Legislative Scrutiny: Justice and Security Bill

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

3 Extension of Closed Material Procedures to all Civil Proceedings

Evidence of the need for change

33. In our Report on the Green Paper we considered carefully the evidence relied on by the Government to justify making CMPs available in civil proceedings. We accepted that under the current law it is theoretically possible for there to be some cases in which a fair trial of a civil claim cannot proceed because of the amount of material which cannot be disclosed on Public Interest Immunity grounds. However, the critical question for us was whether the Government had produced evidence which shows that this is not merely a hypothetical problem, but a real, practical problem that exists on the scale suggested in the Green Paper, or on a scale sufficiently significant to warrant legislation.

34. In that Report we considered carefully the evidence of the Independent Reviewer that there is a small but indeterminate category of national security related claims, including for civil damages, in respect of which it is preferable that the option of a CMP, for all its inadequacies, should exist. However, we found persuasive the evidence of the special advocates, who fairly pointed out that the Independent Reviewer's views should not be treated as evidence that the issues in the three civil claims in which he saw the material are incapable of being determined at all without resort to a closed material procedure. We therefore concluded that, in relation to this part of the Green Paper, the Government had not demonstrated by reference to evidence that there is a real and practical problem which justifies the radical departure from common law principles contained in the proposal to extend CMPs.[20]

35. In the Government's response to our Report, it describes the problem as "rare but damaging."[21] At the time of the Green Paper, the Government estimated that around 27 cases were posing difficulties. The Government says it is clear that the number of such cases is increasing: since the Guantanamo claims were settled in November 2010 "six further civil damages claims against the Government have been launched where sensitive material will be centrally relevant." The Government relied on the Independent Reviewer David Anderson QC's "comprehensive independent verification of the evidence base for the existence of cases of this problematic type."[22] The Independent Reviewer reached that view after being provided with a briefing at which he was talked through seven of the cases causing problems, including three civil damages claims, and given a bundle of top secret material in each case, including both evidence and internal/external advice "material that could not have been provided to members of the public or non-security cleared personnel."

36. In the Lords committee stage debate, some peers took the same view as us that the Government had not yet made out its case and asked for the Government to provide further evidence of the need for change. Lord Falconer for example, pointed out that the evidential foundation for the Government's case for change consisted of three civil damages claims in which the Independent Reviewer had looked at the material and reached the view that a CMP would be necessary in those cases. He queried whether the case for change had yet been proved: "We are willing to be persuaded, but we need to be persuaded."

37. We are anxious to ensure that every reasonable opportunity is afforded to the Government to make out its case for the provisions on CMPs in Part 2 of the Bill. In their evidence to our inquiry into the Green Paper, the Special Advocates had pointed out that the Independent Reviewer had not had the benefit of a countervailing independent but experienced party, such as a special advocate, whose practical experience of handling sensitive material in civil claims might have pointed to a different conclusion. They thought that a way could be found to hear those claims acceptably fairly, and without unacceptable disclosure of sensitive material, without having to resort to a CMP. They considered that it was possible that their practical experience of operating procedures to deal with sensitive material would lead to a different view of those three cases. They pointed out that "there is as yet no example of a civil claim involving national security that has proved untriable using PII and flexible and imaginative use of ancillary procedures."

38. We asked the two special advocates who had co-ordinated the Special Advocates' collective submission on the Bill whether, if invited by the Government, they would be prepared to view the material that was shown to the Independent Reviewer, to see if they agreed with his view that a CMP was necessary in those cases.[23] They indicated that they would be prepared to do so if asked by the Government.

