Lord Chancellor and UK Secretary of State for Justice Ken Clarke met with the IBA’s James Lewis in November, 2011. Their discussion covered many topics, including: cuts to legal aid; conditional fee arrangements; private sector management of prisons; the response of the justice system to the summer riots; secrecy and sovereignty in cases involving terrorist suspects; the UK’s forthcoming chairmanship of the Council of Europe; the promotion of legal services as one of the UK’s key exports; and the modernisation of the UK justice system as a premier international destination for disputes.
JL: I’m James Lewis, with me is the UK Minister of Justice Ken Clarke. Ken, thanks for making the time to talk to us today.
JL: I wanted to kick off by referring to your time as former Chancellor, so you’ll have strong views on appropriate responses to the financial crisis, not least because as Justice Minister you’ve had to make some tough decisions, tough choices. When you have to deprive the most vulnerable in society of legal aid, do you feel that the commitment to pay off the deficit in one term is proving unwise, and unjust?
KC: I think paying off the deficit as we are is the only sensible way of proceeding. I think the whole Western world has got itself into a terrible mess by thinking there was free money, and recovery and growth is getting very, very difficult to start off, because of a huge burden of debt that has to be resolved.
The British Government behaved like the Greek Government. It has a similar deficit to the Greeks, a rapidly mounting stock of debt, and the only reason we’re keeping our head above water and so far haven’t been dragged into the turmoil, is because we have a credible plan to reduce public spending.
The whole point of reducing public spending on a scale which no democratic government has attempted in modern times in most Western countries, certainly not in Britain, is to do so in such a way so that you don’t damage the vulnerable. So where I disagree with you strongly is that the fundamental look we’re having at our huge and bloated and expensive legal aid system, is actually somehow genuinely depriving the vulnerable of access to justice.
JL: OK, but your own funded body, the Civil Justice Council, it’s funded by the MOJ, has found that at best these cuts will cause delays and difficulties and at worst will result in what they call a denial of justice for the most vulnerable in society.
KC: If I manage to get all my changes through the House of Lords, we will still have by far the most expensive legal system of legal aid in the world. No other Western democracy would make taxpayers’ money so widely available for so much litigation and legal advice after I’ve made the reduction, so just to put these comments into proportion…last time I met the backbench peers in the House of Lords, we were about to debate this, I said ‘What you have marching towards you is an army of lawyers advancing behind a line of women and children, saying of course they’re not concerned about the income of the profession, their only concern is for these vulnerable clients who will be adversely affected if they are not paid [JL interjection: ‘Is that true of the Civil Justice Coun…’] at the rate they currently are…[JL interjection: ‘Is that true of the Civil Justice Coun…’] I’ll move to the particular if you like.
This presentation of what we’re doing somehow depriving people of access to justice [JL interjection: ‘But this is a body funded by the MOJ…’] is I’m afraid one I rather strongly reject.
JL: Do you reject the findings of the Civil Justice Council?
KC: [Overtalking] It doesn’t speak on my behalf, it’s there to give me opinions but I don’t have to agree with it, and if it goes into the same campaigning mode as the Law Society, the professional trade unions, they are perfectly free to do so, but it doesn’t mean I have to agree with it.
I am a barrister, I am a member of the legal profession. I am astounded that all previous attempts by the previous government to control legal aid were so unsuccessful. The last government used to consult about once a year on getting the legal aid bill down and never did anything.
We have the worst financial crisis in living memory and the legal aid bill has ceased to be the fastest rising single item of government expenditure, but it’s still enormous compared to what it used to be, and I haven’t just ‘cut’ it, what I’ve done is asked the fundamental questions of in a democracy, what legal services should the taxpayer pay for, for those who can’t provide their own legal advice. Where there is a sufficient public interest, or a really vital personal interest in the taxpayer funding it, of course the taxpayer must do so.
