The Justice and Security Bill has passed all of its parliamentary stages and is due to receive Royal Assent in 2013.
This bill, in broad summary, provides for oversight of the security and intelligence services (MI5 – the security service; MI6 – the secret intelligence service; and GCHQ – the government’s communication headquarters) and the extension of closed material proceedings (CMP) to all types of civil proceedings, and limits the ability of courts to make certain orders for the disclosure of information considered sensitive by the government (or more accurately, perhaps, the security services) with respect to intelligence and security matters.
The CMP approach has been applied, so far, to immigration and deportation cases. In July, 2010, however, the Prime Minister, David Cameron told the House of Commons that there were serious problems with the way that the courts dealt with intelligence and security information. In particular, there was a lack of confidence from security services that such information would remain protected if disclosed in legal proceedings, and by extension, the secrets of our allies.
The government argued that two cases, in particular, highlighted the need for change. Al Rawi and others v. The Security Service, 2011 UKSC 34, was an action for damages by former Guantanamo detainees claiming damages for British complicity in their unlawful detention and torture. The Supreme Court (previously the House of Lords) held that closed material proceedings did not extend to civil actions. In R(Binyam Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs, 2008 EWHC 2008 one of the former detainees in the Al Rawi case had sought disclosure by the government of material considered of assistance to him in defending US proceedings. The difficulty for the government was that this material had been provided by the US and was subject to the implicit understanding that disclosure of intelligence material remained in the discretion of the originating country. While the court’s response was measured in that partial disclosure of material was ordered with respect to material already before a US court, a continuing risk persisted in the government’s view that the flow of information from foreign intelligence agencies may be compromised in consequence.
Prior to the current proposals, the common law had recognized the principle of public-interest immunity, previously known as Crown privilege (PII) under which the courts may grant an order permitting a litigant to refrain from disclosing evidence to other litigants where such disclosure was likely to damage the public interest. PII is an exception to the usual rule that all parties in litigation must disclose relevant evidence. In making a PII order, the court must balance the public interest in the administration of justice demanding disclosure of relevant information and the public interest in maintaining confidentiality where disclosure may be damaging.
The PII procedure, generally, requires a minister to apply for an order to protect government secrets by signing a PII certificate which then allows the court to determine whether the balance of public interest is best served by disclosure or not. The court, generally, will not inspect documents unless there is some doubt whether or not PII applies.
Originally a government minister advanced PII if thought relevant, this process evolved with the increased ability of ministers to make disclosure, notwithstanding the potential of PII, and the ability of the courts to review a claim of PII. In this regard, the House of Lords has held that the courts retain the final decision whether or not PII should be upheld (Conway v. Rimmer) and that a minister could discharge his duty in this regard by making his own judgment where the public interest lay, viz disclose or assert PII (R. v. Chief Constable of West Midlands ex parte Wiley).
A matter which may seem only tangentially related, is the Criminal Justice Act 2003. As originally introduced, the Bill sought to remove the right to trial by jury for cases whether there is a real and present danger that jury tampering will take place, available safeguards notwithstanding or in complex fraud trials, leaving the determination of criminal cases of this nature in the hands of the judge alone. When enacted, the complex fraud trials exception was excised. R v. Twomey and others, affirmed on appeal, was the first serious offence in some 350 years to be tried before a judge alone. Isabella Sankey, Liberty’s director of policy, said at the time:
This is a dangerous precedent. The right to jury trial isn’t just a hallowed principle but a practice that ensures that one class of people don’t sit in judgment over another and the public have confidence in an open and representative justice system.
While the current exclusion of trial by jury might be seen as an entirely sensible response in addressing a serious problem with the administration of justice, the worry for lawyers and others is that this approach may herald the erosion of the right to trial by jury, justified, whether explicitly or implicitly, on the basis of cost or efficiency, or part of some wider legislative scheme and carrying with it, a corresponding consolidation of state power at the expense of an important and long established safeguard for the individual, viz the spectre in Ms. Sankey’s view of one class of people sitting in judgment over another.
Shortly, all civil trials will see the courts closed with the litigants being denied access to relevant materials where intelligence and security information is involved, and given little, if indeed any, explanation of the nature of such materials and the need for exclusion. Rather, special advocates, cleared by the security services, having limited, if indeed any, interaction with the parties or their lawyers or possibly any fine understanding of the particular case to be advanced, are to be tasked with representing the litigants’ interests in these proceedings. The court may make open or closed judgments with respect to the substantive issues arising at trial or limited to CMP declarations. Apart from disadvantages for the litigants, CMP may limit the ability of the public from learning about cases of public interest.
Parliament is to receive an annual report on the operation of CMP which is to include how many applications for CMP have been made, by whom and how many of such applications are granted or refused. The government anticipates at this stage that the numbers of CMP applications will be relatively low, around 15 annually. The operation of CMP is to be reviewed every 5 years, such review is to encompass the operation of CMP in terms of court processes, in distinction to court judgments and will not extend to the exercise of powers by the Secretary of State but will include the role of special advocates.
ECHR, Article 6 provides for the right to a fair trial and implied rights that the hearings should be adversarial in nature and both parties should have access to the same evidence and witnesses. Rowe and. Davis v. United Kingdom, 2000 30 EHRR 1, determined that Article 6 (including any implied rights) is not absolute in the sense that certain measures restricting the rights are justified to safeguard the public interest – if strictly necessary.
ECHR, Article 3 prohibits torture. The last Labour government, however, after a series of denials, was forced to admit that its intelligence services had been complicit in rendition and torture. CMP is likely to make it a good deal harder to test the assurances of politicians or expose embarrassing evidence of this nature in the future.
Concern has been expressed by the legal community and others in the UK that the Justice and Security Bill is contrary to the rule of law – is dangerous and unnecessary – will fatally undermine the fairness of court hearings by undermining the right to a fair and open trial and so on. International organizations have added their voice in similar vein:
If the UK Parliament passes this proposal into law it will be a huge setback for those of us fighting to secure truth and fairness from our own governments and within our own justice systems across the world.
Clearly the State is entitled to protect itself and its citizens but where do the parameters lie of what reasonably constitutes intelligence and security information and of such information what is or is not sensitive, is the CMP approach in the context of civil proceedings a proportionate response to the perceived harm and are the safeguards contemplated adequate – quis cusodiet ipsos custodes?