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


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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