Legislative Scrutiny: Justice and Security Bill (second report)

Legislative Scrutiny: Justice and Security Bill (second report) - Joint Committee on Human Rights Contents

3 Extension of CMPs to all civil proceedings

Evidence of the need for change

29. In our first Report on the Bill we concluded that "we remain unpersuaded that the Government has demonstrated by reference to evidence that there exist a significant and growing number of civil cases in which a CMP is 'essential' in the sense that the issues in the case cannot be determined at all without a CMP."[20] In view of the likelihood of the measure becoming law, however, our Report went on to focus on how to ensure that the safeguards for open justice and fairness in the legislation were as strong as they could be.

30. We do not revisit in this Report the question of whether the Government has yet produced the evidence to demonstrate the need to extend the availability of CMPs into civil proceedings generally. We have not seen anything to change the view we expressed on this issue in our First Report on the Bill. We note in passing, however, the breadth of opposition to Part 2 of the Bill in principle. In addition to human rights NGOs,[21] both the Special Advocates who gave evidence to us[22] and the Centre for Policy Studies' publication Neither Just Nor Secure[23] favour removal of Part 2 of the Bill, and only advocate stronger safeguards as a second-best solution. This opposition provides an important backdrop to the debate about the adequacy of the safeguards in the Bill for open justice and fairness.

Judicial discretion

31. In both our Report on the Green Paper[24] and our first Report on the Bill,[25] we emphasised the critical importance of genuine judicial discretion in any legal framework making CMPs available in civil proceedings. That judicial discretion, we recommended, should be untrammelled by any statutory language constraining the scope for judicial balancing where the Government asserts that there is relevant evidence in the case the disclosure of which would be damaging to the interests of national security.

32. In our first Report on the Bill, we therefore recommended that the decision as to whether there should be a CMP should not be the subject of a statutory duty on the court to direct one where there is material relevant to the proceedings that would damage national security if disclosed. Rather, the decision as to whether there should be a CMP should be the product of a full judicial balancing exercise in which the court first weighs all the competing public interests. We recommended that an important step towards achieving this would be by substituting "may" for "must" in the relevant part of clause 6. The House of Lords agreed and amended the Bill accordingly.

33. At Second Reading in the Commons, the Minister without Portfolio announced that the Government had accepted that there should be much greater discretion for the judge about whether and when a declaration for a CMP should be issued. The Government response to our Report agrees that the judge's role is "absolutely critical." It also agrees that the court should have a clear discretion about whether or not to make a declaration that proceedings are those in which a CMP application may be made to the court. It therefore accepts the Lords amendment which changes "must" to "may" in clause 6(3) of the Bill, so that the court has a discretion rather than a duty to make a declaration if the appropriate conditions are met. The Government's revised clause 6 also makes it a precondition of a CMP that the court considers that it is in the interests of the fair and effective administration of justice in the proceedings.[26]

34. The Government's amendments include a new clause the effect of which is to require a court which makes a CMP declaration to keep the declaration under review and enabling it to revoke the declaration if it considers that it is no longer in the interests of the fair and effective administration of justice in the proceedings.[27] The new clause also requires the court to carry out a formal review of the declaration once the pre-trial disclosure exercise has been completed, and requires it to revoke the declaration if it considers that it no longer satisfies the test of being in the interests of the fair and effective administration of justice in the proceedings. The Government response explains that the purpose of this new clause is to enhance the court's discretion.

35. 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. It represents both an important change from what was proposed in the Green Paper and a significant improvement to the Bill as introduced. 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.

36. We note, however, that this appears to be as far as the Government's acceptance of the Lords' amendments to clause 6 goes. The Government's revised clause 6 has removed four of the other substantive amendments to that clause made by the Lords:

(1) the equality of arms amendment enabling parties other than the Secretary of State to apply for a CMP in respect of any material relevant to the issues in the proceedings;

(2) the Wiley balancing amendment ensuring that full judicial balancing of the competing interests takes place when deciding whether there should be a CMP;

(3) the last resort amendment ensuring that a CMP is only resorted to when strictly necessary; and

(4) the Public Interest Immunity ("PII") amendment ensuring that the court considers whether a claim for PII rather than CMP could have been made.

