Publishing the Justice and Security Bill this morning, the Secretary of State for Justice said “I have used the last few months to listen to the concerns of … civil liberties campaigners with whom I usually agree.”
There are many people who today would sorely like to agree that Ken has listened and has taken their concerns on board. Unfortunately, the Government’s analysis remains fundamentally flawed. The Green Paper was clearly a “big ask”. There have undoubtedly been significant changes made from the proposals in the Green Paper. However, the secret justice proposals in the Justice and Security Bill remain fundamentally unfair, unnecessary and unjustified.
In Al-Rawi, the Supreme Court held it did not have a general power to use closed material procedures as an alternative to public interest immunity. The introduction of closed material procedures – where one party and his representatives could be excluded from any or all parts of a case, including the hearing and the judgment – would be such a fundamental shift away from the principles of open and adversarial justice that the Court would not take that step without direction from Parliament. Lord Dyson explained:
The common law principles…are extremely important and should not be eroded unless there is a compelling case for doing so. It this is to be done at all, it is better done by Parliament after full consideration and proper consideration of the sensitive issues involved (Al-Rawi, ).
The Bill asks Parliament to make precisely the same kind of fundamental shift that the Supreme Court would not countenance. Clause 6 introduces a general duty on the Court to impose closed material procedures in any case where any person – either a Government body or any third party – could be required to disclose material which “would be damaging to the interests of national security”.
It is now for Parliament to consider whether the Government has produced a compelling case for wide-ranging reform of the kind proposed in the Bill as introduced.
The Bill will apply to all “relevant civil proceedings”, defined as proceedings in the High Court, the Court of Appeal and the Court of Session (Clause 6(1)).
The Government has decided not to include inquests in the scope of the Bill. This decision is unsurprising: two previous proposals to introduce similar secret inquest provisions having been defeated in Parliament or withdrawn in the face of opposition in the past five years. However, if adequate steps can be taken to protect the interests of national security in the context of an inquest, it makes it more difficult for the Government to argue that the existing measures for the protection of national security are inadequate in civil proceedings.
However, the issue of inquests is not definitively settled. The Bill proposes a power for the Secretary of State to extend the scope of the Bill by secondary legislation (Clause 11(2)). This opens the door to the further expansion of secret justice in the future, without the benefit of full parliamentary scrutiny. Secret inquests may yet rise again.
The judge decides
The Secretary of State has conceded that the original proposal that a Minister should trigger closed material procedures at his or her discretion was “too broad”. The “final say” will now be with a judge. The Bill provides that the Court must make a declaration that closed material proceedings may be introduced in any case where a party will be required to disclose material which “would be damaging to the interests of national security”. Applications may then be made to the Court for certain material – or types of material – to be subject to closed material proceedings. When that application is considered, the Court may only order disclosure of any material – or any summary – if it is not damaging to national security.
That the final decision is made by a judge is indisputable. Unfortunately, in substance the shift from the proposals in the Green Paper is not as significant as it first might seem. The Green Paper talked about public interest, but Ministers were always firm that they only intended these proposals to apply to a limited number of cases concerning national security. Although the Bill is not limited to national security cases, “national security” remains undefined.
In the original Green Paper proposals, it was clear that the Minister’s discretion would be subject to judicial review, albeit on ordinary grounds. The broad degree of deference afforded by the Courts to the Executive on the assessment of national security risk is well-documented. The application to introduce closed material procedures will take place ex-parte and it is likely the judge will hear only from the Secretary of State and the party seeking the closed material proceedings, if different. In practice, these changes are unlikely to provide for a significant degree of scrutiny.
The role of the judge changes significantly under the proposals in the Bill. Under the existing public interest immunity procedure the judge will balance the competing public interests: the interest in open, adversarial justice and any immediate national security interests. It will be for the judge to determine where the public interest lies.
Under the proposals in the Bill, no balance is drawn. The so-called Wiley balance is abandoned. The judge must introduce closed material procedures where there will be damage to the interests of national security. There is no discretion to consider alternatives, such as anonymity orders or confidentiality rings. The Court is instructed to ignore the possibility that public interest immunity might be applied and the material excluded altogether (Clause 6(3)(a)). Although the Secretary of State must consider whether to make a claim for public interest immunity, he is not required to do so. He may seek closed material proceedings as an alternative to public interest immunity, not a supplement (Clause 6(5)).
There are many other features of the Bill which will be dissected in far greater detail in the coming months. For example, the Bill does not deal directly with enhanced disclosure, as required by AF (No3) to secure the right to a fair hearing. Instead, it empowers the Court to make any disclosure or summary available it sees fit, provided it would not damage national security (Clauses 7(1)(d) – (e)). There is no corresponding duty on the Court to proactively order such disclosure as is necessary to secure a fair hearing.
However, the Bill provides a rider to supplement the requirement that the Court would read the provisions compatibly with the Convention rights guaranteed by the HRA 1998 (s3). Clause 11(5) provides that nothing in the Bill will require the Court to act inconsistently with Article 6 ECHR. It is unclear what the Court will be required to do in circumstances where under AF (No3) enhanced disclosure would have been necessary to secure a fair hearing compatible with Article 6 ECHR, but the Secretary of State argues that disclosure would be damaging to national security.
A case for reform?
In introducing the Bill, the Government has failed in its first task: to produce a compelling case for reform.
Ken Clarke rightly points out that no-one wants intelligence personnel to be endangered by giving evidence in open court. However, this never been a realistic prospect. There is no suggestion that the operation of public interest immunity – and other protections such as screening, anonymity or confidentiality rings – have endangered lives or national security. If a judge is satisfied that the public interest is in favour of non-disclosure, the relevant material is excluded.
The Secretary of State argues that the current system is failing because the Government can’t rely on information excluded subject to immunity. If it could, it would be able to resist claims it would otherwise settle. Instead, the Government would prefer to put all the information before a judge. However, the simplicity of that argument was wholly rejected by the Supreme Court. As Lord Kerr explained, evidence unchallenged can positively mislead. Requiring the Court to determine these claims after hearing only one side of the case – often the Government’s unchallenged evidence – could skew the proceedings in favour of the Government and against the excluded party. The Special Advocates have themselves stressed that their involvement cannot redress the inherent unfairness in this type of closed proceeding.
The Government has produced no new evidence that the current system is failing. The Parliamentary Joint Committee on Human Rights stressed in their influential report that this justification must precede any detailed proposals for reform. The JCHR considered the Government claim that it had been forced to settle cases it could have resisted but for the operation of public interest immunity. It rejected the Government’s claims. Importantly, the cases in Al-Rawi were settled before public interest immunity had been explored. The material accompanying the Bill makes no new case for change, nor does it appear to produce any further evidence.
The Justice and Security Bill can be firmly removed from the list of recent Government “U-turns”. The changes proposed by the Government represent little more than a bump in a road which appears to be charging steam-roller like to a predetermined destination: the introduction of closed material procedures as a standard tool in the civil justice tool-box. That, we believe, would cause irreparable damage to public confidence in our civil justice system and could potentially undermine the credibility of our judiciary.
Parliamentarians must ask: where is the compelling case for change? That the Government continues to make the same arguments which were rejected by the Parliamentary Joint Committee on Human Rights must be cause for concern.
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