Saturday, 7 April 2012

Report on Secret hearings and a communications snooper's charter

The government's "Justice and Security" Green Paper has come in for serious criticism by the Joint Human Rights Committee - see their report.  The Committee concludes that the Government has failed to make the case for extending "closed material procedures" to all civil proceedings and to inquests: the Government has not demonstrated by reference to evidence that the fairness concern on which it relies to justify the proposal is in fact a real and practical problem.

Writing in The Guardian, Joshua Rozenberg  comments that - "Parliament's joint committee on human rights (JCHR) has produced a unanimous report on the government's justice and security green paper that is as precise and persuasive as the green paper itself is unfocussed and unconvincing."  The Guardian 4th April - "Damning verdict on ill-thought-out secret justice proposals."

Earlier Law and Lawyers posts on the Justice and Security Green Paper are - Government's Case; Proposals and Consultation and Oversight.

Despite the criticisms, the Committee did not rule out all change and recommends
clarification of the law on public interest immunity (PII) as it applies to national security-sensitive material, including: introducing statutory presumptions against disclosure of, for example, intelligence material or foreign intelligence material, rebuttable only by compelling reasons; listing express factors to which the court must have regard when balancing the competing public interests to determine the disclosure question; requiring the court to give consideration to a non-exhaustive list of the sorts of devices (such as redactions, confidentiality rings, and "in private" hearings) to which the courts may have resort in order to enable the determination of a claim without damaging national security.

A further concern of the committee was that the Green Paper overlooked the very considerable impact of its proposals on the freedom and ability of the media to report on matters of public interest and concern. It was also concerned about the possible impact of the proposals on public confidence and trust in both the Government and the courts.

The UK Human Rights Blog looked at the - "The dangers of data snooping" - (author Angela Patrick).   "The damning conclusion of the Joint Committee on Human Rights that there is no evidence to justify expanding closed proceedings - vied for column inches with leaks that the Government planned to introduce “real time” monitoring of how we use the internet in the interests of national security."

Media reports on the government's thinking include:  The Guardian 1st April - "Government plans increased email and social network surveillance" and The Independent 2nd April - "Data Watchdog questions GCHQ monitoring plans."

There is very little detail in the public domain about the substance of the Government’s proposals relating to monitoring of communications.  The aim appears to be to extend the Government’s capability to access communications data connected to e-mail and internet use, providing for “real time” monitoring of activity and requiring internet service providers to install new hardware to improve storage of information and facilitate Government access.  The real time access would be "on demand" and without any form of judicial warrant.  There was considerable public and media unhappiness when these ideas were announced prior to Easter.  (Perhaps a deliberate announcement to test the temperature of the water?).  Following the announcement, it seems that the initial idea of including a Bill in the forthcoming Queen's Speech was dropped in favour of  introducing a Draft Bill which will undergo pre-legislative scrutiny.

Interestingly, in 2011, Justice published a report - "Freedom from suspicion" - calling for root-and-branch reform of the law on surveillance.  This was needed to provide freedom from unreasonable suspicion, and to put in place effective safeguards against the abuse of what are necessary powers. The report outlines a series of recommendations to serve as the basis for a draft Surveillance Reform Bill.

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