Monday, 28 November 2011

The Justice and Security Green paper: Part 2 - proposals and consultation

Cabinet Office - Justice and Security.   

The background:

The real work of protecting national security is a far cry from the fictional world of the James Bond movies which have entertained us since 1962 (Dr. No).  Before looking more closely at the proposals in the green paper, it is worthwhile recalling the structures in place relating to national security.

The day-to-day "On her Majesty's Secret Service" work is undertaken by the Security Service (MI5) and the Secret Intelligence Service (MI6).  These services are now on a statutory basis: respectively, the Security Service Act 1989; Intelligence Services Act 1994 .  The Regulation of Investigatory Powers Act 2000 is a wide-ranging Act dealing with legal powers relating to interception of communications and the various forms of surveillance.  The Security Service comes under the political direction of the Home Secretary.  The Secret Intelligence Service comes under the political direction of the Foreign Secretary.

Oversight of these services is divided between the Intelligence and Security  Committee (ISC)  - which is a statutory committee of parliamentarians from both Houses - and the Commissioners: the Intelligence Services Commissioner (currently Sir Mark Waller) and the Interception of Communications Commissioner (currently Sir Paul Kennedy) - see Intelligence Commissioners website.   The Green Paper Appendix G outlines the remit of the Commissioners and Appendix H the role of the Intelligence and Security Committee.

The government's general case for reform of how security sensitive material is handled in civil legal proceedings including inquests is set out in Chapter 1 of the Green Paper - (discussed at Law and Lawyers - Justice and Security Green paper - Part 1).   Chapter 2 is entitled "Sensitive material in civil proceedings: proposals and consultation questions."   A number of possible
reforms are canvassed whilst, at the same time, some ideas are not considered by the government to be worth pursuing further.  The proposals put forward should be read in the light of certain "Key Principles" set out in the Green paper's Executive Summary (Page xii para 10).

One case which is a "driver" behind the government's desire to make reforms is that of R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65.  The Lord Chief Justice said: "This is an appeal brought by the Secretary of State for Foreign and Commonwealth Affairs ("the Foreign Secretary"), against a decision of the Divisional Court (Thomas LJ and Lloyd Jones J) to include seven short subparagraphs ("the redacted paragraphs" which are now set out in an appendix at the end of the judgments) in the open version of a judgment ("the first judgment"), notwithstanding the fact that the Foreign Secretary had stated in more than one Public Interest Immunity Certificate ("certificate") that such publication would lead to a real risk of serious harm to the national security of the UK."  The Secretary of State's appeal was dismissed and this led to the government deciding to negotiate a settlement of the claims without admission of liability.  The claim for an order quashing the refusal of the Foreign Secretary to provide Mr Mohamed   with the evidence held by the UK Government and intelligence services which supported his claim that he had been subjected to torture and cruel inhuman or degrading treatment by or on behalf of the USA government and for disclosure of material in the hands of the UK was based on Norwich Pharmacal Co v  The Customs and Excise Comrs [1974] AC 133

A more detailed look at Chapter 2:

Legislate for Closed Material Procedure:

Para. 2.2 of the green paper states:

" .......  We argue that it is fairer in terms of outcome to seek to include relevant material rather than to exclude it from consideration altogether and that the public interest is best served by enabling as many such cases as possible to be determined by the courts."

Essentially, the government sees that the way to achieve this aim is by legislating for the introduction of "Closed Material procedure" (CMP) across the whole range of civil judicial proceedings including inquests.  At the heart of such procedure is the so-called "Special Advocate."  These advocates first appeared in proceedings before the Special Immigration Appeals Commission (SIAC), a court created by the Special Immigration Appeals Commission Act 1997.

The rise of the special advocate can be seen by the fact that, according to the green paper, they are now used in 14 areas of civil proceeding - see para. 2.37.  Actually, the Joint Committee on Human Rights 16th report refers to there being 21 areas where special advocates could be used.   Para 58 of the 16th report stated:

"The Government replied that it was difficult to provide a comprehensive list of all the contexts in which closed material (as it prefers to call secret evidence) and special advocates are used, because in addition to the contexts in which the use of special advocates is provided for by legislation, the courts have an inherent jurisdiction to request that the relevant law officer consider appointing special advocates if they should become necessary in a particular case where there is no such express provision.  However, the Government provided a list of 21 different contexts in which it was "aware" that special advocates have been or may be used. In subsequent written answers to questions asked by our Chair, the Solicitor General confirmed that special advocates had been used in 14 of the 21 contexts identified in the Government's response to our inquiry.  However, in a further written answer she declined to say in how many cases in each of these contexts special advocates were used, on the basis that this information is not recorded centrally and could only be obtained at disproportionate cost."

