Legislative Scrutiny: Justice and Security Bill (second report)

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

Written evidence

1. Letter to the Chair, from Rt Hon Kenneth Clarke QC MP, Minister without Portfolio, Cabinet Office

I am grateful to the Joint Committee on Human Rights for their detailed report on the Justice and Security Bill. As I explained during Second Reading, shortly before Christmas, we are in the process of carefully considering the conclusions and recommendations made by the Committee as well as the significant changes made to the Bill in the Lords. Given the complexities and sensitivities of the issues at stake in this Bill, I hope the Committee will understand my desire to consider all the issues thoroughly and publish a full Government response. It is with regret that I am not in a position to respond in full to the Committee's report at this time; however I intend to do so very shortly, and before Committee Stage on the Bill commences.

Clearly the Bill deals with some extremely important and difficult issues, which the Supreme Court has asked Parliament to provide a view on. The Government has never claimed that Closed Material Procedures are ideal, but in very difficult and exceptional circumstances where national security is at stake, they offer a means to deliver justice where otherwise there would be none. It is vital that our courts have the tools to enable them to effectively oversee the full range of Government activity.

The Committee's report is an important contribution to the debate about how to frame those powers. I was pleased to be able to announce at Second Reading that the Government has accepted that there should be much greater discretion for the judge about whether and when a declaration for a CMP should be issued. The decision must be for the judge but any party will be able to apply for a CMP—not just the Secretary of State. We must ensure that we do not unintentionally fetter the judge's powers and discretion by over-prescribing process in the final wording of the Bill. I genuinely do not believe that there is now any significant difference of principle on these issues between the Government and your Committee. The Government also tabled amendments in the House of Lords in response to the Committee's recommendation to remove from the Bill the order-making power that would have enabled CMPs to be extended to other civil proceedings. The remainder of the Committee's drafting recommendations require further detailed thought before the Government is in a position to respond in full.

I appreciate the Committee's recognition of the need to reform the Norwich Pharmacal jurisdiction, which currently allows someone with no connection to the UK fighting a court case on the other side of the world to apply to a British court for sensitive information, the disclosure of which would be damaging to national security or international relations, which either belongs to the UK, or has been provided to us by our allies. No other country in the world allows this to happen. In the UK we are already seeing the consequences of the recent extension of this jurisdiction to the national security context, in terms of the damage to our intelligence-sharing relationships. We need robust legislative measures to restore the confidence of both our international partners and our agents that we can protect the material they share with us in confidence.

Together with the changes in Part 1 of the Bill, which seeks to make the intelligence services more accountable to Parliament for their actions, I believe that this Bill will significantly improve our Parliamentary and judicial scrutiny of the work of the intelligence services, whilst protecting our sensitive material and intelligence-sharing relationships, thus enabling both justice and security.

Thank you again for the Committee's scrutiny of the Bill.

11 January 2013

2. Letter from the Chair, to Rt Hon Kenneth Clarke QC MP, Minister without Portfolio, Cabinet Office

The Joint Committee on Human Rights is grateful for the Government's response to its legislative scrutiny Report on this Bill.

It regrets, however, that the Government's amendments to the Bill were not published until 29 January, on the eve of the Bill's committee stage. The Committee's Report was published on 13 November 2012 and the House of Lords amendments to the Bill were made at Report stage in that House on 19 November. Publication of the Government's amendments to coincide with the Public Bill Committee's consideration of the Bill does not provide a proper opportunity for the Committee to scrutinise the Government's amendments and report its views to the House.

This is particularly regrettable when the purpose of the Government's amendments is to remove from the Bill some of the significant amendments made by the House of Lords on the recommendation of the Committee and to substitute different amendments which the Government says are intended to reflect the Committee's recommendations. In the interests of proper scrutiny, the House of Commons should have the benefit of the Committee's views as to whether the Government's amendments do in fact give effect to the Committee's recommendations as the Government asserts. The Committee welcomes some aspects of the Government's amendments but wishes to ask you some detailed questions about certain other aspects of the amendments and to report again to both Houses in the light of your response, but the earliest it can consider such a draft report is on 26th February.

