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

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

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