Written evidence
1. Letter from the Chair, to Rt Hon Theresa May
MP, Home Secretary, 3 July 2012
The Joint Committee on Human Rights is currently
scrutinising the Justice and Security Bill for compatibility with
the UK's human rights obligations. One of the issues it is considering
is whether the Government has demonstrated by reference to evidence
that the fairness concern on which the Government relies to justify
extending the availability of closed material procedures (IICMPs")
in civil proceedings in Part 2 of the Bill is in fact a real and
practical problem. As you know, in its Report on the Justice and
Security Green Paper, the Committee was not satisfied that such
evidence had been produced by the Government.[76]
However, the Committee is anxious to ensure that every reasonable
opportunity is afforded to the Government to make out its case
for the provisions in Part 2 and I am therefore writing to invite
you to take such an opportunity, in the light ofthe evidence recently
given to the Committee by some special advocates.
The Government's Response to the Committee's Report
says that since the Guantanamo claims were settled in November
2010 IIsix further civil damages claims against the Government
have been launched where sensitive material will be centrally
relevant." The Independent Reviewer has been shown the material
in three of those six claims, and on the basis of his consideration
of those three cases he concluded that "under the current
law there are liable to be cases that are settled (or the subject
of a Carnduff v Rock [strike-out] application) which, had
a CMP been available, would have been fought to a conclusion."
In a Note commenting on the Independent Reviewer's
Supplementary Memorandum, however, some special advocates expressed
their concern at the independent Reviewer's conclusion. They 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,
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".
The evidential basis of the Government's case for
the far-reaching changes to open justice in Part 2 ofthe Bill
rests on three current cases in which the Independent Reviewer
has been shown the material but no special advocate has yet had
the opportunity to consider whether a way could be found for the
claims to be heard acceptably fairly without unacceptable disclosure
of sensitive material, and without having to resort to a CMP.
The Committee suggests that some experienced special
advocates be invited by you to view the material seen by the Independent
Reviewer to see if the special advocates agree that they are cases
which can only fairly be determined with a CMP. When we asked
two of the special advocates in oral evidence last week if they
would be prepared to do so if they were invited by the Government,
they said that they would and that they thought a number of their
colleagues would also be willing to do so. A copy of the relevant
part of their answers is enclosed with this letter.
The Committee hopes you will extend such an invitation
to some special advocates, as it considers that this would provide
the best evidence that could be made available to Parliament as
to whether there really exists a practical need for the provisions
in Part 2.
In view of the progress that the Bill is making in
the House of Lords, it would be helpful to receive your reply
by 17 July 2012.
I look forward to hearing from you.
3 July 2012
2. Letter to the Chair, from Rt Hon Theresa May
MP, Home Secretary, 17 July 2012
Thank you for your letter dated 3 July regarding
Special Advocates and the evidence base for the Justice and Security
Bill proposals.
The three civil damages cases in which material was
shown to David Anderson QC were three of the 27 cases considered
current at publication of the Green Paper, not the six new cases
launched since the Bill's publication as you suggest in your letter.
In order to go into sufficient detail in the time available on
all the case types, it was considered more beneficial to allow
David Anderson QC to consider these three cases in greater detail
as opposed to a less detailed look at all the cases.
The problem of being able to demonstrate the difficulties
in these cases publicly is clear. As David Anderson QC pointed
out, the problem cases are currently the subject of litigation
and "almost by definition, cannot be the subject of specific
public comment".
David Anderson QC's briefing was by no means undertaken
lightly and involved making a limited waiver of privilege in order
to open up information including merits advice. The briefing session
was not intended to be an adversarial process but an honest account
by a lawyer with experience of the difficulties involved in litigating
those cases for Government without the benefit of a closed process.
As you would expect, David Anderson QC had the opportunity to
probe information provided in the briefing, rather than take it
at face value.
The Special Advocates, who represent active litigants
in such cases, take on the role of challenging the Government's
position in high profile cases in Terrorism Prevention and Investigation
Measures (TPIMs) and Special Immigration Appeals Commission (SlAG)
cases, for example, and have well-known views about the system.
It is noteworthy that many of the Special Advocates' arguments
have not been accepted by the courts. David Anderson QC is familiar
with the Special Advocates' arguments. He is in a unique position—his
role is fully independent and has given him the greatest exposure
to terrorism legislation and the operation of Closed Material
Procedures (CMPs) in a practical context. Moreover, as a highly
experienced lawyer himself, he is well able to cast a critical
eye over the material shown to him. Because of the seriousness
of the cases and the complex issues at stake I, together with
colleagues in other departments, have considered your request
in detail to see what possible way could be found to allow Special
Advocates to view the specific material shown to David Anderson
QC, something I would like to be able to do if, as you suggest,
it would reassure you about the need for the CMP provisions in
the Bill.
Unfortunately, I do not feel it would be appropriate
to extend the waiver of privilege to Special Advocates, who regularly
act against Government in these sorts of cases. The merits advice
which was shown to David Anderson QC would reveal confidential
decisions on the Government's litigation strategy in cases. It
would simply not be possible for counsel to provide the same frank
briefing, or to share the same information with Special Advocates,
which would dilute any potential benefits. The benefits are in
any event unclear given that Special Advocates already have a
good idea of the type of sensitive material that can necessitate
a closed process from their work in other contexts where closed
proceedings are already available.
Additionally, allowing Special Advocates to view
the material risks tainting them for future work, the extent of
which they cannot be aware of before seeing the material.
I understand your concerns regarding the evidence
base for Closed Material Procedures. You will be interested to
know that a waiver was also made for the ISC to be briefed, at
their request, by Government counsel and with the same detail
on the cases that David Anderson QC was shown.
David Anderson QC had already suggested that there
are cases sufficiently saturated in secret material to require
the use of a CMP in other contexts (SIAC or TPIMs for example)
and that it is logical to suppose that there may be civil cases
of which the same can be said. He also suggested that it is the
courts' views in real cases which provide the actual evidence
for the use of CMPs, as opposed to either his view or the Special
Advocates'.
Obviously the debate benefits from the views of Special
Advocates who put across their views as regards CMPs and play
an important role in such cases. However, only the judiciary are
completely independent of the parties, acting in the interests
of justice in each particular case. In the recent case of AHK
v Home Office [2012] EWHC 1117, the court highlighted the
injustice that could be caused to a claimant in a naturalisation
case if a CMP was not available, and called upon Parliament to
provide a statutory solution. The courts have also supported the
effective operation of CMPs in other cases. For example, Lord
Woolf (in M v SSHD) indicated that, "while the procedures
which SIAC have to adopt are not ideal, it is possible by using
SAs (Special Advocates) to ensure that those detained can achieve
justice".
