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Friday 18 Aug 2017 | 09:26 | SYDNEY
Friday 18 Aug 2017 | 09:26 | SYDNEY

In defence of the UK Justice and Security Bill

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COMMENTS

8 March 2013 15:30

Paul Madden is the British High Commissioner to Australia.

Cynthia Banham's Interpreter article yesterday about the UK's Justice and Security Bill was rather one-sided. It's not an easy policy area. Any liberal democracy wants to uphold justice and the rule of law, but also safeguard our most sensitive security information.

It's worth recalling the problem with the current system in the UK. If a claim for Public Interest Immunity (PII) is successful, British judges are prevented from taking into account any evidence which might damage national security. This could make it impossible for them to untangle the claims and counter-claims about the secret actions of the state. In this event the government may be prevented from putting its side of the case to the court, and claimants will not have their case heard properly.

The taxpayer is then liable for the millions of pounds potentially required to pay off the claims to people who have not proved their case and could be linked to terrorism. This is in fact a system which is far more secret than that being proposed in the new Bill.

The new Bill strengthens parliamentary scrutiny over UK intelligence agencies and makes more secret information available to the courts. It introduces Closed Material Procedures in relation to civil cases, only for hearing those bits of national security evidence which are currently excluded from court. This means more cases involving security information can be properly considered by judges, not fewer cases. This is to the advantage of potential claimants against the British Government, and at the same time allows Government agencies the chance to defend themselves fairly.

A judge (not ministers) will decide whether in exceptional circumstances it's appropriate to hear sensitive material in a Closed Material Proceeding, a concept which is already used in some of our immigration and employment legal proceedings. The judge can, where required for the proceedings to be fair under Article 6 of the European Convention on Human Rights, order disclosure of the material in full or in part through redaction or summaries. Or if the Government chooses not to make such disclosure, the judge can order its exclusion from the courtroom and admissions to be made in its place.

So in practice, no evidence that's given in open court under our current system would be heard in secret under the new proposals. And some information which is currently excluded could now be considered by a judge. This is at odds with Cynthia's claim that the UK is trying to 'close the courts'.

Photo by Flickr user stevec77.

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