39. We therefore wrote to the Home Secretary on 3 July suggesting that some experienced special advocates be invited to view the material seen by the Independent Reviewer in the three civil cases, to see if the special advocates agree that they are cases which can only fairly be determined with a CMP.[24] We included a copy of the relevant evidence the special advocates had given to us, making clear that they would be happy to do so if asked. In her reply dated 17 July the Home Secretary declined to do so, for a number of reasons.[25] The briefing to the Independent Reviewer had involved making a limited waiver of privilege to be able to show him information including merits advice. The Home Secretary did not think it appropriate to extend the waiver of privilege, which was granted to the Independent Reviewer to enable him to see the information concerned, to special advocates. She noted that special advocates acted regularly against the Government in analogous cases., represented active litigants, challenged the Government's position in high-profile cases and had "well-known views about the system." It was therefore considered that allowing them to view the material would risk tainting them for future work, and the benefits were in any event thought to be unclear given that special advocates already have a good idea of the type of sensitive material that can necessitate a closed process.

40. In view of the comments made about the special advocates in the Home Secretary's response, we invited the special advocates to respond to the Secretary of State's letter. In their reply dated 2 October the special advocates made a number of comments on the Home Secretary's reasons for declining the Committee's suggestion.[26]

· They reiterated that their reason for disagreeing with the Independent Reviewer was that their experience of handling sensitive material in civil cases suggested to them that a way could normally be found for a claim to be heard acceptably fairly and without unacceptable disclosure of sensitive material.

· They rejected the implication that their views on the Bill were partisan, or that they were acting as advocates for the parties they represented when they commented on the Bill. Rather, they did so as interested members of the public with particularly relevant experience of the way CMPs work in practice.

· They did not consider that the risk of a special advocate having to decline to act in a future case having seen the material to be a good reason for declining the Committee's suggestion, because the special advocates were well aware of that risk and had made clear that they were prepared to take it.

· Finally, they pointed out that "there remains a real lack of clarity, both in the Home Secretary's letter and from information provided by the Government to date, as to the size of the problem arising specifically from civil damages claims which it is said necessitates the proposals in the Bill." They pointed out that it was not clear how the 15 civil damages claims referred to by Lord Wallace in the Committee stage debates on the Bill related to the six such claims referred to elsewhere in Government documents and responses.

41. When the Independent Reviewer gave evidence to us in June he told us that, in addition to the three cases he had been shown which had convinced him that there was already a problem, he suspected that "we are already beginning to see the start of a second wave of cases concerning alleged complicity in the targeting of drones. I can only imagine that those cases may raise similar sorts of issues." We asked him more recently if he knew exactly how many such cases have been started. He was aware of two cases concerning alleged complicity in the targeting of drones. However, he also said that he had been given up to date information by the Ministry of Justice concerning the number of civil damages claims that had been started that were likely to be "saturated" in national security material, but that he was not at liberty to pass this information on to the Committee.

42. In the light of the lack of clarity about whether the number of pending claims is 27, 15, 6 or 3, and in the light of the Independent Reviewer's evidence we wrote to the Minister in charge of the Bill on 23 October to ask how many civil damages claims were currently pending against the Government in which sensitive national security information is centrally relevant, and, to the extent possible, for a breakdown of those cases showing the date on which proceedings were commenced and a summary of the nature of the claim. We also asked in how many of these cases it was the Government's view that the issues in the case could not be fairly determined without a closed material procedure.

43. On 2 November we received a holding reply explaining why it had not been possible to supply this information by 31 October as requested.[27] The letter said that the Cabinet Office does not hold a central database of the case details, but the information is held in each Government department. It had been difficult to complete within the timeframe, to a sufficient degree of reliability, the necessary consultation with a significant number of individuals and departments across Government. The cases involved are sensitive and complex, and the status of cases is constantly shifting. The Government also has to consider all the impacts of any information given publicly about these very sensitive cases. It hopes to be able to provide the information to us shortly.

44. We do not underestimate the problem the Government has in demonstrating the difficulties it says it is experiencing by reference to litigation which is still ongoing. We understand that this makes it hard for the Government to prove its case. However, what is being proposed is a radical departure from some fundamental common law principles and the onus of justification on the Government is correspondingly heavy.

