Thursday 31 May 2012

The Justice and Security Bill - Part 2

Addendum 14th June:  UK Human Rights blog - "Government has still not made case for 'inherently unfair' secret trials, say Special Advocates"

Addendum 6th June:  A further post on UK Constitutional Law Group blog - "Where is the 'Justice' in the Justice and Security Bill?" by barrister Tom Hickman of Blackstone Chambers.  "... it is hard to view the Bill in any way other than as a “win win” for the Government. Secrecy is absolute and scrutiny is in its gift. As drafted, the Bill seriously and needlessly exacerbates the departure from equality of arms that is already inherent in the proposed use of CMP in civil claims."

Addendum 5th June:  A post on the blog of the UK Constitutional Law Group raises further points about this Bill - "The Justice and Security Bill: Some Serious Concerns" - Hayley Hooper, Lecturer in Law at Trinity College, Oxford ... and also see UK Human Rights Blog - post by Adam Wagner - "Criticism remains as dust settles on secret trials bill."

Addendum 4th June 2012 - additional materials: 

Joint Committee on Human Rights 24th Report of Session 2010-12 The Justice and Security Green Paper and the Government response to the 24th report – here. Also,  Government’s response to the Green Paper Consultation and memorandum on human rights issues arising from the Bill.

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Original post: ...

The  Justice and Security Bill - (see also Explanatory Notes) - is the coalition government's attempt to implement certain aspects of the Justice and Security Green Paper.  The previous post on this blog looked at Part 1 of the Bill dealing with Oversight of the Security services.  Part 2 of the Bill - "Restrictions on Disclosure of Sensitive Material." - is the subject of this post.

When looking at the Bill, certain definitions are important and are addressed in Clause 11 (Interpretation) which contains Henry VIII powers to enable courts or tribunals to be added to those in which Closed Material Procedure (CMP) may apply.  I think that there is a possibility that this power could be used to bring, for example, Coroner's Courts within the remit of CMP.  There seems nothing in the Bill, legally speaking, to rule it out.  Time will tell.  Legislative legerdemain?  Possibly !!

Clause 6 enables the secretary of State to apply
for a declaration that closed material procedure is to apply.  If the declaration is granted, there would be a hearing at which a relevant person will have an opportunity to make an application to the court for permission not to disclose material.  Clause 8 deals with the appointment of Special Advocates.  Under the Bill it will also be possible for the Secretary of State to issue a certificate in certain cases to prevent the disclosure of "sensitive information."

To be fair to government, the Bill is an improvement on the wide proposals in the Green Paper and there is a greater degree of judicial control.   The government sees a serious problem in some cases where, rather than disclose material, they have felt the need to settle the case at considerable expense to the public purse.  Nevertheless, the Bill will not satisfy the government's critics such as Justice which sees the proposals as "unfair, unnecessary and unjustified" or Reprieve (The Justice and Security Bill: unaccountable government and unfair courts) or, probably, the present Special Advocates who raised objection at the Green Paper stage.  David Anderson QC (Independent Reviewer of Terrorism Law) has said - "we live in a world of second best solutions" - see The Guardian 21st March "David Anderson QC backs closed hearings in some National Security cases."

The Bill leaves much detail to be filled in by Rules of Court.  Legislators ought to pay particular attention to those since, yet again, devils are likely in the small print.  Unfortunately, the practical reality is that legislators usually pay little attention to the detail consigned to dry as dust "lawyer's stuff" like Rules of Court.

Here is more detail ....

Clause 11 - Interpretation:    Sections 6 to 10 are to be interpreted in the light of section 11 which defines a number of terms.  However, Clause 11 offers yet another example of Henry VIII powers being conferred on the Secretary of State.  Clause 11 defines the terms "enactment"; informs us that the "Human Rights Convention" means the Convention within the meaning of the Human Rights Act 1998; "relevant civil proceedings" has the meaning given by section 6(7); "relevant person" has the meaning given by section 6(4) and includes any person treated as a relevant person by any enactment; "section 6 proceedings" has the meaning given by section 7(1) and includes any proceedings treated as section 6 proceedings by any enactment; "special advocate" has the meaning given by section 8(2) and references to a party's legal representative do not include a person appointed as a special advocate.

