Conclusions and recommendations
Introduction
1. The delay in the publication of the responses to the Government's public consultation on the Green Paper was both regrettable and avoidable. We recommend that all future Government consultations should be run on the basis that the responses may be published by the Government unless the respondent expressly requests that their response remains confidential.
(Paragraph 31)
2. Where
changes are proposed which are so central to the administration
of justice, we think it would be desirable for some mechanism
to be found whereby representative judicial views can be made
available to inform parliamentary scrutiny. In order to maintain
public confidence and parliamentary accountability, it is important
that any consultations between Government and the judiciary should
be carried out in as open and transparent a way as possible (Paragraph
33)
3. The Green Paper redefines the meaning of a "court" for certain purposes, and in our view it would be beneficial to parliamentary scrutiny of such a measure if it could be informed by judicial views on a matter which goes to the very nature of the judicial function.
(Paragraph 33)
Scope of the Green Paper proposals
4. We welcome the Secretary of State's reassurance about the intended narrowness of the Green Paper's application. However, we note that this is clearly a change of position as there is no doubt that the proposals in the Green Paper are very broad in scope. We recommend that the Government now demonstrate their narrower intentions by confining the scope of its proposals to national security-sensitive material, that is, material the disclosure of which carries a real risk of harm to national security.
(Paragraph 45)
5. The Green Paper should have been more focused on the narrow and specific reasons for legislative change provided by the ministers in their oral evidence, rather than the much broader proposals it contains.
(Paragraph 47)
6. We reiterate our and our predecessor Committee's recommendations that legislation to provide for the admissibility of intercept as evidence be brought forward as a matter of urgency.
(Paragraph 50)
Extending Closed Material Procedures to all civil
proceedings
7. We accept that under the current law it is theoretically possible for there to be some cases in which a fair trial of a civil claim cannot proceed because of the amount of material which cannot be disclosed on Public Interest Immunity grounds.
(Paragraph 61)
8. We
have found it very hard to reach an evidence-based view as to
the likelihood of this theoretical possibility materialising,
and therefore of the scale of the problem to which this part of
the Green Paper is said to be a response. (Paragraph 62)
9. The
hypothetical possibility of Public Interest Immunity preventing
the fair determination of an issue clearly exists, but the critical
question is whether evidence shows that this is a real, practical
problem at all, or one that exists on the scale suggested in the
Green Paper, or on a scale sufficiently significant to warrant
legislation. (Paragraph 63)
10. The
Government had not demonstrated by reference to evidence that
the fairness concern on which it relies in this part of the Green
Paper is in fact a real and practical problem. It seemed to us
that, in the absence of such specific evidence, the Government
had fallen back on vague predictions about the likelihood of more
cases being brought in future in which intelligence material will
be relevant, and spurious assertions about the catastrophic consequences
of information being wrongly disclosed (spurious because outside
of the Norwich Pharmacal context there is no risk of such disclosure
because the disclosure cannot be ordered by a court). These do
not in our view come anywhere close to the sort of compelling
evidence required to demonstrate the strict necessity of introducing
Closed Material Procedures in civil proceedings in place of Public
Interest Immunity. (Paragraph 72)
11. We
believe that the special advocates are right to caution against
treating the views of the Independent Reviewer, after reviewing
the material in the three damages claims, as evidence that the
issues in those cases are incapable of being determined at all
without resort to a closed material procedure. In our view, that
question can only be reliably answered after a full and proper,
judicially conducted Public Interest Immunity exercise, in which
the balance between the public interest in the administration
of justice and the public interest in avoiding harmful disclosure
is struck in relation to each piece of evidence, with the possibility
of applying to each piece of material one of the range of options
which constitute less than full disclosure. We therefore remain
of the view that we reached after hearing evidence from the Ministers
that the Government has still not demonstrated by reference to
evidence that the fairness concern on which it relies in this
part of the Green Paper is in fact a real and practical problem.
(Paragraph 80)
12. We
do not agree with the Government's claim in its Green Paper that
the extension of closed material procedures will enhance procedural
fairness. We agree with the evidence of the special advocates
that closed material procedures are inherently unfair. We also
agree with Lord Kerr in Al Rawi, that evidence which has
been insulated from challenge may positively mislead the court.
(Paragraph 86)
13. In
our view, whether or not closed material procedures are introduced
into civil proceedings, there should always be full judicial balancing
of the public interests in play, both when deciding the appropriate
procedure and when deciding whether a particular piece of evidence
should or should not be disclosed. The Government's position in
the Al Rawi litigation was that it should be for the courts
to make the determination and the Green Paper does not explain
what has changed the Government's position since that case. (Paragraph
103)
14. We recommend that the obligation to disclose sufficient material to enable effective instructions to be given to an individual's special advocate should always apply in any proceedings in which closed material procedures are used.
