Tag Archives: Justice and Security Bill

Tom Hickman: Turning out the lights? The Justice and Security Act 2013

TomThe 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 [2012] 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 [2011] 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 [164]-[165]). 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:

Conclusions

(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 [2013] 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)

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Tom Hickman: Justice & Security Bill: Defeat, or Not a Defeat: That is the Question.

Last week the House of Lords approved a number of amendments to the Justice and Security Bill in three divisions called by Lord Pannick (the amendments were also in names also of Lord Lester, Lord Beecham and Baroness Berridge). The amendments were intended to implement the recommendations of the Joint Committee of Human Rights (“JCHR”), which the Government had refused to accept. The amendments have been widely reported as a major defeat for the Government on its highly controversial plans for use of Closed Material Procedure (“CMP”) in civil proceedings. However although the amendments are greatly to be welcomed, in key respects they did not go far enough, and indeed the Government might well be quietly pleased with the result.

The Lords’ amendments would, in summary, make the following changes to the use of CMP as presently set out in the Bill:

      • They would ensure that a Judge decides whether CMP should be used in any given case, and that it would not be a decision taken (in form or substance) by the Secretary of State.
      • CMP would only be available as a last resort and if fairness cannot be achieved by any other means.
      • The court would be required to balance the interests of national security against the interests of fairness and open justice in deciding whether to agree to the use of CMP.
      • Either party could apply for a CMP and not just the Government.

As Lord Pannick put it in debate on 21st November, the amendments would, “help to ensure that, if we are to have CMPs, there are proper limits, proper controls, a proper balance and judicial discretion, and that CMPs are a last resort”.

These amendments would redress some of the more glaring, not to say outrageous, defects in the Bill. As introduced the Bill not only provided a jurisdiction for inherently unfair proceedings in which one party to the case is denied access to key evidence—that is, CMP—but it would have entitled one of the parties to the litigation—that is, the Government—to decide whether or not to use such a procedure. I criticised this at some length in a previous post on this site after the Bill was unveiled (a post which also provides background to the present discussion). It is critical that, if CMP is to be introduced, it is for the courts and not the Government to determine whether it should be used in any given case. The Government’s justification for the introduction of CMP was to increase fairness and accountability by enabling the courts to consider all relevant evidence. Questions of fairness and relevancy of evidence are matters for the courts to determine and not one of the parties to the case.

The safeguards that the House of Lords have now voted for reflect a number of the “constraining principles” that the Bingham Centre for the Rule of Law called for if CMP was to be introduced, in its response to the Government’s Green Paper (a response co-written by Adam Tomkins and myself (see also: “Minimum Safeguards – Bingham Centre briefing paper on the Justice and Security Bill”, 5 July 2012). The amendments also reflect the views of the House of Lords Constitution Committee and of the Independent Reviewer of Terrorism Legislation, David Anderson QC.

However, it is difficult to imagine that the Government thought it could push through Parliament not only CMP but a system that ties the hands the courts as to whether CMP should be used in any given case. It is very difficult to imagine that the system set out in the Government’s Bill would be upheld in the courts given the serious and unnecessary exacerbation of the impairment of equality of arms that would be entailed in such an approach. Therefore, whilst it is gratifying that the House of Lords stood up to the Government on this issue and inserted some vital safeguards, it would have been a very sad day indeed for our Parliamentary democracy if even this aspect of the Bill had passed through Parliament unscathed.

From a less sanguine perspective there are three important things the House of Lords did not do.

First, the Lords did not vote down Part 2 of the Bill, which contains the provisions relating to CMP, altogether. On the contrary, an amendment proposed by Lord Dubs that would have had this effect was comprehensively rejected. This was despite powerful views being expressed, such as by the former DPP, Lord Macdonald, who stated, “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.”

A number of Peers, well qualified to opine on this issue, accepted that CMP could be justified in exceptional cases. Lord Woolf, for instance, declared himself “a hedger not a ditcher” on the basis of his experience as Treasury Devil in which he had known cases where important evidence had been excluded from judicial consideration. Unsurprisingly, Baroness Manningham-Buller, former Director General of MI5, argued that CMP is the only way that Judges can make a judgment on the accusations of “wicked iniquities” levelled against the service which she said they could not defend themselves against under the current law.

