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 courtthe judgeto 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 conditionthat a CMP is in the interests of the fair
and effective administration of justiceis 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 proceedingsthe
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
32
Clause 6(2). Back
33
Clause 6(4) and (5) of the Bill. Back
34
Clause 6(5)(a). Back
35
Q88. Back
36
Letter from the Minister dated 18 February. Back
37
Qs 88-89. Back
38
First JCHR Report on the Bill, paras 54-63. Back
39
Q90. Back
40
Q91. Back
41
Letter from the Minister dated 18 February. Back
42
Special Advocates' Supplementary Memorandum, paras 23-24. Back
43
First JCHR Report on the Bill, paras 64-68. Back
44
Clause 6(6). Back
45
Q94. Back
46
Special Advocates' Supplementary Memorandum, para. 22. Back
47
Ibid. para. 19. Back
48
Ibid. at para. 21. Back
49
The concern arises from the Government's removal from the list
of conditions that must be satisfied before a CMP is permitted
the condition in the original Bill that "the court considers
that [...] disclosure would be damaging to the interests of national
security." Back
50
Q98. Back
51
First JCHR Report on the Bill, paras 69-72. Back
52
Special Advocates' Supplementary Memorandum, paras 25-26. Back
53
Clause 8(1)(d). Back
54
In A v UK, as applied by the House of Lords in AF (No.3)
v Secretary of State for the Home Department. Back
55
Report on the Green Paper, paras 104-106; First JCHR Report on
the Bill, paras 73-77. Back
56
PBC 5 February 2013 cols 228-9. Back
57
Special Advocates' Supplementary Memorandum, paras 5-8 and 27. Back
58
Q92. Back
59
Clause 8(1)(e). Back
60
Clause 8(3). Back
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