Why the “Secret Courts” Bill Still Needs to be Improved.
The House of Lords has a final chance to restore its original amendments to the Justice and Security Bill or risk prejudicing both Britain’s system of open justice and its reputation for holding government to account under the rule of law, according to Anthony Peto QC and Andrew Tyrie MP in Still Neither Just Nor Secure, published by the Centre for Policy Studies on Tuesday, 26 March.
In a follow up to their January 2013 report Neither Just Nor Secure, which called for major changes to the Justice and Security Bill, the authors warn that the Bill is still far from tolerable. As the report explains: “The arguments about the Bill are really about the kind of society that we want to live in: it is about what values this country is seeking to espouse and export.”
Still Neither Just Nor Secure sets out a number of amendments needed to restore the Lords’ intentions and greatly improve the legislation:
- Closed Material Procedures (CMPs) should be a last resort
- The Court, not the Secretary of State, should consider whether a claim for Public Interest immunity (PII) could have been made in relation to the sensitive material.
- Even where a CMP is approved, the judge should be able to balance the interests of justice against those of national security in deciding if information should be disclosed.
- Where CMPs are used, summaries of the national security sensitive information should be provided to the excluded party and his or her legal representatives.
- There should be a periodic review of the legislation conducted by an independent reviewer.
- The Bill should contain a periodic renewal clause.
- The definition of “sensitive information” under the Norwich Pharmacal provisions should be amended.
- The Chairman of the Intelligence and Security Committee should be elected, consistent with the proposals of the House of Commons Reform Committee (Wright Committee).
The Bill now heads back to the Lords today, where it started. The House of Lords voted for major amendments, introducing more discretion for judges and making the use of CMPs a last resort. The Government removed most of these amendments during Committee stage, in most cases by a single vote, despite repeated warnings that the Bill’s proposals constitute a radical departure from fundamental constitutional principles.
Andrew Tyrie comments:
“The Lords did good repair work on the Bill, but the Government has undone much of it. The Lords now have a final chance to restore their original sensible amendments and further improve the Bill. I very much hope that they will do take it.”