What we mustn’t do is just leave untouched a system that has grown astonishingly, making the poor extremely litigious. I am a lawyer, you’re a lawyer probably…[JL overtalking: ‘Well, that could be perceived to be a little…’]… they do drum up business when there is a steady flow of income.
JL: Sure. Agreed, but you know, senior lawyers and judges are making the point that possibly these cuts aren’t properly costed, because it’s going to cause inefficiency in the court system where you have people acting as litigant in person for example, it’s going to push costs…
KC: Let me just deal with that, because the judges are concerned about litigants in person, so don’t just give me a list of arguments, there are thousands of them! Litigants in person – yes, if people pursue the litigation they do now and legal aid is not available to them, then they will all appear in person.
Now, the purely speculative litigation actually is litigation that would not be brought if it was not for the ready availability of public money. Going back to the core ones where people feel so strongly or they have a real cause and important issue, they still bring it. Of course, if you were a judge it is more difficult when you have a litigant in person, it’s much more convenient to have a competent lawyer.
JL: Absolutely, it makes the system more…
KC: But the judges are used to coping.
JL:…and it makes the costs go up.
KC: And they turn up now…Well, do [the costs go up]? I’m not sure.
JL: Well this is what we’re being told. [Overtalking]… This is why I make the point. Are the cuts properly costed?
KC: I have judges for whom I have a lot of time, very senior and distinguished judges, for instance it’s going to happen on a great scale, will slow everything down and so on. Firstly I don’t think it’s going to happen on that scale.
Secondly, they all actually know how you have to handle a case with litigant in person. You have to be particularly careful to make sure they get justice and are not disadvantaged, not too severely anyway, they are disadvantaged a bit by not having an advocate, so the judge bends over backwards to make sure he understands the case and all the rest of it. The judge has to be firm in stopping the non-legal litigant bringing all kinds of stuff which is irrelevant; not actually the issue, not admissible, whatever it happens to be, and it’s a nuisance!
JL: It is and it slows everything down, doesn’t it…
KC: I’ve seen some very good litigants in person, almost professional litigants in person [JL interjection: ‘This is the concern…’]…who were quite outstandingly good!
But I really do not think…It is going to be a problem, it is not going to cause problems which make the great savings in public expenditure not attainable. I don’t believe that, that is wholly [JL: ‘You’re listening to different people to me…]…wholly exaggerated…
JL: I’m getting input from senior people in the profession who are [KC: ‘Well…’] flagging it as a serious issue.
KC: One of my problems in my present job is that this hasn’t happened to the justice system before. Throughout my political lifetime, no politician that I can remember has tried to save a penny on anything labelled law and order.
The tabloid newspapers demand bones be thrown to them twice a year with evermore amazing changes to the law, facilitating more crime, more sentences, more litigation, and most politicians have let that go, which is why if you look at my budget, or that of the Home Office, they are amazingly inflated compared with the last time I was doing this kind of thing, 20 years ago. I find the figures incomprehensible.
It’s quite a shock . It’s quite a shock to the political system, I’m having a lot of controversy because I’m taking about 23 per cent out of the total budget of the department…
JL: 07:50 It’s very un-tory [?] of you isn’t it… to attack what is a law and order… [overtalking]
KC: I’m a one-nation tory, where the Conservative Party used to be, I actually do think, and I’m also socially liberal and economically liberal. I believe in market economics, I believe the government should be responsible in running the public finances.
I’m a social liberal so I believe there are great values in the justice system. I do believe, instead of just drifting on with lawyers getting used to ever more money every year, and drifting on with the process we’ve had of populist litigation or activity, we should get back to what…[JL: Let me pick you up on that, you’re talking…]…democracy needs, a properly funded…[JL: JL: Let me get a question i …]…working…[JL: Let me get a question i…]…sound legal…[JL: Let me get a question in…] system. Sure.