Q1: Can the Committee have an assurance from the Government that the Bill's Report stage will not be scheduled until the Joint Committee on Human Rights has reported to the House its views about the Government's amendments, which it intends to do before the end of February?

Equality of arms in the ability to apply for a CMP

Under the Bill as it came from the Lords, 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 amendment to clause 6 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.

Q2: What is 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?

Q3: Please explain precisely what is meant by the "declaration obligations" which a party is required to satisfy in order to make an application for a CMP, as referred to by the Parliamentary Under-Secretary of State for the Home Department, James Brokenshire MP, in the Public Bill Committee.[61]

Q4: Is it the Government's intention that, in civil proceedings in which it applies for PII in respect of sensitive material, no other party to the proceedings should be entitled to apply to the court for a CMP in respect of the same material?

Judicial balancing at the "gateway"

The Committee welcomes the Government's acceptance of the court having a discretion as to whether there should be a CMP. However, the House of Lords agreed with the Committee's view that the Bill should ensure that there is full judicial balancing of the competing public interests in play at the "gateway" stage of deciding the appropriate procedure. The House of Lords accordingly amended the Bill to make it a precondition of a CMP declaration 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". The Government's new clause 6 removes the judicial balancing condition and contains no replacement. The Minister told the Public Bill Committee that the Government's view is that the Wiley balancing test is about the court's decision-making on whether to take material out of consideration under PII, and is not appropriate for when the court is considering whether material should be allowed to be considered by the court.[62]

Q5: What is the Government's justification for removing from the Bill the judicial balancing condition inserted by the House of Lords?

Q6: Please explain in more detail the reasons for the Government's view that the Wiley balancing exercise is appropriate for determining whether material should be excluded under PII but not appropriate for determining whether there should be a CMP.

Q7: What is the Government's justification for removing from the Bill any reference to the fair and open administration of justice?

CMPs only as a last resort

The Committee welcomes in principle the idea behind the Government's new clause requiring the court to keep a CMP declaration under review and enabling it to revoke the declaration if it considers it is no longer necessary. However, the effect of the Government's amendments appears to be to lower the threshold of what is "necessary". The House of Lords amended the Bill to make 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", as recommended by the Committee as a safeguard to ensure that CMPs are only ever used as a last resort. The Government's amendments would remove this condition and replace 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." The Government's amendments also remove the Lords amendment which requires the court actively to "consider" whether a claim for PII could be made in relation to the material.

The Government's justification for removing the "last resort" condition inserted by the Lords is that it would have the effect of requiring the court to conduct a full PII exercise in every case.

Q8: Please explain why the Government considers that the effect of the "last resort" condition inserted by the House of Lords is to require a full PII process to be conducted in every case, in the light of the requirement in clause 6(6) of the Bill that the court merely "consider" whether a claim for PII could have been made in relation to the material?

Q9: Does the Government accept in principle that CMPs should only be used where a fair determination of the proceedings is not possible by any other means?

In addition to the questions above which arise directly from the Government's amendments to the Bill tabled for Committee stage in the Commons, I would be grateful for your response to the following questions which arise from the Government's response to the Committee's Report.

Definition of material disclosure of which would damage national security

The Government rejected the Committee's recommendation that the Bill should define the types of material that would damage the interests of national security by including the definition suggested by the Intelligence and Security Committee. The Government criticises the language suggested by the ISC for being too narrow.

Q10: Has the Government asked the Intelligence and Security Committee whether it agrees that its suggested definition of the type of material that would be damaging to national security if disclosed would make the scope of the legislation too restrictive?

Availability of CMPs in Supreme Court

The Bill provides for CMPs to be available in proceedings before the Supreme Court as a result of a Government amendment introduced at Report stage in the House of Lords, after the Committee had reported on the Bill.

Q11: Was the President of the Supreme Court consulted about adding the Supreme Court to the list of courts in clause 6(9) of the Bill in which CMPs are to be made available and, if so, what was his view?

Q12: Why does the Government consider it necessary to provide for closed material procedures before the UK's highest court, the function of which is to decide questions of law of general public importance?

