Secret court plans 'address genuine problem in disproportionate way'

时间:2019-11-08  作者:骆菸  来源:电子艺游网址平台  浏览:20次  评论:9条

Plans to extend secret court hearings address genuine problems of national security but also contain elements of "overkill", the independent reviewer of terrorism legislation has warned.

Judges will not have sufficient control over cases they hear under the government's proposals for closed material procedures (CMPs) and may have their "strings pulled" by ministers, according to David Anderson QC.

His critical comments to the joint parliamentary committee on human rights came as the House of Lords began debating the second reading of the controversial justice and security bill, which introduces limited disclosure of sensitive intelligence material in civil court cases. Under the procedures a defendant or claimant will not, however, be permitted to see all the relevant evidence.

Anderson told the committee that the bill "addresses a genuine problem but in a disproportionate way. There's an element of overkill that I have no doubt will be the subject of debate." He disapproved, in particular, of the powers envisaged for judges. "The decision to trigger [a CMP hearing in secret] should be for the court not the government," he said.

"The judge should have the last word. The only difficulty is that word is dictated by the secretary of state. The judge's hands are effectively tied. If there are matters of national security the judge is required to agree – the word 'must' features in the bill. [The bill has] given formal effect [to the judge's role] but in substance the secretary of state continues to pull the strings."

CMPs, he said, were far from ideal but at least they gave evidence an airing rather than resulting in cases being struck out. They should be used as a matter of "last resort" where a case was otherwise untriable.

A wave of civil actions over the alleged role of British involvement in US drone strikes was about to start, he suggested, testing how much intelligence could be heard in open court under the current rules. Defending the plans at the bill's second reading in the upper house, the Liberal Democrat Lord Wallace of Tankerness said: "The government is committed to open and transparent justice."

The scope of CMPs, he explained, had "been narrowed and the safeguards around them strengthened" in response to public criticism. "The plans in this bill are sensible, proportionate and targeted at a genuine and serious problem."

They would result in a "fairer outcome" when the alternative was "simply silence, no judgment at all and no questions answered". Otherwise "the only practical option was to settle the claims [against the intelligence services] for significant sums without admitting liability".

Wallace said there was a public interest in getting to the truth of such allegations, adding: "Mud sticks. Allegations have been made in public, which have never been examined or rebutted. Many people choose to believe they are true. The damage to the reputation of this country can be immense.

"CMPs are already used in our justice system, have been endorsed by both domestic and international courts, for the good reason that they provide a fairer outcome when the alternative is simply silence."

Lord Mackay of Clashfern, the Conservative former lord chancellor who served under Margaret Thatcher, welcomed the bill as a "great improvement to the present system" but cautioned that its definition of sensitive information was unnecessarily wide. He also worried that judges' powers under the bill were too limited.

The civil rights organisation Liberty staged a protest outside the supreme court in Westminster opposing the bill in which it deployed bouncers who appeared to prevent members of the public and claimants from proceeding to court.

Shami Chakrabarti, the organisation's director, said: "The sight of sinister bouncers barring victims, press and public from a court door may seem unthinkable, indefensible or both.

"But that is exactly what the justice and security bill would achieve – undermining the reputation of Britain's justice system and security establishment in the process.

"The bill replaces judicial discretion with executive control and destroys the age-old principle that everyone is equal under the law."

The bill has been introduced into the House of Lords, rather than the Commons, because of pressure on parliamentary timetabling. It means that the Commons cannot, under the Parliament Act, reverse a defeat in the upper house.

A Ministry of Justice spokesman said: "We entirely agree with David Anderson that closed proceedings provide a way of scrutinising national security evidence. The current rules exclude this material entirely from the courtroom, meaning silence on very serious allegations – no judgment, no questions answered.

"The judge will have the final decision that a closed hearing is needed and will then have significant power to ensure that at least the same level of information is available to the claimant as under the current system.

"Nothing heard now in open court could be heard in closed in future under these plans."

This article was amended on 20 June 2012. The original referred to Lord Wallace of Saltaire. That should have been Lord Wallace of Tankerness and has been corrected.