The effectiveness of the Special Advocate system is central to the government's proposals.  Not surprisingly, the government believes that the system is already effective though the need for some improvements is recognised and the green paper considers some of them.  Despite such governmental assertions, the system of Special Advocates has not been an entirely happy experience as the following selection of sources illustrate:

i)  "Special Advocacy: Political Expediency and legal Roles in Modern Judicial Systems" - Andrew Boon and Susan Nash - Legal Ethics: Vol. 9 No. 1.  "Special advocates are, notionally, acting for the lay client, but without instructions and sometimes, even, consent.  This is at odds with the ethical tradition of advocacy in common law jurisdictions ..."

ii) "National Security and Due Process of law" - Adam Tomkins - Oxford Journals, Current Legal Problems.  " ... the best known example of our law's current struggles to accommodate security concerns within due process is the controversy surrounding the use of special advocates and closed material. This is a matter on which the House of Lords has ruled in two major cases—MB and AF—and on which the Grand Chamber of the European Court of Human Rights ruled in A v United Kingdom."

iii) Joint Committee on Human Rights - 16th Report - March 2010

iv) Justice Report - "Secret Evidence"

The paper proposes legislation to have a general closed material procedure (CMP) with special advocates.  It is claimed that the procedure would only be used "in exceptional circumstances" (para. 2.4) but "exceptional" is not defined further.  The paper refers to the "small number of cases where sensitive material is crucial to the outcome."   A CMP could be triggered in various ways and para. 2.6 notes:

" ... it will be critical to get the balance right between the role of the Secretary of State (who is best placed to assess the harm that may be caused by disclosing sensitive information) and the judge (who must ensure that the interests of justice are served, including by ensuring that proceedings are as fair as possible, in the broadest sense)."

Para. 2.7 then puts forward a proposed trigger mechanism which is based on existing models of CMP:
  • A decision by the Secretary of State that certain relevant sensitive material would cause damage to the public interest if openly disclosed, supported by reasoning and, where appropriate, by evidence.
  • This decision would be reviewable by the trial judge on judicial review principles if the other side decides to challenge the Secretary of State’s decision.
  • If the Secretary of State’s decision is upheld, a CMP is triggered. In the first phase of the CMP, the judge hears arguments from the Special Advocate and counsel for the Secretary of State about the appropriate treatment (in closed or open court) of specific material or tranches of material, based on an assessment of harm to the public interest that would be caused by open disclosure – the aim here is to ensure that as much material as possible can be considered in open court. The ability of a Special Advocate to submit that any part of the closed material should become open material will continue until the conclusion of the proceedings.

Certain inquests have a jury and, in the case of Article 2 Inquests, the deceased's next of kin may be involved.  There is also provision for other "Properly Interested Persons."  The paper rejects proceeding with proposals of the previous government to exclude juries on national security grounds (2.12) and prefers to consider ways of retaining a jury such as asking jurors to enter into confidentiality agreements or using security cleared jurors or "light-touch" vetting of juries.  Similarly, the paper discusses vetting of family members (which would be an intrusive process) or using a CMP and allowing the family to be represented by a special advocate (2.15).  A further proposal is to use a judge as a Coroner where sensitive material is involved (2.17).

Improving the special advocate system:

Currently, those wishing to become special advocates attend a one day course which is facilitated by the security service.   The course "explains intelligence processes, including how intelligence is assessed (including its reliability), how investigations are prioritised, what sort of actions are taken and when and why. The training includes the examination of case studies from the perspective of intelligence analysts. This training is intended to better equip the Special Advocate to represent the interests of an excluded person during the CMP by better enabling them to challenge sensitive material during closed hearings."

Whilst it is said that feedback from Special Advocates on their training has been overwhelmingly positive,  there is currently a gap in training provision for experienced Special Advocates who either require refresher modules, re-attendance at the introductory course or specific training on particular issues that commonly arise in CMPs.  The Government will make available increased training for Special Advocates where required.
This is a welcome development and will be particularly important if CMPs and Special Advocates are to be used in an even wider range of proceedings.