45. We are disappointed by the Home Secretary's refusal to allow some special advocates to see the material that had been shown to the Independent Reviewer. In our view, this would have provided the best evidence that could be made available to Parliament as to whether there really exists a practical need for the provisions on closed material procedures in Part 2 of the Bill. It is unsatisfactory that the Government at the time of agreeing our Report has still not been able to provide us with the data we had requested on the number of civil damages claims pending in which sensitive national security information is centrally relevant. Pending receipt of a response to our latest attempt to clarify the evidential basis for the Government's case for the provisions in Part 2 of the Bill, 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. In our view this test of necessity is the appropriate test to apply to the evidence, not the lower standard of whether there are cases in which it would be "preferable" to have CMP as a procedural option.

Equality of arms

46. The Bill provides that in any civil proceedings in the High Court, Court of Appeal or Court of Session, the Secretary of State may apply to the Court for a declaration that a closed material procedure may be used in those proceedings.[28]

47. Under the Bill it is therefore only the Government that can apply for a CMP. As the Special Advocates pointed out in their written evidence on the Bill, the Government can therefore still decide not to trigger a CMP if it considers that its own interests would be better served by not doing so (for example, because it does not want the court to reach its decision on the basis of sensitive material which is embarrassing to the Government). In the Special Advocates' view, if a power to hold CMPs is to be introduced, both parties, and not just the Government, should have the right to apply for them.

48. The Independent Reviewer agreed. In his view, the Bill does not treat the parties to civil litigation on an equivalent basis.[29] His evidence was that the Bill, as drafted, "plainly does not guarantee equality of arms or the equal treatment of the two parties to litigation."[30]

49. The House of Lords Constitution Committee also made the same point in its first Report on the Bill, criticising the one-sided scheme of CMPs provided for in the Bill. It found it to be constitutionally inappropriate and an unjustified inroad into the principle of equality of arms for the executive to be a party to litigation and at the same time have the power to apply for a CMP which is not a power enjoyed by the other party to the litigation.[32]

50. The Government's entire justification for extending CMPs to all ordinary civil proceedings is that this will provide a fairer way of litigating cases in which national security material is central to the claim or the defence. As the Government's response to our Report on the Green Paper makes clear, the absence of a CMP may in some cases cause unfairness to the non-state party to litigation. The Government cites Lord Clarke's comments in Al Rawi, that a closed procedure might be necessary in a case in which it is the non-state-party which wishes to rely upon the material which would otherwise be subject to PII in order to defend itself in some way against the state; and the recent AHK case in which Ouseley J. pointed to the scope for unfairness towards a claimant who might have to have their claim struck out if there is no means by which sensitive intelligence can be heard in court. In our view, both the principle of the equality of arms and the Government's own "fairness" rationale for the extension of CMPs in civil proceedings require that if CMPs are to be available at all in civil proceedings, it should be possible for either party to litigation to initiate the process. For reasons which we explain in more detail below,[33] we also think it would be desirable for the court itself to have the power to raise the question whether a closed material procedure is necessary.

51. We recommend that the Bill be amended 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. Such an amendment is necessary in order to make the Bill compatible with the requirement of equality of arms, and to make it consistent with the Government's own justification for extending CMPs in civil proceedings, which is to increase the fairness of such proceedings for both parties.

52. The following amendments to clause 6(1) of the Bill would give effect to this recommendation:

Clause 6, Page 4, Line 18, leave out 'The Secretary of State may apply to'

Clause 6, Page 4, Line 19, after the first 'proceedings' leave out 'for' and insert 'may, on application of either party or of its own motion, make'

Judicial balancing at the "gateway"

53. In our Report on the Green Paper, we were critical of the proposal that the decision to trigger a closed material procedure in civil proceedings should be for the Minister and not the court.[34] We agreed with the Independent Reviewer of Terrorism Legislation who described the proposal in evidence to us as "profoundly wrong in principle". The decision whether to order a CMP must be one for the court, not the Government. We also emphasised the importance of judicial balancing in any legal framework brought forward by the Government: we recommended that the forthcoming Bill should ensure that there is always full judicial balancing of the competing public interests in play, both at the "gateway" stage of deciding the appropriate procedure and at the subsequent stage of deciding whether a particular piece of evidence should be heard in closed or in open session.

