Justice and Security Bill

Memorandum submitted by Dr Lawrence McNamara (J&S 01)

Authorship and expertise

1. I am a legal academic specialising in matters relating to open justice and proceedings relating to terrorism matters. As ESRC/AHRC Fellow at the University of Reading, I run the ‘Law, Terrorism and the Right to Know’ (‘LTRK’) research project. This 3-year project is funded by Research Councils UK under its Global Uncertainties security research priority. LTRK examines how different arms of the state control and manage information about terrorism and security, how the media access that information, and how the media report that information. The project includes around 60 interviews with the judiciary (with the support of the office of the Lord Chief Justice), government (including the Home Office, RICU, OSCT, the Ministry of Defence, and the Cabinet Office), ACPO and police forces, the CPS and criminal defence lawyers, and journalists, media lawyers and editorial decision-makers, among others.

2. The Joint Committee on Human Rights invited me to give oral evidence at its Green Paper inquiry and that evidence is quoted in chapter six of the report which alludes to the issues below. I also submitted written evidence to the JCHR’s Legislative Scrutiny inquiry. Several aspects of my analysis of the Bill were stated at page 18 of the briefing note by House of Lords Library (LLN-2012-024, 14 June 2012) and earlier recommendations were proposed in the House of Lords (see, eg, Lord Beecham, HL Hansard, 17 July 2012, vol 739, cols 206ff). I have also published pieces in the Guardian’s Law section.

Summary of submission

3. This submission focuses on matters relating to open justice and transparency issues. It is particularly concerned with the effects the proposed legislation would have on the media and on public knowledge about matters of public interest. It addresses Part 2 of the Bill only.

4. Although my view is that the Government has not yet made an adequate case for the necessity of the Bill, I do not address that case here. Instead, as it appears that the Bill is likely to proceed in some way, the submission makes recommendations with a view to minimising the harm that would be caused by some of the most troubling aspects of the Bill.

5. The submission identifies several key concerns: the Bill does not provide for adequate balancing processes and it makes no provision whatsoever for recording and reporting on the use of CMPs, nor for any notice to be provided for CMPs, nor is there any provision for closed judgments or materials to be reviewed or opened when secrecy is no longer required. These shortcomings are extremely worrying. Unless amendments are made then British justice may be subjected to fundamental, damaging changes without any requirement for monitoring or review.

6. The open justice and transparency aspects of the Bill have thus far not been addressed adequately, in spite of the Joint Committee on Human Rights 24th Report that at Chapter 6 identified democratic accountability and media freedom as ‘the missing issue in the Green Paper’. The lack of attention has clearly been partly due to practical limits of time and the many other important elements of the Bill but the Committee should remedy the lack of attention by considering these issues thoroughly now.

7. The submission makes use of the debates in the House of Lords, especially at the Report stage on 21 Nov 2012, where several amendments were proposed but (often due to time limits) were not pursued but where the Government nevertheless expressed views on some of these matters.

8. The submission recommends amendments on the following eight matters:

· Clause 7(1)(c): Open justice as a factor to be considered

· Clause 14(2) Open justice as a factor to be considered

· New Clause, based on NC1: Reporting to parliament

· New Clause: Recording the use of CMPs

· New Clause, based on NC1: Review of the operation of the legislation

· New Clause, NC2: Annual renewal

· New Clause: Opening closed judgments when secrecy is no longer required

· New Clause: Notifying the media of applications & media rights to make submissions

Key open justice and transparency concerns about the effects of the proposed reforms

9. The Bill is deeply troubling for several reasons. It would establish an unnecessary, unjustifiable and unwise regime of secrecy which has the clear potential to become widespread in a category of cases that is already beset by secrecy and in which it is by no means clear that CMPs would necessarily result in fairer trials. There is much in the observation made by Lord Brown in Al Rawi that closed procedures would damage ‘the integrity of the judicial process and the reputation of English justice.’ [1]

10. The Bill is substantially at odds with open justice traditions. Open justice should be a central consideration; it is a fundamental feature of common law trials and of British justice. [2] In its current form the Bill does not take adequate consideration of open justice and transparency and would significantly affect:

· the ability of the press and public to know about important matters of public interest;

· the public confidence in the judiciary that flows from transparency; and

· the ability of the parties, the public, the press and researchers to see and analyse material even after secrecy is no longer needed.

11. If these matters remain unaddressed then the scope of amendments to the Bill would fall well below what the Joint Committee on Human Rights recommended, noting that it identified the effects on democratic accountability as ‘the missing issue in the Green Paper’ (24th Report, Ch 6, esp para 193) and would fail to address the issues raised at paragraph 34 of the House of Lords Constitution Committee Report which raises concerns about recording, reporting and review.

