The hugely significant Justice and Security Bill was published by the Government last week and received its first reading in the House of Lords (it is a so-called Lords starter). It follows the Government’s controversial Green Paper on Justice and Security  published in October last year, which was prompted by the Guantanamo Bay litigation (Al-Rawi & Others v Security Service & Others), the Binyam Mohamed Norwich Pharmacal claim and the inquest into the 7/7 terrorist attacks in London. Following its experience in these proceedings, the Government decided to introduce a different system in proceedings involving the Intelligence Services and intelligence cooperation.

The Bill (also considered by Hayley Hooper on this blog) is of real constitutional significance in the UK and no doubt it will also be examined closely by governments abroad, especially in those countries that have inherited a public interest immunity (“PII”) system.

The headline points are these:

• The Green Paper proposals for “closed material procedure” (“CMP”)—essentially ex parte proceedings with the addition of a special advocate—in civil proceedings have been brought forward (cl. 6-7). The reforms embrace both private law claims in contract and tort and judicial review proceedings. Where a CMP is in place, all material is heard in secret where its disclosure would be damaging to national security: this is not balanced against any public interest favouring disclosure, such as the public interest in the fair administration of justice.

• Proposals for the introduction of similar “closed” hearings in inquests have been abandoned.

• The Bill would prevent the disclosure of information in Norwich Pharmacal applications that is held by the Intelligence Services or where it would be damaging to national security or international relations—this would not be balanced against any public interest favouring its disclosure (cl.13(3)).

• The Intelligence and Security Committee is to be put on a statutory new foundation and made a Committee of Parliament (cl.1) but its membership (cl.1(4)) and ability to view documents held by the Intelligence Services (Sch 1(3)) would continue to be subject to the  approval of Ministers.

This post elaborates only the first of these aspects of the Bill. It does not engage with the major issue of whether the proposal for CMP in civil proceedings can be justified at all. The sole purpose of the present discussion is to examine the proposal for CMP in civil proceedings against the  justification that the Government has itself offered for it.

It is right to say at the outset that the proposed introduction of CMP in civil claims has been made subject to two welcome controls that were not included in the Green Paper proposals. The first of these is that the Secretary of State must apply to the court if the Government wants a closed process to be put in place in any given proceedings.  The Green Paper had proposed that the Secretary of State would decide that CMP should be used subject to judicial review of his or her decision (which in practice would be a largely illusionary control given that the decision would be based on an assessment of secret material). The second is that CMP is to be an option only in national security cases, and will not apply in ordinary police cases or in the context of international relations. (It remains unclear however the extent to which it could apply in criminal cases where surveillance techniques, policing methods or terrorism are in issue.)

These welcome improvements notwithstanding, my submission here is that the Bill as drafted does not reflect the justification that the Government has put forward for the introduction of CMP.

The justification is that it will increase fairness to both parties as well as increasing judicial scrutiny of the Intelligence Services in circumstances where material relevant to a dispute would at present be excluded from the proceedings on the basis that it is covered by PII and therefore inadmissible. This is the “justice” part of the “justice and security” reforms.

In a little more detail the “justice” argument is as follows. In the first place it is said that it would benefit the Government for there to be a CMP because it would allow the Intelligence Services to put forward defences to civil claims that could not be made public, such as for example defences that would embarrass or be objected to by intelligence partners or which would risk revealing sources and methods. Thus in the Guantanamo Bay litigation one can assume that the Government would have wished in its defence to have laid a good deal of blame at the door of the American authorities but if made public this clearly would have had the potential to cause damage intelligence sharing relationships. It is therefore said that to ensure that justice is served public officials must be able to advance their defences in full before the courts and CMP allows them to do this (although it should be noted that other options falling short of CMP, such as in camera proceedings,  are also available).

The second part of the “justice” argument is that use of CMP can be fairer to individuals bringing claims against the Government because such claimants might need to rely on evidence that would be covered by public interest immunity and therefore not available for use in the proceedings. The example that the Government gave in the Green Paper was the case of Carnduff v Inspector Rock, in which a breach of contract claim by a registered police informer was struck out because it relied upon matters that would have been covered by PII. Thus the Government said in the Green Paper,

1.36 … Although the approach taken in Carnduff remains an option that is open to the courts in England and Wales, the Government favours having as many cases as possible tried fully and fairly. To this end, the availability of a CMP in cases involving sensitive information would allow sensitive information to be considered by a court in a manner that is consistent with the public interest. (emphasis in original)

Thirdly and connectedly, the Government has also sought to portray the reforms as enhancing scrutiny and accountability of the Intelligence Services by ensuring that disputes progress before the Courts and the courts are able to view all relevant material in deciding whether the services have acted unlawfully.

But the Bill does not reflect the alleged justifications proffered. It does not advance the position of parties other than the Government. Although judges would be given power to rule on applications by the Secretary of State for a closed procedure under clause 6(1), there is no ability for other parties to seek to invoke a closed process to avoid their case being struck out or to enable the court to consider evidence important to their case that would otherwise by excluded by PII.