Q13: Can the Government provide any examples of CMPs being used in the Supreme Court (or its predecessor the Judicial Committee of the House of Lords), the European Court of Human Rights, or any country's highest court?

In view of the Committee's desire to report before Report stage, it would be helpful to receive your reply by 19 February 2013.

I look forward to hearing from you.

5 February 2013

3. Letter to the Chair, from Rt Hon Kenneth Clarke QC MP, Minister without Portfolio, Cabinet Office

Thank you for your letter requesting some more information about the amendments which the Government tabled last week.

I would very much like to come and discuss these questions, as well as any others that may occur to you, with your Committee.

I gather that you are in fact holding a meeting this Tuesday. I would be prepared to make myself available at short notice to come to that, if you are willing.

11 February 2013

4. Letter to the Chair, from Rt Hon Kenneth Clarke QC MP, Minister without Portfolio, Cabinet Office

Thank you for your letter of 5'h February relating to the Justice & Security Bill and for allowing me to give evidence in person before you at such short notice. I hope members found this useful. I thought it would be useful to follow up in writing on your detailed questions.

Q1. Can the committee have an assurance from the Government that the Bill's Report Stage will not be scheduled until the Joint Committee On Human Rights has reported to the house its views about the Government amendments, which it intends to do before the end of February

The Committee has made a valuable input by reporting both on the Bill and also on the Green Paper that preceded it. I am not in a position to make a firm commitment on when Report Stage will take place. Scheduling remains a matter for the Business Managers.

Q2. What is the Government's justification for amending the Bill so as to remove the possibility of a party other than the Government apply for a CMP in relation to sensitive material which is relevant to the issues in the case but in the possession of another party.

This is quite simply because we cannot envisage a situation in which a claimant could be in a position to have the detailed knowledge of national security sensitive evidence that they would require in order to apply for a CMP. For that quite practical reason 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 evidence and make the detailed application itself.

In the evidence session, Baroness Kennedy and Lord Lester both raised the example of a situation where a Special Advocate involved in determining a PII claim saw material that would assist the claimant, but would not be able to apply for a CMP. They were concerned that the court would not realise the significance of the material and would not think to order a CMP in those circumstance.

The use of special advocates in determining PII claims is still a very rare occurrence, but clearly, in a case where a Special Advocate was appointed, there would be nothing to stop him or her drawing the significance of the material to the court's attention and asking the Court to exercise its discretion to order a CMP.

Moreover, unless the PII claim was being made ex parte, the other party's open legal representatives would still be able to make submissions to the court that a CMP would be both fairer and more appropriate than permitting the evidence to be excluded via PII. The court would be bound to attach serious weight to any such submissions, whether made by the Special Advocate or by the other party's open legal representatives.

However, I promised to reflect further on this issue, and will do so.

Q3. Please explain precisely what is meant by the "declaration obligations" which a party is required to satisfy in order to make an application for a CMP, as referred to by the Parliamentary Under-Secretary of State for the Home Department, James Brokenshire MP in the Public Bill Committee.

The Bill is clear that any application for a CMP would need to persuade the court that the three distinct parts to the test for a CMP were satisfied:

Firstly, that material that could damage the interests of national security is relevant and would therefore have to be disclosed during the case. The judge would base his assessment on a representative sample of evidence relating to the case.

Secondly, the nature of the damage that would be caused to the interests of national security if it were to be disclosed, so that the court can assess whether the national security concerns are genuine ones; and

Thirdly, whether a CMP would be in the interests of the fair and effective administration of justice in the proceedings. The questions the judge would take into account on this point would include the relevance of the sensitive material to the issues in the case, whether all parties consented to a CMP, the existence of material such as intercept material (which can only be dealt with in a CMP), whether alternatives to a CMP would enable the case to be effectively tried without damaging the interests of national security.

Finally, the court would have to be persuaded to exercise the wide discretion to order a CMP that the Government's amendments now give it.

While claimants may be able to make submissions to the court on the third of these questions without having seen the detailed sensitive material, they would not be in a position to make detailed submissions to the court on the first two questions, nor would they be able to provide a sample of sensitive material they do not hold.