In addition to further training sessions that Special Advocates may feel that they require, they will be provided with sufficient resources in terms of independent junior legal support to ensure that they are able to carry out their function as effectively and thoroughly as possible.

Chinese Walls:

A Special Advocate may take instructions from the individual before they have seen the closed material. There is currently no absolute prohibition on communication between the Special Advocate and the individual after service of the closed material. Such communication can occur, providing it is with the permission of the court. The court must notify the Secretary of State when the Special Advocate seeks permission, giving the Secretary of State time to object to the communication if it is considered necessary in the public interest, although the final decision is that of the court.  (Emphasis added).  However, in practice, Special Advocates have only rarely sought permission from the court to communicate with the individuals whose interests they are representing after service of the closed material, owing at least in part to concerns that such communication, once requested of the Secretary of State, would reveal litigation and other tactics and strategy and consequently unfairly benefit the Government side.

The proposed communication may pertain to questions that the Special Advocate would wish to ask the individual about the closed material.  Alternatively, proposed questions may not relate to the closed material.  A Special Advocate may believe that they are able to construct communication in such a way that would not risk damage to the public interest, but the answer to which would, nonetheless, aid the Special Advocate’s ability to represent the interests of the individual. However, without detailed knowledge of the investigation, or other linked investigations, the Special Advocate could inadvertently disclose sensitive information, for example the identity of an agent or details of related ongoing investigations. In order to know whether the proposed communication could be damaging to national security, those familiar with the day-to-day operation of that (and connected) investigation(s) must be able to review any proposed communication.

Any such communication would have to be cleared through the Secretary of State on advice from the relevant experts, most commonly officials in the Agencies familiar with the case in question and with an understanding of the potential for public interest damage to be caused.

Having noted the problem, the paper refers to a properly functioning "Chinese Wall" that could enhance the willingness of Special Advocates to make use of existing procedures in communicating with the excluded individual(s) after the service of closed material.

A Chinese wall mechanism could be placed between government counsel (including Treasury Solicitors) and those clearing the communications request within an Agency. Treasury Solicitors and counsel would not be able to view the proposed communication. This arrangement could be further strengthened by a protocol which would confirm that within the Agencies, the minimum number of people necessary to carry out the security check would be involved. The Government is accordingly giving consideration to such a mechanism and protocol, as well as considering the resource and deliverability implications for other Chinese wall models which place the ‘wall’ in different positions within the Government side.

One difficulty will be to regularly source an official, or cadres of officials, from within the relevant government department or Agency who will have sufficient knowledge of the case, the sourcing of the relevant material, issues around the litigation itself and the context of the case relative to other similar cases, who will as a result be able to provide definitive assessments of the risk level of proposed Special Advocate communication, but who is not in contact with, nor can have contact with, the litigation team itself and government counsel.  It seems rather disingenuous for the government to argue "resources" here.  If they truly need this system then the resources must be available.

Special Advocates may argue that, in some instances, their proposed communication will relate only to purely procedural or administrative matters that relate solely to directions in the case, as opposed to substantive factual or legal issues and that therefore there is no requirement for the Government to clear these communications. However, the Special Advocate is not in a position to fully determine harm to the public interest and thus it does not seem possible to create ‘categories’ of communication which would require different clearance procedures. Further analysis of whether ‘categorisation’ of communication is possible continues to be undertaken.

Special Advocate communication requests have to be cleared not only by the Secretary of State but also the judge. Some Special Advocates have voiced concern that here too they are potentially exposing their strategy and the strengths or weaknesses of their case to the judge. One solution would be for a separate judge to deal with applications to communicate with an excluded person. The Government has no concerns regarding this proposal from a national security perspective. However, there are clear resource and administrative implications of involving an additional judge in the administrative aspects of a case involving CMPs, including a potential delay to proceedings.  The paper does not propose using a separate judge.

Employment tribunals:

The government proposes amending the Employment Tribunal Rules in order to harmonise the Special Advocate system with other areas where they are used.  This will enable Special Advocates to operate more readily in different courts and tribunals and bring a greater degree of consistency to proceedings in which Special Advocates are appointed.

Consideration of other concerns raised about the operation of the Special Advocate system can be found at Appendix F.