(Paragraph 106)
15. We
do not accept that the need to make closed material procedures
available in all civil proceedings has been convincingly made
out by the Government. Even if we were persuaded of the need,
however, we would not be in favour of the model proposed by the
Government in the Green Paper. (Paragraph 109)
16. In our view it is most unlikely to be possible to tell in advance of a Public Interest Immunity exercise whether the outcome will be that the issues in the case are not capable of being determined fairly without the withheld material. The whole purpose of the Public Interest Immunity exercise is painstakingly to look at each piece of evidence to determine how the balance should be struck, and that exercise must be gone through with all the various means of facilitating some form of disclosure in mind. As the special advocate Angus McCullough told us in evidence, "there is an important flexibility in Public Interest Immunity that would be replaced and lost if the proposals in the Green Paper were adopted."
(Paragraph 111)
17. Unless
the Public Interest Immunity exercise is gone through first, it
will not be possible to tell whether a closed material procedure
is the only possible way of ensuring that the issues in the case
are judicially determined. We would reject the Green Paper's proposal
for this additional reason, as well as those give by the Independent
Reviewer. (Paragraph 111)
18. We
share the concerns expressed by a number of witnesses about the
difficulty in practice of confining closed material procedures
to wholly exceptional cases. In our view, even the Independent
Reviewer's more limited proposal for making closed material procedures
available in civil proceedings would in practice lead to the use
of closed material procedures in cases which currently go to trial
because of courts' resourcefulness in finding ways of ensuring
sufficient disclosure without causing damage to the public interest.
Nor do we consider that the case is made out for making closed
material procedures generally available as an option in judicial
review proceedings. (Paragraph 117)
19. We
recommend that the jurisdiction of the Special Immigration Appeals
Commission be amended so as to include challenges to decisions
to refuse naturalisation and exclusion decisions. As we recommended
above, the statutory framework should also be amended to make
clear that the AF (No. 3) disclosure obligation applies
in such proceedings. (Paragraph 117)
20. We recommend statutory clarification of the law on Public Interest Immunity as it applies in national security cases, including introducing statutory presumptions against disclosure of, for example, intelligence material or foreign intelligence material, rebuttable only by compelling reasons; express factors to which the court must have regard when balancing the competing public interests to determine the disclosure question; and a requirement that the court must give consideration to a non-exhaustive list of the sorts of devices (ranging from redactions, through confidentiality rings, to holding "in private" hearings and making orders to restrict publication of security-sensitive information) to which the courts may have resort in order to enable the determination of a claim without damaging disclosures.
(Paragraph 122)
21. We
note that, notwithstanding the decision of the Supreme Court in
Al Rawi, closed material procedures continue to be used
in civil proceedings by the consent of the parties. Whether there
is power to hold a closed material procedures where the parties
agree to it was left open in Al Rawi, although some members
of the Court had reservations about whether such consent could
be said to be freely given under threat that their claim would
otherwise be struck out. (Paragraph 123)
22. Concerns were also expressed by witnesses in our inquiry that if closed material procedures were available by consent, this may lead to them being resorted to quite frequently in practice which would have the effect of keeping out of the public domain material that would otherwise become public because disclosed in litigation. In our view, whether closed material procedures should be possible where the parties consent to them is an issue which requires further attention.
(Paragraph 123)
Extending Closed Material Procedures to inquests
23. We do not consider that the Government has produced any evidence to demonstrate the need to introduce fundamental changes to the way in which inquests are conducted. There is no evidence of cases in which a coroner's investigation has been less thorough and effective because sensitive material has had to be excluded, and there appears to be only one case in which a coroner has been unable to conclude the investigation, and that appears to have been due to the inadmissibility of intercept evidence. In our view, the burden of the evidence is clear that coroners have proved resourceful in devising ways of ensuring that full and effective investigations can take place notwithstanding the relevance of sensitive material to central issues in the case.
(Paragraph 138)
24. To the extent that the evidence shows that inquests may not be able to be completed because of the inadmissibility of intercept, and that there is scope to produce greater consistency of practice between different inquests, there may be a case for some much less fundamental reform of inquests than that proposed in the Green Paper.
(Paragraph 139)
25. We do not accept that the Government has made out the case for extending closed material procedures to inquests, for the reasons given above. We have serious doubts about whether such a change could be introduced compatibly with the positive obligations on the State in Article 2 ECHR, in particular the requirements that the family will be sufficiently involved and that there be sufficient public scrutiny. Such a fundamental departure from the way in which inquests are currently conducted requires compelling justification. Yet the Government has not produced any evidence to substantiate its claims in the Green Paper that in some cases coroners have concluded that the exclusion of material has left them unable to complete their investigation.