Q4. Is it the Government's intention that in, civil proceedings in which it applies for PII in respect of sensitive material, no other party to the proceedings should be entitled to apply to the court for a CMP in respect of the same material.

No, we have also provided for the court to order a CMP of its own volition. See the answer to Question 2.

Q5. What is the Government justification for removing from the Bill the judicial balancing condition inserted by the House of Lords?

The Government has replaced the judicial balancing consideration inserted by the House of Lords with an alternative scheme that it believes provides clear but rigorous conditions for the court to consider an application against. As explained in answer to Question 3 under the Government's amendments it will be open to the judge to consider all the factors relevant to whether or not a CMP is the right way of trying the issues in the case. He can set competing interests against each other in whatever way he thinks is most sensible in each particular case. It is simply bad law to provide that having set these interests against each other, the judge must then conduct another slightly different balancing exercise in his mind.

Q6. Please explain in more detail the reason for the Government's view that the Wiley balancing exercise is appropriate for determining whether material should be excluded under PII but not appropriate for determining whether there should be CMP.

The Wiley balance is appropriate for PII as the judge when considering a PII application must decide whether or not to exclude the material from being considered at all. In this context it is appropriate for him to consider whether the damage that would be caused by disclosure outweighs the public interest in it being taken into account in the case. Excluding highly relevant material from consideration can have a significant effect on the proceedings when that material might assist either the claimant's or the defendant's case, so it is right that it is not a step that is taken lightly.

The question that the judge must consider in a CMP application is a different one. In these circumstances, the judge is being asked whether to include, rather than exclude, relevant material from the proceedings. If a CMP is granted, all the evidence is considered and the CMP is capable of providing procedural fairness. The Government believes that the question for the court should therefore be a different one: whether a CMP would be a fairer or more effective way of trying the case than not having one. In this way, the court is focused on the circumstances of the particularly case but has the discretion to consider a wide range of relevant factors In order to decide this.

Q7. What is the Government's justification for removing from the Bill any reference to the fair and open administration of justice?

The new clause 6 refers to the "fair and effective administration of justice". It would be a misnomer to requ ire the judge to decide whether it would be in the interests of open justice for a Closed Material Procedure to be held. Having said that the desirability of "open justice" in every case where it is possible one aspect of fairness , so it is an integral part of the Government's new test.

Q8. Please explain why the Government consider that the effect of the "last resort" condition inserted by the House of Lords is to require a full PII process to be conducted in every case, in light of the requirement in clause 6(6) of the Bill that the court merely "consider" whether a claim for PII could have been made in relation to the material?

Both the obligation on the court not to order a CMP unless the case could not be tried by other means, and the requirement for the court to "consider" PII would have the effect of requiring the court to go through a PII exercise in every case.

Firstly, an obligation on the court not to order a CMP unless the case could not be tried by other means would clearly invite the court to exhaustively try all other options first. Only if those were insufficient could it then order a CMP, even if it had been apparent to it from the start that a CMP was the fairest and most effective way of trying the issues in the case.

Secondly, the requirement for the court to "consider" whether a claim for PII could have been made would also require the conduct of a PII exercise in every case. In a claim for PII, the Secretary of State is under a duty to make a claim for sensitive material, and the court's role is to adjudicate on that claim. Unless a claim is made, the court would not be aware of the nature of the material, or the damage that would arise from disclosure, and would not be able to take the balancing test. The only way the court could "consider" the question of PII would be by requiring the Secretary of State to make a full PII claim.

I know Robert Buckland MP asked whether the reference to merely "considering" PII would prevent the court having to exhaust PII in every case. In my view it would not, for the reasons I have outlined. It seems to me there would be scope for claimants to argue that PII should be exhausted for that requirement to be fulfilled. I think that confusion would be unhelpful.