37. The Minister's evidence on these points was clear: in the Government's view it is sufficient to meet the concerns which lay behind these amendments by leaving it to the judge to decide whether it is in the interests of the fair and effective administration of justice in the proceedings for there to be a CMP. So long as that judicial discretion is assured, debate about more detailed safeguards is, in the Minister's view, "legalistic hair-splitting"[28] and semantics.[29] We next consider whether the Government's reasons for that assertion in relation to each of the four Lords amendments outlined above are sufficient.

Equality of arms in the ability to apply for a CMP

38. In the Bill as introduced only the Government could apply for a declaration that a CMP could be used in the proceedings in question. In our first Report on the Bill we recommended that the Bill be amended to grant the court the power to make a CMP declaration, on the application of either party or of its own motion.[30] In our view, this was necessary in order to make the Bill compatible with the requirement of "equality of arms", which is a feature both of the common law right to a fair hearing and the equivalent right in Article 6(1) ECHR. This was also the view of the Special Advocates who provided written evidence, the Independent Reviewer of Terrorism Legislation and the House of Lords Constitution Committee.

39. The House of Lords agreed and amended the Bill accordingly. The Government in its response to our Report accepted our recommendation, but said that it is necessary to bring forward "technical amendments" to ensure that "any party" rather than "either party" can apply for a CMP, and to deal with circumstances where the Secretary of State is not a party to proceedings but may want to apply for a CMP declaration nonetheless.

40. The Government therefore tabled an amendment during the Public Bill Committee which removes the Lords "equality of arms" amendment and replaces it with a new provision. The Government's amendment was agreed to by 10 votes to 9 in the Public Bill Committee.[31] The Bill now provides that any party to proceedings can apply for a CMP declaration as well as the Secretary of State (who can do so whether or not a party to the proceedings),[32] but it defines differently the conditions to be met, according to whether the application is made by the Secretary of State or any party to the proceedings.[33]

41. The Secretary of State can apply for a CMP where any party to the proceedings would be required to disclose sensitive material in the course of the proceedings. However, any other party to the proceedings who is not the Secretary of State can only apply for a CMP where that party would itself be required to disclose sensitive material in the course of the proceedings.[34] They cannot apply for a CMP in relation to material held by the Secretary of State. The effect of the Government's amendments to clause 6 is that where the Government seeks to have relevant material excluded under PII on national security grounds, the other parties to the proceedings cannot ask for the material to be considered by the court in a CMP even if it would assist their case.

42. We asked the Minister to explain the Government's justification for amending the Bill so as to remove the possibility of a party other than the Government applying for a CMP in relation to sensitive material which is relevant to the issues in the case but in the possession of another party. The Government's answer is that the Bill does not provide for the claimant himself to apply for a CMP for the simple practical reason that the claimant would have difficulty demonstrating the risk to national security arising from the disclosure of information which, by definition, he has never been allowed to see.[35]

43. In any event, the Government says, it is of no practical consequence for two reasons. Firstly, where the Secretary of State applies for certain national security sensitive material to be excluded under PII, the judge can be relied upon to consider, of his or her own motion, whether the material in question should be considered by the court in a CMP, rather than excluded altogether, having regard to fairness for the claimant. Second, the Minister said,

As things stand at the moment, the Bill would allow the claimant to ask the court—the judge—to exercise the power, which Government amendments have now given to the judge, to order a closed material procedure of his own volition.

44. The Minister's written response to our questions made a similar point:[36]

[...] we have therefore provided for the claimant to ask the court to order a CMP of its own motion. Unlike the claimant, the court will be in a position to examine the national security information and make the detailed application itself (sic).