JL: You talk about populist litigation, now, to bring you back to the costing point, what I’m getting as the feedback from people is that what’s being targeted is the most vulnerable people, who will be taking housing disputes, family cases, and what’s going to happen is that if there’s this denial of justice that the MOJ-funded body the Civil Justice Council is talking about, it’s going to put pressure on the NHS, other parts of the system, and that when people’s mental and physical health is damaged, costs are going to go up elsewhere. It’s coming back to this point again that simply cutting the legal aid budget is going to push costs elsewhere. It’s not properly costed.
KC: Campaigning nonsense. If anyone’s running the risk of losing their house and their home they will get legal aid, as long as they qualify financially in other words.
All cases of domestic violence, abuse of children, we’re still giving legal aid. What the family practice…we are making big changes there. We have these ever-mounting problems, very difficult emotional serious problems for people, breakdown of marriages, breakdown of partnerships, and problems with children…The ever-burgeoning quantity of adversial litigation pursued by adversarial lawyers is not the best way of resolving that.
Family disputes, the welfare of children, there is a whole variety of ways one can go about it. Where we’re putting money in is less adversarial and litigious ways of resolving…
KC: Mediation, putting more money into mediation. At the moment, in my personal opinion, but I’m not the only person who holds this, for many people locked in these terrible disputes about their children, frequent appearances in the family court, the legalistic, adversarial nature of the whole thing, makes things worse. You and I both probably know people who get obsessed with the problems and the process in the court which is determining custody, access to children or whatever.
One way of re-examining the whole thing from first principles in every area of law, but particularly family law, is to go back to first principles – what we are trying to do is resolve disputes. The whole point of having a legal system is to mitigate problems, to help people resolve conflict and to do justice if there’s a conflict between someone in the right and someone in the wrong.
The fact is that the family problems need addressing almost fundamentally, but what we’re not doing is taking away legal aid from those people of very limited means in cases where their home is at risk or their child’s welfare is seriously threatened by abuse or anything of that kind. We have great arguments about the definition of domestic abuse, but that is people trying to broaden the scope of what we’re doing because there is more money in it.
What I’m trying to do is…[JL: ‘Or they feel there are vulnerable people who…]…Well, what I’m trying to do is identify the genuinely vulnerable, not the vulnerable legal…[JL: ‘So you’re taking this seriously…’] [overtalking] Oh, of course. All the way through. I want to identify vulnerable litigants, not vulnerable law practices. That’s the line I’m trying to draw.
JL: OK. Moving on then. Still on budgetary contraints though, you’ve talked about ending the ‘bang-‘em-up’ culture; your words. This makes complete sense because we’re getting towards 87,000 and more…
KC: Extraordinary figures.
JL: It is an extraordinary figure. The costing I’ve got is £41,000 per year for each inmate, is what it costs the taxpayer. And yet there has been a spike in the numbers since the riots and due to knife crime edicts and that sort of thing. Doesn’t this frustrate you, particularly given that it is reaching the maximum of about 89,000?
KC: Well, I think the prison population has exploded for no very serious reason and it hasn’t actually satisfied anyone that we now lock up double the numbers we did when I was last doing this job. That’s where I start from.
I have never claimed that I think any government can control the numbers. It depends on the level of crime. Despite the assertion of some politicians, it is not controlled by politicians. It depends on the decisions of judges. I actually don’t think politicians should control what judges do…
JL: So you’re uncomfortable with what happened after the riots?
KC: No no, I agree with what happened after the riots. Although the riots you’d have to tackle, it’s now an industry in researching the riots, quite rightly people are worried about what the riots revealed.