At the root of the paints made about ensuring CMPs are a last resort is a concern about potential over-use of CMPs. The Government amendments tackle this in a different way:

there can only be a CMP if it is in the interests of the fair and effective administration of justice in the proceedings;

even then, the judge has a discretion about whether or not to grant a CMP;

the judge must keep the CMP under review and has the power to revoke it at any point; and

the judge must revoke a CMP after the pre-trial disclosure exercise—once he has seen all the relevant material in the case, decided what must be in closed and what must be disclosed, considered summaries and gists, and decided what Article 6 requires—if one is no longer in the interests of the fair and effective administration of justice in the proceedings.

Together, those safeguards should ensure CMPs are not over-used.

Q9. Does the Government accept in principle that CMPs should only be used where a fair determination of the proceedings is not possible by any other means?

I only want CMPs to be used for that small category of cases that hinge on sensitive national security information where it is in the interests of the fair and effective administration of justice, and where that continues to be the case throughout the proceedings.

Baroness Kennedy and Lord Lester both questioned me during the evidence session about the desirability of a claimant being able to ask for a CMP rather than a PII. It therefore seems to me that they must agree with me that there are some circumstances in which a CMP can be fairer than a PII.

I remain concerned that seeking to write the aim of considering every alternative into the Bill will require resource intensive processes to be followed in every case—even if they were not sensible, proportionate or in the interests of justice.

Q10, Has the Government asked the Intelligence and Security Committee whether it agrees that its suggested definition of the type of material that would be damaging to national security if disclosed would make the scope of the legislation too restrictive?

The Government approached the Secretariat to the Intelligence and Security Committee (ISC), who confirmed that the Government understanding of the Committee's Annual Report 2011-2012 was correct. In relation to Norwich Pharmacal, the ISC's Annual Report expressed concerns that the proposals in the Green Paper did not go far enough in terms of our ability to protect foreign Intelligence material, and recommended that there should be a statutory presumption against the disclosure of intelligence material, which would have the advantage of providing a clear indication to judges of Parliament's Intentions in relation to such material.

The Bill as currently drafted achieves its aims and also meets the concerns mentioned in the ISC report The Government believes that confining the definition of sensitive information worthy of statutory protection to the two narrow categories would be too restrictive. would not provide the certainty we are seeking to legislate for, and therefore would not restore the confidence of our intelligence-sharing partners.

Q11. Was the President of the Supreme Court consulted about adding the Supreme Court to the list of courts in clause 6(9) of the Bill in which CMPs are to be made available and if so, what was his view?

The Ministry of Justice discussed the matter with UKSC Officials. The Supreme Court Justices did not consider it necessary or appropriate to comment.

Q12. Why does the Government consider it necessary to provide for closed material procedures before the UK's highest court, the function of which is to decide questions of law and general public importance?

The Government became concerned that omitting the UK Supreme Court from the list of courts in which the CMP provisions of the Bill can apply would mean that the lower courts would be able to rely on the procedures set out in the Bill but not the highest court of the land for civil cases. This would risk defeating one of the main objectives for extending the use of CMPs to civil proceedings. namely to empower higher courts to consider sensitive material which would otherwise have to be excluded altogether under an application for public interest immunity. It is likely that once Parliament enacts the Bill, the early uses of the procedure in the High Court will be appealed, and it seems probable that such appeals will make their way to the UK Supreme Court. Putting beyond doubt that the UK Supreme Court can apply the Bill's CMP provisions will avoid the situation of the highest court in the land not being able to adopt the same procedures adopted in the lower courts.

The UK Supreme Court hears appeals on points of law of public importance. However. the factual material may be relevant in proceedings before the UK Supreme Court.

Q13. Can the Government provide any examples of CMPs being used in the Supreme Court (or its predecessor the Judicial Committee of the House of Lords), the European Court of Human Rights, or any country's highest court?

The inclusion of the UK Supreme Court in clause 6 of the Bill was aimed at addressing the concerns identified above. The main concern is to ensure that the closed procedures under the Bill are available to that court. However. a closed procedure for the UK Supreme Court is not unprecedented. Rule 27 of the UK Supreme Court Rules already contains a procedure under which the UK Supreme Court may sit in private for part of an appeal hearing if this is in the public interest. This includes a power to exclude a party or that party's representative from the hearing or part of the hearing to secure that information is not disclosed contrary to the public interest, provided a special advocate is appointed (Rule 27(2)). Accordingly, the UK Supreme Court already has rules which set out a form of closed procedure. The inclusion of the UK Supreme Court in the Bill means that the specific closed procedure set out in the Bill will be available to the UK Supreme Court.

