The Justice and Security Bill was preceded by the Government's Green Paper on Justice and Security, on which we reported in April 2012. The purpose of this Report is to focus specifically on practical ways in which the Bill could be improved by amending it to accommodate the many human rights concerns it raises.
We welcome some of the significant changes which have been made to the proposals in the Green Paper, including the decision not to extend closed material procedures to inquests and the narrowing of the scope of the proposals to national security material. However, the proposals in the Bill extending closed material procedures into civil proceedings generally still constitute a radical departure from the UK's constitutional tradition of open justice and fairness. The question for Parliament is whether or not the Government has persuasively demonstrated, by reference to sufficiently compelling evidence, the necessity for such a serious departure from the fundamental principles of open justice and fairness. To the extent that the Government has in our view failed to discharge that burden of justification, we recommend amendments to the Bill.
We welcome the Bill's narrower scope compared to the much broader proposals in the Green Paper, but we believe that there is scope for the Government to clarify the sort of material that is intended to be covered by the Bill's provisions extending the availability of closed material procedures. We recommend that the Government confirm that the relevant parts of the Bill are not intended to cover material the disclosure of which would be damaging to international relations and are only intended to protect from disclosure the two narrow categories of information identified by the Intelligence and Security Committee:
· UK intelligence material which would reveal the identity of UK intelligence officers or their sources and their capability; and
· Foreign intelligence material provided by another country on a promise of confidentiality.
We also recommend that the Secretary of State's power to extend the scope of the Act by order be deleted from the Bill.
We are disappointed by the Home Secretary's refusal to allow some special advocates to see the material shown to the Independent Reviewer, which would have provided the best evidence that could be made available to Parliament as to whether there is a practical need for the Bill's provisions on closed material procedures. It is unsatisfactory that at the time of our agreeing this Report the Government has still not been able to tell us precisely how many civil damages claims are pending in which sensitive national security information is centrally relevant. We remain unpersuaded that the Government has demonstrated by reference to evidence that there exists a significant and growing number of civil cases in which a closed material procedure is "essential", in the sense that the issues in the case cannot be determined at all without such a procedure.
We recommend a number of amendments to the provisions in the Bill concerning closed material procedures in order to bring it into line with the Government's own justification for those provisions:
· so that the court has the power to make a declaration, whether on the application of either party or of its own motion, that the proceedings are proceedings in which a closed material application may be made to the court;
· so as to make the availability of closed material procedures in civil proceedings a matter of genuine judicial discretion;
· so as to require the court to consider whether a claim for public interest immunity could have been made before making a declaration that a closed material procedure may be used;
· so as to ensure that a closed material procedure is only ever permitted as a last resort, where the court is satisfied that a fair determination of the issues is not possible by any other means;
· to ensure that, within a closed material procedure, a full judicial balancing takes place between the public interest in the fair and open administration of justice and the likely degree of harm to the interests of national security; and
· to ensure that the excluded party in a closed material procedure is always provided with at least a gist of the closed material, sufficient to enable him to give effective instructions to his legal representatives and special advocates.
On the part of the Bill reforming the courts' residual disclosure ("Norwich Pharmacal") jurisdiction, we remain of the view that legislating to provide an absolute exemption from the Norwich Pharmacal jurisdiction is not consistent with the Government's commitment to the rule of law. We recommend that the Bill be amended to replace the current absolute exemption for certain types of intelligence information with a system of certification based on the contents of the information and subject to judicial control. We also draw to Parliament's attention the commitment which has been given by the UK Government to the US Government that the Binyam Mohamed judgment will be addressed by legislation.
We recommend that the scope of any reform of the courts' Norwich Pharmacal jurisdiction be confined to the narrower categories of information identified by the Intelligence and Security Committee as information the disclosure of which would jeopardise the national security of the UK. We recommend a number of amendments to the Bill's Norwich Pharmacal provisions designed to achieve a more proportionate response to the problem that we accept exists:
· deleting the absolute exemption from disclosure for intelligence service information (including control principle information);
· leaving in place the proposed system for ministerial certification, narrowed down to apply solely to the narrower categories of information identified by the Intelligence and Security Committee;
· expanding the grounds on which the ministerial certificate can be judicially reviewed to include the ground that any harm to national security caused by disclosure is outweighed by the need to ensure that effective remedies are available for serious human rights violations.
We also recommend amendments to the Bill designed to address the serious concerns about its impact on the freedom of the media and public confidence in the administration of justice.
In view of the significance of what is being provided for in the Bill, and its radical departure from fundamental common law traditions, we recommend that the Bill be amended to require the Secretary of State to report regularly to Parliament about the use of the exceptional procedures contained in the Bill, and providing for both independent review by the Independent Reviewer and for annual renewal.