I regret not being able to fulfil your request in
this regard by extending such an invitation to Special Advocates,
but I hope that you understand the complexity of the considerations
that I have had to take into account, given the context of current
and ongoing litigation and the degree of sensitive information
involved.
We continue to examine this issue. If you have any
other suggestions for how Special Advocates could voice their
concerns or how independent voices not party to litigation could
be reassured about difficulties in a small number of cases and
the need for a CMP to ensure a fair determination of them, I would
be very happy to hear them.
17 July 2012
3. Letter from the Chair, to Special Advocate
Support Office (Closed), 12 September 2012
The Committee would like to give the Special Advocates
an opportunity to comment on the attached letter dated 17 July
2012 from the Home Secretary, in which she declined the Committee's
request that some Special Advocates be invited to view the specific
material shown to the Independent Reviewer of Terrorism Legislation,
David Anderson QC.
The Committee would also be interested in the views
of the Special Advocates on any relevant issues that have arisen
so far in the parliamentary debates on the Justice and Security
Bill.
The Committee is hoping to Report on the Bill before
Report stage in the House of Lords and it would therefore be helpful
to receive your reply by 3 October 2012. I would also be grateful
if you could provide the Committee secretariat with a copy of
your response in Word format, to aid publication.
I am copying this letter to Martin Chamberlain and
Angus McCullough QC in view of their role in co-ordinating previous
submissions by the Special Advocates to the Joint Committee on
Human Rights.
12 September 2012
4. Letter from the Chair, to Michael Todd QC,
Chairman of the Bar, 12 September 2012
The Joint Committee on Human Rights is scrutinising
the Justice and Security Bill for compatibility with human rights.
One of the issues which has arisen in the course
of its scrutiny is whether the extension of closed material procedures
to all civil proceedings has implications for the ability of barristers,
both open counsel and special advocates, to comply with their
professional obligations.
The Committee would be interested to hear the view
of the barristers' professional body about the implications of
the Bill for the ability of barristers to comply with the Code
of Conduct.
The Committee is hoping to report on the Bill before
Report stage in the House of Lords and it would therefore be helpful
to receive your reply by 3 October 2102. I would also be grateful
if you could provide the Committee secretariat with a copy of
your response in Word format, to aid publication.
12 September 2012
5. Letter to the Chair, from Nicholas Lavender
QC, Vice Chairman Elect of the Bar Council England and Wales,
Chairman of the Professional Practice Committee, 1 October 2012
Thank you for your letter of 12 September 2012, in
which you referred to the potential extension of closed material
procedures to all civil proceedings and asked for the views of
the Bar Council about the implications of the Justice and Security
Bill for the ability of barristers, both open counsel and special
advocates, to comply with the Bar's Code of Conduct. The Bar Council
has not been asked to express a view on the desirability or otherwise
of any extension of closed material procedures to all civil proceedings
and the views expressed below are accordingly confined to the
narrow issue raised in your letter.
You should be aware that the Bar Council has delegated
its regulatory functions to the Bar Standards Board, which is
responsible for the content and enforcement of the Code, so you
may also wish to contact them. However, the Bar Council, through
its Professional Practice Committee, continues to provide advice
on effect of the Code. I have consulted the Professional Practice
Committee, and their view is outlined below.
The Code does not prevent barristers from acting
as open counsel or as special advocates in cases where closed
material procedures are adopted. Many barristers already do this,
for example, in cases before the Special Immigration Appeals Commission.
Barristers acting as open counsel are obliged by
paragraph 303(a) of the Code to promote and protect fearlessly
and by all proper and lawful means the lay client's best interests.
The closed material procedure obviously makes it more difficult
to carry out this duty, since the barrister will not be aware
of the closed material relied upon by the other party. Nevertheless,
the barrister must promote and protect the lay client's best interests
insofar as they are able.
Barristers acting as Special Advocates (SAs) are
appointed by the Attorney General (in the words of clause 8(1)
of the Bill) "to represent the interests of" a party.
That party is not the SA's client, and I note that clause 8(4)
of the Bill provides that SAs are not responsible to the party
whose interests they are appointed to represent, and that clause
11(1) provides that they are not that party's legal representative.
Nevertheless, it is our understanding that barristers are appointed
as SAs on the basis that, subject to the constraints imposed by
the closed material procedure, it is their duty to promote and
protect fearlessly, and by all proper and lawful means, that party's
best interests. Again, those constraints, including in particular
the inability to communicate with or take instructions from the
party, obviously make it more difficult to promote and protect
the party's interests, but the barrister remains under a duty
to do so, insofar as they are able.
Whether acting as open counsel or as Special Advocates,
barristers remain subject to the Code, including, for example,
the duty to exercise their own personal judgment in all of their
professional activities (paragraph 306) and the duty to withdraw
from a case in specified circumstances, including if their instructions
seek to limit their ordinary authority or discretion in the conduct
of the proceedings (paragraph 603(c)) or if the matter is one
in which they have reason to believe that it will be difficult
for them to maintain professional independence or the administration
of justice might be or appear to be prejudiced (paragraph 603(
d)).
Obviously, conduct issues may arise on the facts
of any particular case, and cases involving the closed material
procedure are no exception. You may be aware, for example, of
a well-publicised case in which the Special Advocates considered
it to be their duty to withdraw from the case.
If you have any particular concerns about conduct
issues which might arise in cases concerning closed material procedures,
I would be happy to consider them further, via written correspondence
or a meeting in Westminster.
1 October 2012
6. Letter to the Chair, from Angus McCullough
QC and Martin Chamberlain, 2 October 2012
We write in response to your letter of 12 September
2012. You invited us to comment on the Home Secretary's letter
to you of 17 July 2012 and on any relevant issues that have arisen
in the context of the Parliamentary debates on the Justice Security
Bill.
The Home Secretary's letter of 17 July 2012
As we made clear in evidence before the Committee,
the question whether to show privileged and sensitive material
to persons outside the Government's legal team is ultimately one
for the Home Secretary. That said, we have five comments on the
reasons given in the Home Secretary's letter of 17 July 2012 for
rejecting the Committee's suggestion that she show to some experienced
special advocates the material shown to David Anderson QC.
