JUSTICE considers that that the operation of CMP is inherently unfair and that normalising the use of these controversial and previously exceptional hearings will undermine the credibility of our judges and public confidence in the civil justice system. Allowing one party – usually the Government – to present its case to the Court largely unchallenged and without the benefit of public scrutiny is an anathema to our long-standing common law protection of open, equal and adversarial justice.
JUSTICE considers it crucial that the key changes supported by the House of Lords on Report – with cross party and cross bench support – are reinstated: (a) that CMP are only available when it is not possible for a claim to be resolved by any other means; and (b) the court must be permitted to balance the degree of harm to national security against the wider public interest in the fair and open administration of justice.
The position taken by the Special Advocates must carry significant weight. The Special Advocates work at the heart of the existing CMP process and would benefit from its expansion. They have resisted this Bill at every stage. On the eve of this debate, they have spoken out to urge Peers to stand their ground and make CMP truly a measure of last resort.
The alternatives proposed by Government unduly restrict the discretion of the court and will lead to the default use of CMP in cases where national security concerns are raised. This will rule out the many existing practical measures which may be taken to strike a more effective balance between open justice and security. Existing practice on redaction, confidentiality rings, undertakings and anonymity will fall by the wayside if Commons Amendment 6 passes without amendment. This will reduce the likelihood that significant claims against the Government are exposed to public scrutiny and could damage the credibility of our judicial system irreparably.
To discuss JUSTICE’s work on the Bill, please contact Angela Patrick, Director of Human Rights Policy on 020 7762 6415 or apatrick@justice.org.uk