1 Background
| Date introduced to first House
Date introduced to second House
Current Bill Number
| 28 May 2012
HL Bill 27
|
Introduction
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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