Secret justice: do we have a compromise?

The Parliamentary Committee on Human Rights has now responded to the Government’s consultation on the proposals set out in their  Justice and Security Green Paper Cm  8194. The idea is to extend “closed material procedures” so as to be available in all civil proceedings, i.e. not just in some highly restricted national security contexts such as deportation appeals before SIAC (the Special Immigration Appeals Commission), control orders, and their successor regime known as TPIMs.

On the one side…

is the independent reviewer of terrorism legislation, David Anderson QC, who has concluded that secrecy of evidence should be maintained in civil procedures as well; after reviewing secret evidence relating to a small selection of civil claims, he reported that issues in some damages claims could not be determined at all without resort to a closed material procedure.

On the other  …

are the Special Advocates, who are employed in these procedures involving “closed material”,  to represent the interest the interests of the person who is excluded.  So far they have been critical of the proposals, having lodged a collective response to the proposals, and they have recently responded to Anderson with a supplementary paper.

The JCHR has taken up their conclusions, agreeing with them that “closed material procedures are inherently unfair”

As Special Advocate Angus McCullough QC told the Committee,

there is an important flexibility in PII that would be replaced and lost if the proposals in the Green Paper were adopted”[para 11]

The JCHR’s proposals

The Committee acknowledges the gravity of the concerns behind the Green Paper. It acknowledges in particular the anxieties of the US that intelligence information is not predictably handled in the UK courts.  The Committee proposes that the problem can be addressed in a way that is more “proportionate” than a broad extension of the closed material procedure set out by the Green Paper. The common law that allows the removal of sensitive security evidence from proceedings on “public interest immunity grounds”  is useful, but it must be predictable, otherwise whole cases go to the wall for lack of evidence or sensitive material is inappropriately exposed. The Committee proposes that this common law procedure would be improved by the following steps:

1) introducing a presumption, written in to legislation, against disclosing any sensitive intelligence material

2) requiring courts to acknowledge a specific list of factors which require disclosure of security-sensitive material

3) obliging courts, before removing all evidence critical to the case under PII, to consider halfway house devices such as redactions, confidential rings and “in private” hearings so that a claim can be properly determined with some of the evidence still intact

The Committee notes the “avoidable” anxiety that has been created by the Green Paper about the “freedom and ability of the media to report on matters of public interest and concern”.

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