be able to balance the interests of justice against those of national security in deciding if information should be disclosed;
- Where CMP is used, summaries of the national security sensitive information should be provided to the excluded party and his or her legal representatives;
- There should be a five year ‘sunset clause’ on that part of legislation;
- The definition of ‘sensitive information’, proposed to block application of Norwich Pharmacal disclosures, is much too wide and should be narrowed
- Proposals to reform the ISC should be strengthened, and its Chairman should be elected, subject to a Prime Ministerial safeguard, by secret ballot of Parliament, as recommended by the Wright Committee in 2009.
Andrew Tyrie comments:
“The problem with the Bill is that the Government has been looking down the wrong end of the telescope. After years of revelations about the British authorities’ role in rendition and maltreatment, it seems to have concluded that its biggest problems relate to civil lawsuits and information uncovered using the so-called Norwich Pharmacal jurisdiction.
Part 2 of the Bill, with its proposals for secret justice, have been shredded by the House of Lords and should not have been brought before Parliament. Not only must all of the Lords’ amendments remain in the Bill, they need to be underpinned by further improvements. The proposals for removing the courts’ ability to order the disclosure of information held by the UK Government need a good deal of improvement, too. In addition, we need stronger parliamentary oversight of the intelligence agencies through a more credible reform of the ISC than the Government has proposed. The Lords’ amendments have given ministers a second chance. They should take it.”
“Yes, the intelligence services do a vital job. Yes, they are doing it in very difficult circumstances. Yes, they deserve our full support. But secret courts and ever-tighter restrictions on the disclosure of information in cases deemed ‘sensitive’ will damage Britain’s system of open justice and the reputation and effectiveness of the security agencies in the struggle against terrorism.”
“Plans for secret courts to be voted on by MPs today will undermine centuries of open justice and erode Britain’s moral standing in the world, according to a hard-hitting new report.”
“In a damning report written jointly with Anthony Peto QC for the Centre for Policy Studies, Mr Tyrie said the Bill, which will be debated in Parliament tomorrow (TUES), “sits uneasily with deeply entrenched and well-understood ways of providing justice in Britain”.”