The Government’s stated commitments to openness and transparency

12. The Government has made an explicit commitment to openness and transparency. In the House of Lords, Baroness Stowell spoke to the Government amendment that would ensure parties would be informed if CMPs were sought, stating that it illustrated:

"the continued efforts of the Government to ensure as much openness and transparency as possible, and to ensure that nothing is kept secret that does not need to be for national security reasons." (HL Hansard, 21 Nov 2012, col 1865)

On that position, everything that follows is completely consistent with the government’s aims. Moreover, the absence of the amendments below would undermine the Government’s aims because it would detract from openness and transparency, and none of the following proposals would detract from national security commitments.

Clause 7(1)(c) - amendment: Open justice as a factor to be considered

13. Clause 7(1) of the Bill removes the discretion of the court, requiring CMPs if disclosure would be damaging to national security. The effect is that no matter how strong any competing public interests may be, these cannot be considered. This is extremely troubling in many respects. It will have a detrimental effect on the extent to which security-sensitive information comes to the public eye, regardless of how important it is with respect to the accountability of the executive, the seriousness of any security threat, or the many interests that might favour disclosure.

14. The House of Lords amended Clause 6 to include open justice and a factor for consideration.

15. Recommendation (A): It would be valuable for the Committee to amend Clause 7 in a similar way, inserting a clause that mirrors the existing Clause 6(2)(c) so that material is only not disclosed if:

Insert into Cl 7(1)(c) the further words: the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice.

Clause 14(2) - amendment: Open justice as a factor to be considered

16. It is clear from the Bill that a case may be caught by the reforms even where there is no threat of damage to national security, or where there is a threat of damage to national security but there are competing interests which favour disclosure:

17. Where Norwich Pharmacal is concerned, the category-based approach to ‘sensitive information’ at Clause 14(3), the wide scope of Clause 14(5), and the absence of any balancing process in Clause 14(2) or 14(5) will together exclude Norwich Pharmacal disclosure across a range of matters even where there would be no damage to national security and where there would be strong competing public interests in disclosure.

18. As a result there will be many cases where information is hidden from the public eye even though it may be of overwhelming public interest. On some occasions, because there is no judicial discretion or balancing, this is almost certain to occur even though there is no risk of damage to national security. To put it another way, there may be very few cases where secrecy would be essential, but very many where it would be applied.

19. Recommendation (B): The Bill should be amended to:

Insert into Cl 14(2) the further words: and (a) the disclosure would damage the interests of national security, and (b) the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice.

New Clause: Reporting to parliament

20. I would urge the Committee to pursue an amendment that ensure there will be reporting to Parliament on the extent to which CMPs are both sought and used.

21. Proposed amendment NC1 (Dr Julian Huppert and Mr Mike Crockart) is an excellent starting point but some further revision would be appropriate. NC1 would require the Secretary of State to report on ‘his exercise of the powers conferred on him’. This falls short of what is needed for transparency because it is not only the Secretary of State that has powers under the Bill. Other Secretaries of State may seek closed proceedings, as may parties, and (depending on the final form of the Bill) there may be applications to intervene.

22. Recommendation (C): An appropriate addition to NC1 would be that the Secretary of State prepare are report on his exercise of the powers conferred on him’ and:

In NC1(1), add: ‘the exercise of powers and rights conferred on others’.

New Clause: Recording the use of CMPs

23. There does not appear to be any systematically compiled evidence of the scale of the use of secret evidence in the areas where it is currently used. There does not appear to be any publicly accessible formal or informal recording of the total overall use of CMP, or the total use within the different contexts identified by the Government. Nor is there any indication that such evidence exists out of the public eye.

24. Where records have been requested the Executive has been largely unable or unwilling to provide records. Parliamentary questions in the Commons and the Lords have revealed a paucity of information is available to the current use of CMPs. [3] The issue was noted in the House of Lords Constitutional Committee’s recent report on the Bill. [4] In May 2012 I wrote an analysis of the question in the Commons. [5]

25. As it stands, the Bill sets a very, very low threshold of openness for judgments under Clauses 6 and 7. Moreover, there is presently no central recording of how often CMPs are used in any courts, nor any centrally recorded information about them.

26. Recommendation (D): I would urge the Committee to ensure that the Bill remedies this with the following amendment so that in reporting and/or review processes there is data which may be drawn upon readily.

Insert new clause: Recording of data relating to closed proceedings

( ) Rules of court relating to closed material proceedings under this Act, and applications for them, must make provision:

(a) ensuring that key data is centrally recorded for all proceedings, including

(i) the duration of open hearings and closed hearings, and

(ii) the number of witnesses heard in closed proceedings and the nature of those witnesses, and,

(iii) the length of a closed judgment, and

(iv) whether the claimant, defendant and/or intervener applied for closed material proceedings, and

(v) whether the claimant, defendant and/or intervener contested the application for closed proceedings.

