Tuesday, 19 June 2012

Justice and Security Bill is getting the full second reading treatment in the H of L .....

Excellent debate happening now in the House of Lords on the Justice and Security Bill - watch it here

Plus the Constitution Committee have produced a good report -although it is wrong in one or two places:

1.The first flaw is that the scheme of CMP as presented in the Bill is one-sided in that it confers exclusive discretion on the Government.

As I have argued on this blog before - national security is the sole concern of HMG and nobody else.

2. The Wiley balancing test for PII should be applied to the Court's decision to grant CMP

As I argued before - the necessity test and the Wiley test are likely to be applied by the Court in the same way. I would not object to the Wiley test being put in the Bill for the avoidance of all doubt.

3.In our view, the court should be required, for example, to consider whether the material could be disclosed to parties' legal representatives in confidence and whether the material could be disclosed in redacted form.

As I argued here - this would required legal representatives to withold that evidence from their own clients - which many would consider to be just as bad if not worse than CMPs...

4. We welcome the fact that the Bill preserves the PII process in cases involving national security where, in the Government's words, "it is more appropriate."[30] Reserving the matter to the exclusive discretion of the Secretary of State is however inherently unfair. Determining which of PII or CMP is the more appropriate route to adopt in any particular litigation is essentially a case-management issue and so, constitutionally, is the proper preserve of the court.

I think the Committee has misunderstood the way CMPs and PII will work - the Court will be able to refuse PII if a CMP is more appropriate and the HMG will have to decide whether to apply for a CMP or not - it will be rare for the HMG to ignore the Court - see here

5. The House may wish to ascertain whether the Government consider that the power in clause 11(2) could be used to add inquests to the definition of "relevant civil proceedings" for the purposes of clause 6.

I agree- interesting question

6. The House may also wish to consider whether the Government should report annually to Parliament on the use made of CMP under the Bill and whether the Bill should be independently reviewed five years after it comes into force.


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