An event occurs like that, I think the courts responded approriately in my opinion, it was right to put up the tariffs, a bit…
JL: They came under a lot of political pressure though…
KC: Which fortunately they ignored…
[Overtalking – JL: ‘Which called into question the separation of powers…’]
KC: As long as I’m around, I very much hope that people sitting hearing an individual case about the liberty of an individual citizen, ignore what you call political pressure, which is usually media hoo-haa. [Overtalking – JL]
As the court of appeal, who are probably as scornful as I am of that kind of pressure, have shown when looking at the sentences, I think they’re about right, it caused what I think is a blip. It depends what the courts do, there are all kinds of things we can do to stop the upward pressure, if we can stabilise the prison population, it would be a start. My predecessors were just planning on the basis it was going to rise to 120,000 eventually, which is farcical…
JL: Is that right, I mean I quoted the 89,000 figure, as the maximum capacity, is that…
KC: I think we’re over 88,000 now, we’ve gone up to an all-time high, it’s only very marginally, it’s not been…
JL: The point is it’s reaching the maximum and something needs to happen to reduce that…[Overtalking]
KC: What I’m trying to do…All I can do is reduce the pressures and reduce the population, other things being equal. That depends on crime, that depends on judicial decisions. The Bill I’ve taken through parliament, if it’s enacted, it is estimated that will reduce the population by about 2,600, other things being equal.
I’m putting more effort than that into putting work into prisons, tackling drug abuse, doing some rehabilitative work in the prisons, making them more successful at reforming prisoners, to use the old-fashioned word, that’s the downward pressure that I want to apply.
JL: Yes. That takes me onto my next question very nicely, which is to emphasise that reducing prison numbers has to be all about stopping reoffending, it’s rehabilitation you’re interested in.
KC: That is certainly my belief.
JL: Do you believe private prisons are the answer? Birmingham was the first in April and we’ve got nine more tenders out.
KC: I think introducing private management in the prisons is one of the best things we did in the Thatcher and Major years. When I was Home Secretary it coincided with the very first one, where we had a private prison, Wolds Prison.
Since that time…the last government had a process where new prisons were provided by the private sector, but the public sector remained untouched. What I’m introducing is across the whole department actually, it’s a much more competitive environment on both quality and price whereby I think you not only save money, you stimulate innovation.
You challenge people if you pay them by results to improve their reoffending, and that big tendering process involved as you say, crossing the Rubicon, because it was the first time a big public sector prison, Birmingham Winson Green, had been transferred to private sector management. But in the same tendering process, the public sector, the government-managed prisons, won contracts as well.
Given what I recall about the huge resistance to change that there used to be in the prison system, things are much better now, and my personal belief is that facing up to competition, actually trying to outperform other people, with fresh ideas, about how you manage prisons is of as much benefit to the public sector managed ones as it is to the private sector ones.
JL: Have you looked at the research of what’s happened in America with private prisons?
KC: Not recently, I think I did 20 years ago when we were introducing them here! There are good and bad…[overtalking] With great respect to America, I don’t always look to America as my model.
I’m not anti-American, don’t get me wrong, far from it. You know, God’s own country, I’m very pro-American, but why British politicians are so obsessed with American think-tanks and American examples in every area, I’m never quite sure. [Overtalking]
America’s criminal justice system and its penal system - not every part of it is the model I'd choose here. Like us you’ve got good and bad in America.
JL: Sure, it just happens to be America where we’ve got examples of privately owned prisons where the point is that they are incentivised to keep prison populations high. They are not incentivised to rehabilitate and stop people reoffending – it is in their interest to have high prison populations.
KC: That’s a very good warning. I’m trying to develop the skills here to negotiate the contracts, which of course is important. It’s a good department, this, but they haven’t previously negotiated with large companies, contracts of this kind.
JL: Which is a real concern, given that there are 9 tenders…
KC: Yes, they are as conscious of it as I am. Serco’s best, it’s a very good company. They know how to negotiate a contract. We’ve got to be on the ball as well. What I’m trying to put in is incentives on my pet theme, reoffending. Part of the contract has to be based on demonstrating you can reduce the reoffending level for this cohort of prisoners. We build in the possibility of that, we’ve got the first one at Doncaster.
