Friday, 25 November 2011

The Justice and Security Green paper: Part 1 - the government's case.


In November 2010, the Secretary of State for Justice (Rt. Hon. Kenneth Clarke QC MP) announced the negotiated settlement of litigation brought by individuals who claimed that the U.K. was implicated in their torture - see "Guantanamo civil litigation settlement statement" and "The Al Rawi case settlement - security and the justice system.".   At the same time, Clarke announced that the government would bring forward a Green paper on security and justice.  This has now been issued- Cabinet Office - Justice and Security.   Comments are invited and may be submitted up to 6th January 2012.   Joshua Rozenberg, writing in The Guardian 16th November, referred to the green paper as an "attack on liberty."   Certainly, considerable concerns are raised and the Joint Committee on Human Rights has announced that it will examine the paper.  The following links are to the relevant documents.
The green paper considers the situation where "sensitive material" is required as evidence in civil proceedings (not criminal proceedings) and at inquests (such as the London Bombing Inquest - 7th July 2005).  In addition, proposals are put forward for improving independent oversight of the security and intelligence agencies.  The question of using evidence obtained by interception of communications ("intercept evidence") is not considered since this is referred to as a "separate challenge and a separate government project" which is under consideration by a cross-party advisory group of Privy Counsellors -
(see the paper Chapter 1 page 11).  (Note: In proceedings at SIAC and the Proscribed Organisations Appeal Commission, intercept evidence is admissible).

The Appendices (A to K) are a useful start when reading this document since they set out much of the background information on matters such as public interest immunity (PII), closed material procedures, "gisting", special advocates etc.  There is also a useful, but short, glossary of terms.  The substantive text is in three Chapters:

Chapter 1 ..... Background, recent developments and the case for change
Chapter 2 ..... Sensitive material in civil proceedings - proposals and consultation questions
Chapter 3 ..... Non-judicial oversight: proposals and consultation questions.

The government's case:

a) Justice and security - The need for a balance:

It was in Al Rawi v The Security Service and others [2011] UKSC 34 that the Supreme Court held that the court did not have power to order a "closed material procedure" for the whole or part of the trial of a civil claim for damages.  It was for Parliament to act if it was thought necessary.

The government sees "Justice and Security" as "twin imperatives" and, at para. 1.6, states:

"In considering the role of the courts and parliamentary and independent oversight bodies in scrutinising matters of national security, we must strike a balance between the transparency that accountability normally entails, and the secrecy that security demands. This Paper will examine this balance and make proposals to ensure that oversight mechanisms – both judicial and nonjudicial – are relevant and effective in the modern era. Excessively strong national security structures may make us safer but not freer, and security structures that are too weak put at risk the values, freedom and way of life that we all both hold dear and take for granted."

This statement is followed by some examples of situations in which the government claims success for secret intelligence in relation to foreign affairs, defence and the investigation of very serious crime - (see page 4).  These include foiling a 'liquid bomb' plot in 2006, discovery of explosive devices in air freight, seizue of 1.2 tonnes of cocaine (July 2011).

b) Fairness, open justice, the challenge faced when sensitive material is involved: 

The paper then goes on to trace the development of fairness in the legal system including the general need for open justice (para. 1.10).  The law has developed significantly in response to the question of how sensitive material should be handled (1.11) but clarification of the law is needed (1.12).  It is noted that the use of judicial review has increased markedly - 10,548 applications in 2010.  Further, the security and intelligence agencies have been placed on a statutory basis - see the Security Service Act 1989; Intelligence Services Act 1994  and the Regulation of Investigatory Powers Act 2000.  

The increased volume of court cases means that the lack of an effective framework in which courts can securely consider sensitive material has become a very real challenge.  This has led to certain international relations becoming strained as parties to cases seek disclosure of sensitive material supplied to the UK by other States - e.g. the USA.  It has also led to the government deciding to settle cases out of court rather than reveal sensitive material and place security at risk (para 1.18).  On these matters - see the Binyam Mohamed decision in the Court of Appeal [2010] EWCA Civ 65 and also pages 8 and 9 of the paper.  The Court of Appeal ruled that certain material supplied by the USA should be produced in evidence and this led to the government settling the claims without the factual merits of the case against the government being tested in court.

c) Developments in the law:

Chapter 1 continues by providing an overview of ways in which sensitive material might currently be handled.  