First, in our Note of 23 March 2012 to the Committee,
we expressed ourselves unconvinced by the conclusions David Anderson
drew in relation to the three cases shown to him. That was not
because of any lack of respect for his experience or judgment.
It was, as we said, because he had reached his conclusions following
"an (untested) introduction to the case by just one side
to the contested proceedings". We went on to say that "our
combined practical experience of handling sensitive material in
civil cases (as special advocates and otherwise) indicates that,
where there is no alternative (because a CMP is not available),
a way can normally be found for the claim to be heard acceptably
fairly", and without unacceptable disclosure of sensitive
material" (see at §7).
Secondly, whilst the Home Secretary is correct to
say that special advocates "take on the role of challenging
the Government's position in high profile cases" and "represent
active litigants in such cases", it would be wrong to infer
from this that the views expressed by the special advocates in
relation to the Green Paper and the Bill are somehow partisan.
The special advocates are drawn from a variety of legal backgrounds.
Many of us appear regularly both for and against the Government
in civil cases and for both prosecution and defence in criminal
cases. The comments we have made on the Green Paper and the Bill
represent our own independent views as members of the public with
particular experience of the issues raised. They are not in any
sense advocacy on the part of the individuals in whose interests
we are instructed, from time to time, to act.
Thirdly, whilst it is certainly true that arguments
advanced by special advocates in cases before the courts are sometimes
rejected, we do not agree that this should be regarded as "noteworthy".
Special advocates, like all other advocates, make submissions
in individual cases in the interests of their individual clients.
Sometimes those submissions are accepted by the courts; sometimes
not. The views of the special advocates on the Green Paper and
the Bill are, as we have said, quite distinct from the submissions
made by individual special advocates in individual cases. These
views have not, to our knowledge, been the subject of comment
by the courts.
Fourthly, we accept that it is in principle possible
that any special advocates made privy to confidential details
of the Government's litigation strategy may be "tainted"
for future work as a special advocate. That is because, having
heard confidential details of the litigation strategy of one party
in one case, it might (depending on the circumstances) be professionally
improper for the same advocates to accept instructions against
the same party in another related case. It would follow that any
special advocate who agreed to see the material shown to David
Anderson would run the risk the risk of being obliged to refuse
future instructions as a special advocate in certain related cases.
Whether to accept this risk would be a matter for individual special
advocates. We do not understand why it should be regarded as a
reason justifying a refusal on the part of the Home Secretary
to disclose the material to special advocates who are prepared
to accept this risk.
Fifthly, and finally, in the second paragraph of
her letter, the Home Secretary notes that the cases shown to David
Anderson were "three of the 27 cases considered current at
publication of the Green Paper, not the six new cases launched
since the Bill's publication". As we understand it, the Green
Paper identified 27 cases in which "sensitive information"
was "central" to the case (see Appendix J, §11).
It is relevant to note that "sensitive information"
in the Green Paper was defined very broadly and, in particular,
covered information which did not raise national security concerns.
Furthermore, it is not clear how many of those 27 cases were civil
claims for damages: from the context it is apparent that many
were from different categories, such as naturalisation and exclusion
cases which the JCHR has recommended be brought within the jurisdiction
of SIAC. The Home Secretary selected 3 cases which were civil
damages claims to show to David Anderson, but it remains unclear
how many civil damages claims are said to necessitate the measures
provided in the Bill. The "six new cases" referred to
in the Home Secretary's letter would seem to be those identified
in the Government's response to the JCHR's report on the Green
Paper, which response was published on 29 May 2012. What was said
in that document was: "[…] the Guantanamo claims were
settled in November 2010 and since then six further civil damages
claims against the Government have been launched where sensitive
material will be centrally relevant". The suggestion in the
Home Secretary's letter that the "new cases" post-date
the Bill's publication would appear to be mistaken: they date
back to November 2010, about a year before the Bill's publication
in October 2011. Some or all of them would presumably have been
among the (unspecified) number of civil damages claims included
in the 27 cases referred to in the Green Paper itself and, at
least potentially, may have been shown to David Anderson. When
introducing the Second Reading of the Bill to the House of Lords
on 19 June 2012, Lord Wallace, the Advocate General for Scotland
indicated that there were then 29 live cases "where sensitive
information was central to the case" of which 15 were said
to be civil damages claims. Quite how these 15 live cases relate
to the six civil damages claims referred to in the Government's
response published three weeks earlier, or the "six new claims"
referred to in the Home Secretary's letter referred to by in the
Home Secretary's letter one month later, is hard to understand.
At all events, 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.
Relevant issues arising in the House of Lords
debates on the Bill
The debates on the Bill in the House of Lords have
covered a large number of points, and included a wide range of
views. Nothing we have heard or read from those debates would
lead us to seek to alter the evidence that we gave have given
to the Joint Committee.
2 October 2012
7. Letter to the Chair, from Ewen Macleod, Head
of Professional Practice, Bar Council, 3 October 2012
The Joint Committee on Human Rights has asked the
Bar Council to comment on the implications of the Justice and
Security Bill for the ability of barristers to comply with the
Bar's Code of Conduct. The Bar Council is the statutory regulator
of barristers in England and Wales and it discharges its regulatory
functions through the independent Bar Standards Board (BSB), which
oversees the Code of Conduct. The BSB has considered the terms
of the Bill and wishes to make the following comments by way of
response.
Barristers fulfilling the role of open counsel and
special advocates will retain their duty to act in compliance
with their professional obligations in the Code of Conduct. Barristers
have a primary duty, under paragraph 303(a) of the Code, to promote
and protect fearlessly and by all proper and lawful means the
lay client's best interests and to do so without regard to their
own interests or to any consequences to themselves or to any other
person. However, this duty is subject to an overriding duty to
the Court, under paragraph 302, to act with independence in the
interests of justice and to assist the Court in the administration
of justice.
In discharging their duty to act in the interests
of justice, barristers will need to act in accordance with the
law. If the Justice and Security Bill becomes law, barristers
will be under an obligation to observe its provisions and to assist
the court in doing so. In this respect, the obligations in the
Code of Conduct will therefore remain unchanged.
Barristers acting as open counsel or as special advocates
will also need to observe their duty to remain individually and
personally responsible for their conduct and professional work
and to exercise personal judgement in all professional activities
(paragraph 306). Barristers are also under a duty not to accept
instructions, or to return instructions, where those instructions
seek to limit the ordinary authority or discretion of a barrister
in the conduct of proceedings in Court (paragraph 603(c)), or
where they have reason to believe that it will be difficult to
maintain professional independence or where the administration
of justice might be or appear to be prejudiced (paragraph 603(d)).
