Recently I wrote this letter to Nick Clegg with regard to the Security and Justice Bill. Today I have received a reponse.
Here it is, in full, with no comment (for now...) The only edit I've made is to omit the name of the staffer who sent it.
Dear Mr Brown,
Thank you for your email to Nick Clegg. I am replying on his behalf.
We fully understand that our members instinctively have concerns about the implications of the Justice & Security Bill for civil liberties and I hope to address these concerns in this email.
As you know, we are part of a coalition with the Conservatives, which naturally requires compromise. Where compromise has been necessary, the Parliamentary Party has strived to ensure that all proposals put forward by Coalition Government are as fair and sustainable as possible and I would like to assure you that Liberal Democrats in Government, as they are in local government, are working to secure the best possible deal for the British public, while building a stronger economy in a fairer society.
Under the current system, the only method available to protect very sensitive material such as the identity of informants from disclosure in open court is through Public Interest Immunity (PII). A successful PII application results in the complete exclusion of that material from the proceedings. Therefore, any judgment reached at the end of the case is not informed by that material, no matter how central or relevant it is to the proceedings. This system works well, but problems may arise when a case is so saturated in sensitive material that the PII procedure removes the evidence which one side requires if they are to make their case.
In these very limited circumstances, the Justice and Security Bill would allow sensitive national security evidence to be heard in closed material proceedings (CMP). CMPs are already used in other areas of law, including Terrorism Prevention and Investigation Orders (TPIMs), the Special Immigration Appeals Commission (SIAC), and sensitive employment tribunals. This will ensure that civil cases which are currently not heard will be heard, and that allegations made against the Government are fully investigated and scrutinised by the courts. It also means that the Government would no longer be forced to settle cases which it believes have no merit.
Concerns have been raised about Part II of the Bill, which covers the disclosure of sensitive material and allows a court to make a declaration that a CMP may be used in certain civil cases. Indeed, as you are aware, Liberal Democrat conference voted in support of the removal of Part II. The deep concern expressed by conference has informed a tough approach to internal negations - while it has not been possible to secure the removal of Part II, we have secured a dramatic package of improvements which we feel meet the majority of the concerns. These include restricting the scope of the Bill to national security cases only, removing inquests from the scope of the Bill entirely, and ensuring that it is an application to a judge and not a decision by a Minister that triggers a CMP.
In November 2012, Liberal Democrats secured improvements to the Bill in the House of Lords by supporting a series of amendments proposed by the Joint Committee on Human Rights. There are now further safeguards to make absolutely certain that every other avenue for dealing with sensitive material can be explored before a CMP can be used, and the amendments put beyond doubt the fact that CMPs cannot be extended to inquests, or in Scotland, Fatal Accident Inquiries. In addition, recent Government amendments make sure that the judge has the power to revoke the CMP if they deem that the procedure is not fair, even after it has already begun. This will ensure that if any material arises which is just embarrassing, but not sensitive, the judge can call a halt to proceedings.
I would like to clarify that the Government amendments do not remove the test of last resort for CMPs. The wording ensures that the judge has full discretion on whether or not to allow a CMP, preserving the balancing test as the judge will weigh the application against the interests of a fair trial for all involved.
All parties to the proceedings will be able to apply for a CMP rather than just the Government. While claimants won't be in a position to make the same kind of application as someone who holds national security material themselves, the Government's amendments allow claimants to ask the court to order a CMP of its own motion. If a party wants a CMP for information they do not hold themselves, they are unlikely to be in a position to fulfil the requirements of the application for a CMP that are set out in the Bill. They won't be able to provide detailed assessments of how relevant the material is to determining the issues in the case, or what the damage to the interests of national security would be if the material were to be disclosed. It would therefore clearly be wrong to require claimants to go through the same procedural steps that they would never be able to satisfy.
Finally, it is important to note that the Bill will not move cases that are currently heard in the open into closed proceedings. The proposals extend civil justice so that cases which are currently not heard by the courts can be. A judge will decide which pieces of evidence should be heard in open court and which in closed. Only evidence which, if disclosed, would be damaging to national security will ever be heard in closed session - material that is currently not heard in open court at all and is excluded from proceedings altogether. In practice no evidence that's given in open court at the moment is going to be given in secret under the Government’s proposals. What we're talking about is evidence that might be given by spies about their sources, their technologies, what they know - none of which is ever given in open court in any country in the world, including Britain.
Thanks again for taking the time to share your concerns on this important issue. I hope this information assures you that with the changes Liberal Democrats have secured to the Bill, CMPs will only ever be used as a last resort in a limited number of cases of national security where secret evidence is so sensitive that under the current system of Public Interest Immunity the case could not otherwise be heard.
Office of Nick Clegg MP