54. The Bill provides that in any civil proceedings in the High Court, Court of Appeal or Court of Session, the Secretary of State may apply to the Court for a declaration that a CMP may be used in those proceedings.[35]

55. The Government says that this is one of the significant changes from the proposals in the Green Paper, because it means that the final decision that a CMP could be used will be a judicial one, not a ministerial one. In his foreword to the Government's response to the Committee's Report, for example, the Secretary of State for Justice and Lord Chancellor said that "This will ensure that the decision will be taken free of political influence, and can only be taken where evidence a Closed Material Procedure is necessary on national security grounds is found to be persuasive by an independent judge." As the response itself described the provision in the Bill, "the Minister triggers the process by deciding that a CMP is needed, and applying to the judge who determines whether it goes ahead."[36] The Intelligence and Security Committee, in its Annual Report, appears to have taken this assertion at face value, noting that "it is now judges who will have the final decision on whether the request by Ministers for a case, or part of a case, to be held under CMP conditions should be granted."[37]

56. The Government's assertion requires closer scrutiny. The Bill provides that the court "must" allow a CMP if it considers that a party to the proceedings would be required to disclose material in the course of the proceedings to another person and that such disclosure would be damaging to the interests of national security.[38] Moreover, when deciding whether a party would be required to disclose material, the court is expressly required to disregard the possibility that there might not be disclosure because the material can be withheld on PII grounds.[39]

57. As the Special Advocates said in their written evidence, the Bill therefore cannot really be said to provide for a judge to take the decision as to whether a CMP is needed, because of the extent to which clause 6(2), as currently drafted, ties the judge's hands when considering the Government's application. In the words of Angus McCullough QC, "there is, in reality, no discretion provided for the role of the judge in relation to determining what the fairest way of determining any particular case is."[40]

58. The Independent Reviewer agreed. He said:[41]

In fairness to the Government, under the procedure devised in the Bill the judge does have the last word. The only difficulty is that that word is dictated to the judge by the Secretary of State. First, the judge can make a decision only if the Secretary of State makes an application and has no other jurisdiction to consider it. Secondly, when the judge does come to consider it, it is not for him to weigh up the relative merits of PII or CMP, or to decide what the fairest way would be to decide the case. The judge's hands are effectively tied. If there is disclosable material that impacts on national security—as there obviously will be in any case in which an application is made—the judge is required to agree. The word "must" features in Clause 6. The judge "must" order a closed material procedure. It seems that the Government have given formal effect to the requirement that the judge should have the last word, but in substance the Secretary of State continues to pull the strings.

59. In his more recent evidence to us the Independent Reviewer said that he maintained his view that, although the provisions concerning CMPs in Part 2 of the Bill address a genuine question, they do so in a disproportionate manner. He proposed some possible amendments to the Bill; the principal change suggested was to give the judge a genuine discretion to decide whether a CMP should be used:[42]

At the gateway stage I would allow the judge to exercise discretion as to whether it is a case in which a CMP application could, in the future, be made to the court. He is currently required to declare that it is a CMP case whenever disclosure would be damaging to the interests of national security; 6(2)(b). He is directed to ignore the fact that the PII process might result in that material being withheld; 6(3)(a). Only the Secretary of State may consider the alternative of PII; Clause 6(5). The judge ought to be able to decide, in my view, "Let's go with PII for now and see how we get on. I am not going to tell you at the outset that this case is suitable for a closed material procedure."

I do not go so far as to say that the judge should be obliged in all cases to exhaust PII before he comes to the possibility of a CMP, but the judge should be trusted to make the relevant decision. It is ultimately a case management decision and whether CMP or PII or some combination of the two is the eventual outcome, in this type of litigation the Government's secrets are safe, so I can see no reason not to leave that discretion to the judge.