These comments are restricted to answering the Joint
Committee's question about the implications of the Bill for the
Code of Conduct and the BSB does not wish to comment on the policy
implications, desirability or otherwise of the Bill's proposals.
We understand that the Bar Council has responded to you separately
and may provide some more detailed comments.
3 October 2012
8. Letter from the Chair, to Lord Wallace of Tankerness,
23 October 2012
I am writing to you in the light of the recent evidence
given by the Independent Review of Terrorism Legislation, David
Anderson QC, to ask for clarification of the number and nature
of pending civil damages claims against the Government to which
national security material is centrally relevant. A copy of the
relevant part of the transcript is attached [not printed].
I would be grateful if you could answer the following
questions:
Q1. How many civil damages claims are currently pending
against the Government in which sensitive national security information
is centrally relevant:
Q2. To the extent possible, please give a breakdown
of these cases showing the date on which proceedings were commenced
and a summary of the nature of the claim.
Q3. In how many of these cases is it the Government's
view that the issues in the case cannot fairly be determined without
a Closed Material Procedure?
The Committee intends to report on the Bill before
report stage in the House of Lords and I would therefore be grateful
for a reply by Wednesday 31 October.
23 October 2012
9. Statement by Sir Daniel Bethlehem QC, 15 October
2012
1. By correspondence of 3 August 2012 from the legal
adviser to the Joint Committee on Human Rights, the Committee
invited me to submit written evidence to assist in its scrutiny
of the Justice and Security Bill. Specifically, the Committee
invited evidence on "the historical context of the Bill's
provisions concerning the courts' Norwich Pharmacal jurisdiction",
noting that, while it "accepted that there is a case for
legislating to provide greater legal certainty about the application
of the Norwich Pharmacal principles to national security sensitive
material", it "found it difficult to assess Government
assertions about the impact of particular court cases on the flow
of intelligence". The Committee indicated that it would
therefore "find it particularly helpful to hear from [me]
specifically on [my] experience of the impact of the Binyam Mohamed
litigation, and other relevant cases, on the UK's intelligence
partners, including but not confined to the US".
2. Insofar as I am in a position to do so, I address
below various issues that I hope may assist the Committee in its
further consideration of the Bill. Given my position as principal
Legal Adviser of the UK Foreign & Commonwealth Office from
May 2006 to May 2011, there are a number of issues on which it
would not be appropriate for me to comment, including:
(a) any issue covered by legal professional
privilege;
(b) any issue of detail relevant to ongoing
or foreseeable litigation engaging the matters in question; and
(c) any classified information.
3. In addition, in correspondence with the legal
adviser to the Committee, I indicated that I could not properly
comment on the detail or balance of the Bill for the reason that
policy consideration leading to the Bill began while I was FCO
Legal Adviser, including in respect of elements on which I advised.
It would not therefore be appropriate for me to comment on a matter
on which I had some prior professional involvement in circumstances
in which I am now giving personal evidence in a private capacity.
4. I emphasise the point just made about this statement
being personal evidence in a private capacity. It reflects my
views, not necessarily those of HMG or any other person. Further,
I have not had access to any government or other non-public papers
for purposes of the preparation of this statement. My comments
below, for example on the Binyam Mohamed case, are therefore
based either on the public record or on my recollection.
5. Before turning to issues of substance, four preliminary
observations to frame the remarks that follow may be helpful.
First, as noted, I was the principal Legal Adviser of the
FCO from May 2006 to May 2011. I was appointed to this post from
the private sector, being previously a barrister in private practice
in the field of international law at the London Bar and Director
of the Lauterpacht Centre for International Law at the University
of Cambridge. I returned to practice at the Bar following the
end of my FCO tenure. This background is germane to one aspect
of my evidence, addressed below.
6. Second, the FCO Legal Adviser's post is
not concerned with day-to-day intelligence matters and the breadth
of the responsibilities of the office is such that the Legal Adviser
only seldom leads on any issue. This notwithstanding, the Foreign
Secretary's statutory and political responsibility for the Secret
Intelligence Service and GCHQ, and the close engagement of the
FCO with aspects of the work of these agencies, means that the
FCO Legal Adviser is often closely involved in such matters. This
was the position in my case, notably, for present purposes, in
respect of two aspects that are relevant to this evidence. The
first concerned FCO-related litigation touching upon intelligence
matters. The second concerned matters of engagement with the
United States that involved an inter-departmental/agency dimension.
7. Third, it bears emphasis that achieving
a proper balance between justice and security is vitally important.
Justice under law is the hallmark of a democracy. Security is
the fundamental obligation of government. All concerned in government
with the Justice and Security Green Paper and the Bill with whom
I had dealings were acutely aware of the importance of achieving
the right balance, and none would wish to see open justice gratuitously
compromised.
8. The challenges identified in the Green Paper might
have been addressed in number of different ways. The Bill might
have proposed placing Public Interest Immunity (PII) on a statutory
footing, as it might also have done in respect of the "control
principle". A specialist tribunal, along the lines of the
Special Immigration Appeals Commission (SIAC), might have been
proposed. Itmight have been proposed that certain types of civil
damages claims should be precluded, with avenues found to address
the issues to which this would have given rise under Article 6
of the European Convention on Human Rights ranging potentially
from an inquisitorial mechanism to examine such complaints to
the without prejudice payment of compensation to a derogation
from Article 6. The Bill might have sought to revise and improve
the workings of the Special Advocate system by, for example,
allowing greater (even if still managed) access by a Special
Advocate to the person in whose interests he or she is acting.
Other approaches still might also have been available.
9. While there are different views on what the best
approach might have been, there are no easy options. Each one
of the alternatives just canvassed would have brought its own
complexities and complications. PII, for example, could not simply
be put on a statutory footing without more. For reasons addressed
below, the current PII framework is not adequate, in my view,
to the task of achieving a proper balance between justice and
security. Significant revisions to the mechanism would have been
required. Similar considerations are relevant to other options.
10. This is simply to say that where and how to achieve
an appropriate balance between justice and security is now properly
a matter for Parliament. The Courts and the Executive have not
so far, in the context of litigation, been able to do so. In addressing
these matters, Parliament should not proceed on the assumption
that either an approach of least resistance or of maximum security
was adopted, or indeed that other potential avenues were not carefully
considered.
