The Justice and Security Act 2013 (“JSA”) received royal assent on 25 April 2013 and Part 2 of the Act is expected to come into effect in July 2013. Part 2 makes fundamental changes to UK law in any civil case involving national security issues by creating an extraordinary and seductive alternative to public interest immunity (“PII”) procedure. The alternative, known as Closed Material Procedure or “CMP”, represents a carve-out from basic principles of equality of arms and open justice by allowing courts to consider any material the disclosure of which would be “damaging to the interests of national security” without such material being disclosed to the non-Governmental party to the case.
The significance of the JSA from a rule-of-law perspective can hardly be overestimated, however infrequently it may (or may not) be used. During the final debate on the measure in the House of Lords (26 Mar. 13 Col. 1032), Lord Brown, the recently retired Law Lord and former Intelligence Services Commissioner, warned that the “legislation involves so radical a departure from the cardinal principle of open justice in civil proceedings, so sensitive an aspect of the court’s processes, that everything that can possibly help minimise the number of occasions when the power is used should be recognised…..”. Despite this, the power is a seductive one for Government and even for the courts. It enables the Government to place material before the courts without risk of public exposure or scrutiny and in the knowledge that it shielded from challenge because evidence cannot be adduced to respond to it (the other parties not knowing what it is). Judges will be attracted by the fact that it enables them to see all the evidence relevant to the decisions they have to make.
The operation of the JSA will no doubt be the subject of close attention by Governments around the world, not least those that have inherited the PII system.
The passage of the Bill
This blog completes a trio of posts on the passage of the Justice and Security Bill focusing on the provisions relating to CMP (undoubtedly the most significant and controversial part of the JSA). When the Bill was unveiled I drew attention to various ways in which it failed even to correspond to the objectives that the Government had set out in its Green Paper on Security and Justice
The Government’s main objective was stated to be to increase judicial scrutiny of the conduct of the Intelligence Services by enabling courts to consider material that would otherwise be excluded altogether from civil proceedings by the operation of PII. Furthermore the PII system was said to be doubly unfair: it was unfair, it was said, that the Government could not defend itself when its defence involved reliance on intelligence material that could not be disclosed and it was also said (through gritted teeth) to be unfair to claimants who could not prove Government illegality without reference to such material.
However the prospect of secret hearings to determine ordinary civil cases provoked very strong objections of principle from sections of the legal profession, civil liberties groups and wider society. They argued that such a regime is flatly contrary to the rule of law and natural justice.
Leaving aside these, fundamental, objections, the Bill that was introduced by the Government was strikingly lopsided: it would have enabled the Government to apply for CMP when it suited the Government to do so; the courts would have had no power to refuse a Government request for CMP in any case involving national security sensitive material; and, what is more, neither the courts nor other parties in the case would have had power to invoke CMP in cases in which it would have been contrary to the Government’s interests for the court to look at the material.
Such lopsidedness was so extravagant and indefensible, including when tested against the Government’s own stated objectives, that the Government must have expected to give way on most if not all of these issues and may have included such provisions in the original Bill to draw fire from other issues of more concern.
Unusually, the Bill was introduced in the House of Lords rather than the Commons. And the House of Lords, following a largely impressive debate which included important contributions from distinguished lawyers as well as intelligence experts, removed the lopsided provisions from the Bill, most importantly freeing the hands of the courts to decide whether to use CMP rather than this being in the hands of the Government. The House of Lords was widely hailed at the time as having inflicted a painful bloody nose on the Government. But I suggested in my second blog that this was not in truth much of a defeat for the Government. I suggested that if the Bill was to be enacted two further protections were necessary: the retention of the Wiley balance and the introduction of a mechanism for a full review of the legislation.
When the Commons opened its deliberations on 18 December 2012 the Government accepted most of the changes that had been made. Kenneth Clarke, the Minister responsible for the Bill, stated in almost his first breath that the, “the people who moved those amendments [in the Lords] were pushing at an open door in terms of judicial discretion”. Perhaps most importantly, the Government accepted what has become section 6(5) of the JSA, which provides that it is a condition for the use of CMP that the Court is satisfied that its use in any particular case is “in the interests of the fair and effective administration of justice” (s.6(5)).