45. We find the Government's explanation both confused and confusing. It is confused because the Bill as currently drafted does not in fact provide for or allow the claimant to ask the court to order a CMP of its own motion. That would be an "application" by the claimant and the Bill, we are told, deliberately does not provide for that. It is confusing because it appears that the Government does not in fact have any principled objection to the claimant being able to ask the court for a CMP, yet the Bill does not make such provision.

46. There is also a further problem of which the Government does not seem to be aware. It asserts that the claimant's Special Advocate would be able to ask the court to order a CMP in relation to material which assists the claimant's case. However, this proceeds on two incorrect assumptions.

47. Firstly, it assumes that the claimant will be represented by a Special Advocate in the determination of the Government's PII claim. While Special Advocates might normally expect to be appointed where a claim is made for PII on national security grounds, this is merely a matter of practice and expectation, rather than a requirement or rule, as the Minister himself accepts in his letter when he says that "the use of Special Advocates in PII applications is still a very rare occurrence."

48. Second, the Government assumes that it is open to the Special Advocate to apply to the court for a CMP, not the claimant. In fact, just as the decision to appeal against a closed judgment is a decision of the party concerned not the Special Advocate, so the decision to apply for a CMP is a decision for the party not their Special Advocate. The Special Advocate is not at liberty to communicate to the excluded party the fact that material excluded under PII assists their case, because such communications require the court's permission. The Bill contains no mechanism to ensure that the other parties are aware that the excluded material would assist their case. The Bill as currently drafted therefore gives the Government a litigation advantage by preserving the Government's ability to pick and choose between a CMP and PII, without affording the same choice to claimants against the Government.

49. We are therefore unpersuaded by the Government's argument that its amendments to clause 6 of the Bill guarantee equality of arms between the Government and other parties to litigation. Under the Bill as it came from the Lords, with the amendment we had recommended, a party to civil proceedings in which the Government claims PII in respect of sensitive material would be able to apply to the court for a CMP. The effect of the Government's amendments, however, is that this will not be possible: a party other than the Secretary of State can only apply for a CMP in relation to material which it would be required to disclose, and not material which, but for PII, the Secretary of State would be required to disclose. 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.

50. In our view this is a real practical problem, not merely legalistic hair-splitting or a fanciful theoretical possibility as the Minister appeared to envisage.[37] 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 as currently drafted fails both key tests by which the Minister is content for it to be judged: it 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.

51. One way of addressing this equality of arms concern would be to amend the Bill to make the condition to be satisfied the same whether the application is made by the Secretary of State or any other party to the proceedings. The following amendment would have this effect:

Clause 6(4), Page 4, line 41, leave out 'in a case where the court is considering whether to make a declaration on the application of the Secretary of State or of its own motion'

Clause 6, Page 5, line 18, leave out paragraph (5).

52. Alternatively, a mechanism could be introduced to ensure that other parties are made aware if material which would assist their case is being excluded from consideration under PII. This would require at least two changes from current arrangements. First, there would need to be a legal requirement that Special Advocates are appointed to represent the interests of the excluded party whenever PII is claimed on national security grounds. And second, it would be necessary to impose a duty on the Special Advocate to notify the party whose interests they represent that material which would otherwise be excluded under PII assists their case (without reference to the content of the material), to enable the claimant to consider whether to ask the court to order a CMP.

53. We note that the Minister promised to reflect further on this issue, and we recommend that he consider these practical proposals as a way of ensuring 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

54. The Bill as it came from the House of Lords provided that one of the conditions that must be satisfied before the court can make a declaration that a CMP can be used is that the court considers that "the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice"—the so-called "Wiley balance."We recommended this in our Report on the Bill in order to ensure that there is full judicial balancing of the competing public interests in play at the "gateway" stage of deciding the appropriate procedure.[38] The House of Lords agreed and amended the Bill accordingly.