The Government is not aware of a UK Supreme Court case in which the court has used Its rule 27 procedure. It is however aware of a case where the possibility is presently being considered by the court Given that this is an ongoing case, it is not appropriate for the Government to comment further on it. Nevertheless, what can be said is that at the time of the creation of the Supreme Court Rules it was thought desirable to include in those rules provision setting out a type of closed procedure.

It is my belief that with the changes made the measures will increase both Parliamentary and judicial scrutiny of our Security and Intelligence Agencies, giving the public greater confidence in the vital work they carry out to protect this nations' security.

18 February 2013

5. Supplementary written evidence from Special Advocates[63]

Introduction

1. A group comprising nearly all Special Advocates with substantial experience of the role has previously commented on the proposals in the Green Paper and on the Bill as presented to the House of Lords. Individual special advocates have also given evidence in relation to the Bill to the Joint Committee on Human Rights on separate occasions.[64] Since then, the Bill has been amended in the House of Lords and, again recently, in the Public Bills Committee of the House of Commons.

2. We now submit this further memorandum, first to reaffirm our view that no compelling justification for the proposals in Part 2 of the Bill has been made out, notwithstanding the Government's assertions to the contrary; and second to comment on some of the recent amendments.

3. As previously, these views are given from our perspective as practising Special Advocates with extensive experience of closed material procedures (CMPs) in the various statutory contexts in which they currently operate. Independently of our role as Special Advocates, we also have substantial collective experience of acting as counsel in civil claims both for and against the Government.

CMPs are inherently unfair

4. We have made very clear in our previous submissions that we consider CMPs to be inherently unfair and contrary to the common law tradition, because they allow the court to makes its decision based on evidence which one party is unable to see or comment on or challenge.

5. We do not need to repeat what we have said before. But there is one point which deserves to be emphasised. It concerns the requirement to give the excluded party a "gist" of the evidence deployed against him. This requirement is imposed in certain cases by virtue of Article 6 of the European Convention on Human Rights. But in other cases, the Supreme Court has held that Article 6 does not require the provision of any "gist" whatsoever.[65] In these cases, there is no overriding requirement to tell the excluded party anything at all about the case against him.

6. The Government's stance in recent litigation indicates that it will seek to argue that the requirement to give a "gist" of the closed material is limited to a very narrow category of case where it is seeking to detain individuals or subject them to severe restrictions on liberty. If this stance is accepted by the domestic and European courts, it is quite possible that, in the majority of civil claims subject to a CMP, there will be no "gisting" requirement at all.

7. In this connection, it is important to emphasise that the requirement in clause 8(1)(d) to provide the excluded party with a "summary" of the closed material is subject to clause 8(1)(e), which provides that the summary must not contain material the disclosure of which would be damaging to national security. What this means is that it will be possible to have proceedings in which the court's decision is based entirely on evidence about which one of the parties has been told nothing at all.[66]

8. As we have said before, reforms with this effect would have to be very compellingly justified.

No case for CMPs

9. The Government has repeatedly asserted the necessity for the measures in Part 2 of the Bill and claimed that, without them, the existing rules governing exclusion of sensitive material—public interest immunity or "PII"—mean that it has been or will be obliged to settle cases, paying large sums of money to undeserving claimants.[67]

10. As we have previously stated, we do not accept this purported justification for the introduction of CMPs across all civil proceedings. Under existing law, in any case where the exclusion of sensitive material means that the Government cannot fairly defend itself, it is open to the Government to apply to strike the case out.[68] The unfairness to the claimant of cases being struck out in this way was identified in the Green Paper as part of the rationale for the expansion of CMPs.[69]

11. If, as the Government suggests, there were really a substantial number of cases where sensitive evidence made a fair trial impossible, one would expect there to have been a substantial number of applications to strike claims out on that basis, especially if the alternative was paying large amounts of taxpayers' money to undeserving claimants. In that regard, we find it striking that (as far as we are aware) there is no case involving material that is sensitive for reasons of national security in which the Government has ever sought to have the case struck out on the basis that it could not be fairly tried.