11. Fourth, it is useful to identify the key national
security issues that the Bill aims to address. In my view, describing
them in broad brush terms, there are three:
(a) the disclosure of foreign intelligence information
in consequence of a decision of a UK court;
(b) the challenges associated with civil proceedings
involving review for disclosure of a very considerable numbers
of documents; and
(c) the absence of a mechanism to allow a court to
hear civil claims, in whole or in part, in closed session in
circumstances in which this is judged to be necessary in the interests
of justice, national security and an efficient procedure for
dealing with classified information. Although these issues have
arisen in various forms in a number of cases over recent years,
the two sets of proceedings that most exemplify these difficulties
are the Binyam Mohamed case and the Civil Damages proceedings,
eventually settled, to which reference is made in the Green Paper.
In highlighting these issues, I emphasise that, although they
may come together in a single case, they are discrete problems.
The closed material procedures (CMP) and Norwich Pharmacal provisions
of the Bill address these elements in different ways.
General observations
12. Turning to issues of substance, a number of
general observations are warranted.
Understanding and explaining intelligence issues
13. My appointment from the private sector is material
to an appreciation that has a bearing on my evidence. Although,
In my pre-FCO practice as a barrister, I periodically had to
deal with classified, including intelligence, information, this
was not a routine part of my work. My appreciation of intelligence
and related matters before taking up the FCO post was thus derived
largely from ad hoc experience in the context of particular litigation
or advisory issues.
14. On taking up the FCO Legal Adviser's post, it
became clear to me that my understanding of intelligence and
related matters from this ad hoc experience was not a sufficient
or adequate basis for my appreciation of such matters in the round,
including as regards challenges of collection, sensitivities around
protection, issues of reliability and proper use, constraints
around the sharing of information, operational caveats and assurances
central to international cooperation in this area, and other similar
matters. My understanding of these issues (such that it now is)only
developed over time, informed by an on-going exposure to such
matters over a period of years.
15. This is not a surprising observation. I highlight
it for present purposes, however, as it has led me to a sharpened
appreciation of the often quite acute challenges and difficulties
of addressing intelligence matters in the context of litigation.
Litigation is inevitably ad hoc in character. It almost invariably
takes place before a court that will, if at all, have only a
narrow and passing appreciation of such issues. The court will
(properly) be guided by principles of open justice. Its focus
will be on the circumstances of the particular case in issue.
16. This is in notable contrast to the imperatives
of intelligence work and the responsibilities of the Executive
in respect of such matters. Even if these have an operational
dimension, they are rooted in a strategic policy of government-
in the case of the United Kingdom, going back more than a century,
transcending political affiliations. It is the preserve of experts
as well as others, such as successive Foreign and Home Secretaries,
who have quickly to become knowledgeable in this area. Confidentiality
is at its core. Decision-making, even if it is issue specific,
must have close regard to the wider context and longer-term implications.
17. These elements are also not easily and adequately
conveyed to a court in the context of a particular case, both
for reasons of transparency and disclosure in open court and because
of the (understandable)lack of familiarity, as a general proposition,
of the bench with such matters. These challenges are deepened
in circumstances in which the case in question is politically
charged and is the subject of parallel media comment. They are
compounded in circumstances, as is sometimes the case on appeal,
in which the court determines that it will hear the matter without
the benefit of closed submissions or argument with the intention
of ensuring that it is public justice that is done.
A specialist court or bench
18. The preceding raises the question of whether
cases involving such matters ought not to be heard by a specialist
court or bench. This issue is often, sometimes wilfully, mischaracterised
by the implication that such a court would be a "national
security court", with all the connotations of the suspension
of civil liberties that this carries with it. I imagine that it
is largely for this reason that such an approach was not proposed
in the Green Paper and the Bill. The politics of taking this forward
in the present climate was probably judged to be simply too
difficult. It should, however, occasion a more serious and reflective
enquiry for a number of reasons, also because elements of such
an approach would be within the control of the courts. First,
the UK has a good deal of positive experience of specialist courts
or benches, ranging from the Family Division of the High Court,
to specialist tribunals dealing with immigration, employment,
etc, to specialist tribunals dealing with certain matters engaging
issues of national security, such as the Special Immigration Appeals
Commission (SIAC), to the assignment of judges with specialist,
subject-matter knowledge to hear certain types of cases (for example,
in the field of libel), and more. There is no reason to suppose
that the experience would be any less favourable with a specialist
court or bench that would be seised of cases involving intelligence
and related matters. Second, the specialised nature and sensitivity
of intelligence and related matters is such that it is probably
ripe for a court or bench with special expertise. Third, a specialist
bench may well be better able to hold government to account, including
on issues of disclosure, precisely because the judges would themselves
have a better appreciation of the equities involved, the practical
issues associated with, for example, disclosure, and, in the case
of doubt, where the line ought to be drawn.
The challenges of disclosure
19. Although the challenges of disclosure facing
government in civil cases in this field were addressed in the
Green Paper, their full import might not be quite so well appreciated.
The duelling imperatives are, on the one hand, the requirement
to ensure that information the secrecy of which ought properly
to be maintained in the national interest is in fact kept confidential,
and, on the other hand, the requirement of open justice and the
disclosure rights of an applicant. In between, however, are a
number of highly challenging variables that often, and certainly
in civil damages claims of the kind addressed in the Green Paper,
are simply overwhelming of the justice process.
20. In any given case, these variables may include
the following:
(a) a very considerable volume of documentation,
sometimes running into the hundreds of thousands of pages, or
indeed more, each page of which, under the current legal framework,
has to be examined individually;
(b) an understandable lack of sufficient, and sufficiently
expert and security cleared, personnel to undertake this examination
of documentation in anything like the kind of time that may be
required by the procedure of the case;
(c) the pressures of litigation timetables which,
while perhaps understandable from a case management perspective,
often seem to have an insufficient appreciation of the constraints
on government in respect of the disclosure review process;
(d) an understandable and proper degree of caution
that operates in such disclosure review exercises given the litigation
pressures, the volume of material to be reviewed, the sometimes
fine questions of judgement that are required in respect of particular
issues of disclosure, the requirement, on occasion, to engage
with liaison partners to address relevant issues, etc;
(e) issues associated with the systems in which intelligence
information is stored—whether paper or electronic—their
accessibility and searchability, and the ease and form of retrievability
of potentially relevant information;
(f) the very considerable importance—given
the reputational risks and possibilities of damages awards (as
in the Al Sweady case)— that attaches to being able to establish
whether any particular item of information the confidentiality
of which may need to be asserted has in fact already been disclosed
elsewhere, for example, as a result of a freedom of information
disclosure or an unauthorised leak in another jurisdiction. If
so, there is then a need to establish whether any such disclosure
was authorised and accurate and does indeed cover the material
thrown up in the disclosure review. Depending on the answer to
these questions, it may be important to consider whether the other
disclosure requires an NCND (neither confirm nor deny)[77]
response and whether the confidentiality of the information can
still be protected in the context of the case in issue;
(g) questions associated with the provenance of particular
items of information that may engage wider concerns of disclosability,
notably, whether the information in question originates from a
foreign intelligence partner and is covered by the "control
principle"; and
(h) the potential implications for other national
security work of having to reassign personnel and reallocate resources
to undertake a review of documentation for purposes of disclosure.
