Tuesday, 25 September 2012

Lib Dems vote to oppose JSB....

The Lib-Dems have apparently passed this motion at their conference:

Conference calls for:

1. The Coalition Government to withdraw Part II of the Justice and Security Bill; and put in place instead a statutory scheme reflecting the current Public Interest Immunity system to be enacted which will retain judicial discretion, be a proportionate means of ensuring national security is not jeopardised by any litigation, and ensure the working successful democratic principle of open justice is retained.

2. All Liberal Democrats in parliament to press the government to do this and in any event to
press for the withdrawal or defeat of Part II of the Justice and Security Bill.

This could pose a problem for the sponsor of the Bill in the House of Lords - the Advocate-General for Scotland, Lib Dem Minister and peer.  He has released a press statement:


Liberal Democrats have made their unease about the justice and security bill clear in the past and have confirmed this today. They have welcomed the significant changes that Nick Clegg has already secured, for example removing inquests from scope and restricting it to national security cases only, but they have made clear that they still have deep concerns.

It has always been the government’s intention that closed courts should only ever be used as a last resort and in a very small minority of cases where the alternative is no justice at all. We will continue to work with parliamentarians from all sides, to ensure that the principles of open justice are protected.


It seems very odd to me that the Lib Dems prefer to support the Govt's right to withhold the disclosure of evidence through PII rather than disclosing it via a CMP.  As well as suppressing evidence they also now appear to support meritorious claims being struck out because they can't be heard without a statutory CMP:  Ouseley J and Mitting J have both said that they need the CMPs set out in JSB if they are going to be able to try proceedings now pending before them.  The Lib Dems therefore find themselves opposing the means by which those who claim to have been mishandled by the security services can have their cases heard.

Withholding evidence from one party in a civil trial is not a good idea, it may not even be just; but it is preferable to a strike out or an unjust settlement.  The current and former (another Lib Dem) Independent Reviewers of Terrorism Legislation, who have actually seen the relevant case files reluctantly say that these procedures are needed.

When are those opposed going to realise that it is better to have an imperfect justice than no justice at all.......

As David Anderson QC said:

"We are in a world of second-best solutions: but it does not seem to me that the level of injustice inherent in the use of a CMP in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought’.

See some of my previous posts on JSB:


13 Jul 2012
That a judge cannot refuse PII on the grounds that CMP is more suitable or indeed does not have the power to consider the whole suite of measures in a holitstic way - PII, CMP, gisting, rings of confidence and redaction - and ...
10 Jun 2012
The test for granting a CMP is the "court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security". This is the same ...
19 Jun 2012
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 ...
29 May 2012
If the claim is not made or not accepted by the Court (i.e. S/S or other relevant person wants to rely on the disclosure or the Court thinks that the information should be disclosed under a CMP and not withheld completely) then ...
21 May 2012
'It is however apparent to me, after inspecting the files I have been shown and speaking to counsel involved, that under the current law there are liable to be cases that are settled ... which, had a CMP been available, would ...
21 Jun 2012
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 ...
04 Mar 2012
You have put entirely far arguments here. BUT ... The fear is that CMP will not be limited to genuine "national security" cases but would be extended to many other types of case where there might be some government interest.


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