I understand that.
What I want to do is to return, I am afraid, to the legal context. I will be fairly brief. I want to address three questions in the context of closed material procedures: one is public confidence; one is fairness; and I think the most important one is the delivery of justice, as this has been a large part of the Government’s argument. To what extent can closed material procedures deliver justice where no justice is presently available?
The first issue is public confidence. How is public confidence in the justice system achieved? My own view is essentially that it is won through securing the trust of the public. This is achieved in a number of ways, particularly I think through openness and—that overused word—transparency, especially in terms of the judgments given. It is particularly important that judgments in cases are given in public and so the judgment itself is open to public scrutiny. If a judgment is not open to public scrutiny, that judgment will struggle to win the trust of the public. Why should the public believe that something is so simply because a judge says that it is so? The ability to scrutinise a judgment is absolutely critical.
Not least of the damaging effects that closed material procedures may have—I think will have—will be to damage public confidence in our judiciary. Who is to trust a judgment against him made upon the basis of material that he has never seen? What litigant would trust the judge who makes the judgment based upon material that that litigant has never seen? The question of public confidence is not simply a question of public confidence in the system, it is a question of public confidence in perhaps the most important people who populate the system, the judges.
This brings me to my second point, fairness. I think that everyone accepts, as they must, that closed material procedures are unfair. In one profound sense, and I do not need to labour this point, they are not fair because they are not balanced. As the noble Lords have been told, special advocates are very eminent lawyers instructed by the Government to secure fairness in these proceedings. It is well known that the special advocates themselves oppose the creation of closed material procedures precisely on the grounds that they believe that the process is unfair. I remind the noble Lords again of something that the noble Lord, Lord Strasburger, said. These special advocates, who have been in all these cases, have said that they have not seen a single case in which the issues could not properly be litigated safely using PII and other ancillary procedures, securing justice without revealing the slightest hint of national security secrets.
The final and perhaps most important point of all—it has been made persuasively by the noble Lord, Lord Lester, and others—is the delivery of justice. This has been a common theme in this debate, including contributions from very distinguished former judges. The argument is that closed material procedures will provide some justice where none is presently available, in the absence of material that would otherwise be excluded under PII; in other words, the courts will now be able to consider material that they could not consider before, and that is a better form of justice.
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I take issue with this argument, perhaps because I am a criminal lawyer and I have spent many years in criminal courts watching evidence that at first sight seemed persuasive, truthful and accurate disintegrating under cross-examination conducted upon the instructions of one of the parties—my client or someone else’s client. Perhaps the key task facing a judge in evaluating evidence is to determine accuracy and reliability.
This determination is the product of a process of testing, usually by cross-examination. That is how the judge comes to the determination as to whether evidence is accurate, reliable and honest. It is the questioning of the witness that gives the judge the clue as to whether the witness is mistaken, confused or, indeed, telling lies. I have seen this happen countless times: evidence that seemed strong and persuasive disintegrating and the case collapsing.
Of course, the danger of a closed material procedure is that this essential process is compromised, disastrously in my view, precisely because one party, the very party who wishes to engage in this process of challenge to defeat the Government, is expelled—that is not too strong a word—from the proceedings and must fall silent. He must rely on an advocate he is forbidden to speak to—he is represented by a lawyer who is forbidden to speak to him and to whom he is forbidden to speak. That lawyer then goes into the closed room with the judge and the government lawyer and is expected to test the evidence on behalf of the claimant. Again, the special advocates themselves have attested to the limits and the precariousness of their position in this situation.
To the argument that some evidence is better than no evidence, I am with the noble and learned Lord, Lord Kerr, of the Supreme Court, who said in a recent case that the whole point of untested evidence is not just that it may be unreliable but that it can “positively mislead”. That is the risk that we are facing, that we are introducing into civil justice—in the most sensitive and controversial cases, where deeply serious allegations are made against the Government and the security services—a process that expels the claimant and gives him a form of justice that is not better than nothing. It is worse than nothing because it may be justice that is based on entirely misleading evidence.
In its outstanding report, the JCHR was careful to give its considered assessment of the case the Government have made for the insertion of this quite extraordinary procedure into our criminal justice system. It was very frank. It said that the Government have not made a convincing case. For my part, I would not introduce these processes into our system without the most compelling evidence to justify this extraordinary change, and I do not see it.