55. The Government's amendments remove the Wiley balance amendment and there is nothing in the Government's revised clause 6 which replaces it with anything requiring the court to balance the degree of harm to the interests of national security on the one hand against the public interest in the fair and open administration of justice on the other. The Government response did not explain its reason for removing without replacing the judicial balancing condition inserted in the Bill by the Lords, so we asked the Government to explain its justification for doing so.

56. The Government's explanation is that it considers the Wiley balancing test is appropriate for determining whether to take material out of consideration under PII, but is not appropriate when the court is considering whether material should be allowed to be considered by the court in a CMP. We were puzzled by the assertion that Wiley balancing is appropriate for one type of application (for PII) but not the other (for CMP), so we pressed the Minister for a more detailed explanation of the essential difference between the two types of application which would justify a difference of approach.

57. The Government's response was that it did not consider the public interest in open justice to be a relevant consideration at all in cases where there is material relevant to the issues in the proceedings, the disclosure of which would be damaging to national security, and where a CMP would be a fairer or more effective way of trying the case than not having one. In the Minister's words:[39]

A balancing act in those circumstances is rather odd. "Yes, this is relevant to the issues I have to decide. Yes, national security interests are involved and would be damaged if we handled this in the normal way. Yes, I think it is in the interests of the fair and effective administration of justice that we have a CMP". It seems odd to add to that the Wiley test. You have decided that it is relevant, national security is threatened, and fair and effective administration of justice would be served by having a CMP; then we are saying the judge applies the Wiley test and says, "What a pity. Never mind. It satisfies all those three tests, but for some reason I still think there are overriding interests of justice that mean I should refuse a CMP, so it is either open court or nothing".

58. The Government's amendments to the Bill have therefore replaced the Wiley balancing test inserted by the Lords with an alternative scheme. This, the Government says, requires a different balancing exercise which better reflects the nature of the question for the court: namely, whether a CMP would be a fairer or more effective way of trying the case than not having one. The Government believes that its balancing test is more appropriate, and it would be "odd" and "simply bad law" to have a Wiley balancing test in addition, if the outcome of its balancing test suggests that there should be a CMP.

59. We also asked the Minister why the Government has removed all reference to "open justice" from the face of the Bill. The Minister's answer, in effect, was that openness is not a consideration that can be relevant because once an application is made for a CMP the only issue is closed proceedings, not open justice:[40]

We are not talking about open justice. There would not be a problem if you could just have open justice. [There is no reference to open justice in the Bill] because it is a slight non sequitur, it seems to me. By definition, if one is forced to apply for a closed material procedure, because of the threat to national security, sadly, you are saying we have to do the second best. We are not going for open justice. If open justice overrules everything else then we are all wasting our time because it is either open or nothing.

60. The written response to our letter makes a similar point: "It would be a misnomer to require the judge to decide whether it would be in the interests of open justice for a Closed Material Procedure to be held."[41]

61. These responses appear to us to presuppose that there can only be one answer to the question once an application is made for a CMP: that the only choice in such cases is between a CMP and the case not being heard at all. In fact, this part of the Bill is defining the test which determines whether or not there should be a CMP. In making that decision, it is obvious to us that the desirability of openness is an important consideration which should weigh in the judicial balance. The Government's approach, by not taking open justice into account, would make it more likely that CMPs would take place in practice.

62. It is highly significant, in our view, that the balancing test preferred by the Government is not a test which involves the balancing of public interests at all. The reference to "the public interest in the fair and open administration of justice" in the Wiley balance condition inserted by the Lords has been replaced by a test of whether it is "in the interests of the fair and effective administration of justice in the proceedings" in the Government's amended version.

63. The question for the court on that approach is simply whether it is better that the claim is determined, with the material considered in a CMP, than not determined at all. If the court is not required or even permitted to consider the public interest in open justice when deciding whether to allow a CMP, it is difficult to envisage the circumstances in which an application for a CMP by the Secretary of State could be resisted by the court, even though on the face of it the court has a discretion as to whether to permit it.

