Legislative Scrutiny: Justice and Security Bill - Human Rights Joint Committee Contents

1  Background

Date introduced to first House

Date introduced to second House

Current Bill Number

28 May 2012

HL Bill 27


1.  The Justice and Security Bill was introduced in the House of Lords on 28 May 2012.[1] Lord Wallace of Tankerness, the Advocate General for Scotland, has certified that, in his view, the Bill is compatible with Convention rights. The Bill received its Second Reading in the House of Lords on 19 June 2012 and after four days in Committee completed its Committee stage on 23 July. Report stage is scheduled for 19 November.

2.  The Bill was preceded by the Government's Green Paper on Justice and Security, which was published in October 2011.[2] We held an inquiry into the Green Paper and published our Report on it in April 2012.[3]

Information provided by the Department

3.  The Government published a detailed human rights memorandum to accompany the Bill. We welcome this as being in accordance with the good practice that we encourage departments to follow when introducing Bills.

4.  At the same time as publishing the Bill, the Government also published its response to our Report on the Justice and Security Green Paper,[4] and its response to the Justice and Security Consultation.[5]

Our scrutiny of the Bill

5.  We identified the Bill as one of our priorities for legislative scrutiny in this session and called for evidence in relation to it.[6]

6.  We received written evidence from British Irish Rights Watch, fifty Special Advocates, the Independent Police Complaints Commission, Dr. Lawrence McNamara, Leigh Day & Co., the Immigration Law Practitioners' Association, Professor Clive Walker, Professor Adrian Zuckerman and Sir Daniel Bethlehem QC. All of the written evidence we have received is available on our website.

7.  We have also corresponded with various individuals and organisations, including the Government, on specific aspects of the Bill. That correspondence is published in annexes to this Report.

8.  We held three formal evidence sessions, the transcripts of which are also published on our website:

19 June 2012: David Anderson QC, the Independent Reviewer of Terrorism Legislation

26 June 2012: Martin Chamberlain and Angus McCullough QC (special advocates) and Ben Jaffey (open advocate)

16 October 2012: David Anderson QC.

9.  Members of our Committee and our Legal Adviser have also had two meetings with the Minister and the Bill team to discuss particular aspects of the Bill.

10.  We are very grateful to all those who have assisted with our scrutiny of the Bill's human rights implications.

The purpose of this Report

11.  We have received a lot of evidence, written and oral, about the Bill's human rights implications and we make this available to inform the continuing debates in Parliament about the Bill. The purpose of this Report, however, is to focus very specifically on practical ways in which the Bill could be improved by amending it to accommodate the many human rights concerns it raises. We therefore focus in particular on the issues on which amendments to the Bill are most likely to be debated as it completes its passage in the Lords and moves on to the Commons. While we have carefully taken into account all of the evidence we have received, this Report refers only to those parts which are most relevant to its narrow focus. We look forward to positive and constructive engagement with our recommendations by the Government.

Changes from the Green Paper

12.  The Bill as introduced differs in a number of significant respects from the proposals in the Green Paper. The most significant substantive changes are:

·  The Bill makes no provision for the extension of closed material procedures to inquests;

·  The scope of the proposals has been significantly narrowed by confining the proposed extension of closed material procedures to national security material;

·  SIAC's jurisdiction will be extended to include judicial reviews of decisions about citizenship and exclusion from the UK.

13.  We welcome these significant changes from the proposals in the Green Paper, all of which are positive responses to recommendations made by this Committee in our Report on the Green Paper and by others in their responses to the consultation.

14.  Other changes which the Government claims to have made to the proposals in the Green Paper, however, require more careful scrutiny. In particular, one of the most significant changes that the Government says it has made in response to consultation and to our Report is that the final decision as to whether a CMP should be used in civil proceedings will now be a judicial decision, as opposed to a ministerial decision subject to judicial review as originally proposed in the Green Paper. How far in practice this change goes towards meeting the substance of the concerns expressed about that aspect of the Green Paper is one of the most significant human rights issues raised by the Bill as currently drafted. It is considered in detail in chapter 3 below.

The Rights and Principles at Stake

15.  All of the evidence that we have received, apart from that of the Government, regards the proposals in the Bill which extend closed material procedures into civil proceedings generally as a radical departure from the United Kingdom's constitutional tradition of open justice and fairness. We agree. We remind Parliament that the starting point for scrutiny of those proposals in the Bill is that they constitute a departure from a fundamental common law right which is judicially recognised to enjoy a constitutional status, namely the right to an open and adversarial trial of a civil claim. As Lord Dyson explained in the Supreme Court in Al Rawi, there are a number of strands to this common law principle:[7]

    A party has the right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance [...] the parties should be given an opportunity to call their own witnesses and to cross-examine the opposing witnesses.

16.  According to the Government's ECHR Memorandum, the Government believes that the Bill is compliant with Article 6 ECHR.[8] In support of this assessment, the Government points to clause 11(5)(c) of the Bill, which provides that nothing in sections 6-11 of the Bill "is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention." As well as being otiose from a legal drafting point of view (because it adds nothing to the existing duty on courts and tribunals in s. 6 of the Human Rights Act 1998), the reference in the Bill to Article 6 ECHR only addresses part of the question of the Bill's compatibility with human rights. In principle, European Convention law should be approached through our law rather than around our law. As we made clear in our previous report, the common law's protections for the right to a fair hearing, including the right to an open and adversarial trial on equal terms and to reasons for the court's decision, are both longer established and superior in content in many respects to Article 6 ECHR. As a human rights committee we have always scrutinised bills for compatibility with indigenous human rights recognised by the common law and in our view it is particularly important to do so in relation to this Bill.

The test to be applied by Parliament

17.  When scrutinising the Government's justification for the provisions in the Bill we have applied the same test as that applied by the Supreme Court in Al Rawi: that radical departures from fundamental common law principles or other human rights principles must be justified by clear evidence of their strict necessity.

18.  It is important to bear in mind, as we pointed out in our Report on the Green Paper, that the central 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; values that are central both to our common law tradition and to the international human rights obligations that have been so influenced by that tradition.[9]

19.  To the extent that the Government has in our view failed to discharge that burden of justification, we recommend amendments to the Bill to bring it into line with the case for more limited change that Parliament may consider to have been made out.

1   HL Bill 4. Back

2   Justice and Security Green Paper, Cm 8194 (October 2011). Back

3   Twenty-fourth Report of Session 2010-12, The Justice and Security Green Paper, HL Paper 286/HC 1777 (hereafter "JCHR Report on the Green Paper"). Back

4   Response to the Twenty-Fourth Report from the Joint Committee on Human Rights 2010-12: The Justice and Security Green Paper, Cm 8365 (May 2012) (hereafter "Government Response to JCHR Report"). Back

5   Government Response to the Justice and Security Consultation, Cm 8364 (May 2012). Back

6   See Press Notice on the Committee's Legislative Scrutiny Priorities 2012-13 http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/news/jchr-legislative-scrutiny-priorities-for-2012-13/ Back

7   Al Rawi v The Security Service [2011] UKSC 34 at [12]-[13]. Back

8   ECHR Memorandum, para. 31. Back

9   The House of Lords Constitution Committee has taken the same approach: "While the principles of open justice and natural justice are neither absolute nor inflexible, exceptions to constitutional principles such as these should be accepted only where they are demonstrated on the basis of clear evidence to be necessary", 3rd Report of Session 2012-13, Justice and Security Bill [HL], HL Paper 18 at para. 10 (hereafter "Lords Constitution Committee First Report on the Bill". Back

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Prepared 13 November 2012