60. We agree with the suggestion of the Independent Reviewer. We recommend that the Bill be amended so as to make the availability of CMP in civil proceedings a matter of genuine judicial discretion. The decision as to whether there should be a CMP should not be the subject of a statutory duty to direct one where there is material that is relevant to the proceedings and that it would be damaging to national security to disclose. Rather it should be the product of a full judicial balancing exercise in which the court weighs the competing public interests before deciding whether there should be a CMP.

61. When exercising that judicial discretion the court should not be required to ignore the fact that the PII process might result in the material being withheld, and should actively consider whether a claim for PII could have been made in relation to the material. We therefore also recommend that clause 6(3)(a) be deleted and a new sub-clause added to the Bill requiring the court to consider whether a claim for PII could have been made in relation to the material.

62. The following amendments to clause 6 of the Bill would give effect to this recommendation:

Clause 6(2), Page 4, Line 21, leave out 'must, on an application under subsection (1)' and insert 'may'

Clause 6(2), Page 4, Line 27, after sub-paragraph (b) insert new sub-paragraph—

'( ) 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'

Clause 6(3), Page 4, Line 30, leave out sub-paragraph (a)

Clause 6(5), Page 4, Line 42, after sub-clause (5) insert new sub-clause—

( ) 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.

Strict necessity: CMPs only as a last resort

63. As we pointed out in our Report on the Green Paper, one of the options for reform was that put forward by the Independent Reviewer of Terrorism Legislation, in his evidence to us on the Green Paper. He was in favour of adding CMPs to the procedural armoury of the civil courts, provided strict conditions of necessity were satisfied. This included the requirement that "the court's power to order a CMP should be exercisable only if, for reasons of national security connected with disclosure, the just resolution of a case cannot be obtained by other procedural means (including not only PII but other established means such as confidentiality rings and hearings in camera)." In other words, CMPs should be available in civil proceedings, but only as a very last resort to enable the resolution of claims which would otherwise be untriable.

64. The Bill as drafted fails to ensure that a CMP will be adopted only when strictly necessary. As the Special Advocates point out in their submission on the Bill, this is because the "test" to be applied by the court at the gateway stage[43] does not require the court to ask whether the case is one which can only be justly resolved using a CMP rather than the existing procedural mechanisms. This means that if the Government decides to apply to trigger a CMP, the judge will be obliged to accede to the application if there is any sensitive material relevant to the case and the disclosure of which would damage national security. This is so even if the judge considers that the case could be tried using the existing PII rules in a way that is fair to both sides, and that a CMP is not therefore needed to determine the issues in the case fairly. The Bill, in short, contains nothing to ensure that CMPs will only be resorted to as a matter of last resort when a trial could not otherwise proceed.

65. When we asked the Independent Reviewer whether Part 2 of the Bill as drafted contains the sort of conditions that he had in mind to ensure that a CMP is resorted to only in cases of strict necessity, he was categoric that it does not:[44]

Al Rawi

66. The Independent Reviewer in his more recent evidence indicated that he would be supportive of building into clause 6 of the Bill a requirement that a CMP only be permitted as a last resort: as he put it, a CMP should be available only if "there is no other fair way of determining the case."[45]

67. We recommend that the Bill be amended so as to ensure that a CMP is only ever permitted as a last resort, by making it a precondition of a declaration that the court is satisfied that a fair determination of the issues in the proceedings is not possible by any other means.

The following amendment to clause 6(2) would give effect to this recommendation:

Clause 6, Page 4, Line 27, insert new sub-paragraph—

( ) a fair determination of the proceedings is not possible by any other means.

Judicial balancing in the CMP

68. In our Report on the Green Paper, we recommended that there should be full judicial balancing of the public interests in play within the CMP, when deciding whether material should be in closed or open, as well as at the earlier "gateway" stage of deciding the appropriate procedure.[46] The Government in its response to our Report disagreed.[47] Within the CMP, it said, the proposals envisaged full judicial involvement on whether individual documents should remain in closed, but that judicial involvement should not be based on a PII-style balancing test. "Rather, the guiding criteria must be whether open disclosure of the material is damaging or not", subject only to the requirements of Article 6 ECHR.