64. As the Special Advocates' Supplementary Memorandum points out, the Wiley balance ensures that one of the interests that the court weighs in the balance is the public interest in open justice,[42] which includes important considerations such as the media's access to information, the desirability of government wrongdoing being exposed to public view, and holding the Government publicly to account. Without a Wiley balancing test, there is nothing to require the court to weigh in the balance such public interest considerations of the desirability of openness when deciding whether or not it is appropriate to order a CMP.

65. 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. In our view, 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. The following amendment to clause 6 of the Bill would give effect to this recommendation:

Clause 6(6), Page 5, line 36, leave out 'it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration' and insert 'the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice.'

Strict necessity: CMPs only as a last resort

66. The Bill as it came from the House of Lords also made it a precondition of a CMP declaration that the court is satisfied that "a fair determination of the proceedings is not possible by any other means", and required the court to consider whether a claim for PII could have been made in relation to the material in question. We recommended these amendments in our Report so as to ensure that a CMP is only ever permitted as a last resort, after first considering the possibility of alternatives such as PII.[43] The Government's amendments, however, have removed this condition and replaced it with a new condition, "that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration",[44] and have also removed the requirement to consider the possibility of PII.

67. The Government response explains why the Government does not accept the "last resort" amendments recommended in our Report and agreed to by the Lords. The Government recognises the strength of feeling regarding the wish to ensure that CMPs in civil cases are a last resort. It also says that it agrees with the spirit of our amendments, because its intention in legislating is that CMPs would only be used in the small number of cases where they are necessary in the interests of the fair and effective administration of justice in the proceedings.

68. However, the Government are concerned that the "last resort" amendments would have the effect of requiring the court to exhaustively consider every other option for trying the case before granting a CMP declaration, "in particular requiring a full PII exercise to be conducted first in every case." In the Government's view, "the judge should have the freedom to make the appropriate decision whether a CMP should go ahead, without fear of having his decision appealed for having failed to adhere to restrictive process requirements set out in statute." It prefers a condition that CMPs should only be used where they are in the interests of the fair and effective administration of justice, and considers that such a provision would go a long way towards ensuring that CMPs are only available in those cases where they are necessary.

69. In his oral evidence to us the Minister put the matter differently.[45] He said that the Government did not disagree with the House of Lords at all in its insertion of a "last resort" condition into the Bill. He said that the Lords wording had been removed because they might have had the unintended consequence that it would be "argued" (possibly successfully) that the court would first have to go through the full PII process before deciding whether to order a CMP, and that this could lead to unnecessary delay and expense if the argument were accepted:

The problem with putting into the legislation things like "in the last resort" and "having exhausted every other possible way of hearing it" is that we will get people arguing that that means in every case you have to go through the full process of PII before you move on to CMP, and that you consider confidentiality rings and all kinds of other things. Particularly PII, but all of these things are either not suitable or would take months of hearings if you were not careful.

70. This is a more tentative version of the argument contained in the Government's response to our Report identifying a concern only that there was scope for litigants to argue for exhaustive consideration, rather than that such consideration would be required in every case.

71. In our view, even the Minister's more tentative concern is wholly misplaced when the actual wording of the last resort amendments is considered. There is nothing in the Bill as it came from the Lords which makes it remotely arguable, let alone required, that a court has to go through a full PII process in every case before deciding that a CMP is appropriate. On the contrary, the Bill expressly acknowledged that this is not necessary, by providing that before a court makes a CMP declaration it must "consider" whether a claim for PII "could" have been made in relation to the material.