I want to build in incentives to have an atmosphere of work, actually install some working, training, work experience environment into your prison, we’ll pay for that. Demonstrable success in reducing drug abuse in the prison, because at the moment prisons tend to be places where people are introduced to drugs for the first time and actually are able to indulge their addiction, although it’s rather more expensive than outside, drugs are freely available in prison so the contract have got to incentivise tackling that.
JL: On the work point, again looking at where we already see private prisons, companies have a profit motive, yes?
JL: When we have inmates working, they are paid as little as 23 cents for the work they are doing, and they are doing very menial work. Sometimes degrading work. Now, you’re going to avoid that in the UK?
KC: I hope to avoid that. I’ve seen better than that in the States actually, to be fair. But the worst here and the worst in the States is as you say, not very impressive, quite demeaning…
JL: Doesn’t rehabilitate anyway, does it?
KC: I could take you to the best here, and it’s a million miles from there. One of the things I’m sensitive to is yes, we mustn’t put honest businesses outside prison out of business, we mustn’t compete on invalid terms. You can’t use prisoners as a kind of slave labour and make yourself competitive, you must pay them certainly the legal minimum wage if you can but certainly a proper rate.
To avoid people getting enraged that prisoners appear to be earning perfectly good incomes in prison, we propose to deduct from them what they are paid, amounts to be paid to victims, and actually I would like to deduct from what they are paid, something towards their dependants, because that I think will help keep the family together.
I think the underlying theme of your question is undoubtably right. What you do have to be careful about in introducing prison work and prison industry is you develop in a way which is not demeaning and is not exploiting captive labour or anything of that kind. [Overtalking JL: I think the concern is that…] Some critics will always claim that but we’re very conscious of avoiding that. Reputable companies are coming in, I want to get more companies in.
JL: There are two concerns. One is that private companies always have a profit motive…
KC: I rather approve of profit making. Well, that’s what makes America and Britain so wealthy, if we didn’t run our economy on the basis of profit motives, I’d have to make far more swingeing cuts in the justice system.
JL: Is it appropriate for public services though, is the question – is it appropriate for what should be publicly run services? In the health service, with NHS IT, we’ve seen it has been disastrous. We don’t want that in the prison service.
KC: Absolute nonsense, I’d been the health secretary for longer than I’ve been in law. The great breakthrough has been getting rid of what I regard as the post-war English debate, this really old-fashioned ideological nonsense: ‘public sector good’, ‘private sector bad’, ‘private sector good’, ‘public sector bad’, absolute nonsense.
JL: The NHS IT system has been a disaster.
KC: Public sector IT systems have all been a total disaster, or practically all of them!
JL: It’s not a testament to the private sector, is it.
KC: If the health service didn’t have the private sector commitment to it that it has now, which the last Labour Government… I’ve been very much involved in health reform, and actually getting a diversity of providers, getting rid of this theological nonsense that because it was the health service the buildings had to be owned by the taxpayer, all the employees had to be civil servants [Overtalking]
JL: …the IT system, is it you…
KC: The IT system was bad contracting. It was a disaster, total disaster. I’ve been in a private sector treatment facility relatively recently, near my teaching hospital, it’s absolutely magnificent. If we’d listened to Attlee-type ideologues who say ‘No, these people are running this for a profit, we mustn’t let them near here’, the health service in my part of the world would be the old-fashioned, bureaucratic, run-down NHS which I remember from 30 years ago.
The political argument is dead here. People can’t say ‘Oh, you shouldn’t allow private sector provision of health’ because the Blair Government actually accelerated the introduction of the private sector providers alongside public sector providers into the delivery of the service, probably rather faster than we would have dared.
[The political argument is] sterile and dead. As it is in the prison service. As I think it is in other parts of the criminal justice system. If you’re providing a service, at my request, to the public, I couldn’t care less if you’re a civil servant or if you work for Serco. What I want to know is, are we paying you the right price to deliver what is in the public interest?
