2 The scope of the Green Paper proposals
'Sensitive information' and 'harm
to public interest'
36. The
emphasis in the Secretary of State's Foreword to the Green Paper
is almost exclusively on the security and intelligence agencies
and national security. The focus is relatively narrow. The proposals
in the Green Paper, however, are not confined to contexts concerning
intelligence information or other material concerning national
security. Rather, they relate to the disclosure of any "sensitive
material" the disclosure of which may harm the "public
interest".
37. Both of these
terms are very broadly defined in the Green Paper.[18]
Sensitive material/information is defined as "any material/information
which if publicly disclosed is likely to result in harm to the
public interest." The public interest itself is said to
have many different aspects: "defence, national security,
international relations, the detection and prevention of crime,
and the maintenance of the confidentiality of police informers'
identities, for example."
38. A number of
NGOs were concerned about the potential scope of application of
the proposal to make closed material procedures available in civil
proceedings generally. They were particularly concerned by the
fact that the proposal is not confined to material relating to
national security, but would apply wherever there is a chance
of damage to the public interest, which is very broadly defined
by the Green Paper.
39. Liberty argued
that
The remit of what might be 'damaging to the public
interest' is so broad, it could include civil actions against
the police for assault or false imprisonment; personal injury
claims brought by ex-servicemen against the Ministry of Defence;
inquests into deaths where the State is implicated; and class
actions against Government or big business."
40. Amnesty
International in its memorandum to us is also concerned that the
breadth of the proposals in the Green Paper goes far wider than
material which is genuinely harmful to national security.
41. The Bingham
Centre for the Rule of Law response to the Government consultation
argues that if there is to be any provision made for the use of
closed material procedures in civil proceedings, the circumstances
in which they could be used would have to be strictly defined
and confined by Parliament. This echoes observations made by
the Supreme Court itself in Al Rawi, in which Lord Dyson,
for example, said:
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. No doubt, if
Parliament did decide on such a course, it would do so in a carefully
defined way and would require detailed procedural rules to be
made (such as CPR Parts 76 and 79) to regulate the procedure.
42. The
evidence we have received has demonstrated how far-reaching are
the proposals as they currently stand in the Green Paper. It
is also clear that the proposals go very much wider than is capable
of being justified by the two concerns identified in Chapter 1
above, even assuming that evidence exists to show that those are
real and practical concerns.
43. The Secretary
of State in his oral evidence to us said that the Green Paper
was intended only to deal with what he described as a "narrow
problem":[19]
We are talking about cases where relevant evidence
could be given by the intelligence services, our spies, and that
the relevant evidence is derived by the service using either sources
or technological methods—covert surveillance or interception
of various kinds—of which, of course, the parties are quite
unaware.
44. The
recent reaction to the Green Paper in the press had, he said,
been based on a complete misunderstanding of the scope of the
proposals.
45. 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.
46. The Secretary
of State also suggested in evidence that the Green Paper might
not have been drafted clearly enough.
It could be that we have not expressed our proposals
clearly enough in the Green Paper [...] I hope we have not so
carelessly drafted the Green Paper as to give too much ground
to all those fears [...] it probably is not set out with the greatest
clarity in the Green Paper.[20]
47. 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.
The admissibility of intercept
as evidence
48. The
Green Paper does not deal with the potential use of intercept
as evidence. This, it says, is a separate challenge and a separate
Government project. The Green Paper is said not to be the appropriate
means for addressing the Government's commitment to seeking a
practical way of adducing intercept evidence in court.[21]
49. Since one
of the driving forces behind the Green Paper is said to be the
Government's desire to ensure that, wherever possible, evidence
is put before a court rather than excluded from its consideration,
it does seem surprising that the admissibility of intercept as
evidence is not included within the scope of the Green Paper.
50. We accept
that the Green Paper is mainly concerned with civil proceedings,
and the question of the admissibility of intercept as evidence
has tended to focus on its use in criminal prosecutions. However,
intercept is also relied on by the Government in a number of other
contexts and we find it surprising that the Government is going
to such trouble to make sure that evidence can go before a judge
when material which sometimes forms a substantial part of the
material relied on by the Government will still not be admissible
under the proposals in the Green Paper. There is now a very long
history of Reports, from this Committee and others, urging legislative
reform to enable the admissibility of intercept. In our Report
on the TPIMs Bill, we expressed concern about what appeared to
be the significant decline in the number of successful prosecutions
for terrorism offences over the last few years.[22]
We find no reassurance on this score in the latest Home Office
Statistical Bulletin which shows 7 people were convicted of terrorism-related
offences in the year to September 2011 compared to 23 the previous
year.[23]
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.
18 Green Paper, p. 71. Back
19
Q190. Back
20
Qs 190 and 201. Back
21
Green Paper, p. 11. Back
22
Green Paper, p. 11. Back
23
Sixteenth Report of 2010-12, Legislative Scrutiny: Terrorism
Prevention and Investigation Measures Bill, HL Paper 180/HC
1432, para. 1.13. Back
| 