Lord Phillips of Worth Matravers, who whilst President of the Supreme Court in Al Rawi & Ors v Security Service & Ors  avoided expressing a view on CMPs, also stated that he was “reluctantly persuaded of the need, in the interests of justice, for a closed material procedure in exceptional cases”. But he pointed out that it is inevitable that if CMP is brought in to law it will “undoubtedly be challenged” in the Supreme Court and in Strasbourg and that it will be necessary for the Government to demonstrate that the inroads into fair trial rights are the minimum necessary and are subject to available safeguards. With this I would respectfully agree, and this brings me on to the second thing that the House of Lords has not done.

One of the features of the CMP contained in the Bill is that once a case has been deemed suitable for CMP there is no balancing of interests in determining whether evidence should be disclosed or whether it should be considered behind the impenetrable veil of the CMP. The need for such a balancing exercise was another of the “constraining principles” set out in the Bingham Centre’s Green Paper response. Its importance has also been recognised by the JCHR and the Constitution Committee. Such a balance has been part of the law of disclosure in England since Conway v Rimmer in 1968 (and since 1956 in Scots law). Absence any such balance CMP operates like a black box from which no information of any use or interest emerges. All information of even marginal sensitivity is immune from disclosure even if this is overwhelmingly in the interests of justice for it to be disclosed. Entire “classes” of information regarded as of some sensitivity, such as any information relating to activities of the Intelligence Services, for example, are considered to be non-disclosable.

The recent case of SSHD v CC & CF [2012] EWHC 2837 (Admin) demonstrates this clearly. This is a control order/TPIM case and therefore one of the limited types of case where CMP is currently applied under statutory authority. The Government has mirrored this form of CMP in the Bill. No balancing exercise is applied when considering what evidence should be disclosed.

CC & CF is important in this context because, exceptionally, the case was not solely about whether the two defendants had been involved in terrorism-related activity. The defendants argued that the imposition of control orders on them had been an abuse of process because of the involvement of British officials in what they claim to have been unlawful detention and mistreatment in Somaliland and in their unlawful return to the UK (where control orders were imposed). These are precisely the sort of allegations that the Government wants to be subject to CMP if raised in a private law claim. The fact that, unusually, such allegations were raised in control order/TPIM proceedings means that we can see precisely what would be the result if the Justice and Security Bill were to be passed in its present form.

In his judgment in CC & CF Lloyd Jones J decided the issue in the following, very short, terms:

 “132. …The position of the Secretary of State in these proceedings is that she neither confirms nor denies that the UK authorities were involved in the arrest, detention and deportation of the Respondents [from Somaliland]. I have addressed these issues with that position in mind.

 133. With considerable reluctance I have come to the conclusion that these matters cannot be addressed in my open judgment. However, I have addressed these matters in detail in my closed judgment.”

There is no more than that. The defendants lost but they do not know why. The “closed judgment” is, of course, part of the CMP from which the individuals concerned are excluded. They do not know to what extent, if at all, the British authorities were involved in their arrest, detention and deportation. They do not even know what the Government’s case is. The Judge considered his hands were tied, presumably because the British Government has a policy of not acknowledging the presence of British operatives in Somaliland – a form of blanket secrecy (although even this is a guess).

Whether or not such blanket secrecy is justified in the control order context, where the evidence generally relates to activities of suspected terrorists and not the activities of the Government, it is clearly unjustified in other civil proceedings. Indeed, on this point I can claim the support of the Intelligence and Security Committee itself, which in its  Annual Report for 2011-2012, in which the Government’s CMP proposals were considered, stated that CMP could be justified only in respect what the Committee referred to as two “narrow categories” of information:

 “• The first is UK intelligence material which would, if disclosed publicly, reveal the identity of UK intelligence officers or their sources, and their capability (including the techniques and methodology that they use);

• The second is foreign intelligence material, provided by another country on a strict promise of confidentiality.”

CC & CF shows that the form of CMP currently embodied in the Bill would throw the blanket of secrecy far, far wider than the Intelligence and Security Committee contemplates. The impression is often given by the Government that CMP does not operate in this ‘black box’ fashion. On the Today programme on 19 November 2012, for example, Ken Clarke said that judges would “only allow secret hearings where lives are at risk”. However this is simply not the case.