The Government refused to accept a requirement inserted by the House of Lords that CMP could be used only if a fair determination of the case could not be reached by any other means. After lengthy debate in the Commons, this provision was removed and a last-ditch attempt by the Lords to re-introduce it, when the Bill returned there, failed. The Government argued that the “last resort” requirement imposed an unwarranted fetter on the discretion of the Judge as when to use CMP. The irony that the Government had initially resisted judicial discretion did not seem to faze it. The Government was particularly concerned to ensure that a PII process does not have to be completed before CMP is ordered. It argued that in litigation such as the Guantanamo Bay case (see Al Rawi v Security Services  1 AC 531), which involved tens of thousands of potentially sensitive documents, the courts should be able to relieve Ministers of undertaking a PII exercise by making a CMP order instead.
However this argument is not persuasive. To begin with it departs from the Government’s own justifications for CMP—accountability and fairness—and instead rests a case for use of CMP on grounds of administrative convenience. Administrative convenience is not a good argument for departing from core natural justice rights and the established constitutional discipline of PII.
The administrative convenience hand is also over-played. It will still be necessary for the laborious process of document review and redaction to be undertaken when CMP is used. It is true that the Wiley balance (to which we will shortly turn) will not be applied to any of the documents. However it is precisely the fact that the Wiley balance is not applied to documents when a CMP is used which is such a powerful reason for CMP being a last resort that occurs only after a PII exercise has been conducted to enable material found to be properly covered by PII to be considered by the court. Notably those of their Lordships in Al-Rawi v Security Services who thought that the common law could be developed to allow CMP in exceptional cases made clear that this could only be a last resort after the completion of PII. This was at least in part to ensure that the departure from fairness and equality of arms inherent in CMP would be kept to a minimum.
It is true, as the Government pointed out, that PII usually involves a Minister personally reviewing every document over which PII is claimed and that this is not the practice when CMP is used in statutory contexts, but if personal review of every document is unmanageable in a particular case, this gives rise to an argument for a modification of the PII process rather than being an argument for using CMP as an alternative.
As I have said, the Government’s arguments won the day on the “last resort” issue, but the effect may be limited. The Government amendment did not go as far as to prevent the courts from insisting that PII exercises are gone through before considering CMP. This will be a question for the court in each individual case. There was also some merit in the Government’s general argument that the courts should have the fullest discretion to decide what is in the interests of justice in any individual case. It is impossible to predict all of the circumstances in which need for CMP might arise and a last resort provision could have had unintended consequences, such as in cases of urgency or where the parties consented to a CMP.
This question, as to when it will be in the interests of the “fair and effective” administration of justice to use CMP in ordinary civil proceedings, and the circumstances in which CMP can properly be invoked, will be the first important battleground between the Government and claimants. It looks likely that it will be considered in a number of cases almost as soon as Part 2 of the JSA comes in to effect. A great deal turns on the courts’ answer to this question.
A further important amendment that had been made by the House of Lords enabled a non-Government party to a case to apply for a CMP if that party requires documents that would otherwise be covered by PII in order to prove its case. After initial Government resistance, this was retained. Section 6(1) and (4) of the JSA enable a court to use CMP on the application of any party or at the courts’ own motion, in a case in which national security sensitive material is relevant.
Furthermore, the Government brought forward a welcome additional protection which is now found in section 7, JSA. This provides that courts must keep the need for CMPs under review and “may at any time revoke” a section 6 declaration “it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings” (s.7(2)). The “fair and effective administration of justice” is thus not only the trigger for CMP but is also a condition for terminating, or exiting, CMP.
The Government also bowed to pressure to insert clauses requiring information about the use of CMPs to be made public and for a review the operation of the system. Section 12 JSA requires the Secretary of State to report on the use of CMP every twelve months, including the number of cases in which it has been used and on the application of which party. Section 13 requires the Secretary of State to appoint a person to review the operation of the provisions relating to CMP after five years. These provisions provide salient oversight mechanisms and an important degree of transparency about how widely the CMP system is being used in civil cases. But just as importantly, sections 12 and 13 disincentivise over-use of the CMP system and will hopefully make the Government more reluctant to make CMP applications than it might otherwise would have been.