i)  Public Interest Immunity - a common law development - might protect disclosure of material on grounds such as national security, international relations, prevention and detection of crime.  The categories are not closed.   The paper states - at 1.52:

"The well-established and understood mechanism of PII works well when the excluded material is only of marginal or peripheral relevance. It is much less successful as a mechanism for balancing the competing public interest in the administration of justice and the protection of national security in those exceptional cases where a large proportion of the sensitive material is of central relevance to the issues in the proceedings – judgments in these cases risk being reached based only on a partial and potentially misleading picture of the overall facts ..... "

ii) Closed material procedures:

In other areas - e.g. at the Special Immigration Appeal Commission (SIAC) - there are statutory closed material procedures and these can be compatible with the European Convention on Human Rights - see para. 1.29 and the cases cited in footnote 22 (including AF No3 [2009] UKHL 28 and Tariq [2011] UKSC 35).   Where a closed material procedure is in place, the government will disclose the sensitive material to the court and to Special Advocates appointed (by the Attorney-General) to represent the interests of the other party.

iii) "Gisting"

A further process, used to give a party to a case as much information as possible of the case against him, is referred to as "gisting."  The paper considers this (para 1.37) and looks at the Tariq case where, in the context of the Employment tribunal, the Supreme Court held that the case against Tariq should be "gisted" but the court noted that it would not be every case where gisting would be ordered.   The paper concludes (1.40) that considerable uncertainty remains as to when gisting may be used and it could take many years of litigation for the courts to "develop clear jurisprudence of this question that comprehensively accounts for all contexts."

iv) Developments based on Norwich Pharmacal princples:

Yet another development has been the use of principles developed from "Norwich Pharmacal" - (Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133) - where the House of Lords held that the court had jurisdiction to order persons who have information which might identify the true defendant  to disclose that information.  These orders are used mainly to identify alleged infringers of intellectual property rights such as patents etc.

The Binyam Mohamed case started as a request for UK Government-held sensitive material to assist the claimant in military court proceedings in a foreign jurisdiction (in this case the USA). The judicial review of the Secretary of State’s decision not to release the sensitive material drew on ‘Norwich Pharmacal’ arguments for the first time in a detention case (see the Binyam Mohamed judgment at para 25). As a result of this use of Norwich Pharmacal principles, the Government was at risk of having to disclose sensitive material to non-UK-security-cleared individuals for use in court proceedings outside the UK.

d)  Inquests:

The paper next looks at the disclosure problem relating to Inquests such as that held by Lady Justice Hallett into deaths in July 2005.  In that instance, the government felt itself unable to present all the known information to the Coroner.  The paper states: "It is conceivable that in a different case an inquest might not be able to properly investigate a death, for example if the coroner or jury were not able to take into account all relevant information. In some cases, coroners have concluded that the exclusion of material means that they have been unable to complete their investigation. Only when it has been possible to disclose more of that information (for example, with the passage of time) have such inquests been able to proceed."

e)  Summary:

Hence, the paper concludes that the law is not presently suitable for handling sensitive material.  There are more cases where such material is relevant.  A strain is being placed on international relations.  The use of public interest immunity is not always satisfactory.  Where they are permitted, statutory closed material procedures "provide a satisfactory compromise in enabling both justice to be done and sensitive material to be safeguarded ...." and the government is "committed to looking for further opportunities to make the system as fair as possible. Areas for potential improvement and clarification do exist, primarily in terms of maximising the effectiveness of the role that can be played by Special Advocates, and in better clarifying the contexts in which courts will require summaries of sensitive material to be provided to the party affected by the CMP."

f)  Conclusion:

"The Government is well aware of the public debate and disquiet about the development of closed procedures. We reaffirm here our strong commitment to the general principle of open justice, but draw attention to the fact that, in certain, narrowly defined circumstances, the general principle can, and must, be set aside. As the Master of the Rolls stated in a recent speech - ("Open Justice Unbound" - 16th March 2011) -  this general principle can be set aside in narrowly defined circumstances because open justice is subject to a higher principle: that being, as Lord Haldane LC put it in Scott v Scott [1913] AC 417, the yet more fundamental principle that the chief object of courts of justice must be to secure that justice is done.

That is, in essence, the government's case.  Part 2 will look at the specific proposals and also at non-judicial oversight.

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