21. Many of these issues arose in the Binyam Mohamed
case; others in the Civil Damages cases referred to in the Green
Paper. In the Binyam Mohamed case, the disclosure difficulties
that arose at one point in the course of the proceedings were
the subject of correspondence from me, in both my name and that
of the then Home Office Legal Adviser, to the Treasury Solicitor
requesting that guidelines be drawn up for the handling of disclosure
review matters. I attach copy of the letter in question as it
highlights some of the challenges that arose in the circumstances
then in issue. In response to this request, as well as disclosure
difficulties that arose in the Al Sweady case, a review was undertaken
and guidelines were drawn up.[78]
While the Guidance brought greater clarity to the disclosure process,
the challenges associated with such issues remain. The Green Paper
and Bill are a recognition that, notwithstanding the best efforts
of government, including in the interests of open justice, disclosure
challenges are sometimes overwhelming and it is simply not possible
to proceed on the basis that normal civil justice procedures are
adequate or appropriate.
Public Interest Immunity
22. I noted in paragraph 20(a) above that, under
the current legal framework, each page of each document, indeed
each paragraph and sentence, that may be relevant and therefore
need to be disclosed has to be reviewed individually. The legal
framework in question is that of Public Interest Immunity, which
is a common law creation that operates through PII certificates
issued by a Secretary of State, Minister or potentially, although
rarely, a senior official. Such certificates essentially require
two evaluations to be made by, in the case of the 5 such certificates
issued in the Binyam Mohamed case, the Home Secretary (2 certificates)
and the Foreign Secretary (3certificates). The first evaluation
is an assessment of the likelihood of real damage to the public
interest (in the form of the national security and/or international
relations interests) of the United Kingdom. The second evaluation,
which only arises in circumstances in which the first evaluation
is that there is indeed a likelihood of real damage,[79]
is what is often referred to as the "Wiley balance",
ie whether, in the view of the Secretary of State, the likelihood
of real damage to the public interest from disclosure outweighs
the public interest in open justice. As a matter of established
form, this assessment always concludes with a statement by the
Secretary of State that this balance is ultimately a matter for
determination by the court, even though the received wisdom is
that a court will give a good deal of deference to the views of
the Secretary of State and is highly unlikely to reach a conclusion
different from that of the Secretary of State.
23. Tangentially, a highly problematical aspect of
the Binyam Mohamed case that is often overlooked, and indeed
of which many seem simply to be unaware, is that the Divisional
Court ultimately rejected the Foreign Secretary's third PII certificate.
In that certificate, the Foreign Secretary assessed that disclosure
of the seven paragraphs in issue would give rise to a likelihood
of real damage to the national security and international relations
interests of the United Kingdom. On the Wiley balance, the Foreign
Secretary reached the view that the risk of damage to the public
interest outweighed the public interest in open justice, particularly
in circumstances in which Binyam Mohamed had been released and
returned to the United Kingdom. The assessment of a likelihood
of real damage was addressed in detail in the open PII certificate
and supported by compelling evidence in the sensitive schedule
that was submitted in closed form with the certificate.
24. The fallout of the Binyam Mohamed case was only
in part a consequence of the decision of the Divisional Court,
ultimately upheld by the Court of Appeal, requiring disclosure
of the seven paragraphs in question in violation of the "control
principle". More serious, in my view, was the decision of
the Divisional Court to reject the PII certificate and substitute
its own view of the balance of the public interest. The consequence
of this was to throw into doubt the stability and reliability
of the PII mechanism as a means of safeguarding the national interest.
The legislation that is now proposed reflects this systemic concern.
The issue at the core of the matter is thus not the breadth or
narrowness or risk of repetition of the Binyam Mohamed judgment.
It is not whether the information in issue in that case had been
disclosed in the Opinion of Judge Kessler in the DC District Court
in the Farhi case.[80]
It is not whether the UK courts—in recent cases such
as Omar v. SOSFCA[81]or
that of the First-Tier Tribunal's decision in the appeal against
the decision of the Information Commissioner by The All Party
Parliamentary Group on ExtraordinaryRendition[82]—upheld
the government's position on national security. All of these are
relevant, but on the margins. The core issue associated with the
Binyam Mohamed judgment is that it caused considerable doubt to
creep into the heart of the PII process. The fact of the matter
is that intelligence and similar relationships that hinge fundamentally
on trust and reliability require greater certainty than the courts
are now able to provide.
25. Returning to the broader issue of PII, a revised
PII framework, including, but not limited to, placing PII on a
statutory footing, might have been one way in which the challenges
could have been addressed. In the light of the Supreme Court's
judgment in the Al Rawi case,[83]
however, there would still have been a need to legislate to allow
for closed material procedures (CMP). This apart, there are also
a number of other features of the current PII framework that lead
me to the conclusion that the current PII framework is not of
itself adequate to the task of achieving a proper balance between
justice and security.
26. A central feature of the current PII framework
is that it differentiates between the content of a document, ie,
the information contained therein, and the class of a document,
ie, its classification, provenance or other generic form of distinction.
PII may be claimed, as appropriate, for part or all of the content
of a document but it cannot be claimed for a document itself simply
on the ground that it is a document of a particular form, eg.
Classified as SECRET.
27. This class-contents distinction, a creation of
the common law, stands at the heart of PII. It is appropriate,
and works well, when what is in issue in legal proceedings is
a small quantity of HMG-sourced information that ought properly
to be put in the balance between open justice and national security.
