The Justice and Security Green Paper - Human Rights Joint Committee

The Justice and Security Green Paper - Human Rights Joint Committee Contents

1 Introduction

The Government's case for change

1. The Government's Green Paper on Justice and Security was published on 19 October 2011.[1] It contains the Government's proposals to change the way in which "sensitive information" (which includes but is not confined to intelligence information) is treated in civil proceedings.

2. The Government's case for legislative change rests upon two principal concerns, one concerning fairness and accountability and the other concerning national security.

THE FAIRNESS AND ACCOUNTABILITY CONCERN

3. One of the main concerns behind the Green Paper is that, with the increase in intelligence activity since 9/11, there are increasing numbers of cases challenging Government decisions and actions in the national security context, but, under current rules, the UK justice system is unable to pass judgment on them because they involve sensitive information which cannot be disclosed in a courtroom.[2] The law of "Public Interest Immunity" ("PII") enables sensitive material to be protected from disclosure, but excluding key material in this way means that the issues in the case cannot always be determined. As a result, the Government argues, cases either collapse, or are settled without a judge reaching any conclusion on the facts before them.

4. The Government regards this situation as being wrong in principle. The concerns in play here appear to be a combination of fairness and accountability. We use the term "fairness" here and throughout this Report in the sense of "natural justice" or procedural fairness, which is shorthand for a number of more specific rights which together go to make up the overarching right to a fair hearing in court.[3] The concern about fairness applies to both claimants and defendants in cases which cannot proceed all the way to judgment. Claimants are left without a clear legal judgment on their case and the security and intelligence agencies are left unable to clear their name.[4] The public, too, are left with questions unanswered about serious allegations, which is said to be unsatisfactory from the point of view of democratic accountability.

5. One of the main objectives of the proposals in the Green Paper, therefore, is "to better equip our courts to pass judgment in cases involving sensitive information." They aim to maximise the amount of material available for consideration in civil proceedings and to minimise the number of proceedings that cannot be tried because appropriate procedures do not exist to handle them.

THE NATIONAL SECURITY CONCERN

6. One of the other principal objectives of the proposals in the Green Paper is to "protect UK national security by preventing damaging disclosure of genuinely national security sensitive material."[5] The Government says that one of the "key principles" which has guided the development of the proposals has been the necessity to "protect our sensitive sources, capabilities and techniques and our relationships with international partners, whose co-operation we rely on for our national security."[6]

7. It goes without saying that protecting national security against possible harm by inappropriate and damaging disclosure of security-sensitive material is not only a legitimate objective of the law in this area but is an important duty resting on all branches of the State: the Executive, the legislature and the judiciary. That duty has been very well performed by each of those branches, including the judiciary, which has been extremely vigilant to ensure that national security is not jeopardised by the disclosure of security-sensitive information in civil or criminal proceedings. The key question for us and for Parliament, however, in scrutinising the case made in the Green Paper by the Government for such a fundamental change from our current arrangements, is whether there is any evidence that current laws and procedures have already put national security at risk by allowing damaging disclosures of security sensitive material, or give rise to a real risk of such harm eventuating—and whether legislative change is required to remove this risk.

8. As the Independent Reviewer of Terrorism Legislation pointed out in his evidence to us, with one exception "the case for change is not principally advanced in the Green Paper on the basis of any risk that secret material could, under the current procedures, be damagingly and wrongly disclosed."[7] The reason for this is that, apart from in one specific context, the current system of PII does not jeopardise national security, because the refusal of a claim to PII does not result in the Government being ordered to disclose the material which it believes will damage national security. In a case where the Government considers that national security would be jeopardised by disclosure of the material for which PII was claimed but refused, it has the option, as the Independent Reviewer put it, "to press the eject button", by conceding the issue to which the material relates even if this means abandoning a prosecution or settling a civil claim to which it is a defendant.