72. We note that the Special Advocates in their Supplementary Memorandum also disagree with the Government's concern that the "last resort" amendments to the Bill made in the Lords would mean that courts would have to undertake a lengthy PII process before ordering a CMP:[46]

Whatever procedure is adopted, courts will have to subject to careful scrutiny any material said to be sensitive on grounds of national security. Our experience of disclosure processes under statutory CMPs suggests that they are no less time-consuming than PII procedures in non-statutory proceedings. The documents have to be examined anyway. There is no reason why, having examined them, the court should not be required to consider whether the claim could fairly be tried applying PII principles. In order to reach a view about this, it should not be necessary for the court to undertake a full PII exercise, in a case where the outcome of such an exercise is obvious and inevitable.

73. In the Special Advocates' view, a requirement that CMPs should be a last resort is "the first and most important safeguard" that the Bill should contain.[47] They also consider that it is essential to spell this out in terms, rather than leave it to the discretion of the judge:[48]

If it is not spelled out, there is a risk that the court will not address its mind to the question whether the case could be tried fairly under existing procedures. There is a risk that CMPs will become the default option and that what was justified as an exceptional procedure will come to be accepted as the norm.

We agree with the Special Advocates and the Independent Reviewer that there may be cases where it may not be necessary to conduct a PII exercise, but would expect this to be rare and a decision only arrived at after careful consideration by the court in exceptional cases.

74. We recommended this amendment to the Bill, which was inserted in the House of Lords, to make sure that the court actively considers whether a claim of PII could be made in relation to the material. The intention behind these amendments was to ensure that the judge has the freedom to make the appropriate decision as to whether a CMP should go ahead, but should only do so after having first actively considered whether the proceedings could otherwise be determined fairly, including through a claim for PII. This was a significant change from the recommendation we made in our Report on the Green Paper, in which we recommended that PII should be exhausted before resort could be had to a CMP.

75. This part of the Government response therefore appears to have survived from an earlier response to our Report on the Green Paper. It misunderstands the effect of the relevant Lords amendments to the Bill. Those clauses were designed to ensure, not that a PII process always takes place before a CMP is contemplated, but that the court is satisfied that there is no other way of the proceedings being heard, and that it considers the possibility of PII when reaching that conclusion. Contrary to the Minister's fears, the language leaves no scope for argument that a full PII exercise is required to be conducted first in every case.

76. By comparison, the Government's proposed new condition—that a CMP is in the interests of the fair and effective administration of justice—is not a test of strict necessity, and may lead to CMPs being used in cases where the proceedings could still be heard sufficiently fairly by a claim being made for PII. We note with interest the Minister's candid observation that he would not object to a reference to PII, and his apparent acceptance of the importance of considering PII as an alternative to CMPs.

77. 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. The following amendments would give effect to this recommendation:

Clause 6(3), Page 4, line 39, leave out 'two' and insert 'three'

Clause 6, Page 5, line 38, insert '(6A) The third condition is that a fair determination of the proceedings is not possible by any other means.'

Clause 6(7), Page 5, line 38, leave out 'two' and insert 'three'

Clause 6, Page 5, line 45, insert '(8A) Before making a declaration under subsection (2), the court must consider whether a claim for public interest immunity could have been made in relation to the material.'

78. In Public Bill Committee concern was expressed that the effect of one of the Government's amendments to the Bill was to preclude the possibility of "confidentiality rings" being used instead of CMPs.[49] A "confidentiality ring" is an arrangement whereby material which would be damaging to national security if disclosed publicly is disclosed only to parties or their lawyers, but not more widely, on the basis of undertakings about its confidentiality. Their use in relation to commercially confidential information is well established, and the Court of Appeal recently approved their use in relation to national security material. A confidentiality ring is therefore a possible alternative to a CMP. We asked the Minister whether it was the Government's intention that, before a court makes a declaration that the proceedings are suitable for a CMP, the court should consider whether the case is suitable for a confidentiality ring.[50]

79. 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 recommended above, 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.

80. 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.