12. The one case in which the principle was established—Carnduff v Rock— was not a national security case. It was a case about a police informer claiming money said to be due to him from his handlers. The group of claims by former inmates at Guantanamo Bay (the Al Rawi litigation) did involve some evidence whose disclosure it was said by the Government would have been damaging to national security. Those cases were settled at great expense to the taxpayer, but no strike out application was made.[70] The implication must be that the Government recognised that the Court would consider that a fair trial of the issues would have remained possible, even after the application of the PII rules, and so an application to strike out the claims would not have succeeded.[71]

13. It is, therefore, right to say that there is to date no example of a case in which a fair trial has been shown to be impossible because of the application of existing rules to sensitive national security evidence. The case for this fundamental reform to our justice system therefore rests solely on what the Government says about pending cases involving sensitive national security evidence.

14. In response to a request from the JCHR, the Government has said this about pending cases:

"As of 31 October 2012, there were 20 live civil damages claims (including those stayed and at pre-action stage) in which sensitive national security information was centrally relevant. A number of these cases relate to several individuals."[72]

These presumably include the three cases shown to David Anderson QC, the Independent Reviewer of Terrorism Legislation.

15. We note that it is not said is that it would be impossible for any of these cases to be tried fairly using existing procedures. If it were impossible for these cases to be tried fairly, we would expect the Government to apply to strike them out. We note that no such application has in fact been made.

16. The Government has—rightly—never sought to suggest that the proposals in Part 2 of the Bill are impelled by a concern to protect sensitive information: such information is properly protected by the PII rules under the present system. The justification for the proposals is based squarely on considerations of fairness. For reasons set out above, we consider that it has not been shown in practice that the present system has led to any unfairness, as no case has been identified which could not be tried fairly under existing procedures. To the extent that there is any unfairness in principle, it is claimants, and not the Government, who bear the risks of such unfairness. It is they who risk their claims being struck out if they cannot be tried fairly under existing procedures.

17. We therefore remain of the view we previously expressed:

"that CMPs are inherently unfair and contrary to the common law tradition; that the Government would have to show the most compelling reasons to justify their introduction; that no such reasons have been advanced; and that, in our view, none exists."[73]

If CMPs are introduced, they should be a last resort

18. We recognise that some eminent people, including David Anderson QC, have concluded—contrary to our own view—that there is a case for CMPs in a narrow and exceptional category of cases. We have accordingly tried to address what safeguards we think are necessary if they are to be introduced.

19. The first and most important safeguard is that CMPs should be a last resort. The power to trigger them should, in our view, be exercisable only where a fair determination of the proceedings is not possible by any other means. This would limit the use of CMPs to the exceptional cases which, in the Government's view, justify their introduction in the first place: cases where a fair determination is simply not possible using existing procedures.

20. The Government's position on this, as we understand it, is that it is not necessary to spell this out legislatively: it is sufficient to give judges a broad discretion whether to order a CMP and leave it to them whether to exercise it in a particular case.

21. We disagree. If the true intention behind these reforms is to cater for the narrow and exceptional category of cases that cannot be tried using existing procedures, we can see no reason why CMPs should be available in a case which can be fairly tried under existing procedures. Moreover, we think it is essential to spell this out in terms. 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.

22. The Government has suggested that spelling out that CMPs are a last resort would mean that courts would have to undertake a lengthy PII process before ordering a CMP. Again, we do not agree. 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.