The Wiley balance issue
Let us then turn to the Wiley balance, which I have identified as a key issue in this and previous posts. The Wiley balance reflects a key constitutional principle, first recognised in England by the House of Lords in Conway v Rimmer (previously in Scotland) and subsequently re-affirmed by their Lordships in Ex parte Wiley, from which it takes its name. This principle is that the interests of secrecy do not act as a trump card which the Government can play to resist disclosure of documents in legal proceedings. The courts must balance the interests in secrecy against the interests of justice, including open accountability, in deciding whether the documentation should be disclosed.
This balance is not applied in the statutory contexts in which CMP is currently used—in particular in SIAC, under the TPIM Act 2011 and in the Investigatory Powers Tribunal. In these contexts where the Government asserts that disclosure of evidence would be contrary to the public interest, the court or tribunal must not require its disclosure if it agrees that some harm to the public interest could result. Absent the Wiley balance whole swathes of information are not disclosable in these contexts even where the impact on national security would be relatively slight or remote but the interests of justice in disclosure are overwhelming. The result is that the majority of the evidence in a case, and often if not usually the entirety of the Government’s factual case, remains undisclosed and is considered in closed (subject to a limited AF (No 3) gist in TPIM cases). I gave the vivid example of the CC & CF case in my previous blog.
It is this system that is now contained in the JSA. It works in the following way. Upon the application of a party or of its own motion the court has a discretion, under section 6(1) of the JSA, to declare the proceedings are proceedings in which CMP can be used. At this stage, as emphasized above, the court can weigh the interests of justice and it must decide whether CMP would further the “fair and effective” administration of justice. But once a section 6(1) declaration has been made section 8(1)(c) provides that rules of court “must secure” that if the Government applies to withhold material from a party and to adduce it by way of CMP, the court “is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”. Therefore once the CMP trigger has been pulled, the court loses its power to order disclosure of sensitive material where this is required in the interests of natural justice or openness. Once the section 6(1) declaration is made, the court can bring no balance of interests to bear in an application for material to be considered in a CMP and is required to approve the withholding of such material from the non-Government party.
The importance of this point can be illustrated by reference to the Binyam Mohamed case  QB 218. In that case CMP was used in judicial review proceedings with the consent of the parties. However unlike in the statutory contexts in which CMP is used, PII principles were applied, including the Wiley balance. This played an important part in Court of Appeal’s decision to disclose information that revealed just how much UK intelligence officials knew about the mistreatment of Mr Mohamed whilst detained in Pakistan, based upon reports supplied to them by the CIA. The Court of Appeal made public the reasons for the Divisional Court’s finding that UK officials had been improperly involved in the wrongdoing of foreign officials. The judgments of Lord Judge CJ and Sir Anthony May P emphasised that the balance between secrecy and open justice came down in favour of the latter. In addition to this, because the Government had applied the Wiley balance to all sensitive material and judged that there was, on balance, a public interest in disclosure of a considerable amount of it, the Government had disclosed important information about the activities of the Intelligence Services as well as material relating to the CIA’s activities in respect of Mr Mohamed, including information deriving from the CIA itself (e.g. see -). This included for instance the fact that Binyam Mohamed had been the subject of rendition – a fact asserted to be secret by the CIA in US proceedings.
The Government rejected calls to build the Wiley balance into the JSA to avoid the possibility of repeat of the Binyam Mohamed case. An amendment that would have introduced the Wiley balance was defeated in the Commons, just as it had been in the Lords. But the debate on this issue in the Commons was ill informed. The Government argued that the Wiley balance simply had no relevance in the context of CMP because there is no question of damage to the interests of justice by material being excluded from the proceedings altogether. This failed to acknowledge the important role of the Wiley balance in protecting open justice, as demonstrated by the Binyam Mohamed case, as well as the fact that the evidence cannot be effectively challenged (including by submitting counter-evidence) if the excluded party does not know what it is.
It was also said that only a tiny amount of evidence would be subject to CMP. Sir Malcolm Rifkind MP, current Chair of the ISC, rejected analogies with Kafka on the basis that, “We are talking about cases in which the vast majority of evidence will be heard in open session. If closed material procedures do apply, they will apply usually to a very modest part of the total evidence.” On the contrary, given that the Government usually refuses to confirm or deny anything at all about the activities of the intelligence services, all of the factual evidence other than the allegations advanced by the aggrieved individual are usually kept entirely secret where CMP applies under statute because no balance of interests can be brought to bear.