(Paragraph 144)
26. We
endorse the suggestions made to us by INQUEST and the INQUEST
Lawyers Group as measures falling short of the introduction of
closed material procedures into inquests which would address some
of the Government's concerns in the Green Paper. (Paragraph 150)
Reforming the courts' Norwich Pharmacal jurisdiction
27. At the same time as believing it to be necessary to address the US misperception, we also accept that there is a case for legislating to provide greater legal certainty about the application of the Norwich Pharmacal principles to national security sensitive material. Although the courts' power to order disclosure of material by a party mixed up in another's wrongdoing is long established, we accept that its exercise in the context of security-sensitive information in the possession of the Government in Binyam Mohamed represents a novel application of the jurisdiction. We also accept that Norwich Pharmacal applications constitute a special category of civil claim in which the very purpose of the application is to obtain an order of disclosure against the opposing party, and that such claims therefore could carry a heightened risk of disclosure of material which is damaging to national security.
(Paragraph 157)
28. We therefore accept that the Government's aim in seeking to amend the law to provide reassurance to its intelligence partners is a legitimate aim, and the question is what would be a proportionate way to achieve that aim. We suggest below that a proportionate response would be for legislation to provide an improved and clearer legal framework for addressing the application of the courts' Norwich Pharmacal jurisdiction to national security sensitive information.
(Paragraph 158)
29. The Government says in the Green Paper that it "seeks to find solutions that improve the current arrangements while upholding the Government's commitment to the rule of law." In our view, a proposal to legislate to make the control principle absolute is not consistent with that commitment.
(Paragraph 165)
30. We welcome the Government's rigorous proportionality analysis in relation to the option of removing the courts' jurisdiction to order Norwich Pharmacal disclosure against all public bodies. We agree with both the conclusion of the Government that it would be a disproportionate response to the problem of preventing inappropriate disclosure of national security-sensitive material in Norwich Pharmacal claims, and that of the Independent Reviewer of Terrorism Legislation who considers that such a legislative response "would appear manifestly disproportionate".
(Paragraph 171)
31. In our view, however, removing the courts' Norwich Pharmacal jurisdiction in cases where disclosure would harm the public interest would still be a disproportionate response to the problem it is sought to address,
(Paragraph 177)
32. We consider that 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. It would therefore serve the legitimate objective of reducing the risk of disclosures which are damaging to national security and providing reassurance on that score for nervous international partners. In our view, however, redefining the entire Norwich Pharmacal jurisdiction in this way would also be a disproportionate response to the specific problem which has arisen concerning its application to national security-sensitive information. Any legislative response to that problem should be specifically targeted at the way in which courts exercise their Norwich Pharmacal power to order disclosure in cases where the material is such that its disclosure might cause harm to national security.
(Paragraph 186)
33. We
agree with the Government's preference "to legislate to clarify
how [the Norwich Pharmacal] principles should apply in the national
security context." We also agree with that narrow formulation
of the legitimate objective: it should seek to provide clarification
in relation to the national security context only. The case for
going further has not been made out. (Paragraph 189)
34. Statutory
amendments to the law of Public Interest Immunity (a rebuttable
statutory presumption against the disclosure of national security-sensitive
information; a tightly defined test for when the presumption can
be rebutted; and a non-exhaustive list of factors to be taken
into account by the court when conducting the balancing exercise
to determine whether the presumption is rebutted) also meet the
Government's legitimate objective of providing greater certainty
in the legal framework governing Norwich Pharmacal disclosure.
(Paragraph 192)
The impact on media freedom and democratic accountability
35. We
recommend that the Government brings forward proposals to deal
with the important questions we raise which relate to closed judgments.
(Paragraph 209)
36. We welcome the Government's recognition in the Green Paper that one of the guiding principles of reform in this area is that, even in sensitive matters of national security, the Government is committed to transparency, and that it is in the public interest that such matters are fully scrutinised.
(Paragraph 214)
37.
We also welcome the Government's avowed desire to improve executive
accountability. We are concerned, however, about the potential
impact of the proposals on public trust and confidence not only
in the Government but in the courts. As Lord Kerr said in Al
Rawi, "the public interest in maintaining confidence
in the administration of justice [...] is an extremely important
consideration and one which ought not to be overlooked. (Paragraph
214)
38. We recommend that in the statutory amendment and clarification of the law on Public Interest Immunity that we have recommended, consideration is given to including open justice as an express criterion to be taken into account and given due weight by the court when conducting the judicial balancing exercise.
(Paragraph 216)
39. It is regrettable that the Green Paper overlooks the very considerable impact of its proposals on the freedom and ability of the media to report on matters of public interest and concern. This is a serious omission. The role of the media in holding the government to account and upholding the rule of law is a vital aspect of the principle of open justice, as has been amply demonstrated in the decade since 9/11. We are also concerned about the impact of the proposals on public trust and confidence in the courts. We recommend that the Government expressly recognises these considerations in its framework of "key principles" guiding the development of policy in this area. We also expect the human rights memorandum accompanying the forthcoming Bill to include a thorough assessment of its impact on media freedom and on continuing public confidence in the administration of justice.
(Paragraph 217)
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