9. There is one context, however, in which the case for change made by the Government in the Green Paper does rest on a national security concern, and that is in relation to the courts' so-called "Norwich Pharmacal" jurisdiction: the power of the courts to order the disclosure of certain documents or material to another party, in order to assist that other party in some other legal proceedings. Here, the Government's case for change is that the novel application of Norwich Pharmacal principles by the courts in the Binyam Mohamed litigation has for the first time put the Government at risk of having to disclose sensitive material to non-UK-security-cleared individuals for use in court proceedings outside the UK.[8] PII applies to Norwich Pharmacal proceedings,[9] so even in a case where the court concludes that the case for Norwich Pharmacal disclosure is made out, the Government can attempt to resist disclosure by claiming PII for the relevant material. If the PII claim is rejected by the court, however, the result is that the material must be disclosed: in this particular type of proceedings, the Government, as the defendants to an action for disclosure, have no "eject button" if they fail to persuade the court not to order disclosure.

10. The Government's case for change is that this unprecedented application of the Norwich Pharmacal principles threatens national security in two ways. First, it gives rise to the direct risk of the Government being forced to disclose material which the Government considers will harm national security. Second, and less directly, the very fact of this risk gives rise to uncertainty about the ability of the Government to prevent the disclosure of information or material which has been obtained from intelligence partners on the understanding that it will not be disclosed without their permission. That uncertainty, the Government argues, has a disproportionate impact on the UK's international, diplomatic and intelligence relationships with foreign governments: it undermines the trust and confidence of foreign partners and therefore makes them more reluctant to share intelligence with the UK, which harms national security.

11. We consider below the evidential question of whether the Government has demonstrated, by concrete evidence, that these two concerns, fairness and accountability on the one hand and national security on the other, are both real, practical problems which need urgently to be addressed as the Green Paper suggests.

The Rights and Principles at stake

12. One of the constant themes in the evidence we have heard has been that the Green Paper seriously underestimates the extent to which its proposals represent a radical departure from the UK's constitutional tradition of open justice and fairness, or natural justice. As Lord Dyson explained in the Supreme Court, there are a number of strands to the principle of natural justice:

A party has the right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance [...] the parties should be given an opportunity to call their own witnesses and to cross-examine the opposing witnesses.[10]

Dinah Rose QC, for example, criticised the Green Paper because it fails to acknowledge that the proposed statutory extension of closed material procedures into civil proceedings is contrary to a fundamental, constitutional common law right, the right to an open and adversarial trial. She is critical of the Green Paper for failing to acknowledge the serious implications of what is proposed, or the importance which the Supreme Court attached to the right of a litigant to know the case against them in the Al Rawi litigation. The Green Paper simply says that the issues have recently been considered by the Supreme Court, and that it seeks to "build on" those judgments.

13. However, when we asked the Secretary of State whether he accepted that the proposals in the Green Paper constitute such a radical departure from the UK's constitutional tradition and, as such, require the Government to demonstrate a compelling justification for them, we were surprised to hear that he denied it. This denial came during the Secretary of State's presentation in his oral evidence of the Green Paper as a set of exceptional measures only intended to be of the narrowest possible application. We consider in Chapter 2 below this discrepancy between the Secretary of State's account of the scope of the proposals and the scope of the Green Paper itself, but even taking the Secretary of State's account at face value we are troubled by the claim that the proposals in the Green Paper do not constitute a radical departure from our long established traditions of open justice and fairness. In our view it is important that the full significance of the proposals is acknowledged. As Lord Hope said in Al Rawi, the law must not weaken its defences "against the usurpation of fundamental rights that proceeds little by little under the cover of rule of procedure."[11]

The test to be applied by Parliament

14. In Al Rawi the Supreme Court said that "the issues of principle raised by the closed material procedure are so fundamental that a closed material procedure should only be introduced in ordinary civil litigation (including judicial review) if Parliament sees fit to do so."[12] It also recognised that in some ways Parliament is better placed to scrutinise the justifications offered by the Government for such a fundamental change:

The proposition that a closed material procedure should only be introduced in ordinary civil litigation if Parliament sees fit to do so [...] is a recognition that the basic question raises such fundamental issues as to where the balance lies between the principles of open justice and of fairness and the demands of national security that it is best left to determination through the democratic process conducted by Parliament, following a process of consultation and the gathering of evidence.[13]

15. Where a legislative proposal would interfere with a fundamental right or principle recognised by the common law, the ECHR or any of the UK's international human rights obligations, there is a heavy onus on the Government to demonstrate the strict necessity for that interference, and it is Parliament's duty to subject to rigorous scrutiny the Government's attempt to demonstrate that necessity. One of our tasks, as Parliament's human rights committee, is to assist Parliament in the performance of that important scrutiny role by helping to identify the questions that need to be asked and the evidence that needs to be sought, within the general framework of both national and international human rights law. We must also advise Parliament of the view that we have reached as to whether the Government has discharged the burden of justification that it bears.