69. During the Bill's committee stage, the Government's main substantive response to the criticism underlying the various proposed amendments to clauses 6 and 7 of the Bill on CMPs was that the proponents of amendments had failed to appreciate the extent to which an exercise "very similar to PII" would in fact take place at stage two of the proceedings, when the court considers whether each piece of evidence should be heard in closed or in open session.

70. In fact, at this stage, as the evidence of the special advocates over many years has made clear, the exercise which takes place is not at all like a PII exercise. This is because judicial balancing is ruled out completely by clause 7(1)(c) of the Bill: material the disclosure of which would be damaging to the interests of national security must be dealt with in the closed proceedings.

71. 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 7(1)(c), Page 5, line 33, after 'security' insert 'and that damage outweighs the public interest in the fair and open administration of justice'.

The "AF (No. 3) disclosure obligation" ("gisting")

72. The so-called "AF (No.3) disclosure obligation" (sometimes referred to as the "gisting" obligation) is the obligation to disclose to the opposing party in litigation sufficient material to enable them to give effective instructions to their special advocate who represents their interests in closed material procedures.

73. In our Report on the Green Paper we recommended that the obligation to disclose sufficient information to enable effective instructions to be given to an individual's special advocate should always apply in any proceedings in which CMPs are used.[48] The Government, however, rejected this recommendation, having concluded that "this is a complex area which is more suited to treatment by the courts on a case by case basis."[49] The Bill therefore makes no provision for such disclosure when a CMP takes place in civil proceedings under the provisions of the Bill.

74. In our Report on the Green Paper, we noted that the former Reviewer of Terrorism Legislation, Lord Carlile of Berriew, had expressly agreed in his oral evidence to us that the disclosure obligation should apply to all proceedings, and there was no respectable argument against it in any circumstances. The current Independent Reviewer has also consistently acknowledged the importance of gisting. We asked him whether, as a matter of basic fairness, there should be a general obligation in a civil litigation CMP to disclose sufficient information to the excluded party to enable them to give effective instructions to their special advocate. He said that he could see the great attractions from a policy point of view of requiring gisting in all types of case.[50] His extensive knowledge of control orders also meant that he found it tempting in policy terms to ask, if the gist can be given to those subject to control orders, who are considered to pose the greatest risk in terms of terrorism, why it should not also be given to those who might be bringing a civil claim. He "could not agree more that the more information one can give the individual, the better it is from the point of view of the fairness of a closed material procedure."

75. The Special Advocates in their evidence pointed out that, if a CMP is triggered, the Bill does not require the excluded party to be given a summary of the closed material. It requires only that the court consider requiring such a summary to be given.[51] Importantly, however, the court is required to ensure that the summary does not contain material whose disclosure would be contrary to the interests of national security.[52]

76. We agree with the Special Advocates' recommendation that, if there is to be a power to hold a CMP, there should be a 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. The absence from the Bill of such a disclosure obligation seriously limits the opportunities for special advocates to mitigate the unfairness caused by the Bill's departure from the principles of open and adversarial justice. We recommend that the Bill be amended to impose such a disclosure obligation in all cases in which a CMP is held. The following amendments would give effect to this recommendation:

Clause 7, Page 5, line 35, leave out "consider requiring" and insert "require"

Clause 7, Page 5, Line 37, at end 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'

Clause 7, Page 5, line 38, after 'ensure' insert 'so far as it is possible to do so'.

20 JCHR Report on Green Paper, paras 56-80, esp. paras 72 and 80. Back

21 Government Response to JCHR Report, p. 2. Back

22 Ibid., p. 4. Back

23 Q27. Back

24 Ev 1. Back

25 Ev 2. Back

26 Ev 6. Back

27 Ev 10. Back

28 Cl. 6(1) of the Bill. Back

29 Q10. Back

30 Q12. Back