[Overtalking JL: ‘…rather than in the shareholders’ interest…’]
KC: Let us not go back to the debates of the 1950s. If we ran department stores like that we’d still have the old-fashioned Sainsbury’s with the cheese counter in the corner. Remember what the Co-Op was like? Even the Co-Op has now joined capitalism and it’s rather a good retailing store. It was a joke before.
The Britain of my youth was dominated by the Co-Op, the trade unions and a stifling belief that a new dawn was being delivered by putting everybody on the public sector payroll and getting rid of the profit motive.
We had dreadful railways, we had dreadful lorry companies all owned by the State, don’t start undermining the basis of modern capitalism. It’s all in a frightful mess at the moment, because we’ve allowed excess and we’ve played with a new toy and don’t understand the rules. But to go back to saying ‘Oh no no, in public sector provision you should never allow the profit motive, would be to take us back 50 years.’
JL: OK. Moving on to rule of law issues and the justice and security green paper.
KC: Back to my current brief.
JL: I wanted to touch again on sentencing and the response to the riots which we referred to in passing. I’m wondering if you are a bit uncomfortable with what looked very like political pressure after the riots, on magistrates and cases going to the crown courts and it being escalated all the way up to the appeals court, it seemed like an unseemly breach of the separation of powers, and it looked like an issue of rule of law to me.
KC: Well, give me examples of where you think that happened. There wasn’t any pressure. No directions were given to the courts in any way. If any of my colleagues had started seeming to give such directions, I mean they can call for reactions…
I believe that justice is administered by courts. The one thing we did ask, which was very impressive… I was a bit worried the service could cope quickly with the sudden rush of people. There were, I think, good public interest reasons for having the all-night courts we had, because it did quieten the turmoil that it was dealt with so quickly and promptly. It was dealt with justly as well, I think.
The reason we were able to cope is that everybody, magistrates, court staff, probation service, prison service, defence duty solicitors, they all sensed that this was a serious problem and they had to show we could deliver swift and sure justice in response.
The actual tariffs imposed, the statistics are independent, they are statistics but they give an exaggerated extent of the way the sentences went up because we charged looting as burglary, but it was no good comparing these looting cases with an ordinary burglary. The sentences were a bit stiffer towards the top of the range, my personal…[Overtalking]
JL: Too stiff? Too stiff?
KC: There will be one or two cases where you raise your eyebrows, but that is what the Court of Appeal is for. That always happens. [Overtalking JL: Does it make you uncomfortable?]
By and large, I think it was legitimate for the courts to take into account the background of public disorder when imposing the sentences. The circumstances did I think justify taking a pretty severe view. The Court of Appeals has been taking the appeals very seriously and their opinion is more important than mine. They endorse it.
I don’t think that political pressure played any improper point. You can’t stop public debate, a reaction from a wide range of members of the public. The tabloid press are always going to be saying, ‘Hang them all from the lampposts’ and this kind of thing [Overtalking JL: ‘But if they are quoting the Prime Minister then obviously there is political pressure…’]
KC: No, The Lord Chief Justice was sitting personally in the Court of Appeal to lay down some ground rules. They would have allowed the appeals if anything like that had happened.
Looking at it all and everybody says an industry has broken out researching the causes, consequences and everything else, which is fine…I was quite proud of the system, I thought we functioned well.
JL: Let’s move on because we’ve got quite a lot to get through in a limited time. The Binyam Mohamed case has thrown up some very interesting issues, notably with regard to classified CIA information coming out in the UK court system. It has led to secret courts, settling of cases to avoid that information coming to light.
This looks a lot like America interfering with UK sovereignty and undermining rule of law. Rather than settling the cases or conducting secret trials or appointing special advocates, should justice in the UK be allowed to run its course, not least because settlements could prove extremely costly?
KC: There is no country in the world which has an intelligence service which functions, where you are ever going to have a justice system where the spies all come out and identify themselves, give their evidence in public, all the intelligence is revealed to the other side, reported in the press and all the rest of it – you might as well give up.
