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