It poses significant challenges, however, when what is in issue
for disclosure purposes is a very large volume of documentary
material some or all of which contains information that is foreign-sourced.
In such circumstances, the class-contents distinction requires
that every line of every potentially relevant document is reviewed
(a) for relevance, (b) for direct HMG national security sensitivities
going to disclosability, (c) to establish whether the information
in issue is foreign-sourced and subject to the control principle,
(d) to establish whether the information in question might have
already been disclosed in some other manner and forum, and (e)
to identify what redactions are required and appropriate. In proceedings
involving hundreds-of-thousands of documents, or more, this is
simply not manageable—in the interests of justice, in the
interests of national security, in the interests of a sensible
engagement with the UK's intelligence partners, and in the interests
of an efficient court process. The current PII framework is, for
this reason alone, inadequate to the task of achieving a proper
balance between open justice and national security in the types
of cases with which the Bill is concerned.
28. Beyond this, and, as already addressed, very
much part of the fallout of the Binyam Mohamed case, is the uncertainty
that now attaches to the exercise of judicial discretion to substitute
the views of the judge for the views of the Secretary of State
when it comes to assessing the balance between the public interest
in national security and the public interest in open justice.
While there was evident public appetite to learn of the information
the public disclosure of which was resisted in the Binyam Mohamed
case, and public appetite perhaps translates into public interest,
it is difficult to conceive of a stronger claim to PII. The applicant
in whose name the case was brought, and in respect of whose indictment
before a US military commission the information was sought, had
been released without charge and returned to liberty in the UK.
Successive US Governments had expressed their unequivocal concern
about and opposition to the possible disclosure of US intelligence
information. The UK Foreign Secretary, in both an open PII certificate
and a classified sensitive schedule, had assessed there to be
a likelihood of real damage to the UK public interest from disclosure.
While the information in question might not have been such that
the disclosures would have put in jeopardy life and limb, it went
to a principle of trust that stands at the heart of intelligence
relationships. The public interest in open justice is always strong.
This was a case, however, in which there was also a strong competing
public interest. The substitution by the court of its view of
the balance of the public interest for that of the Foreign Secretary
has understandably given rise to a good deal of disquiet in the
intelligence and diplomatic communities.
29. Against the background of these general observations,
I turn briefly to address some specific issues relevant to Norwich
Pharmacal jurisdiction and the practical fallout of the Binyam
Mohamed case.
Norwich Pharmacal jurisdiction
30. Norwich Pharmacal jurisdiction was a creation
of the commonl aw to address the inability of a private law claimant,
in proceedings against a private law respondent, to secure information
from the respondent in circumstances in which relevant information
was also held by a third party who could be shown to have been
"mixed up" in the alleged wrongdoing of the principal
respondent. The court allowed proceedings to go ahead, and relief
to be granted in the form of disclosure, against the third party.
31. The novelty of the Binyam Mohamed case was to
extend this mechanism into the public law arena in circumstances
in which the principal respondent was a foreign state and the
information in question was foreign-sourced intelligence information.
Following Mr Mohamed's release and return to the UK, the case
took on a freedom of information character, to secure the public
disclosure of certain information held by HMG rather than only
disclosure to Mr Mohamed for use in legal proceedings in the
United States, subject to appropriate handling and non-disclosure
safeguards. And this in circumstances in which the information
in question would not have been subject to disclosure under the
Freedom of Information Act. Subsequent cases took more of the
form of a fishing expedition in which the applicant had no knowledge
of whether HMG held any relevant information but, relying on the
government's "duty of candour" disclosure obligation,
nonetheless sought disclosure, with significant attendant burdens
on HMG.
32. The fungibility of information and the notion
of presumed knowledge across government pose a challenge in this
area. By this I mean, first, that information that is held by
one department or agency of government is presumed to be held
by the government as a whole, and, second, that information once
received is presumed to put the government on notice. I make no
wider point about these elements, which are probably right and
sensible in the ordinary course of events. In the context of
Norwich Pharmacal proceedings in the national security sphere,
however, they have formed the implicit foundation of the contention
that HMG has been mixed up in the alleged wrongdoing of another
in large measure because it is in receipt of information that
is said to evidence the alleged wrongdoing or to be otherwise
relevant to the case.
33. As a legal matter, Norwich Pharmacal jurisdiction
in this area has proven to be challenging. In some cases, no proceedings
had been commenced against a putative principal respondent but
only the suggestion that, contingent on disclosure from HMG, proceedings
may be initiated. The allegation that HMG was somehow mixed up
in the wrongdoing of another, an essential element of the claim,
has been easily made. It is less easily addressed, however, when
to do so would require detailed argument on issues often contingent
on the very information the confidentiality of which it was sought
to maintain.
34. As a practical matter, the extension of Norwich
Pharmacal jurisdiction into the public law arena, in respect of
allegations engaging the interest of foreign states that ought
properly to be the preserve of the courts of those states, and
in circumstances in which the information that is sought is sensitive
foreign-sourced intelligence information, is highly problematical.
It undermines the trust and confidence that is at the heart of
intelligence relationships.
The Binyam Mohamed case
35. I have already addressed aspects of the Binyam
Mohamed case in some detail. I set out below some of the practical
consequences of the case that I observed in the intelligence and
diplomatic spheres. As a preliminary matter, it is useful to underline
quite how unprecedented the case was, both as regards the currency
and sensitivity of the national security issues engaged and the
case procedure.
36. Following the initiation of proceedings on 6
May 2008 to the concluding judgment of the Court of Appeal on
26 February 2010, a total of 9 judgments were handed down, 7 by
the Divisional Court (6 open and 1closed) and 2 by the Court of
Appeal. In practical terms, the momentum of the litigation saw
9 judgments handed down in 18 months. All told, 5 PII certificates
were submitted. The case ran in parallel with focused diplomatic
efforts by HMG to secure the release from Guantanamo Bay of Mr
Mohamed and other lawful British residents that had been launched
by the then Foreign Secretary, David Miliband, in correspondence
to US Secretary of State Condoleezza Rice, in August 2007. The
case straddled the US Presidential election of November 2008 and
the assumption of office of the Obama Administration in January
2009, giving rise to significant legal and diplomatic challenges,
at the tail end of the Bush Administration and the start of the
Obama Administration, for both the UK and US Governments. Much
of the case, and certainly its most problematical parts, played
out after the information that Mr Mohamed had sought through the
legal process had already been made available to his US security
cleared counsel, around the time of the 3rd Judgment of the Divisional
Court in October 2008, and Mr Mohamed had been released from Guantanamo
Bay on 23 February 2009 and returned to the United Kingdom.