Moreover, under the provisions of the Bill as drafted the Government could choose whether to invoke PII or apply for material to be considered by the court in a CMP. The Government would have a clear incentive to opt for PII in relation to material that would harm its case or assist that of its opponent because the material could be excluded altogether from the trial. By contrast, if the Government considered that material assisted its case but would be likely to be excluded by PII, the Government could apply for a CMP to enable it to rely on that material.

Furthermore, although under the Bill (as opposed to the Green Paper proposals) the court would determine an application by the Government for a CMP, the court would be given no discretion to refuse a CMP on the ground, for example, that it would be contrary to the interests of justice. Under the terms of the Bill, the court must allow the Secretary of State’s application a CMP in any case in which there are any relevant documents that would be damaging to national security to disclose. The effect of this is that, under the terms of the Bill as introduced, the Government would be able to bring the veil of secrecy down in civil proceedings involving national security information even where this is contrary to the interests of justice and even if PII procedure would or could operate perfectly fairly and satisfactorily in the case in question. This goes clearly beyond the Green Paper proposals.

Under clause 7(1)(c) a court would be able to rule that material should not be subject to CMP where in its view the information could be disclosed without damaging national security. However, were a court to rule against the Government and hold that material could be disclosed without damage to national security, clause 7(2) contemplates that the Government could “elect” not to disclose the material in any event. This is subject to a power of the court to require the Government to make concessions as to its case if it elects not to disclose relevant material. This clause is a novelty in this field of law. Whilst it is always open to a party to civil proceedings to concede part of the case against it so as to prevent a disclosure obligation arising in respect thereof, the statutory recognition of a right on the part of the Government to “elect” not to disclose material in ordinary civil proceedings (including in judicial review proceedings) is significant as there is no right to elect not to comply with a disclosure order. Leaving aside the appropriateness or otherwise of such a provision, the point for present purposes is that the Government clearly anticipates that it may continue to be necessary for it to concede parts or all of its defence to civil claims in order to avoid the light being shone on the Intelligence Services; and the Bill would give statutory recognition and sanction to such an approach.

Drawing the strings together, it is clear that the provisions of the Bill relating to the use of CMP simply do not correspond to the alleged motivation for the reforms, namely, to advance the interests of both parties and increase scrutiny of Government in civil proceedings involving national security sensitive information. On the contrary, the reforms are clearly directed at establishing a greater degree of control over the disclosure of information held by the Intelligence Services. The veil of secrecy would be cast far wider than under the present law in particular by the removal of the public interest balance which applies to PII applications. Insofar as this is offset by an increase in judicial scrutiny of the Intelligence Services it is an increase in scrutiny that would be wholly at the option of the Government. In other words, the CMP provisions in the Bill are directed entirely at “Security” and the “Justice” motivations (whether these are justifiable or not) have fallen by the wayside.

Thus, to summarise how the CMP provisions as drafted would operate:

• If it is in the Government’s interests to do so, such as where it has sensitive material that supports its case, the Government can invoke CMP in cases involving national security sensitive information to ensure that such material can be put before the court.

• If CMP is invoked there is no power for the court to take into account the public interests favouring disclosure of the information, such as exposing wrongdoing, in determining whether documents should be held in “closed” session. If disclosure of the material would cause any damage to national security interests then the Court has no option but to permit a CMP.

• If the Government invokes CMP in a case but the court rules that documents have to be disclosed because they are not damaging to national security, the Bill would permit the Government to “elect” not to disclose the material.  Whilst the Government would have to make concessions as to its case, the issues would not be scrutinised.

• If the Government considers that CMP is not in its interests in a civil case, such as where there is relevant sensitive material which harms its case, it can opt instead to claim PII over the information and seek to have it excluded altogether from the proceedings. There is no mechanism by which the other party to the case can apply for a CMP or by which the court can examine the material by way of CMP.

• If the Government opts for PII and the court orders material to be disclosed the Government can make concessions as to its case to avoid the material being disclosed to the court. Moreover, if the court orders disclosure on the basis that, whilst some damage could be caused to national security interests, the public interest balance favours disclosure of the material, the Bill potentially allows the Government then to apply for such material to be subject to CMP, which the court would have no discretion to refuse (there is nothing which expressly precludes such a second bite at the cherry).

In this light, it is hard to view the Bill in any way other than as a “win win” for the Government. Secrecy is absolute and scrutiny is in its gift. As drafted, the Bill seriously and needlessly exacerbates the departure from equality of arms that is already inherent in the proposed use of CMP in civil claims. Whether or not the Bill is justifiable at all—which, I emphasise, is not a point considered here—much work would need to be done by Parliament to bring the Bill into line with the justifications that have been advanced for it by the Government.

Tom Hickman is a barrister at Blackstone Chambers.