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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:
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  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).