(b) ensuring that centrally recorded data is available to the independent person appointed by the Secretary of State to review the operation of the provisions of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006

(c) ensuring that centrally recorded data is subject to ordinary Freedom of Information laws.

27. These requirements might equally apply to jurisdictions where CMPs are currently used.

New Clause NC1(2): Review of the operation of the legislation

28. The independent monitoring of the operation of the legislation is essential if there is to be an adequate understanding of the effects the laws will have. The annual review issue was subjected to short debate very late in the evening of the Report stage debates in the Lords.

29. Recommendation (E): I would urge the Committee to ensure the Bill is amended in the Commons so that a review process is included by adopting NC1(2) proposed by Dr Huppert and Mr Crockart.

New Clause NC2: Annual renewal

30. The Bill does not be subject to any periodic review in its current form. Given the fundamental changes it envisages, there is a compelling case for an annual review provision.

31. Recommendation (F): I would urge the Committee to adopt clause NC2 proposed by Dr Huppert and Mr Crockart.

New Clause: Ensuring closed judgments can become open when secrecy is no longer required

32. The Bill does not provide for the possibility of closed judgments later being made open. As a consequence, material in closed judgments may remain secret long after secrecy is no longer necessary.

33. The Government acknowledged in report stage debates in the Lords that the review of closed judgments is important and needs further thinking (Baroness Stowell, col 1870). This is to be welcomed and I would urge the Committee to pursue it.

34. It may be noted that the Government suggested at the Lords Report stage (November 2012) that it needed more time. However, the issue had already been raised repeatedly over many months. For example:

· 27 March 2012: The JCHR’s Twenty-Fourth Report recommended at paragraph 209 that the government bring forward proposals to deal with this issue.

· 19 June 2012: At the Second Reading Lord Hodgson of Astley Abbotts explicitly raised concerns about the review of closed judgments being absent (HL Hansard, col 1712) and Lord Beecham noted that the government’s response was "extremely weak and unconvincing" with regard to the press freedom impact section of the JCHR report (col 1671).

· 9 July 2012: It was proposed as an amendment at Committee Stage (Amdt 69ZA, second marshalled list).

It should not be delayed further and warrants attention from the Public Bill Committee.

35. A clause which would enable judgments to be reviewed could be modelled on sub-clauses (d)-(e) of that which was proposed as Report Stage Amendment 56 in the Lords. That amendment read:

( ) Rules of court relating to section 6 proceedings must make provision-

(d) enabling any party to the proceedings or any intervener to apply to the court concerned for a determination of whether there continues to be justification for not giving full particulars of the reasons for decisions in the proceedings, and

(e) requiring the court concerned, on an application under paragraph (a), to publish such of the reasons for decision as the court determines can no longer be justifiably withheld.

36. At Report stage in the Lords the Government (Baroness Stowell) was concerned that these could be vulnerable to abuse by repeated requests. This is a legitimate concern.

37. In the Lords another amendment was tabled (amendment 46) that proposed annual review by the Secretary of State and a special advocate for 12 years. The regularity of this proposal is arguably too onerous, though the 12 year limit is arguably insufficiently onerous.

38. Recommendation (F): I would encourage the Committee to consider the following alternative proposal that is more prescriptive than the Lords Amendment 56 and ensures the executive is held appropriately to account, and less onerous than Lords Amendment 46 so that no unnecessary reviews are undertake:.

Insert NC:

( ) Rules of court relating to section 6 and 7 proceedings must make provision:

(a) enabling any party to the proceedings or any intervener to apply to the court concerned for a determination of whether there continues to be justification for not giving full particulars of the reasons for decisions in the proceedings, and

(b) requiring the court concerned, on an application under paragraph (a), to publish such of the reasons for decision as the court determines can no longer be justifiably withheld,

(c) ensuring applications under paragraph (a) are not granted more than once in any 12 month period, and

(d) enabling the court to deny an a paragraph (a) application may be denied if the court views it as an abuse of process, and

(e) ensuring that all closed judgments undergo a paragraph (a) determination every five years, even in the absence of an application under paragraph (a).

New Clause: Notifying the media of CMP applications and media rights to make submissions

39. The media are the eyes and ears of the public. Informing the media is a practical and workable proxy for informing the public. Ensuring there are rights for the media to be notified of CMP applications and to make submissions will assist the court in taking appropriate account of the public interest in open justice and transparency.

