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This is our second Report on the Justice and Security Bill. In our first Report we were unpersuaded that the Government had demonstrated by reference to evidence that there are a significant and growing number of civil cases in which a closed material procedure ("CMP") is essential for the issues in the case to be determined. However, in view of the likelihood of the measure becoming law, we went on to recommend a number of amendments to the Bill in order to address concerns we had about the Bill's compatibility with the UK's constitutional tradition of open justice and fairness.
Some of those recommended amendments were made to the Bill by the House of Lords. In Public Bill Committee in the House of Commons the Government replaced the Lords amendments with its own amendments which it says reflect our recommendations. The main purpose of this Report is to scrutinise the extent to which the Government's amendments reflect the recommendations in our first Report. To the extent that we are not satisfied that they do so, we recommend further amendments to the Bill for consideration at Report stage. We also revisit two recommendations made in our first Report which have not yet been reflected in the Bill: a requirement of judicial balancing within the CMP and a "gisting" obligation.
This is a controversial Bill which has raised concerns across party-political boundaries and across both Houses of Parliament. There were therefore some reasonable differences of opinion expressed during our consideration of the Bill which echoed those concerns.
Scope of the Bill
We welcome the Government's amendment of the Bill to remove the power to extend the scope of the Act by order. We also welcome the Government's clarification that the CMP provisions in the Bill apply only to material the disclosure of which would be damaging to national security, and not to international relations.
We would prefer to see the Bill amended to include an express reference to the type of material that the Intelligence and Security Committee considers would be really damaging to the interests of national security if disclosed. We recommend that the definition of "sensitive information" in clause 6(11) of the Bill be amended to confine it to the wording suggested by the ISC.
We accept in principle that, if CMPs are to be available in civil proceedings before lower courts, they ought also to be available before the Supreme Court; but we envisage that they only be very rarely used, in proceedings where a CMP was used below and where it is absolutely necessary for the determination of the issues in the appeal. We recommend that the Government make clear the sorts of circumstances in which a CMP may be appropriate in civil proceedings before the Supreme Court.
Judicial discretion
We welcome the Government's acceptance of the importance of ensuring that the decision as to whether there should be a CMP is made by an independent court and not the Government. We also welcome the express provision of an opportunity for the court to revisit its decision to allow a CMP at the point when it has seen all the material, open and closed, before the trial of the issues begins.
Equality of arms
In our view the Government's amendment enabling all parties to proceedings to apply for a CMP does not provide for equality of arms in litigation because it would unfairly favour the Secretary of State. This is a real practical problem. Victims of torture or rendition whose claims may turn on sensitive material in the possession of the Secretary of State might prefer the option of a CMP to the exclusion of that material under PII. Under the Bill as it stands, such claimants may never know that material which assists their case has been excluded from the proceedings under PII. In this important respect, the Bill neither enhances the accountability of the security and intelligence agencies, nor does it enhance fairness in litigation. We recommend that the Bill be amended to restore equality of arms in the ability to apply for a CMP, or that an appropriate mechanism be found to ensure equality of arms between the Government and other parties to civil proceedings in their ability to apply for a CMP.
Judicial balancing at the "gateway"—the Wiley balance
The Government's amendments remove from the Bill the so-called Wiley balance between the degree of harm to national security on the one hand and the public interest in the fair and open administration of justice on the other. The purpose of our recommended amendment inserting the Wiley balance into the Bill was to ensure that the court considers the public interest in the fair and open administration of justice when deciding whether to order a CMP. That purpose is not served if the Bill does not contain any express requirement that the court conduct such a balancing exercise before deciding whether to allow a CMP to be used. We recommend that the Bill be amended to delete the Government's new condition that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration and to reinstate the Wiley balance as a precondition of a CMP.
Strict necessity—CMPs only as a last resort
We do not accept the Government's reasons for removing the "last resort" amendments made to the Bill by the House of Lords, which are based on a misunderstanding of the effect of the provisions. We welcome the Government's commitment to ensuring that CMPs are only available in those cases where they are necessary. To give effect to that intention we recommend that the Bill be amended so as to reinstate the condition that the court is satisfied that a fair determination of the issues in the proceedings is not possible by any other means and the requirement that the court "consider" whether a claim for PII could have been made, both of which have been removed by the Government's revised clause.
We welcome the Minister's unequivocal reassurance that the Bill as it stands makes no difference to confidentiality rings, which will remain available under the Bill as they are now, and that the Government has no intention of taking away the possibility of such arrangements as an alternative to CMPs. Under the last resort condition which we recommend, the court will be required to consider whether the case is suitable for a confidentiality ring rather than a CMP, as part of the court's consideration of whether a fair determination of the proceedings is not possible by any other means.
We also welcome the express provision in the Bill of an opportunity for the court to revisit its decision to allow a CMP at the point when it has seen all the material, open and closed, before the trial of the issues begins, as this should make it less likely that a CMP will be used when it is not necessary. However, it is no substitute for a "last resort" condition such as that inserted by the Lords, because the test to be applied by the court on the review is whether a CMP is in the interests of the fair and effective administration of justice in the proceedings - the condition we recommend should be deleted from the Bill. We recommend that the Government's new clause providing for review and revocation of a CMP declaration be amended so as to provide for revocation if the court considers that any of the preconditions for a CMP are no longer met.
Judicial balancing in the CMP
We recommend that the Bill be amended to ensure that a full judicial balancing of interests always takes place within the CMP, weighing the public interest in the fair and open administration of justice against the likely degree of harm to the interests of national security when deciding which material should be heard in closed session and which in open session.
"Gisting" obligation
We agree with the Special Advocates that if there is to be a power to hold a CMP in civil proceedings, there should be an express 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. We recommend that the Bill be amended to impose a gisting obligation in all cases in which a CMP is to be held under the provisions of the Bill. Such an amendment does not risk disclosures damaging to national security but preserves the Secretary of State's right to elect between providing a summary of material and ceasing to rely on it in the case, as is already the case where the gisting obligation applies under Article 6 of the European Convention on Human Rights.
Annual renewal
We also reiterate the recommendation in our first Report that the Bill provide for annual renewal, in view of the significance of what is being provided for and its radical departure from fundamental common law traditions.
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