81. However, that provision 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 that we have recommended 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. The following amendments would give effect to this recommendation:

Clause 7(2), Page 6, line 29, leave out 'the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings' and insert 'any of the conditions in section 6(4) to (6A) is no longer met.'

Clause 7(3), Page 6, line 33, leave out 'the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings' and insert 'any of the conditions in section 6(4) to (6A) is no longer met.'

Clause 7(5), Page 6, line 41, leave out 'a declaration continues to be in the interests of the fair and effective administration of justice in the proceedings' and insert 'any of the conditions in section 6(4) to (6A) is no longer met.'

Judicial balancing in the CMP

82. In our Report on the Bill we recommended 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 and which in open session.[51] The Bill does not currently provide for this because the relevant amendment to give effect to this recommendation was defeated at Report Stage in the Lords and by 10 votes to 9 in Public Bill Committee in the Commons.

83. The Government does not accept this recommendation, for essentially the same reasons summarised above in relation to the Wiley judicial balancing at the gateway stage of deciding whether there should be a CMP. It considers such an exercise appropriate for PII claims, where the relevant material is excluded from consideration by the court entirely if the balance is against disclosure, but not appropriate for CMPs, where the material within the CMP is fully taken into account. There is also said to be no precedent for Wiley balancing in any of the 14 different contexts in which CMPs have been introduced since 1997, which have been "upheld by the courts as being fair and compliant with Article 6 ECHR".

84. The Special Advocates, on the other hand, consider that once a CMP is ordered, and the court has to decide which documents will be "open" (ie. disclosed to all parties) and which "closed", the court should be required to perform the Wiley balance between national security on the one hand and the fair and open administration of justice on the other.[52]

85. We are not persuaded by the Government's justification for resisting our recommendation that the Bill be amended to provide for judicial balancing within the CMP, for the same reasons as we are unpersuaded by the Government's reason for resisting the Wiley balance at the gateway stage.

86. As the Government response acknowledges, a degree of judicial balancing already takes place within a CMP, where Article 6 ECHR requires disclosure notwithstanding damage to national security. Indeed, it is only by reading a balancing requirement into the statutory language that the statutory CMP regimes have been held to be compatible with the requirements of Article 6 ECHR. This shows that there is nothing inherent in the nature of a CMP that precludes the possibility of a balancing exercise. By choosing to resist the introduction of judicial balancing into the CMP except where it is required by Article 6 ECHR, the Government is treating common law fairness as being of lesser content than the right to a fair hearing in Article 6 ECHR.

87. 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. The following amendment would give effect to this recommendation:

Clause 8(1)(c), Page 7, line 18, insert 'and that damage outweighs the public interest in the fair and open administration of justice.'

We also look forward to a draft of the rules of court to be made under the Bill being made available for scrutiny by both Houses.

"Gisting" obligation

88. "Gisting" is the term used to describe the disclosure to the excluded party in a CMP of sufficient material to enable that party to give effective instructions to their Special Advocate who represents their interests in the closed hearings.

89. The Bill provides that rules of court governing CMPs in civil proceedings must secure that, if the court gives permission to a party not to disclose material, the court must "consider requiring" the relevant party to provide a summary of the material to every other party to the proceedings and their legal representative.[53] There is no provision in the Bill for an obligation on the court to require such a summary to be provided when material is allowed to go into the CMP instead of being disclosed, even if fairness requires it (for example because, in the absence of such a summary, the excluded party has no idea from open material about the case against him).

90. In this respect the Bill is the same as other statutes which establish CMPs in particular contexts. In some of those contexts, however, (control orders, TPIMs, terrorist-asset freezing orders, for example) the courts have "read in" to the statutory language an obligation to provide the excluded party with a gist of the case against him sufficient to enable him to give effective instructions to his Special Advocate, in order to comply with the requirements of the right to a fair hearing in Article 6(1) ECHR as interpreted by the European Court of Human Rights.[54]

91. In our Reports on both the Green Paper and the Bill we recommended that the Bill should contain an express statutory requirement that in all CMPs in civil proceedings the excluded party must be provided with a gist of the closed material that is sufficient to enable him to give effective instructions to his Special Advocate.[55] We were heavily influenced in making this recommendation by the evidence of the Special Advocates that the absence from the Bill of such a gisting obligation seriously limits the opportunities Special Advocates have to mitigate the inherent unfairness caused by the Bill's departure from the principles of open and adversarial justice.