Lord Pannick proposed an amendment based on the JCHR recommendations that would have introduced a balancing of interests approach once a court had approved a CMP in a given case. This was the fifth division of the House and on this occasion the amendment was defeated. Why was this so given that there had been a head of steam behind the JCHR recommendations? We can only speculate. The significance of the issue raised by this division appears not to have been fully appreciated by the House and neither the issue nor the amendment was the subject of any significant debate. It may have been thought by many Peers that the principle of balancing had been established by the third division, and indeed Lord Pannick suggested that the proposed amendment to clause 7 was the equivalent of that already voted upon in the third division in respect of clause 6. In fact the third division only related to the CMP “gateway” or “trigger” (as it has been called).

A more depressing reason for the rejection of the proposed amendment, which surely played a part, was the lateness of the hour. The division occurred at 10.15pm. Only 210 Peers voted. By comparison over 400 Peers had voted in each of the first three divisions in which the Government was defeated. There was an unfortunate prescience to Lord Lester’s comments earlier in the evening that no “serious point” should be made in the House “after the dinner hour”.

The implications of this are troubling. In general, issues that have been voted on by the House of Lords cannot be reopened by an amendment in the House at a later stage. Given the importance of this issue, as I have sought to explain, it would be a calamity if it fell in such a way (or indeed, if it fell at all). It is possible that the House of Commons might recognise its significance, not least given the disconnect between the views expressed by the Intelligence and Security Committee and the reality of the form of CMP proposed by the Government. It is also at least possible that the House of Lords might yet be able to give proper consideration to this issue on the basis that although it has been the subject of a vote, it has not been the subject of full debate (see Erskine May, 24th ed. 2011, p.619). As CC & CF shows, this is a crucial safeguard against unnecessary secrecy and inequality of arms, and not an issue on which Parliament should give way.

This brings me to the third and final thing that the House of Lords has not done. It has not introduced any requirement for a system of CMP, if enacted, to be the subject of independent review after a certain period of operation. This is something that Adam Tomkins and I proposed in our response to the Green Paper, if CMP were to be introduced. The JCHR has endorsed a similar idea.

As is often the case in relation to legislation relating to national security matters, Parliament is being asked to act on trust without seeing the evidence that has persuaded the Government to change the law. Parliament is asked to accept that exceptional cases raising intractable national security issues exist and that they pose real and justified problems for the Government and for the courts. But Parliament is being given no information about those cases.

In addition to this, the issue on which Parliament is being asked to decide is one of genuine complexity with clear potential to lead to unintended consequences for the civil justice system. There is no other country in the world that has such a system from which lessons can be drawn. In these circumstances it is appropriate that if some form of CMP is introduced, the legislation should require a full and independent review of its operation, which will obviously require Government cooperation. It should not be left to Select Committees, such as the JCHR, to attempt to do this of their own motion. Indeed, members of such committees would not have the requisite access to closed judgments to carry out a comprehensive review. Since this issue was not the subject of a vote, it is hoped that it may yet be the subject of amendment.

This blog has not by any means sought to address all the areas of concern in the Bill. It has said nothing, for example, about the clear potential for CMP to be used far and wide in cases against the military, the police and against other law enforcement institutions—way beyond the type of cases that are said to be prompting the Bill. My purpose in this blog has been to provide an overview of the House of Lords debates on key aspects of the Bill and to suggest that, far from being a defeat for the Government, the central features of the Bill remain intact and Parliament still has a great deal of work to do.

 

Tom Hickman is a Barrister, Blackstone Chambers and a Reader in Law, University College London.  

Suggested citation: T. Hickman, ‘Justice and Security Bill: Defeat or Not a Defeat: That is the Question’ UK Const. L. Blog (27th November 2012) (available at http://ukconstitutionallaw.org).

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Jack Simson Caird: The Justice and Security Bill and the House of Lords Constitution Committee

On Tuesday this week the Justice and Security Bill [HL] received its second reading in the House of Lords. Hayley Hooper and Tom Hickman have both commented on the constitutional significance of the Bill in earlier posts to this Blog. This post focuses upon the role of the House of Lords Constitution Committee in scrutinising the constitutional implications of the Bill. The Constitution Committee published its report on the Bill last Friday, following its usual procedure of reporting in time for second reading in the Lords. The report argues that key elements of the Bill ‘challenge’ two principles of the rule of law: open justice and natural justice [para. 9-10].  The report’s analysis and conclusions on the constitutionality of the Bill are likely to have a major impact upon the scrutiny it receives in the committee and report stages in the Lords. The last legislative proposal of constitutional significance to be introduced in the Lords was the Public Bodies Act 2011. The Constitution Committee’s analysis of that Bill made a major impact on the Lords’ scrutiny, which in turn resulted in parts of the Bill being radically rewritten (see para. 6-10 of the Committee’s Sessional Report 2010-2012). There is no guarantee that the Constitution Committee will be able to replicate this level of influence with the Justice and Security Bill [HL], however, there are a number of indicators from their report and the second reading debate which lead me to think that they might.

