Justice and Security Bill

Memorandum submitted by the Law Society of England and Wales (J&S 02)

Summary

1. The Law Society of England and Wales is the independent professional body, established for solicitors in 1825, that works globally to support and represent its 166,000 members, promoting the highest professional standards and the rule of law.

2. Closed Material Procedures (CMPs) - The Law Society is opposed to the extension of CMPs to ordinary civil proceedings. The Society contends that to do so would be contrary to the principles of fair and open justice and that the Government has failed to adequately present a national security case for jeopardising these fundamental constitutional principles. However, if Parliament deems CMPs to be necessary, it is vital that – at a bare minimum – the amendments recommended by the Joint Committee on Human Rights are enacted.

3. The Norwich Pharmacal jurisdiction – The Society is of the view that the Bill’s proposal to legislate for an absolute exemption from the Norwich Pharmacal jurisdiction is a wholly disproportionate response that is incompatible with the Government’s commitment to the rule of law. However, recognising the imperative of national security the Society suggests an alternative – more narrowly drawn – alternative wording.

Part 1: The Intelligence and Security Committee

4. Clause 1-5, and Schedule 1, of the Bill make provision for the oversight of the intelligence and security agencies. The Society has no comment on this section of the Bill.

Part 2: Disclosure of Sensitive Material

General comments on Clauses 6-13 (Closed Material Procedure)

5. The Law Society has repeatedly stated its fundamental opposition to the extension of a Closed Material Procedure (CMP) to ordinary civil proceedings. The Society recently re-stated this position in a letter jointly signed with General Council of the Bar, to the Minister Without Portfolio, Rt Hon. Ken Clarke MP:

‘Closed Material Procedures depart from an essential principle of natural justice… that all parties are entitled to see and challenge all of the evidence relied upon before the court, and to combat that evidence by calling evidence of their own. In addition, they undermine the principle that public justice should be dispensed in public and will weaken fair trial guarantees and the principle of equality of arms. These are both essential elements of the rule of law’. [1]

6. CMPs are not novel in English law, having first been established by provisions contained within the Special Immigration Appeals Commission Act 1997, and since extended to a number of discrete contexts, including in relation to terrorist asset freezing and Terrorism Prevention and Investigation Measures (TPIMs). The key distinction, however, between these discrete contexts and ordinary civil litigation is the national security imperative. It is simply not the case that CMPs are required in ordinary civil claims – such as claims for damages in relation to negligence or breach of contract, actions for injunctive relief, and claims for judicial review – in order to enable the Government to take measures necessary to combat threats to national security. The Society contends that the Government has failed to make a national security case for extending CMPs to ordinary civil litigation.

7. In ordinary civil proceedings, the Society contends that it is fundamental to the principles of open and natural justice that that all parties are entitled to see and challenge all of the evidence relied upon before the court and to combat that evidence by calling evidence of their own.

8. The use of Special Advocates – which the Government argues ensures procedural fairness – has been shown to be flawed. For example, in their collective response to the Green Paper consultation the Special Advocates stated:

‘Our experience as Special Advocates … leaves us in no doubt that CMPs are inherently unfair; they do not work effectively; nor do they deliver real procedural fairness’. [2]

The very same point – that CMPs are procedurally unfair - was succinctly put in the Supreme Court in Al Rawi by Lord Kerr:

‘The central fallacy of the [Government’s] argument… lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial’. [3]

9. Reforms of the scale proposed to such important constitutional principles should not be taken unless by reference to sufficiently compelling evidence. The Society contends that the Government has failed to provide such evidence, and that therefore the case for extending CMPs to ordinary civil proceedings has categorically not been made.

10. It is for these reasons that the Law Society is wholly opposed to the introduction of CMPs.

Specific remarks relating to the client-lawyer relationship

11. The Law Society is concerned about the wider implications of CMPs on civil litigation and professional ethics: namely the practical effect on solicitors’ ability to advise their clients in accordance with their professional duties when they are not privy to the information being used against their clients.

12. Legal advisors will have difficulty in advising their clients on the merits of a case and on the prospects of success if they cannot see the evidence on which the other party relies. Nor will they be able to advise on the likely chances of an appeal. This undermines:

12.1. clients’ right to legal assistance in the determination of their civil rights and;

12.2. obligations inherent in the fair trial guarantees of Article 6 of the European Convention on Human Rights.

13. This will have a knock-on effect on the costs regime which is so important in civil litigation. The general rule is that the losing party in litigation will have to pay a good proportion of the winner’s costs, which can be substantial. Solicitors will be unable to advise their clients on the financial implications of wining or losing if they cannot see the evidence which will decide the case.

14. Solicitors will be unable to provide clients with accurate cost estimates if they are unable to assess the weight of the opposing evidence. Solicitors have strict ethical duties to keep their clients informed as to future costs. The new rules in costs management and budgeting will make it onerous to comply in non-CMP cases, let alone in CMPs where the difficulties will be multiplied and the task virtually impossible.

15. This will also affect the system of Part 36 offers [4] , unique to civil litigation. The system is designed to promote early settlement by placing the risk of costs on the party that rejects a reasonable offer of settlement – overriding the general costs rule if necessary. The consequence of a litigator being unable to see crucial evidence means they are unable to advise on whether a settlement offer is reasonable. This will expose clients to undue risk of costs.

16. Furthermore, the costs reforms incorporated in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 are predicated on the proper functioning of Part 36. Lord Justice Jackson highlighted the significance of Part 36 offers in his final report on the Review Of Civil Litigation Costs saying, ‘It is manifestly beneficial that cases should settle, so as to avoid the further incurring of legal costs. Part 36 of the Civil Procedure Rules plays an important role in incentivizing parties to make settlement offers’. In fact, Lord Justice Jackson considers that Part 36 should be further enhanced. Thus, undermining the costs and Part 36 regime, by introducing CMPs, also undermines a fundamental principle on which 2012 Act relies.

