Friday, 15 March 2013

Justice and Security Bill - what have the Commons been up to?

JSB has cleared the Commons and will now ping pong back to the Lords - the first ping pong sitting is on 26th March.

The Commons have introduced the following major amendments to the Bill, in so far as CMPs are concerned, which they received from the Lords:

1. CMP declarations, in the Bill received from the Lords, could be made where there would be harm to national security caused by disclosure.  The Commons have added to that an alternative condition that disclosure of the material cannot be made because of PII grounds (which are wider than national security - most particularly harm to diplomatic relations) or because the party chose not to rely on the material or because section 17 RIPA prevents disclosure (intercept evidence) or because any other enactment prevents disclosure.  Hence the circumstances in which a CMP declaration may be made have been widened.

2.The Lords Bill required the Secretary of State to consider claiming PII as an alternative to seeking a CMP declaration but the Commons Bill has beefed this up such that the Court must be satisfied that the Secretary of State has carried out that consideration.

3.The Commons have added a new clause (after number 6) to require the Court to keep the CMP declaration under review, particularly after disclosure.  There is a power to revoke on the application of any party or on the Court's own motion.  Clearly this is designed to keep the Secretary of State on her toes, to make such that a CMP is still required after a review of the documents which have been disclosed.

4.The Commons have added new clauses (after 10) requiring reports on the use of the CMPs every 12 months and a review every 5 years.

Otherwise, the Bill remains, as far as CMPs are concerned, as was delivered from the Lords to the Commons.

Let ping pong begin.

Interestingly, a Labour MP, Paul Coggins tried to insert an amendment to permit CMPs to be available to inquests held by the Chief Coroner or a High Court Judge.  This would have been a good development, as several high profile inquests have suffered from the lack of CMPs (7/7 and most latterly Litvinenko, where Owen J is to consider a PII application, which if granted will keep evidence out of the inquest - unlike a CMP which would permit it to be examined in controlled and safe conditions).  The debate (set out below) on this amendment is interesting - as clearly HMG wished to include Coroners but have bowed to pressure.....

Amendment 70, page 6, line 22, at end insert—
‘or proceedings at an inquest conducted by the Chief Coroner or a High Court judge.’.
Paul Goggins: My hon. Friend knows me well enough to know that I do not dismiss critics of the Bill. I listen to them carefully; I just happen to disagree with them. The same applies to my hon. Friend: I listen carefully to what he says on this issue. Sometimes we agree and sometimes we disagree, and I sense that we will disagree on this. I am making a plea for further attempts to achieve consensus, but I am making it clear that if there is no consensus then I think that my right hon. Friend the Member for Tooting is setting the bar too high.

On inquests, I am sorry that the Minister did not take an intervention from me earlier. I would be delighted to take an intervention from him at any stage in the next couple of minutes. I am grateful to Members who supported my amendment 70, which would make closed material proceedings available for inquests as well as civil proceedings. We just need an explanation from the Minister on why the Bill proposes CMPs for civil cases, but does not propose them for inquests. That was in the original plan. He knows that senior members of the Government and senior judges think it is nonsense and inconsistent to have one and not the other.
Mr Kenneth Clarke: I think we have had this exchange before. The explanation is simple. The Government were faced, in Parliament and from all the lobbies, with overwhelming opposition to extending CMPs to inquests. We have said throughout today’s proceedings that we have been trying to concede as far as possible, and that if people did not want to trust coroners with these powers and the ability to take into account this information, 
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we decided it was impossible to maintain it, particularly after recent controversy regarding coroners and inquests. All kinds of unlikely organisations were seen to be believing that we were closing down inquests, getting rid of juries and so on, so I am afraid that we took the line of least resistance. The result is that total secrecy and silence will continue to be the case in inquests whenever national security is involved.
Paul Goggins: The purpose of tabling amendment 70 —again, I am grateful for the support of hon. Members—was not that I thought I would win the day. Clearly, the Minister is not going to support it. I tabled the amendment to encourage him, the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire) who is sitting next to him and anybody else who is listening. This issue will come back and either his Government or preferably a Government that I support, will have to deal with it.
Mr Straw: I am sure that my right hon. Friend is aware that the idea of having closed material proceedings was not just the policy of the previous Labour Government. Proposals were introduced in legislation, but sadly blocked in the other place.
7.15 pm
Paul Goggins: My right hon. Friend is absolutely right. If CMPs are to be available in civil proceedings, they should certainly be available in inquests. There are difficulties concerning families and bereaved relatives, but in the end this about a search for the truth. If there is information and intelligence that reveals the cause of a death, the coroner should know it, even if it has to be kept as secret intelligence.
The Minister himself made the perfect argument today. He went on the radio at lunchtime and made the argument about the limitations of having to have just PII, rather than CMPs. What was the example he gave? The Litvinenko inquest. There are more than 30 historic inquests in Northern Ireland waiting to be resolved. Whether the deaths involved the Army or the police, all of those issues will be there. There will other inquests in future that will bring national security issues into play.
Mr Kenneth Clarke: The right hon. Gentleman has been very patient in listening to the whole debate. All the people who are more liberal than we are and who are denouncing CMPs, are defending the existing law. What is at the moment in controversy at the Litvinenko inquest, is that what they are saying is superior to admitting the evidence and having it heard and determined by the judge. One has to bring in the present inquests or inquests will never have this material, because such a fantastic volume of opposition was excited by the proposal when we first put it forward.
Paul Goggins: I accept that the Minister felt under enormous pressure to make that concession. Anybody who doubts the minds of coroners and senior judges in relation to the test that will be applied need only look at the coroner in the Litvinenko inquest, Sir Robert Owen, and the comments he made last week. He said clearly:
“I intend to conduct this inquest with the greatest degree of openness and transparency”—
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and that he would give the Foreign Secretary’s request for a PII certificate—
“the most stringent and critical examination”.
We ought to trust the coroner and the judges.
In the end, the search for justice is a search for the truth. A secret court is one where information and intelligence is either not considered at all, or where the Government and their agencies cave in and make a settlement where no case has been heard—that is secret justice. Closed material proceedings are not perfection, but we are not dealing with perfection; we are dealing with a difficult issue in a small number of cases. However, we are more likely to get closer to the truth if the judge has seen the relevant information than if nobody has seen it at all.

1 comment:

  1. Thanks for the update on the J&S Bill.

    Can you please explain your thinking behind your statement thta the 7/7 inquests 'suffered from the lack of CMPs'?