16. Given the significance of what is proposed in the Green Paper, we have applied the same test as that applied by the Supreme Court in Al Rawi when scrutinising the Government's justification for the proposed reforms: that any radical departures from fundamental common law principles or other human rights principles must be justified by clear evidence of their strict necessity.

17. The central question for Parliament, therefore, in its scrutiny of the proposals in the forthcoming Bill, will be whether or not the Government has persuasively demonstrated, by reference to sufficiently compelling evidence, the necessity for such a serious departure from the fundamental principles of open justice and fairness that are central both to our common law tradition and to the international obligations that have been so influenced by that tradition.

Our inquiry

18. On publication of the Green Paper we decided that its human rights implications were so significant that we ought to scrutinise it for compatibility with the common law rights to a fair hearing and to open justice and with the UK's international human rights obligations.

19. We wrote to the Lord Chancellor and Secretary of State for Justice on 9 November 2011 asking a number of specific questions and for a full human rights memorandum assessing the compatibility of the proposals in the Green Paper with the relevant common law rights and principles and international human rights obligations.[14]

20. The Lord Chancellor replied on 28 November 2011 enclosing a memorandum responding to our specific questions and welcoming our interest in the Green Paper.[15] He recognised that the Green Paper deals with complex issues that raise important human rights considerations and reiterated the Government's commitment to addressing the challenges identified in the Green Paper in a way that is compatible with all relevant legal obligations, international and domestic, including the Human Rights Act.

21. After considering the Government's response to our questions we decided to hold an inquiry into the Green Paper. We issued a call for evidence on 8 December 2011, inviting submissions by 20 January 2012. To avoid duplication with the Government's own consultation on its Green Paper, we asked for tailored submissions in response to specific questions focusing in particular on the necessity of and justification for proposals with serious implications for the UK's constitutional tradition of open justice and fair hearings and its international human rights obligations in relation to the same. The specific questions in relation to which we sought evidence are set out in our call for evidence.[16]

22. We received 15 written memoranda in total, plus a number of supplementary memoranda. The written evidence we received is published in a separate volume available online.

23. We held five formal evidence sessions:

24 January 2012: Dinah Rose QC and Tom Hickman

31 January 2012: Angus McCullough QC and Jeremy Johnson QC; David Anderson QC and Lord Carlile of Berriew CBE QC

7 February 2012: Joshua Rozenberg and Ian Cobain; Jan Clements and Dr Lawrence McNamara

28 February 2012: Liberty, JUSTICE, Amnesty International and Inquest

6 March 2012: John Wadham, Equality and Human Rights Commission, and Eric Metcalfe; Rt Hon Kenneth Clarke QC MP, Lord Chancellor and Secretary of State for Justice, and James Brokenshire MP, Parliamentary Under Secretary for Crime and Security, Home Office

24. We are very grateful to all those who have assisted with our inquiry.

25. We are also grateful to the Government for the assistance it has given to our inquiry. The Ministry of Justice has provided detailed and timely answers to our questions and made ministers available to give oral evidence. This has helped to enable us to report on this Green Paper in time, we hope, for our Report to be properly considered by the Government before it publishes a Bill on this subject. There have been one or two aspects of the process, however, which have been less satisfactory and we comment on those briefly here.

PUBLICATION OF RESPONSES TO THE GOVERNMENT'S CONSULTATION

26. The Government's own consultation on its Green Paper concluded in January. It would have been helpful to our inquiry, and to others engaged in scrutinising the Green Paper, if those consultation responses had been in the public domain as soon as they were received.

27. Both we and the Independent Reviewer of Terrorism Legislation asked the Government to publish the responses to the Government's Green Paper. Both requests were refused. In a letter from the Secretary of State dated 31 January the reason given to us was that "these may have been sent to the Government in confidence" and it would therefore be necessary to check with each of the more than one hundred respondents to the consultation whether they object to their response being published. As a result, the position of potentially significant respondents, such as the police and other agencies, on the Government's proposals were for some time not in the public domain.