The Henry VIII power arises in relation to "relevant civil proceedings."  Clause 6(7) states that the term means an proceedings (other than proceedings in a criminal cause or matter) before (a) the High Court; (b) the Court of Appeal or (c) the Court of Sessions.  However, Clause 11 grants the secretary of State power to amend the definition and this could be exercised so as to add or remove a court or tribunal.  The power is however subject to affirmative resolution procedure in Parliament (i.e. the order must be approved by both Houses).  

Could this be used to actually bring Coroners Courts within the remit of the Act?  I would say tentatively that the answer is YES.  There appears to be no restriction in the Act to prevent this and the idea of closed material procedure in certain inquests was a part of the Green Paper.

Clause 11(5) should also be noted in that public interest immunity is specifically preserved and also courts must continue to read legislation in accordance with Article 6 (Right to a fair trial) of the Human Rights Convention.

Clause 6 -Proceedings in which court permits closed material applications:

Clause 6 enables the Secretary of State to apply to a court seised of relevant civil proceedings for a declaration that the proceedings are proceedings in which a closed material application may be made to the court.  The court must make the declaration if the court considers that - (a) a party to the proceedings (whether or not the Secretary of State) would be required to disclose material in the course of the proceedings to another person (whether or not another party to the proceedings), and (b) such a disclosure would be damaging to the interests of national security.
In deciding whether a party to the proceedings would be required to disclose material, the court must ignore 
(a) the fact that there would be no requirement to disclose if - (i) the material were withheld on grounds of public interest immunity, or (ii) the person concerned chose not to rely upon the material, and 

(b) section 17(1) of the Regulation of Investigatory Powers Act 2000 (exclusion for intercept material).
A declaration must identify the party or parties to the proceedings whose disclosure or disclosures the court considers would be damaging to the interests of national security (“a relevant person”).

Before making an application under subsection (1), the Secretary of State must consider whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application would be based.

Thus, gaining a declaration under Clause 6 is a first step. It seems to me that whenever the Secretary of State applies his wish will be granted !!  On its terms the provision would allow the court to judge whether a disclosure would be damaging to national security.  However, presumably, the Secretary of State would not be asking for closed proceedings unless the Secretary thought that disclosure would damage national security.  It would seem to me to be a rare case where, at this stage, the court would say in effect that the Secretary had got this wrong.

Clause 6 contains further material relating to the content Rules of Court.

Clause 7 - Determination by court of applications in section 6 proceedings:

Once the declaration has been obtained then a relevant person will have an opportunity to make an application to the court for permission not to disclose material otherwise than to (i) the court, (ii) any person appointed as a special advocate, and (iii) where the Secretary of State is not the relevant person but is a party to the proceedings, the Secretary of State.  

Such applications will always be considered in the absence of every other party to the proceedings (and every other party’s legal representative).  The court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security.  If permission is given by the court not to disclose material, it must consider requiring the relevant person to provide a summary of the material to every other party to the proceedings (and every other party’s legal representative) but a summary must not contain material the disclosure of which would be damaging to the interests of national security.

Yet again, one suspects that deference to the Ministerial view of what might damage national security seems likely to prevail.

Clause 8 - Appointment of special advocate:

The Attorney-General may appoint a person (i.e. a "special advocate") to represent the interests of a party in any section 6 proceedings from which the party (and any legal representative of the party) is excluded.  A special advocate is not responsible to the party to the proceedings whose interests he represents.

Clause 9 -Saving for normal disclosure rules:

Subject to sections 7, 8 and 10, rules of court relating to section 6 proceedings must secure that the rules of disclosure otherwise applicable to those proceedings continue to apply in relation to the disclosure of material by a relevant person.

Clause 10 - General provision about section 6 proceedings

  A person making rules of court relating to section 6 proceedings must have regard to the need to secure that disclosures of information are not made where they would be damaging to the interests of national security.