40. The Bill does not provide any mechanism for notifying the public or the press that a CMP will be sought. I would urge the Committee to pursue amendments that give effect to such rights. The amendments could be based on those which were proposed in the Lords. I also address below some of the Government’s views as expressed in the Lords in order to anticipate some of the issues that the Committee may wish to consider.

41. Recommendation (G): A clause which would give effect to these could be modelled on sub-clauses (a)-(c) of that proposed as Report Stage Amendment 56 in the Lords:

Insert NC:

( ) Rules of court relating to section 6 proceedings must make provision-

(a) requiring the court concerned to notify relevant representatives of the media of proceedings in which an application for a declaration under section 6 has been made,

(b) providing for any person notified under paragraph (a) to intervene in the proceedings,

(c) providing for a stay or sist of relevant civil proceedings to enable anyone notified under paragraph (a) to consider whether to intervene in the proceedings.

42. Amendment 56 was not debated in the Lords but the issues were discussed when Government amendment 41 was debated, under which the parties would be notified that that CMPs would be  sought). The Government made four arguments: two about notifying the media and two about allowing media submissions. All four arguments are flawed.

Notifying the media that CMPs will be sought

43. Government argument 1

Baroness Stowell stated (col 1867-1868) that:

"it is for the parties … to decide whether to inform the media. … If the parties wish to notify the media, they can."

This position is flawed. There may be reasons why none of the parties want to reveal the fact that a CMP application will be made and that they want proceedings to be heard out of the public eye – even if there would be no risk to national security. The legislation should be amended so that this will not happen.

It is noteworthy that Baroness Stowell did not see a problem with the media finding out about CMP applications be sought (col 1868). However, the Bill as it stands hampers this possibility where it should enhance it.

44. Government argument 2

Baroness Stowell stated (col 1868) that:

[when the judge notifies the parties there has been an application] "it will be in the public record that exists in the court, which presumably the media are monitoring at all times. This is not about withholding information from the media.

The presumptions do not stand up. Even putting to one side the issue of media resources, court transcripts cannot be readily accessed, cases may be identified by anonymised letters and so even from court lists it may not be possible to tell what kind of case is running (and of course court lists are available by paid subscription only until 24 hours ahead of a hearing). In short, it is about withholding information from the media and inevitably, from the public

45. It is worth noting practical strategies for a moment. Rules for notification would be entirely practical and already exist in other circumstances. For example, notice of seven days may be appropriate - that period is prescribed under the Criminal Procedure Rules, Rule 16.10. A subscription-based email alert would be a possible method.

Media rights to intervene and make submissions

46. Government argument 3

Baroness Stowell stated (col 1867-1868) that the media should be neither formally notified nor have a right to make submissions because:

"they would then feel that they need to know more about the case … in order for them to have some kind of useful contribution to make about whether this should be a closed hearing or not."

There are serious flaws in this position. First, while full information is needed in order to make fully informed submissions, the solution to that problem is not to provide the media with less information. If anything, it would be appropriate to provide more information. Secondly, however, even in the absence of full information, media interests can make representations on matters of principle and – of vital importance – they may be the only ones making submissions that advocate in favour of openness. Those submissions can then draw the judge’s attention to issues which may be fleshed out in closed hearings with the parties. It may be that a judge could indicate how effective or ineffective media submissions are in these circumstances.

47. Government argument 4

Baroness Stowell stated (col 1869) that the media should not have a right to make submissions because:

"civil damages cases that would be heard under this legislation are private law claims and it could be inappropriate for third party interventions to be made in such claims. The claimant may not want the media to intervene in the proceedings."

While these are private law claims they necessarily engage public interests in national security, open justice and executive accountability. These are so significant and the changes proposed by the Bill are at such great odds with constitutional traditions of open justice that it warrants the formal recognition of the media. Moreover, the fact a claimant may not want the media to intervene is not a reason why media intervention should be denied; on the contrary, it is a reason why media rights to intervene are essential.

48. In sum, I would urge the Committee to propose the new clause suggested above (at paragraph 41) be inserted into the Bill. It is consistent with Government’s stated commitments to openness and transparency, it does no damage to national security, and it will enhance public confidence in the courts and the legal process.

I hope this submission is of assistance to the Committee as they consider the Bill. I would of course be happy to discuss any aspects of it with any member of the Committee or with any other interested MP.

January 2013


[1] Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34 at [83].

[2] See, for e.g., the comments of Lord Dyson in Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34 at [10].

[3] HC Hansard, 14 May 2012, Col 18W; HL Hansard, 21 June 2012, Col WA 317.

[4] HL Paper 18, 15 June 2012, Paragraph 34.

[5] L McNamara, ‘Security Trumps Justice – Again’, The Guardian , online, 16 May 2012: http://www.guardian.co.uk/law/2012/may/16/secrecy-closed-material-procedures

Prepared 30th January 2013