The notion of a Bill being swatted back and forth across the Palace of Westminster is at its most accurate in the case of controversial legislation such as the “secret courts” Bill (see previous discussions of these controversies).
With allegations that ministers may have misled parliamentarians on the scope of their prized Bill, the picture of political game-playing might be apt. However, this is the last chance for parliament to consider the government’s case for the expansion of “closed material procedures” (CMP), where a party to proceedings and his lawyers (together with the public and the press) are excluded – and his interests represented by a publicly appointed security vetted lawyer, known as a Special Advocate. An analogy more serious than Boris’ “wiff-waff” might be needed for tonight’s debate. Some commentators have suggested the Lords will play “ping-pong with grenades”.
What’s left to argue about?
The Bill faced robust scrutiny during its earlier passage through the House of Lords. Some peers – from across the House – would have deleted CMP from the Bill. The official opposition, together with many others, supported the Bill only after amendment to insert changes recommended by the Joint Committee on Human Rights (JCHR) and the Lords Constitution Committee. Crucially, these would have required the court to consider whether the degree of harm to the interests of national security if the relevant material were disclosed would outweigh the public interest in the fair and open administration of justice (akin to the Wiley balance applied in public interest immunity claims (PII)); and whether a fair determination of the proceedings would not be possible by any other means.
The Commons has stripped out almost all of these changes. Two basic tests must now be satisfied before a court may order CMP:
(a) that a party will be required to disclose “sensitive material” to another person in the course of proceedings (sensitive material is material which if disclosed would be damaging to national security); and
(b) that “it is in the interests of the fair and effective administration of justice in the proceedings” to allow CMP (Commons Amendment 6).
There are a number of amendments tabled for discussion but the substantive debate is likely to focus on two issues:
(a) whether CMP should only be used as a “last resort”; and
(b) whether the court should be required to balance the public interest in the fair and open administration of justice against the risk posed to national security involved in disclosure before ordering CMP.
The “last resort”
The government resists the reinsertion of the requirement that the court be satisfied that the fair determination of the proceedings would not be possible by any other means. Ministers argue that this process would be unduly restrictive of the discretion afforded to the court (which should be free to determine that CMP is the best procedure, not the only procedure, capable of achieving justice in any case). This argument appears to undermine the government’s case for reform, which has been, throughout the Bill’s passage, based on the need for CMP in a handful of cases which otherwise could not be heard.
The government’s preference for greater judicial discretion in this context could easily mislead. It is clear that the government considers the greater discretion will import a degree of flexibility into the operation of CMP. This will arguably allow for its expansion and use in a far greater set of circumstances than if the statute were defined to require a judge to consider less draconian alternatives first. The JCHR has stressed that there is nothing in the language used in their amendment to require the exhaustion of each of these alternatives before CMP is chosen (JCHR Second Report, para 71).
Secondly, ministers argue that the last resort procedure will be over burdensome, slow and costly. Notably, Ken Clarke MP suggests if a PII exercise must be considered by the court, the minister will have to closely examine the relevant material, in light of his role in the Public Interest Immunity process. However, the Commons amendments to the Bill will require the secretary of state to consider PII in all cases where CMP is sought. Is this exercise to be cursory, or based solely on the advice of counsel, Treasury Solicitors or the Security and Intelligence Agencies?
It is clear that the government envisages that the CMP will require a far more “light-touch” form of ministerial involvement than an application for PII. This is consistent with the government’s view that CMP is less draconian than the exclusion of evidence following PII. However, this significantly underplays the fundamental unfairness inherent in CMP and the long term impact on the credibility of the civil justice system of routinely favouring one party over another.
This “light-touch” scrutiny by a minister appears entirely inconsistent with the government’s claim that CMP will only be considered in rare cases where national security is at risk. In these cases, surely ministers will actively seek to be informed to ensure ministerial accountability for risks to the interests of the UK remains inscrutable?
This kind of abrogation of interest in the “detail” of national security based applications is reminiscent of the now long-discredited class-based PII system, which predates the “Wiley” balance. Criticism of the operation of this system led to scandal and widespread allegations of whitewash and cover-up. This prompted the ultimate rehabilitation of the PII system to foster greater respect for judicial oversight and the public interest in the fair and open administration of justice.
Judicial discretion and the public interest
As the Bill is now drafted, there is nothing which will require the court to consider the wider interest in the fair and open administration of justice. The “fair and effective test” is limited to the effectiveness of the disposal of the proceedings at hand and may not require the court to go further.
During debate, it has been suggested that we should trust our judiciary to ensure a fair balance between national security interests and the integrity of the judicial system. However, on the current draft of the Bill, it is unclear how precisely a Special Advocate should answer when asked by the court to describe its powers to refuse a CMP application. What precisely is the court is entitled to consider in the context of considering (a) the discretionary nature of the power and (b) the application of the “fair and effective” test?
It is tempting to suggest that the court will interpret these powers in accordance with the ordinary principles of open and natural justice, reflecting the approach of the court in Al-Rawi. Some may point to the reluctant decision of the Supreme Court during last week, in the case of Bank Mellat, that although they may be required to enter into a CMP, they could limit the use of CMP to those cases deemed “necessary”, thus imposing their own criteria and nominal safeguards.
However, this Act will represent a statutory equivalent of a “clean slate” on the operation of CMP in civil proceedings. Applying the ordinary principles of statutory interpretation, if Parliament rejects a test which incorporates “last resort” and a balancing exercise based on Wiley, it sends a very strong signal to the judiciary that these considerations are irrelevant. The tests for CMP then become easy to satisfy and the credible grounds for rejection may be extremely difficult to identify.
Should this part of the Bill pass unamended, CMP will become the default procedural mechanism in any case where a national security risk is raised. In the words of the Special Advocates:
If it is not spelled out, there is a risk that the court will not address its mind to the question of whether the case could be tried fairly under existing procedures. There is a risk that CMPs will become the default option and that what was justified as an exceptional procedure will come to be accepted as the norm.
If CMP becomes an accepted part of the civil justice tool-kit, this will, in practice, rule out the many existing practical measures which may be taken to strike a more effective balance between open justice and security. Existing practice on redaction, confidentiality rings, undertakings and anonymity are likely to fall by the wayside if the proposals in the Bill become law.
As ping-pong implies; the Commons will respond to the Lords amendments. Subsequent rallies may continue until fatigue sets in or a political compromise is reached. The duration and likely outcome of this endgame will be determined tonight, when it becomes clear whether Peers are willing to stand their ground and insist on the safeguards they considered essential, or whether they will bow to the will of the lower House.
Angela Patrick is Director of Human Rights Policy at JUSTICE.