92. We recommended amendments to the Bill to give effect to those recommendations. The amendments were tabled but not voted on at Report Stage in the Lords, and were tabled again in Public Bill Committee in the Commons but were negatived on the casting vote of the Chair after a tied vote.[56]

93. The Government in its response to our Report points out that "wherever it is possible and practically feasible to provide gists and summaries of national security sensitive material without causing damage they will be supplied". However, it continues to resist the introduction of a general gisting obligation, believing that this would undesirably reduce the court's discretion and preferring to leave the question of gisting to be decided by the courts on a case by case basis.

94. In their Supplementary Memorandum the Special Advocates single out for special emphasis the Bill's lack of a requirement to provide the excluded party with a gist of the evidence deployed against him.[57] They conclude:

[...] if CMPs are considered necessary, we think that there should be a requirement in all cases to give the excluded party a sufficient gist of the case against him to enable him to give effective instructions to his Special Advocate. Without such a requirement, it would remain possible for a court to decide a case entirely or mainly on the basis of evidence which one of the parties has had no chance to challenge. We do not think that CMPs could be described as even tolerably fair without this gisting requirement.

95. The Minister in his oral evidence described himself as "very sensitive to the Special Advocates' complaints."[58] The Government, however, has so far made no concession in the Bill to one of the complaints which has consistently been made most forcibly by the Special Advocates: the lack of a gisting requirement.

96. 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. The following amendments would give effect to this recommendation:

Clause 8(1)(d), Page 7, line 20, leave out 'consider requiring' and insert 'require'

Clause 8(1)(d), Page 7, line 22, insert 'sufficient to enable the party to whom the summary is provided to give effective instructions on the undisclosed material to their legal representatives and Special Advocates.'

97. We point out that these amendments would leave untouched the current provision in the Bill that the court is required to ensure that such a summary does not contain material the disclosure of which would be damaging to the interests of national security.[59] If the court decided, pursuant to the new gisting obligation recommended above, that fairness demands that a summary be provided to the excluded party but that certain material cannot be included within that summary because its disclosure would be damaging to the interests of national security, the Bill already makes provision enabling the court to resolve its apparently conflicting obligations: the court will be empowered to ensure that the Secretary of State does not rely on the material which he would be required to gist if its disclosure did not damage national security.[60]

98. In this way, fairness to the excluded party is secured but there is no disclosure damaging to national security: the Secretary of State is simply directed not to rely on the material which he would otherwise be required to summarise. The amendments we have recommended therefore do not risk disclosures damaging to national security and preserve 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 Article 6 ECHR gisting obligation applies.

Annual renewal

99. 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.

20 JCHR First Report on the Bill, para. 46. Back

21 Liberty, JUSTICE, Reprieve, Redress, Amnesty International, and Human Rights Watch for example are all opposed in principle to Part 2 of the Bill. Back

22 Special Advocates' Supplementary Memorandum, paras 9-17. Back

23 See Andrew Tyrie MP and Tony Peto QC, Neither Just Nor Secure-www.cps.org.uk. Back

24 JCHR Report on the Green Paper, paras 99-103. Back

25 JCHR First Report on the Bill, paras 54-61. Back

26 Clause 6(6) of the Bill as amended in Public Bill Committee. Back

27 Clause 7. Back

28 Q89. Back

29 Q97. Back

30 First JCHR Report on the Bill, paras 47-53. Back

31 PBC 5 February 2013, col 197. Back