The Committee’s report on the Bill is unusually long, but its content follows a familiar pattern. It begins by setting out its constitutional verdict on the provisions which would extend the ‘closed material procedure’ to certain civil proceedings [para.9]. The provisions are described as ‘a constitutionally significant reform, challenging two principles of the rule of law: open justice and natural justice’ [para.10]. This is a significant choice of words. The Committee is effectively claiming that these legislative provisions do not adhere to the rule of law, a core principle of the United Kingdom’s unwritten constitution. The strength of this constitutional verdict makes it difficult for the Government to avoid, and peers will expect them, at the very least, to offer a well-reasoned response.

Effective constitutional interpretation requires well-reasoned evidence and the Committee’s verdict is supported by extensive analysis. This reasoning plays a key role in the supporting constitutionalism within the committee stage, as it explains to peers what amendments are needed to make the relevant provisions constitutionally acceptable. The first step in the Committee’s reasoning is to set to out the key differences between the law of Public Interest Immunity and the Closed Material Procedure [para. 7-10]. On the constitutionality of the latter they cite the words of Lord Dyson in Al Rawi v Security Service, who stated (at para. 14) that it ‘involves a departure from both the open justice and the natural justice principles.’ The Committee admits that these principles are ‘neither absolute or inflexible’, however, departure from these constitutional principles can only be accepted if sufficient compelling evidence is presented. One of the Committee’s most significant contributions to constitutionalism is that it facilitates a culture of constitutional justification within the legislative process, and this demand for ‘clear evidence’ is an example of this feature of their work.

The report then examines the constitutional significance of the CMP scheme proposed in the Bill, paying particular attention to the Government’s claim that it is designed to increase ‘fairness’. [para.13] The Committee argues the scheme has three basic flaws. The first is that the scheme gives only the Secretary of State the right to apply for a ruling that material be treated as closed [para. 18]. To create to such an imbalance in the equality of arms in civil proceedings when it is not strictly necessary to achieving the aims of the Bill is an unnecessary departure from a constitutional principle, and the Committee recommends that Clauses 6 and 7 should be amended to remedy this imbalance [para. 19].  The second flaw is that the procedure does not allow the courts to conduct a Wiley balancing exercise and the Committee complains that no evidence has been produced to show that this removal of a key constitutional safeguard would make civil proceedings on national security any fairer [para. 21-24].  They propose that the procedure should ensure that the courts balance the interest of national security against the risk to the fair administration of justice when considering whether to withhold evidence.  Further, they suggest that the courts should be able to consider whether material could be disclosed to the parties in private or in redacted form if they consider that the fair administration of justice requires it.  The third flaw is that the Bill gives the Secretary of State the exclusive discretion to decide between PII and CMP [para. 25-31].  They consider the choice between the two procedures to be a ‘case–management’ issue and therefore should be task for the courts rather than the executive.  Each of these examples of the application of constitutional norms to legislative provisions is vital to the facilitation of the amendment process within the committee and report stages. It is relatively certain that individual peers will table amendments during the committee stage to give effect to each of these instances of constitutional interpretation, and this process is a key driver of constitutionalism within the legislative process.

The second reading debate is often a good gage of the strength of feeling in the House of Lords towards the relevant Bill. The debate last Tuesday did not reach the heights of the second reading of the Public Bodies Bill and the Health and Social Care Bill, where the Committee’s concerns were both extremely prominent, however, there were nonetheless some telling signs that the concerns of the Committee will be addressed later in debate. One positive sign was the number of references to the Joint Committee on Human Rights’ comprehensive report on the Green Paper that preceded the Bill. In the debate Lord Lester of Herne Hill indicated that the JCHR intends to report again on the Bill before the report stage and will table amendments in Committee. Furthermore, the presence of Henry VIII clause means that the House of Lords Committee on Delegated Powers and Regulatory Reform is likely to report and table amendments [para. 32]. The involvement of all three of these committees is going to place pressure on the Government to make concessions, and this increases the chances that the Constitution Committee’s concerns will make an impact on the Bill. Together this triumvirate of committees form an additional de facto legislative stage for major constitutional bills, and when they are all involved on a Bill they represent a significant constitutional hurdle for Government legislation. Their value to constitutionalism is especially important, because there are individual peers, such as Lord Pannick (a member of the Constitution Committee), that have the legislative ability to give effect to their constitutional arguments in amendments. In his speech in the debate, Lord Pannick reiterated  the concerns of the Constitution Committee, and delivered the following scathing verdict:

‘On the case made so far by the Government, the provisions of Part 2 of the Bill regarding both CMPs and Norwich Pharmacal orders are, I suggest, unnecessary and unfair, and will undoubtedly damage the ability of the courts to give judgments that are fair and are seen to be fair.’

This speech indicates that Lord Pannick will devote his considerable legislative ability to the task of improving the Bill, and this is another reason to be optimistic that the Bill will be subject to significant amendment.

To end on a note of caution, each of the Ministers who introduced the Bill and summed up at the end of the debate did not make any specific commitments that the Government would seek to bring forward amendments to give effect to any of the concerns raised by the peers. However, the Home Office Minister Lord Henley’s statement that ‘I am sure that there are many things on which we will be able to get agreement’ is encouraging. The Constitution Committee’s conclusion on the Justice and Security Bill puts the Government in a difficult situation. If they wish to preserve the constitutional legitimacy of the Bill they have two options. They could amend the Bill to satisfy the Committee’s concerns. Alternatively, they could advance their own constitutional arguments to rebut those of the Constitution Committee. Although I imagine that the Government Legal Service is well equipped with constitutional expertise, I feel quite confident in predicting that this second option is beyond them.

Jack Simson Caird is a doctoral student at Queen Mary University of London.

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Tom Hickman: Where is the “Justice” in the Justice and Security Bill?

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.

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Hayley Hooper: The Justice and Security Bill: Some Serious Concerns

The Justice and Security Bill aims inter alia to ‘provide for closed material procedure in relation to certain civil proceedings [and] to prevent the making of certain court orders for the disclosure of sensitive information’. The Bill was introduced into the House of Lords on May 28, 2012 and can be read here. Angela Patrick of Justice has already made sharp and insightful criticism of the Bill on the UK Human Rights Blog which I thoroughly commend to readers of this blog.

For those unfamiliar with this area of law, a Closed Material Procedure (CMP) works in the following way. Usually, subject to exceptions in the common law of Public Interest Immunity (PII), ordinary civil litigations proceed upon the assumption that all relevant information will be disclosed to all parties to the litigation and their legal counsel, and that judgements are pronounced publically in open court. This allows clients to fully instruct their counsel, and the general public to see that justice is being done. In statutory proceedings where a CMP is used, the picture is very different. Courts seized of a CMP conduct both ‘open’ and ‘closed proceedings’ using ‘open’ and ‘closed’ material (evidence), and in turn ‘open’ and ‘closed’ judgments are rendered. During the ‘open’ sessions a claimant can instruct his legal team fully on the ‘open’ material which is disclosed to him. However, the client’s legal counsel cannot see the ‘closed’ material. This material can only be seen by a government appointed, security cleared (i.e. developed vetted) Special Advocate. The Special Advocate, unlike an ordinary legal counsel, does not have a duty towards his client; his duty is only to the court. The Special Advocate can take instructions from his client before he has seen the ‘closed’ material, but can no longer communicate (save at the rarely exercised discretion of the court) once he has seen the ‘closed’ material. This presents severe practical barriers for affected persons who wish to contest the content of the closed material.

A CMP, as envisioned in the Bill, is an alternative to the common law doctrine of Public Interest Immunity (PII), although the Bill does claim to preserve the law of PII.  A PII procedure allows a Minister to issue a certificate claiming that information cannot be disclosed in judicial proceedings because it would damage the public interest for reasons of inter alia national security. The certificate, along with the information on which it is based is then tested by a judge. Clause 11(5)(b) seeks to preserve ‘the common law rules as to the withholding, on grounds of public interest immunity, of any material in any proceedings.’ However, it should be noted that if the British Government previously claimed that the litigations which prompted the Justice and Security Bill, i.e. those of Binyam Mohamed and Bishar Al-Rawi et al, who alleged that the British Government were complicit in their extraordinary rendition and torture, would have been impossible to conduct according to the principles of PII because of the volume of documents (some 250,000) involved. To date no justification has been offered that points to a CMP being a more expeditious manner of dealing with alleged security sensitive material.