The Government’s refusal to accept the Wiley balance was also flatly inconsistent with its often repeated assurance in Parliament and the media that the operation of CMP in civil cases would not result in any material that is currently disclosed being kept secret. For example, James Brokenshire MP, Minister for Crime and Security, stated at Committee stage on behalf of the Government:
“Let me be absolutely clear: in practice, nothing in these proposals will enable evidence that is heard in open court under the present arrangements to be head in secret in the future. That means that the claimant will continue to have access to at least the same level of information as is given under PII.” (31 Jan 2013, col. 150).
As my example of the Binyam Mohamed case demonstrates, this is straightforwardly wrong. The disclosures made in that case about the activities of the Intelligence Services and the treatment and rendition of Mr Mohamed would not have been made if CMP under the JSA had applied.
The JSA does, however, provide at least the possibility of judges being able to expose Governmental wrongdoing when CMP is used. The potential is opened-up by section 7 which, as we have seen, enables courts to exit CMP when it is no longer in the interests of the fair and effective administration of justice. If serious wrongdoing was identified by CMP but could not be revealed, one option might be to exit CMP procedure to enable it to be exposed.
Opposition to the Bill fell away
Before concluding, I should make clear that following the defeat of an amendment to remove the CMP provisions from the Bill in the Lords, when the Bill moved to the Commons none of the three main political parties in Parliament had any appetite for removal of the CMP provisions. All accepted in principle that there are cases in which it is appropriate to use CMP. A discussion of this issue goes well beyond the scope of this and my previous blogs. My more modest ambition in these posts has been to highlight the need to include key safeguards in the legislation and chart the progress of the Bill through Parliament. Having now done so, my conclusions are these:
(1) Welcome safeguards introduced. It is undoubtedly the case that the terms of the JSA are a vast improvement on the terms of the Bill as originally introduced to Parliament. The Government accepted the inclusion of important safeguards, including judicial discretion, the ability for both parties and the court to trigger CMP, CMP exit power, reporting and five year review. For this both the Government and Parliament must be given considerable credit (even if the Government might have anticipated at the outset that some of these protections would have to be included).
(2) Government redlines held. In the end, the Government got its desired CMP without difficulty and held its redline position on the non-application of the Wiley balance. This included defeating efforts to require CMP to be a last resort, which carried the implication that the PII exercise (with Wiley balance) would have to be gone through before CMP could be used.
(3) Control over information re-asserted. The Government has thus achieved a core objective of re-asserting control over national security information. Even if it is required to conduct a PII process, it is always open to the Government to concede issues or the entire claim if it is are ordered to disclose material which it does not want to disclose. This ejectorseat option was not available in the Binyam Mohamed case because what was sought in that case was third party disclosure applying Norwich Pharmacal principles. Such a claim could not be conceded without supplying the information sought. As I noted in my first blog, the Bill also included clauses that would immunise the intelligence services from Norwich Pharmacal actions in the future. These provisions were enacted in section 17 of the JSA without any significant opposition. In any event, in an extraordinary twist in the tale, the Court of Appeal has recently held in the case of R (Omar) & Ors v Foreign Secretary  EWCA Civ 118 that it ought not to have permitted a Norwich Pharmacal application against the Intelligence Services and overruled the Binyam Mohamed case.
(4) “Fair and effective” the key issue. The key issue under the JSA, which will determine how widely CMPs are to be used in civil proceedings and whether they become a means of concealing Governmental wrongdoing, is what is meant by “fair and effective administration of justice” in sections 6(5) (trigger) and 7(2) (exit).
(5) Turning out the lights? Given the new jurisdiction for courts to use CMP in civil proceedings, we may come to look back on the Binyam Mohamed case as the high point of public accountability of the Intelligence Services. For a moment, in the tense, shocking aftermath of the 9/11 terrorist attacks, the English courts opened a window into the workings of the Intelligence Services and shone a light on their murky relationship with the CIA. The JSA enables this window to be closed and for this light to be extinguished. Whether this is what occurs will depend very much on how the courts interpret its provisions and how they decide to use their new statutory jurisdiction to scrutinise the activities of the British Intelligence Services.
Tom Hickman is a Barrister and Reader in Public Law, UCL
Suggested citation: T. Hickman ‘Turning out the lights? The Justice and Security Act 2013′ UK Const. L. Blog (11th June 2013) (available at http://ukconstitutionallaw.org)