Thoughts from the Second Reading of the Justice and Security Bill.....

An excellent 2nd reading of the Justice and Security Bill on Tuesday afternoon and evening.  The session was excellent evidence in support of the points I made about House of Lords reform here as it featured contributions from former heads of the security agencies, leading silks of all political persuasions and none, former Lord Chancellors as well as former Minister who have wrestled with these issues in the past - We abolish the fountain of knowledge at our peril::  As Baroness Smith of Basildon (former Labour Minister) said:

If I may digress slightly, noble Lords may recall that in making the case for an elected House with 15-year terms, the Deputy Prime Minister Nick Clegg described your Lordships’ House as having a “veneer of expertise”. That is hardly the case today. We have not seen a veneer of expertise; we have seen very strong expertise, not just from the lawyers that I have mentioned and senior members of the Bar and the judiciary, but members and former members of the Intelligence and Security Committee and the Constitution
Committee, those with professional experience of security agencies, those with experience of government, former Ministers, journalists and those with a record of standing up for the protection of civil liberties and human rights. I think that the Deputy Prime Minister also said that the knowledge in the Lords was 40 years out of date. The collective knowledge in this House goes back well beyond 40 years but it is also up-to-date, and that will be very valuable as we progress to Committee.

Interestingly the Govt Minister opening the debate - Lord Wallace of Tankerness, the Adovcate-General (Lib Dem Scottish QC and former Dep Leader of the Scottish Executive) made the point I had made in an earlier post that it is not realistic to think that HMG will claim PII where it suits it to withold damaging evidence and elect to apply for CMP where it wishes to rely on helpful secret evidence as Judges would not tolerate that form of manipulation and in the first scenario would refuse PII and pressurise HMG to apply for CMPs:

Some suggest that the Government may choose between claiming PII and applying for a closed material procedure opportunistically. Some say that the Government would apply for a closed material procedure where the material was helpful to the Government on the basis that the material could be considered by the court and that the Government would claim PII where the material was unhelpful so that, if successful, the PII claim would exclude that material from consideration. It is not a realistic concern. The intention behind the closed material procedure proposals is precisely so that allegations made against the Government are investigated and scrutinised by the courts. The intention is that all relevant material—helpful or unhelpful—will be before the courts. It is hard to see that a judge assessing a PII claim would conclude that material should be excluded if the Government were seeking cynically to use PII to exclude material that undermined its case when a closed material procedure was available as an alternative

Lord Mackay of Clashfern (Scottish QC and former Lord Chancellor), Lord Thomas of Gresford (Lib Dem QC and Dep High Court Judge), Lord Pannick (cross-bencher QC and brainbox), Lord Macdonald of River Glaven (Lib Dem QC, former DPP and Warden of Wadham, Oxford - elect) all want to strengthen the obligation on HMG to consider PII before applying for CMP.  At the moment the Bill requires HMG to consider whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application would be based rather than being forced to make that application first.  This appears to be because the Noble Lords are concerned that other solutions to national security evidence currently deployed on PII applications - redaction, gisting and rings of confidentiality will be unavailable to the Court if HMG applies for CMP rather than PII.  This is the model that Lord Macdonald set out:

I also believe that it would strengthen the integrity of any CMP were it to be invoked only following a full PII process. In other words, the judge would be invited to rule, in accordance with traditional PII principles, that the relevant material sought to be withheld could properly be withheld on public interest grounds. Having made that ruling, the court would then go on to consider, again on conventional PII principles, the extent to which a redacted form of the material, or a summary, could safely be disclosed consistent with the public interest. Finally, if at the conclusion of this conventional PII process a party wished to go on to apply that the court should go into closed session to hear any remaining material permitted to be withheld under PII, only then would the court be empowered to accede to that application to the extent that it felt a fair trial would be impossible in the absence of factoring that material into its consideration of the issues in the case. The scheme would be: first, consider the relevance of the material to issues in the case-normal PII; secondly, consider the extent to which its disclosure might damage national security-normal PII; thirdly, consider the extent to which redaction or summary can cure the problem-normal PII; fourthly, in appropriate cases after that process, rule that the material may be withheld on grounds of public interest; and only then, fifthly, upon an application by one of the parties, rule that the material withheld can be considered by a court in closed session because, in the view of the court, a failure to do so would render the proceedings as a whole unfair. It would be a strong PII system as we understand it today, with the possibility in a small number of cases, once that process had been exhausted, for the court to go into closed session. Such a scheme would encourage a focus throughout the process on the important principles to be decided. It would very strongly discourage abuse or inappropriate, overhasty recourse to the CMP procedure, which is, I fear, a real danger under the current proposals

This model in fact reflects what happens in CMPs at the moment.  In Control Order proceedings it was known as the Rule 29 procedure (it is to be found in Rule 76.29 of the CPR - replicated for TPIMs at 80.25).  Essentially the Special Advocates would do their best to negotiate as much of the secret evidence into the open and have it communicated to the controllee and his legal representatives via gisting and redaction - the Judge would rule on those issues where the Special Advocate and HMG's Counsel disagreed.  If the Judge ordered disclosure of evidence or gisting to the controllee and HMG refused, then the Judge has the power to prevent HMG from relying on issues or material which it refuses to disclose or gist (see 76.29(7)) - this is precisely the power set out at clauses 7(2) and (3) of the Bill - although the Bill goes further than the present safeguards as it includes the power to order concessions from HMG:

The court must be authorised—

(a) if it considers that the material or anything that is required to be

summarised might adversely affect the relevant person’s case or

support the case of another party to the proceedings, to direct that the

relevant person—

(i) is not to rely on such points in that person’s case, or

(ii) is to make such concessions or take such other steps as the court

may specify, or

(b) in any other case, to ensure that the relevant person does not rely on the

material or (as the case may be) on that which is required to be

summarised.

In other words - Lord Macdonald's model is already in the Bill. I am attracted to the idea that the Bill could be improved by setting this whole process in a PII application rather than a separate CMP context - as then the whole range of options could be available to the Court without having to cajole HMG into making a CMP application if the Court thinks that CMP is better than PII and I look forward to seeing the amendments but forward by this distinguished bevy of QCs.

Finally we must not lose sight of what is in issue in this Bill - justice is a fine things; but survival comes first: The Right Honourable 13th Marquess of Lothian and Chief of Clan Kerr - or Michael Ancram as he used to be known:
National security is not just about the general safety of our nation-which of course is paramount-it is also about protecting the lives of innocent citizens threatened by terrorism. Frequently that protection is achieved through secret intelligence from both home and abroad, intelligence which must be protected; and therefore sometimes the price of that protection is a curtailment of long-standing rights. I have long believed that the freedom of the individual, enshrined within these rights, is paramount. However, the greatest of these rights is the right to life itself. Protecting life from existential threat must be the priority, even at the cost of some restriction on other rights. I have seen for myself the carnage of terrorist outrages. No rights can take precedence over the means that can prevent them. In the end it is a question of a delicate balance, and in my view, this Bill gets it just about right.