Conclusions and recommendations |
1. 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 scope of the Bill
2. We welcome the narrower definition of the scope of Part 2 of the Bill, which is a significant improvement on the much broader proposals in the Green Paper for closed material procedures to be available in cases involving the disclosure of "sensitive material" which could harm a very broadly defined "public interest.
3. We recommend that the Government confirm to Parliament that the material which is intended to be protected from disclosure by the provisions in Part 2 of the Bill is confined to the two narrow categories of information identified by the Intelligence and Security Committee:
4. UK intelligence material which would, if disclosed
publicly, reveal the identity of UK intelligence officers or their
sources, and their capability (including the techniques and methodology
that they use); and foreign intelligence material, provided by
another country on a promise of confidentiality (that is, "control
principle" material) (Paragraph 30).
5. We also recommend that the Government confirm
to Parliament that clauses 6-11 of the Bill are not intended to
cover material the disclosure of which would be damaging to international
relations, such as diplomatic exchanges. (Paragraph 30)
6. We recommend that clause 11(2) be deleted from the Bill.
Extension of Closed Material Procedures to all
7. 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
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
Reform of the courts' residual disclosure ("Norwich
14. We remain of the view expressed in our Report on the Green Paper, that legislating to provide an absolute exemption from the Norwich Pharmacal jurisdiction for control principle information 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.
15. 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. This is apparent from the Government's response to the Second Report of the House of Lords Constitution Committee on the Bill (where it says that the US reaction to the judgment was tempered by the UK Government's early commitment to do so) and the evidence of the Independent Reviewer.
16. 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 really jeopardise the national security of the UK. The amendments to this part of the Bill that we recommend below are based on the ISC's narrower definition of sensitive material the disclosure of which would be damaging to national security.
17. We recommend deleting the absolute exemption from disclosure for intelligence service information (including control principle information), but leaving in place the proposed system for ministerial certification, narrowed down to apply solely to the narrower categories of information identified by the ISC (thereby tailoring the certification provision more closely to its avowed objective).
18. We therefore recommend that the blanket and unreviewable exemption from disclosure for intelligence service information should be removed by deleting clause 13(3)(a)-(d)
19. We also recommend that the grounds on which the ministerial certificate can be judicially reviewed (applying judicial review principles) are expanded beyond the very narrow (and difficult to meet) ground in the current clause 14(2), 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.
Freedom of the media and public trust in the judiciary
20. We recommend that the Bill be amended to require rules of court to provide that the media be notified of any application for closed material procedures to be used, to ensure an opportunity for the media to make representations on that question, and to provide a mechanism for a party to apply for a closed judgment to become an open judgment.
21. 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.