Rules of court relating to section 6 proceedings may make provision - (a) about the mode of proof and about evidence in the proceedings, (b) enabling or requiring the proceedings to be determined without a
hearing, (c)
 about legal representation in the proceedings, (d) enabling the proceedings to take place without full particulars of the reasons for decisions in the proceedings being given to a party to the proceedings (or to any legal representative of that party), (e) enabling the court concerned to conduct proceedings in the absence of  any person, including a party to the proceedings (or any legal representative of that party), (f) about the functions of a person appointed as a special advocate, (g) enabling the court to give a party to the proceedings a summary of  evidence taken in the party’s absence.

Clearly, the Rules of Court will assume massive importance in this Scheme.  The Bill is little more than enabling legislation.

Clause 12 - Part 2 of the Bill contains provisions extending the existing closed material procedure under the Special Immigration Appeals Commission Act 1997. The new provisions cover reviews of certain cases where the Secretary of State has decided to exclude a non-EEA national from the UK, or to refuse a certificate of naturalisation or an application for British citizenship, in reliance on information which the Secretary of State considers too sensitive to make public.  (See EEA)

Clause 13 -Disclosure proceedings is concerned with so-called "Norwich Pharmacal and similar jurisdictions."

Clause 13 will apply where, in civil proceedings, a person (“A”) seeks the disclosure of information by another person (“B”) on the grounds that -(a) wrongdoing by another person (“C”) has, or may have, occurred, (b) B was involved with the carrying out of the wrongdoing (whether  innocently or not), and (c) the disclosure is reasonably necessary to enable redress to be obtained or a defence to be relied on in connection with the wrongdoing.
A court may not, in exercise of its residual disclosure jurisdiction, order the disclosure of information sought (whether that disclosure would be to A or to another person) if the information is sensitive information.
Here the Bill steps away from information relating to National Security alone and enters the broader avenue of sensitive information.

“Sensitive information” means information (a) held by an intelligence service, (b) obtained from, or held on behalf of, an intelligence service, (c) derived in whole or part from information obtained from, or held on behalf of, an intelligence service, (d) relating to an intelligence service, or (e) specified or described in a certificate issued by the Secretary of State, in relation to the proceedings, as information which B should not be ordered to disclose.

Here the Bill is clearly seeking to prevent disclosure of material such as that sought in the Binyam Mohamed litigation which, in that case, was said to be material supplied to the British government by the USA.
The Secretary of State may issue a certificate under (e) only if the Secretary of State considers that it would be contrary to the public interest for B to disclose - (a) the information, (b) whether the information exists, or (c) whether B has the information.
A disclosure is contrary to the public interest if it would cause damage - (a) to the interests of national security, or (b) to the interests of the international relations of the United Kingdom.

It is here where critics of the Bill will claim that Ministerial certificates might be used to hide iniquity on the part of the government or its agencies.  We, the public, are certainly being asked to place a great deal of trust in Ministers.   However this may be, Clause 14 is important since there is a possibility of the court reviewing and setting aside the certificate.

Clause 14 -Review of certification

Where the Secretary of State has issued a certificate in relation to proceedings, any party to the proceedings may apply to the relevant court to set aside the decision on the ground that the Secretary of State ought not to have determined, in relation to the information specified or described in the certificate, that a disclosure by B as mentioned in section 13(4) would be contrary to the public interest.
In determining whether the decision to issue the certificate should be set aside on this basis the relevant court must apply the principles which would be applied in judicial review proceedings.  

This seems productive of some complex and potentially very costly litigation.



  1. ObiterJ , Thanks for your concise analysis.

    The measures in the Justice and Security Bill are purported to serve the ‘public interest’; however it is the state’s interest which is being attended to. Similarly the phrase ‘national security’ is equally as murky; with such proposed bill measures there is no added security/protection to a British National of wrongdoing by (agents of) the British state.

    Why else would the state wish to introduce (by the back door as the post tentatively suggests) such secrecy measures into proceedings, but for if only to allow that their (security & secret services’) dirty dealings are not subject to disclosure?

  2. The realistic truth is that law makers usually pay little interest to the details banished to dry as dirt "lawyer's stuff" like Guidelines of Trial.

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