Friday 13 July 2012

JSB in Committee....

There has been an excellent Committee session in the H of L on JSB.  For all those who want to rid us of this crucible of knowledge and experience, they should read the debate and scrap their plans.  A former LCJ and MR spoke (L.Woolf), a former Solicitor General and Lord Chancellor (L.Falconer), a former DG of MI5 (L.Manningham-Buller) together with countless leading QCs and solicitors (Faulks, Lester, Pannick, Thomas, Carlile etc) all provided excellent contributions.  I commend every word to anybody interested.  There is clearly a lot confusion about how the CMP procedure is going to work.  There is concern about the following:

1. That HMG will apply for PII and not CMP where the evidence is against them.
2. That a Claimant cannot apply for CMP.
3. 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 is 'straitjacketed'

These are legitimate concerns and a very useful debate was had which left Lord Wallace of Tankerness (Advocate General and leading for HMG on this in the Lords) with lots of food for thought-  which might lead to improvemets to the Bill in due course.  The contribution from Lord Woolf who both applied for PII for HMG as Treasury Devil and heard PII applications as a judge should be carefully considered. I particularly like his squaring the circle analogy, which I have deployed in this blog.  He gave the leading speech in the House of Lords in Wiley - the leading authority on PII.

His comment about trust between Counsel being paramount in these sorts of proceedings is worth repeating as it is something I can attest to:

Only in a small minority of cases is it necessary to resort to the special procedures that we are debating in the course of these proceedings. Certainly on the basis of my experience, usually you can find ways of squaring the circle-ways in which the evidence can be put forward so that it is valuable to the judge without having to risk causing damage to such interests as national security. Justice is done through the advocates involved co-operating, through agreements that certain things are to be redacted, and through the trust that usually exists between the advocates appearing in the proceedings on behalf of the Crown in matters of these sorts and the advocates appearing on behalf of the other parties.

I look forward to the next Committee session on 17th July and the Report stage thereafter.

Whilst on this topic I would recommend the Bingham Centre paper on this issue and also a recent judgment of Ouseley J. where he effectively concludes that without a CMP authorised by Parliament he cannot hear the claim before him....the circle needs squaring sooner rather than later..........

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