Moreover, on March 27, 2012 David Davis MP (Con, Howden) expressed concerns that the then forthcoming Justice and Security Bill might be used to cover up ‘embarrassing’ mistakes made by the British intelligence services MI5, MI6, and GCHQ. In the course of his address to the House of Commons Mr Davis recalled an incident prior to the 9/11 attacks that ‘would very likely have yielded advance information about the 9/11 attack in New York.’ Mr Davis went on to explain that ‘[the] operation was delayed by what can only be described as a turf war between American intelligence agencies, and as a result the intelligence opportunity was lost.’ The information provided to the House by Mr Davis is dramatic, and merits reading. Mr Davis recalled how the US Authorities had used their own ‘State Secrets Privilege’ to prevent the information reaching open court, and expressed concern that the Justice and Security Green Paper, and any future Bill might be ‘misused in a similar way to cover up illegal acts and embarrassments, rather than to protect national security’. The US State Secrets Privilege allows US courts to effectively ‘shut down’ litigation and prevent it from continuing in any way, shape or form, if that court is satisfied state secrets are at risk.

Despite calls for the replication of a US-style state secrets privilege clause in the Justice and Security Bill from the Intelligence and Security Committee, no such clause appears in the Bill, and there has been a welcome increase in judicial control on some aspects of instituting Closed Material Proceedings (CMPs) compared with the original Green Paper proposals. However, several aspects of the Bill still run contrary to the rule of law and should be a cause for serious concern among parliamentarians and the public, generally.

Clause 6(1) of the Bill would allow the Secretary of State to apply to any court seized of civil proceedings to institute a Closed Material Procedure (CMP). The relevant courts in the Bill are the High Court, the Court of Appeal, and the Court of Session (Scotland). If the court considers that said proceedings are ‘relevant proceedings’, i.e. that they could result in the release of information that ‘would be damaging to the interests of national security’ [Clause 6(2)(b)], ‘if that information held by the Secretary of State or a third party would be released to another party then the court must grant a declaration in favour of instituting a CMP. The Court must consider the application for such a declaration in the absence of all of the parties and their legal representation i.e. entirely in secret [Clause 7(1)(b)]. Clause 7 of the Bill is a skeleton provision for future ‘section 6 proceedings’, meaning that much of the rules regarding the operation of these declaration proceedings will be thrashed out in secondary legislation. However, the Bill does currently state that the court must only ‘consider requiring’ the party in possession of the security sensitive material to furnish the other parties with a summary, provided that summary does not disclose sensitive information [Clause 7(1)(c)-(e)]. The absence of even a summary being provided to the other party in civil proceedings would create a fundamental inequality of arms between the parties contrary to the principles of natural justice.

Clause 7(1) also has clear human rights – specifically procedural fairness – implications. The government has already made a section 19(1)(a) declaration that the Bill is compatible with the Human Rights Act 1998 (made by Lord Wallace of Tankerness) and Clause 11(5)(c) mandates that nothing in Clauses 6 through 10 is ‘to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention.’ The concern is that this might yet be a hollow protection for litigants in civil proceedings. Closed Material Proceedings have been deemed to be compatible with Article 6 ECHR by the UK Courts, but the amount of disclosure required in civil litigations of the type envisaged by the Bill remains moot. Essentially, both the UK and the European courts are developing a jurisprudence which suggests that the amount of disclosure required to an affected person in litigation involving national security depends upon the subject matter of the activity impugned, and the interest of the affected person which has allegedly been infringed. In national security cases, the European Court of Human Rights has already drawn a distinction between two situations in which Article 6 applies to national security activity, leaving civil proceedings for damages in uncharted terrain between two outposts.