JL: Of course that’s an extreme characterisation there…
KC: All I’m saying is that there have got to be constraints. Most other walks of life, we’d agree, you’ve got to give your evidence and it all has to be disclosed [Overtalking JL: ‘There is a danger that…’]
What we’re trying to do is get the balance right between seeing justice done on the one hand and not compromising genuine national security interests on the other.
The access to foreign intelligence, which is given to us on a confidential basis, is a relevant factor to that. Most importantly, the Americans don’t share intelligence with us on the basis that it’s all going to be disclosed in litigation in the British courts.
We’re trying to get the balance right. We’ve taken a long time producing this green paper. I share all your sensitivities about justice and the accountability of intelligence services and so on.
What we’re proposing is better than we have now, because it will allow the cases to be tried, and when you get into those areas where there are genuine, compelling national interest reasons where you can’t handle it as ordinary eveidence, either witness or materials, you go into closed session (with special advocates). The difference from now is that the judge, for the first time, will be able to reach a conclusion. Unfortunately, only he will have heard all the evidence – the client will only get the gist of it. At the moment you can’t try them. They just collapse at the moment. In America they try them and leave the intelligence stuff out.
JL: But let me just put it to you: civil claimants can’t be told by the special advocate what’s happened in the court.
KC: They can be given the gist of it.
JL: Ah, the gist …
KC: … And we are consulting if you can strengthen that – any decent ideas are welcome. I want to make the gisting as strong as we can.
JL: How is it a fair trial?
KC: If he’s a villain, the one thing he’s dying to know is ‘how did they catch me’. But let’s not prejudge them, but let’s not treat them all like innocent victims either
JL: Until proven guilty in our system, surely …
KC: Some of these people who are bringing actions for damages or whatever, and in the Binyam Mohammed case we’ve got a Norwich Pharmacal application and all that, some of these will actually be very dangerous terrorists. Now the one thing he’s dying to know, and his lawyers are dying to know, is ‘how did they get us, who have we got who’s shopping us, what techniques were they using that got us’, and if lawyers won’t face up to the problem that he can’t be allowed to know that, there’s no solution.
What I’ve put forward in the green paper is a solution which at least will enable the judge to hear everything, and at least to enable the gist, sufficient one hopes to allow him to defend himself, knowing the type of case he’s facing, to the plaintiff who’s bringing the claim, the defendant … well in a criminal case it’s not going to apply, these are civil actions we’re talking about, so that it can be done properly.
At the moment what happens is the minister puts in a public interest immunity certificate, claiming national security, and it’s never heard. Neither side can use it. No evidence, case collapses. You have to settle it. In the Guantanamo Bay detainees case, everybody’s left believing their conspiracy theories. Everybody’s on the side of the complainants, pleased the British were complicit in torture; everybody on the other side thinks we’re paying out millions of pounds to terrorists because the lawyers are being so silly.
As a citizen, I would like the judge to have been able to reach a position where he could declare a decision in that case, and what I’m putting forward is a proposal which would make that far more likely. And we’re consulting on it, because I’m worried about how does the special advocate take instructions, he’s got to know roughly what he’s going to face; how does the special advocate give the gist of the case to the defendant; is the special advocate really in a position to challenge what’s going on; all those are important questions. They’re ones to which we have to find an answer without compromising national security.
On that, the final judgement’s going to be the judge, I think that his is most important. It’s no good just me writing a certificate saying ‘national security interests’, I’ve been involved in the old days in PII cases where we’re covering up the incompetence of the Department of Trade and Industry, we weren’t protecting national security. Not me, I hasten to add, I was entirely exonerated in the inquiry!
JL: That’s the worry isn’t it, that this will be used to cover up all sorts of …
KC: The arms to Iraq case was a complete abuse of the security thing. The protection against that is that in this case, the judge, the special advocate will be able to argue that there should not be closed proceedings, the judge will be the final arbiter of what is in closed proceedings.