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.