37. The outcome of the case, following the 6th open
judgment of the Divisional Court, upheld by the Court of Appeal,
was to require the public disclosure of seven paragraphs of an
earlier judgment of the Divisional Court in which the court had
summarised sensitive foreign-sourced intelligence information.
The judgments rejected the 3rd PII certificate of the Foreign
Secretary that had concluded that there was a likelihood of real
damage to the national security and international relations interests
of the United Kingdom and that this risk of damage outweighed
the public interest in open justice in the circumstances of the
case. The Foreign Secretary's evaluation weighed and referred
to unambiguous concerns expressed by the US Government over the
possible public disclosure of the information in question and
the potentially wider consequences of such a development for the
intelligence relationship.
38. Turning to the practical consequences of the
case, there are 4 areas that I would highlight, from my own experience,
in which the consequences of the case had wider and materially
damaging effects. I do so only in summary terms for the reason
that further elaboration or illustration would require the disclosure
of details that are still regarded as sensitive. The 4 areas
of impact are as follows.
(a) Heightened sensitivity in the intelligence sphere—the
case sent a signal to the UK's intelligence partners that, for
reasons of potential litigation disclosure risks and the approach
of the UK courts, HMG was not in a position to guarantee the confidentiality
of foreign intelligence information shared with the UK on the
basis of the "control principle". While HMG put considerable
effort into engaging with senior officials in the foreign intelligence
community to assess and address the disclosure risks flowing from
the case, whatever limited reassurance such engagement may have
been able to achieve at a strategic level, it could not adequately
address concerns arising at an operational level.
I would add that, with the Green Paper and Bill,
there is an appreciation amongst the UK's intelligence partners
that HMG is seeking to address the difficulties to which the
Binyam Mohamed case gave rise. I am not in a position to comment
on the level of comfort that the Bill, if enacted, would give
to such partners although I anticipate that it would address the
principal concerns. What I do not doubt, however, is that a failure
by HMG to be able to provide necessary reassurance on these matters
to the UK's intelligence partners would inevitably lead to a re-evaluation
on their part of long-standing intelligence-sharing arrangements.
(b) Repercussions beyond the intelligence arena—the
case had consequences in other areas involving the exchange of
sensitive information with foreign governments. The fact of the
case, even if not its fine details and likely precedential effects,
became quickly and widely known amongst foreign policy officials
and lawyers in other states with the consequence that caution
began to creep into the sharing of sensitive information with
HMG in other areas where there was a perceived litigation disclosure
risk.
(c) Complicating diplomatic engagements more widely—the
case had consequences in the broader arena of diplomatic engagements
involving the discussion of sensitive issues. In my direct experience,
for example, in discussions on matters of some sensitivity with
foreign partners that were perceived to have a litigation risk
in the UK, I was on occasion faced with a preliminary enquiry
on whether I/the HMG delegation could guarantee the confidentiality
of the information that our foreign interlocutors thought it necessary
to impart to us for purposes of a fully informed dialogue. I
could not do so. The consequence was to considerably complicate
and elongate the discussions in question.
(d) The risk of a self-denying ordinance in the conduct
of HMG officials—given the perceived litigation disclosure
risks, a degree of caution began to creep into the conduct of
HMG officials when it came to eliciting information from foreign
counterparts the confidentiality of which they may not have been
able to maintain. It certainly coloured my approach, for example,
in circumstances in which a matter on which I was engaged carried
a real litigation risk. While I do not want to overstate this
issue and leave the impression that Binyam Mohamed disclosure
concerns intruded into all or even most diplomatic dialogue, the
uncertainty created by the case had a wider impact on the candour
and ease of sensitive diplomatic exchanges more generally.
Postscript
39. At the moment of finalising this statement, I
was provided with a copy of HMG's response to the House of Lords
Select Committee on the Constitution, laid before Parliament today
(15 October 2012), addressing the issue of Norwich Pharmacal jurisdiction.
I have not taken that response into account for purposes of my
statement and have not altered the statement in any way to reflect
it. As will be apparent, however, I agree in large measure with
what it says.
15 October 2012
10. Letter to the Lords Clerk of the Committee,
from Caroline Mersey, Deputy Director, Justice and Security Bill
Team, Cabinet Office, 2 November 2012
Thank you for the Joint Committee's recent letter
seeking information about the number and nature of pending civil
damages claims against the Government to which the provisions
in the Justice and Security Bill may be relevant. The Advocate
General has asked me to write to you and provide an update on
the progress of responding to your request.
I sincerely apologise that the Government has not
responded in time to meet your 31 October deadline I hope this
delay will not cause significant disruption to your important
work scrutinising the Bill.
It may be helpful if I provide an explanation of
why the Government has not been able to supply this information
within the deadline. The Cabinet Office does not hold a central
database of the case details. Instead the information is held
in each Government department. Consultation is required with a
significant number of individuals and Departments across Government
and it has proven difficult to complete this to a sufficient degree
of reliability within this timeframe. It is important to us that
any figures provided are the most current and accurate as we would
not want to inadvertently provide you with incorrect information.
As you are aware, these cases are sensitive and very
complex. As is the case with litigation, the status of cases varies
with the passage of time and provides a continually shifting picture,
for example as some cases are stayed behind other proceedings.
We also have to consider all the impacts of any information given
publically about these very sensitive cases.
I understand it is important that you receive this
information for your report on the Bill. I am sorry I am unable
to provide a specific date when this information will be ready,
however, I hope to supply the information to Lord Wallace next
week, who will then reply to the Chair.
2 November 2012
76 JCHR Report on the Justice and Security Green Paper,
paras 56-80, esp. Paras 72 and 80. Back
77
[2009] EWHC 1687 (Admin).
Back
78
See both http://www.tsol.gov.uk/Publications/Scheme_Publications/Letter
to Attorney General.pdf and http://www.tsol.gov.uk/Publications/Scheme_Publications/Guidance
on Discharging the Duty of Candour.pdf Back
79
The formula employed varies, sometimes being described as disclosure
that would "cause serious harm or real damage to the public
interest". Back
80
Civil Action No.05-1347, 19 November 2009. Back
81
[2012] EWHC 1737 (Admin). Back
82
Case No.EA/2011/0049-0051. Back
83
[2011] UKSC 34.
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