17. If CMPs are to be extended then the Society reiterates the need, as called for by the Joint Committee on Human Rights, for a ‘statutory requirement in all cases to provide the excluded party with a gist of the closed material that is sufficient to enable him to give effective instructions to his Special Advocate’.

Comment on specific Clauses

18. However, should the House consider that the introduction of CMPs is necessary, then it is vital that the amendments suggested in the House of Lords are maintained.

Clause 6: Proceedings in which court permits closed material applications

Judicial discretion

19. Following amendment in the House of Lords, Clause 6 provides the detail about the type of proceedings in which CMPs will be permitted and the circumstances in which a court may, following a request from either party to proceedings, make an order. As originally drafted, only the Government was able to apply for a CMP.

20. The House of Lords amendment, which follows the recommendations of the House of Lords Constitution Committee and the Joint Committee on Human Rights, must be maintained if CMPs are to be introduced. The amendment is necessary in order to ensure Bill is at least minimally compatible with the principle of equality of arms and to ensure that the Bill meets the Government’s own stated objective of increasing the fairness of such proceedings for both parties.

Strict necessity

21. If CMPs are to be enacted, the Society concurs with the view of the Independent Reviewer of Terrorism Legislation and the Joint Committee on Human Rights that strict conditions of necessity must be satisfied. An amendment to the Bill at the Report Stage in the House of Lords, inserting a new Sub-Clause 6(4): ‘a fair determination of the proceedings is not possible by any other means’, will assure that CMPs are only ever used as a last resort. The House of Lords’ amendment must be retained.

Clause 7: Determination by court of applications in section 6 proceedings

22. Clause 7 concerns the rules of court for those proceedings in which a declaration under Clause 6 has been made. As currently drafted the Clause would ensure that the court has to consider requiring the person withholding material to provide a summary of it to the other parties to proceedings. The Clause would not oblige any gist of the evidence to be made available to the other party.

23. As stated in paragraphs 11 to 17 of this memorandum, the Society has very serious concerns about the impact of CMPs on the ability of lawyers to provide satisfactory advice to their clients in relation to their claim. At the bare minimum, it will only be possible for a lawyer to adequately exercise their duties towards their client if a summary of the withheld evidence is made available.

24. The Society therefore strongly supports the recommendation of the Joint Committee on Human Rights on page 23 of their scrutiny of the Bill:

‘We agree with the Special Advocates’ recommendation that, if there is to be a power to hold a CMP, there should be a statutory requirement in all cases to provide the excluded party with a gist of the closed material that is sufficient to enable him to give effective instructions to his Special Advocate. The absence from the Bill of such a disclosure obligation seriously limits the opportunities for special advocates to mitigate the unfairness caused by the Bill’s departure from the principles of open and adversarial justice. We recommend that the Bill be amended to impose such a disclosure obligation in all cases in which a CMP is held’. [5]

Clause 14: Disclosure proceedings

25. A Norwich Pharmacal order is an order granted against a third party, which has (however innocently) been mixed up in wrongdoing, forcing the disclosure of documents or information. By identifying individuals the information sought is disclosed in order to assist the applicant for such an order in bringing legal proceedings against individuals who are believed to have wronged the applicant.

26. In the Norwich Pharmacal case itself Lord Reid said:

‘If through no fault of his own a person gets mixed up in the tortuous acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became mixed up by voluntary action on his part or because it was his duty to do what he did… justice requires that he should cooperate in righting the wrong if he unwittingly facilitated its perpetration’. [6]

27. Clause 14 removes altogether the courts’ jurisdiction to order disclosure if the information is ‘sensitive information’. However, what constitutions ‘sensitive information’ is very broadly defined. The intelligence services are to be entirely exempted from any requirement to disclose information and the Secretary of State will be empowered to certificate any information they deem to be contrary to the interests of national security of the international relations of the UK.

28. The Law Society considers that the scope of Clause 14 is too broadly drawn. Such a blanket restriction on disclosure is unprincipled, disproportionate and wholly inconsistent with the Government’s commitment to the rule of law and the interests of justice.

29. However, the Society recognises that the Government’s aim of providing reassurance to its intelligence partners as a legitimate objective. The Society suggests that an alternative and proportionate response, instead of legislating to provide an absolute exemption from the jurisdiction for ‘sensitive information’, would be to amend the Bill to address instead the application of the Norwich Pharmacal jurisdiction by including a limited and specific exception on the grounds of national security.

30. Placing the Norwich Pharmacal jurisdiction on a statutory footing, with a detailed statutory definition of the test to be satisfied, would serve to increase legal certainty for both courts exercising the jurisdiction and intelligence partners. The Society believes that this would serve the legitimate objectives of reducing the risk of disclosures which might be damaging to national security and providing reassurance for international partners.

January 2013


[1] Letter reported in The Guardian (2012), Lawyers Challenge Clarke Justice Bill , London: Guardian News Media.

[1]

[2] Special Advocates (2011), Response to the Justice and Security Green Paper, para 15.

[2]

[3] See Home Office v Tariq [2010], EWCA Civ 462, at para 32 and Al Rawi v Security Service [2010] EWCA Civ 482, at para 57.

[3]

[4] Part 36 refers to Part 36 of the Civil Procedure Rules (CPR).

[4]

[5] Joint Committee on Human Rights, (2012), 4 th Report: Legislative Scrutiny: Justice and Security Bill , London: The Stationary Office.

[5]

[6] Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133

Prepared 30th January 2013