28. The Government agreed to write to each respondent to ask their permission to publish their response, and has published them on the Cabinet Office website as permission has been received. All but 6 of the 90 responses have now been published, and we have been provided with a summary of those which have not been published. We welcome the Government's constructive approach once the problem was identified, but it is unsatisfactory that it has taken so long for response to a public consultation to be made public.

29. The problem was caused by the Government's approach that the consent of each respondent had to be individually sought. We do not understand why this approach was taken rather than that usually adopted in Ministry of Justice consultations. We can see no reason in principle why the opposite presumption should not have been applied which was described by Joshua Rozenberg in his evidence to us:[17]

It is certainly not consistent with current practice [...] Looking back at discussion papers published by the Ministry of Justice, the most recent one is entitled [...] Getting it Right for Victims and Witnesses. Under the heading "Confidentiality", it states: "Information provided in response to this consultation […] may be published or disclosed in accordance with the access to information regimes […] If you want the information that you provide to be treated as confidential", be aware that there is a code of practice, and explain why you want it confidential. "If we receive a request for disclosure […] we will take full account of your explanation", but we cannot promise that it will be confidential. That seems to be the standard practice with all consultation papers issued by the Ministry of Justice—and, I dare say, by other government departments. It is a public consultation and unless the parties ask for their response to be confidential, it will be treated as public. I fully accept why certain public bodies such as the security service, in responding to the Green Paper, would not want their response made public, but the default position ought to be that a submission is public unless somebody says otherwise.

30. We can see no reason in principle why the opposite presumption should not have been applied by the MoJ: that a response will be treated as public unless the respondent asks for it to be treated as confidential when it is submitted

31. 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.

THE VIEWS OF THE JUDICIARY

32. Finally, we wish to comment briefly on the difficult question of how parliamentary scrutiny of proposals of this kind can be informed by the views of the serving judiciary. Because of the nature of what is proposed in the Green Paper, we decided that it would assist our inquiry to hear the views of some judges with experience of operating closed material procedures. Our request was declined on the basis that serving judges cannot give evidence to parliamentary committees in relation to policy proposals in Green Papers which will shortly become Bills. We understand the reasons for this judicial reticence, which is underpinned by a proper regard for the separation of powers in our constitution.

33. However, 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. We note that in the past the judges have submitted a collective response to legislative proposals which impinge directly on the administration of justice, such as the recent Green Paper on Legal Aid. We also note that the European Court of Human Rights recently issued an Opinion on the proposals which are currently being discussed by Governments concerning reform of the Court. We appreciate the sensitivities, but we do not consider them to be insuperable, and there are precedents which may be worth considering. 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.

The scope of our Report

34. Our Report does not deal with that part of the Green Paper which deals with reform of intelligence oversight. Our predecessor Committee made recommendations on this subject.

35. Our Report also does not consider all of the options for reform put forward by the Green Paper, but focuses on those which we judge to be both the most significant in human rights terms and most likely to be under active consideration by the Government.

1 Justice and Security Green Paper, Cm 8194 (October 2011). Back

2 Foreword to the Green Paper by the Rt Hon Kenneth Clarke QC MP. Back

3 See para. 12 below for a more detailed explanation of the specific rights which are encompassed by the principle of natural justice or fairness. Back

4 It is noteworthy that in the Secretary of State's Foreword to the Green Paper he is clearly contemplating a narrow category of case against the security and intelligence agencies in the national security context The mismatch between the Foreword and the scope of the proposals in the Green Paper is considered in Chapter x below. Back

5 Ibid. Back

6 Executive Summary, para. 10, p. 3. Back

7 Memorandum from David Anderson QC, 26 January 2012, para. 11. Back

8 Green Paper, para. 1.41, p. 14 Back

9 Binyam Mohamed [2008] EWHC 2048 (Admin) at [149]. Back

10 Al Rawi v The Security Service [2011 UKSC 34 at [12]-[13] Back

11 Al Rawi. Back

12 Ibid, at para. [69]. Back