Government undermines Lords changes to secret courts Bill

January 29, 2013

Ministers are attempting to roll back concessions won by the Lords over their plans for secret courts.

Amendments tabled by Home Office minister James Brokenshire would remove changes made by the upper house which gave slightly more powers to judges in determining whether a secret court – known as a ‘Closed Material Procedure’ (CMP) – could be used by the Government.

The amendments also mean that only Government ministers would be able to make use of a secret court in relation to information that they held; while members of the public bringing cases against them would not.  This is at odds with ministers’ claim that they have accepted changes which would allow greater ‘equality of arms.’

The House of Lords had insisted that, at the very least, a judge should be able to weigh the public interest in justice against the Government’s claims of national security in deciding whether a secret court could be used.  However, Government amendments have stripped out this provision, meaning that the judge’s hands will effectively be tied – if a minister says information is national security sensitive, the judge has little choice but to defer to that decision and allow a secret court.

Commenting, Reprieve’s Executive Director, Clare Algar said:

“The secret courts bill was already a dangerous assault on British traditions of justice and fair play – now ministers have managed to make it even worse.  The Bill will place the Government above the law, and badly damage the independence of our judges.  It does not even appear that ministers can be trusted to accept the small steps in the right direction taken by the House of Lords.  The only safe course for MPs is to strip out plans for secret courts altogether.”

ENDS

1. For further information, please contact Donald Campbell in Reprieve’s press office: 0207 553 8166 / donald.campbell [AT] reprieve.org.uk

2. The changes in detail:

Judicial balancing: Among others, the following amendment made by the Lords is entirely removed:

(2) The court may make such a declaration if the court considers that—

(a) a party to the proceedings (whether or not the Secretary of State) would be required to disclose material in the course of the proceedings to another person (whether or not another party to the proceedings),

(b) such a disclosure would be damaging to the interests of national security,

(c) the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice, and

(d) a fair determination of the proceedings is not possible by any other means.

It is replaced with a lengthy Govt amendment (no. 55, at pp33-34 here: http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0099/amend/pbc0992901m.pdf) which has no provision for the judge to weigh justice against national security.

Equality of arms: the Government amendment means that a party other than the Secretary of State can only apply for a CMP in relation to information they (the applicant) themselves would be required to disclose. There is not a provision for a party other than the Secretary of State being able to apply for a CMP in relation to info held by the Secretary of State. Yet the Secretary of State can still apply for a CMP in relation to info help by any party to the proceedings.  The Government amendment is as follows:

55

* Clause 6, page 4, line 21, leave out subsections (2) to (6) and insert—

(1B) The court may make such a declaration if it considers that the following two conditions are met.

(1C) The first condition, in a case where the court is considering whether to make a declaration on the application of the Secretary of State or of its own motion, is

that—

(a) a party to the proceedings (whether or not the Secretary of State) would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or

(b) a party to the proceedings (whether or not the Secretary of State) would be required to make such a disclosure were it not for one or more of the following—

(i) the possibility of a claim for public interest immunity in relation to the material,

(ii) the fact that there would be no requirement to disclose if the person concerned chose not to rely on the material,

(iii) section 17(1) of the Regulation of Investigatory Powers Act 2000 (exclusion for intercept material),

(iv) any other enactment that would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section.

(1D) The first condition, in a case where the court is considering whether to make a declaration on the application of a party to the proceedings (other than the Secretary of State), is that—

(a) the applicant would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or

(b) the applicant would be required to make such a disclosure were it not for one or more of the following—

(i) the possibility of a claim for public interest immunity in relation to the material,

(ii) the fact that there would be no requirement to disclose if the applicant chose not to rely on the material,

(iii) section 17(1) of the Regulation of Investigatory Powers Act 2000 (exclusion for intercept material),

(iv) any other enactment that would prevent the applicant from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section.