"Gisting" of the case:

The paper proposes legislation to deal with the question of "gisting" the case against a person so that the individual has ample material on which to give instructions to the special advocate.

Clarity on these disclosure requirements would create a greater degree of predictability in CMP litigation, where in many contexts uncertainty over requirements is spawning considerable satellite litigation away from the substantive proceedings. For the Government, knowing in advance of proceedings that there will or will not be such a requirement means that the Government may embark on non-prosecution actions against (for example) suspected terrorists, or defend cases that crucially depend on sensitive material, without the risks that the case might have to be abandoned or conceded midway through, due to undeliverable and unforeseen disclosure requirements set out by the court.

The paper notes:

"It would of course still be possible for affected individuals to bring proceedings under the Human Rights Act 1998 (HRA) arguing that the legislation preventing them from receiving the ‘gist’ was incompatible with the ECHR. But in such proceedings, the court would have the benefit of Parliament’s clearly expressed view about how the balance between the competing interests should be struck."

Well, of course that is perhaps right in legal theory.  In practice, such proceedings would be prohibitively costly without legal aid.

For the individual who does not need to be provided with a ‘gist’, owing to the strong countervailing public interest in protecting national security, the courts will ensure that their case is tried with sufficient procedural fairness and that they may benefit from the other safeguards such as a Special Advocate who will, on the individual’s behalf, work to ensure that as much of the case as possible is heard in open court.  Yet again, the idea that the individual might not be told anything of the case to be raised against him, raises fundamental issues of fairness.

The green paper is short on detail of what this proposed "gisting" legislation might look like.  However, given the current state of the case law, there seems to be a reasonable case for clarification in this area.

Some ideas which are rejected:

A more inquisitorial procedure for case management is rejected (2.52).  Furthermore, it is not proposed to create any new specialist court to deal with cases where sensitive material arises (2.61).  This seems to be a good thing since recent years have seen the creation of many new "superior courts of record" (e.g. SIAC, Court of Protection).  Also, the remit of the Investigatory Powers tribunal (IPT) would not be expanded since its "resource intensive model" is not appropriate for damages claims (2.71).

Whether the principles of Public Interest Immunity should be put into legislation is also considered (2.74).  Interestingly, this is an area where there is already considerable deference to the views of Ministers.  The claim for PII in the Binyam Mohamed case would have been upheld had the material in question not been already published by a court in the USA.  Whilst PII could be modified by statute so that there was a presumption against disclosure where the material was supplied to the government by a foreign State, the paper concludes against such legislation.

Norwich Pharmacal principles:

Should the jurisdiction of the courts to hear Norwich Pharmacal applications against a government department or any other public body be removed altogether?  This would meet the Government’s objective of protecting sensitive material from disclosure and a claimant who wished to obtain information from a public body would still be able to make an application under the Freedom of Information Act 2000 or the Data Protection Act 1998 in the usual way. The government sees such a response as disproportionate (2.90).

"There are situations in which the operation of the Norwich Pharmacal regime against a public authority raises no real sensitive issues. Accordingly, the Government takes the view that while this reform option would meet the aim of protecting sensitive government material from disclosure, it would go too far in preventing Norwich Pharmacal applications in other cases against Government in which non-sensitive material is at stake."

The paper then goes on to consider alternatives such as removing the jurisdiction of the courts to hear Norwich Pharmacal applications only where disclosure of the material in question would cause damage to the public interest.  Under this option, it is envisaged that for material held by or originated from one of the Agencies there would be an absolute exemption from disclosure. It is envisaged that in respect of non-Agency government material where disclosure would cause damage to the public interest if disclosed (for example, for international relations reasons), there would be an exemption from disclosure which would be based on a Ministerial Certificate.  If the exemption were raised by the Government on the basis that the material is Agency-held or originated, that would be the end of the proceedings and the Norwich Pharmacal application would be dismissed by the court.   Clearly, had this been the law, the Binyam Mohamed case might have failed even though the material he sought was actually in the public domain in the USA.  (Of course, the need for a settlement of the case would have been avoided)!

If the Minister signs a certificate to say that the material, while not being Agency-held or originated, would nonetheless cause damage to the public interest if disclosed, then that would also bring an end to the proceedings unless the claimant wished to challenge that decision, which they would be able to do on judicial review principles.  Yet again, recourse to the vastly costly process of judicial review is seen by government as a panacea.   The Government envisages that those parts of any such review addressing the nature of the sensitive material and the damage caused by disclosure would need to be held in closed session via a CMP - thus making the judicial review even more expensive.

