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