Balancing national security against fairness

23. When considering whether to uphold a claim for PII, the courts are required to balance two competing interests: on the one hand, national security and, on the other, the fair and open administration of justice. This is known as the Wiley balance.[74] This is a very important feature of the existing rules. When the Government assesses that disclosure of a particular piece of evidence would damage the interests of national security, judges usually accept that assessment and exclude the evidence from consideration in the proceedings. But the final decision is for the court. So, for example, if the Government tries to withhold a document which tends to show that they have been guilty of serious wrongdoing, whilst at the same time denying that very wrongdoing, the court may be sceptical. It may say that the damage to national security would be slight and the relevance of the document to the proceedings very great. Balancing these interests, the court might decide to reject the PII claim, thereby exposing wrongdoing by the Government.

24. In a CMP, as envisaged by the Bill, no such power is given to the courts. When deciding whether to order a CMP, there is no obligation on the court to consider the public interest in the fair and open administration of justice. We think this is wrong. We would favour an express requirement that, before ordering a CMP, the court should have to balance the degree of harm to national security that would be caused by disclosure of particular documents against the damage that a CMP would cause, in the circumstances of the case, to the public interest in the fair and open administration of justice.

25. Likewise, once a CMP is ordered, when the court decides which documents should be "open" (ie disclosed to all parties) and which "closed", we think that 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.

26. Take a case where a solider (or his family) is suing the MOD for negligence in failing properly to equip him. The court might conclude that disclosure of documents relating to the equipment in question pose a very minor risk to national security. As the Bill stands, a judge would have no option but to order that these documents remain "closed". We think the judge should be able to consider whether the minor risk to national security was outweighed by the public interest in having the issue of the safety of the equipment determined in a fair and open way, taking into account the lives that might be saved by doing so.

A requirement to give the excluded party a gist of the case against him

27. Finally, if CMPs are considered necessary, we think that there should be 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 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. As explained in para. 7 above, the provisions currently in the Bill do not include such a requirement.

18 February 2013

61 PBC 31 January 2013 col 133. Back

62 PBC 31 January 2013, col 129. Back

63 The signatories to this memorandum comprise almost all currently active Special Advocates. Of those who have not signed none has expressed disagreement. Because of the need to produce this memorandum quickly, after the Committee stage of the Bill, it was not circulated to the entire body of counsel authorised to act as Special Advocates. Back

64 Justice and Security Green Paper: Response from Special Advocates, 16 December 2011; Oral evidence to the JCHR of Angus McCullough QC and Jeremy Johnson QC, 31 January 2012; Special Advocates' Memorandum to the JCHR, 14 June 2012, Oral evidence to the JCHR of Angus McCullough QC and Martin Chamberlain, 26 June 2012; Letter to the JCHR from Angus McCullough QC and Martin Chamberlain, 2 October 2012 Back

65 Tariq v Home Office [2012] 1 AC 452. Back

66 There are already cases like this in the Special Immigration Appeals Commission. One prominent one is RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110. Back

67 See e.g. the Foreword by the Rt Hon Kenneth Clarke to the HM Government Response to the Joint Committee on Human Rights Fourth Report of Session 2012-13: Legislative Scrutiny: Justice and Security Bill: "There is no doubt that the Justice and Security Bill is absolutely necessary. We find ourselves faced with an ever increasing number of cases which cannot be properly adjudicated by the Courts. It also means the taxpayer is liable for substantial amounts of money in cases which the Government has not been able to defend." Back

68 Carnduff v Rock [2001] 1 WLR 1786. Back

69 At §1.36 of the Green Paper, the Government said this: "The Supreme Court in Al Rawi did acknowledge that there could be cases that could not be tried at all consistent with the public interest. Although the approach taken in Carnduff remains an option that is open to the courts in England and Wales, the Government favours having as many cases as possible tried fully and fairly. To this end, the availability of a CMP in cases involving sensitive information would allow sensitive information to be considered by a court in a manner that is consistent with the public interest." Back

70 Also, as we have previously noted, the Government chose to settle these claims before the Supreme Court had determined whether a CMP could be imposed under the common law, so at the time of settlement there remained a live possibility of a CMP being found to be available to the Government yet it nevertheless chose to settle the claims. Back

71 The same applies to the three further cases which the Government indicates that it has settled, which are referred to in the Government's Response to the Joint Committee on Human Rights, referenced in fn 9. Back