Where personal liberty is at stake under Article 5(4), the ECtHR ruled in A v United Kingdom that the Convention requires enhanced disclosure of the ‘gist’ of the security sensitive information against an applicant so as to allow an effective challenge to the case against him. The UK House of Lords adopted this ruling with respect to Article 6(1) ECHR in Home Secretary v AF (No. 3) which concerned disclosure in control order proceedings. By contrast,  in Kennedy v United Kingdom and Home Office v Tariq the ECtHR and the UK Supreme Court respectively concluded that the activities of covert surveillance and security vetting were both of a different nature from control orders and did not create sufficiently grave infringements of rights so as to attract the protections of the enhanced disclosure requirements of A v United Kingdom. In Tariq Lord Dyson opined on behalf of the majority that ‘[on] any view, discrimination is a less grave invasion of a person’s rights than the deprivation of the right to liberty.’  In the majority view only the infringement of the physical liberty of the subject, for example, by the imposition of a control order or actual detention will attract the protection of the ratio in Home Secretary v AF (No. 3). Potentially, then, the worst consequence of construing ‘A-type disclosure’ in terms of requiring a ‘liberty interest’ in the manner adopted by the majority in Tariq would be that ‘A-type disclosure’ might not be available in future tort actions subject to a statutory CMP. However, it is hoped that where the complaint involves alleged active participation in or complicity in torture in breach of Article 3 ECHR or other international instruments then ‘A-type disclosure’ will be insisted upon by the courts.

Clause 13 headed ‘Norwich Pharmacal and Similar Jurisdictions’ also raises serious concern about the transparency and accountability of the intelligence services under the Bill. A Norwich Pharmacal claim is a principle of disclosure in civil proceedings whereby A seeks disclosure from B of information held (innocently or knowingly) which relates to a wrongdoing against A by another party ‘C’ and A seeks disclosure from B in connection with proceedings by A against C.

In its present form Clause 13 aims to override the court’s Norwich Pharmacal jurisdiction at common law where the information sought to be disclosed is ‘sensitive information’ [Clause 13(2)]. Clause 13(3) defines ‘sensitive information’ in an extraordinarily broad manner to include any information held by or on behalf of an intelligence service (whether domestic, or foreign intelligence services), relating to an intelligence service, or  specified or described in a certificate issued by the Secretary of State, as information which B should not be ordered to disclose. In other words, the information sought to be disclosed need not be sensitive, it may be entirely routine, yet disclosure would be prohibited under this Bill. This runs contrary to the parallel principle of Public Interest Immunity law expounded in Conway v Rimmer which states that ‘class claims’ for exclusion of information on public interest cannot be made, and that a judge must make a decision on the content of each individual piece of information. Although there is no direct overlap between the law of PII and the proposed non-disclosure rules in Clause 13, its passage into law would effectively mean that any information of any kind held by, for example, the Secretary of State relating to the Central Intelligence Agency (CIA) on the use of ‘enhanced interrogation techniques’ could not be disclosed to A. In this sense, Clause 13 is the antithesis of the rule in Conway v Rimmer.

Moreover, Clause 13(5) defines disclosure of such information as ‘contrary to the public interest’ not only as causing damage to ‘national security’ but adds the significantly broader and more malleable category of causing damage ‘to the interests of the international relations of the United Kingdom.’ Clause 14(3) allows for applications to have a Clause 13 certificate to be set aside and permits ‘the relevant court must apply the principles which would be applied in judicial review proceedings’. This leaves the question of intensity of judicial review in the hands of the courts. This is a common legislative practice in national security statutes but it remains to be seen, if the Bill becomes law in its present form, whether review shall be intensive or deferential.

Finally, Clause 13(2) appears to be an attempt to ‘oust’ the residual jurisdiction to order disclosure under the common law principles of procedural fairness. However, no such similar ‘ouster clause’ appears with respect to Clause 6, or proposed ‘section 6 proceedings’. Clause 9 provides that ‘Subject to sections 7, 8 and 10, rules of court relating to section 6 proceedings must secure that the rules of disclosure otherwise applicable to those proceedings continue to apply in relation to the disclosure of material by a  relevant person.’ It remains to be seen, then, whether the courts will infer enhanced disclosure from rights inherent in the common law, or decide that, if the Bill passes into law in its present form, such a jurisdiction has been ousted by parliamentary intention.

If the Justice and Security Bill passes through parliament un-amended the consequences for open justice will be devastating and the prospects of holding government to account over allegations concerning the activities of the security and secret intelligence services will be severely diminished. Parliament must push the Government to take seriously the concerns expressed by the Joint Committee on Human Rights and the Special Advocates, and require Government to publicly explain the necessity of this unprecedented departure, not only to alleviate the concerns expressed by David Davis MP, but also to justify any departure from the fundamental principles of open justice and accountability proposed by the Bill in its current form.

 

Hayley Hooper is Lecturer at Trinity College, Oxford

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