Wednesday, 27 March 2013


It is being reported that the Lords failed to disturb the Commons' amendments to JSB last night such that the Bill should be on its way to Royal Assent soon.

I am dismayed by the continuation of the confusion between PII and CMPs.  PII keeps evidence out whilst CMPs keeps evidence in.  PII is about preventing the Court from receiving evidence on the grounds of national security.  CMPs are about facilitating classified evidence being put before the Court. The cost of achieving that end is that one side does not see the evidence.  That cost is high and it makes the average lawyer feel a bit sick.  
But nobody has come up with a better solution, and so it must be. I cannot put it better than Simon Brown did in the House last night:

Lord Brown Eaton-under-Heywood - former Lord of Appeal in Ordinary and until 9th April 2012, Justice of the Supreme Court:

The principle of open justice is, as we all acknowledge, of the highest constitutional importance. It is rightly regarded as lying at the very heart of the object of fair trials. Ordinarily, closed procedures-or, as colloquially known, secret hearings-are simply not to be countenanced. There are those who argue that nothing-no countervailing interest whatever-can ever justify any encroachment upon that prized, sacrosanct principle. The noble Baroness, Lady Kennedy of the Shaws, said this on Report. Dinah Rose and Philippe Sands, both distinguished Silks, said it recently when they resigned from the Liberal Democrats at their spring conference. Shami Chakrabarti, the director of Liberty, said it three weeks ago at Lincoln's Inn in a debate with Ken Clarke, which I attended. I have the greatest respect for all of these, but I am convinced that in the tiny minority of cases which have been identified by David Anderson, the independent reviewer of terrorism legislation, as cases to which this legislation will apply such an absolutist approach is wrong. The apparent purity of this approach must yield to the imperative needs of national security. The absolutists contend that, where national security precludes the Crown from disclosing the documents that are needed for the defence, the Crown must simply pay up. In a judgment in a case called Tariq, which we heard together with the Al Rawi Guantanamo cases, I described that contention as "wholly preposterous". I stand by that and that is now the view of the majority of both Houses.

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