"The Government sees clear benefits to a proposal along these lines."  This perhaps THE understatement in the green paper.  "The proposal is tailored to problematic Norwich Pharmacal applications where disclosure would cause damage to national security or another public interest, leaving the rest of the jurisdiction unaffected. The proposal is also consistent with the approach to national security adopted by Parliament in, for example, the Freedom of Information Act 2000." The paper asks for views on the viability of such a proposal.  No doubt it is "viable" but maybe the real question should be whether it goes too far and runs the risk that serious iniquity might remain hidden.

An alternative reform option is to legislate to provide more detail as to what will in future be required to satisfy the Norwich Pharmacal test.   This could lead to greater certainty in Norwich Pharmacal hearings and potentially, therefore, less protracted resource-intensive litigation and a reduction in the risk of damaging disclosure. The Government sees benefit in providing the court with a tighter framework when considering the various elements of the Norwich Pharmacal test and the Government therefore seeks public views on this option. 

Why legislate?  Should the government not have to deal with each of these applications as they come along? If CMPs were statutorily available, the Government would have more confidence that it could defend the application more thoroughly and robustly in a court that could adequately protect the material in question. This may lead to a more effective hearing – a better basis on which a judge may reach a decision.  However, the government does not wish to see this approach and argues that the risks outweigh the limited benefits.

Chapter 2 concludes with the statement:   "These are extremely difficult issues, not least given that the cases in which these issues have arisen have often occurred in circumstances where individuals are facing severe consequences for their liberty."


The reader who is concerned with liberty and freedom may see little or no "Quantum of Solace" in much of this paper.  Of course, it would be naive to seek to pretend that there is no security threat and would be equally naive to suggest that there should be no protection at all for genuinely sensitive information.

In connection with the topic of PII, one leading textbook states:

" .... there is no absolute bar to a claim for public interest immunity where the claim, if successful, would prevent the disclosure of evidence of serious criminal misconduct by officials of the state, even in the case of torture, cruel, inhuman or degrading treatment or war crimes."  (Keane, Modern Law of Evidence 8th ed at 562).

It was. of course, precisely such material which was at the heart of the Binyam Mohamed case.

There will be considerable unease about the idea of extending closed material procedures into the whole area of civil litigation.  Claims that material is "sensitive" could be used to prevent disclosure of serious wrongdoing by government or its multitudinous agencies.  Further, claims that material is "sensitive" could be extended by widely-drafted legislation so that they go beyond claims made merely by central government on behalf of the security or intelligence services.  The Regulation of Investigatory Powers Act 2000 is an example of such widely drafted legislation. 

As regards special advocates, the proposed improvements are welcome but probably do not go far enough and the "Chinese Wall" proposals will require close examination if and when more detail becomes available.  The restriction on the use of Norwich Pharmacal applications in cases where a party seeks material for use in overseas litigation is a major issue.  In such cases, the Secretary of State would hold a "showstopper" card and these proposals appear to be widely drawn in that they extend to non-agency government material.  The temptation (or need?) to play the showstopper card would be all the greater if there was serious iniquity to be hidden from public view.

Naturally, bodies such as Amnesty are highly concerned about this paper.  They said:

"We have raised concerns in the past about the government's attempt to resort to secrecy in the name of national security as a means of obstructing accountability for serious human rights violations, including alleged involvement in torture and rendition. Domestic courts have also made it clear that where such allegations exist the need for truth and open justice is vital.

"Regrettably, the proposals in the Green Paper appear designed to further entrench secrecy in the justice system. Secrecy of this sort has the potential to undermine the fair administration of justice and allow the government to shield itself from adequate scrutiny and criticism of its human rights record.”

See also LIBERTY - "Liberty warns against 'secret' justice in civil cases against the government."

Part 3 of these posts will look at the question of NON-judicial oversight.

Other articles:

Those with access to various law journals may find the following of interest:

"The rise and spread of the special advocate" - [2008] PL717
"Special advocates and procedural fairness in closed proceedings" - (2009) 28 CJQ 314
"Update of procedural fairness in closed proceedings" - (2009) 28 CJQ 448
"Special advocates, control orders and the right to a fair trial" (2010) 73 MLR 836

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