Secret evidence
Speech to Bar Council
10 November 2012
My topic is the Justice and Security Bill currently before the House of Lords. The Bill returns for its report stage on Monday week, 19th November. In advance of this, the Parliamentary Joint Committee on Human Rights will publish its latest report on the bill on Tuesday. The report will be released to the press under embargo at 11am on Monday. Given the controversy of the proposals in the Bill, we can, therefore, expect media coverage to pick up from Monday onwards, culminating on Monday week unless overwhelmed by other topics.
The provisions of concern are in Part 2 of the Bill – clauses 6-14. These cover three situations:
(a) any civil proceedings where a party would otherwise be required to disclose ‘material … which would be damaging to the interests of national security’ (6(2)), disregarding the fact that the material might have been protected by public interest immunity. To take advantage of this provision, a party must make a closed material application, the consequence of which is mandatory if successful. “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’ though it is left with discretion to summarise the evidence to the other parties. Once closed material procedures are declared, a mechanism kicks in whereby a special advocate is deployed.
(b) certain naturalisation, citizenship and exclusion decisions (about which I wish to say nothing further);
(c) orders against third parties for disclosure (referred to in the Bill as Norwich Pharmacal and similar orders). Clause 13 restricts the power of the court to order disclosure of ‘sensitive information’ which is defined as information— held by an intelligence service, obtained from, or held on behalf of, an intelligence service, derived in whole or part from information obtained from, or held on behalf of, an intelligence service, relating to an intelligence service, or 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.
The Secretary of State may only issue such a certification where he considers that disclosure of the information or even whether it exists and who has it would be contrary to the public interest because it would ‘cause damage’: (a) to the interests of national security, or (b) to the interests of the international relations of the United Kingdom.
There are perhaps three immediate points on the drafting to note:
1. The closed material procedure in Clause 6 is specifically expressed to trump public interest immunity procedures. The protection against disclosure which they provide is to be ignored in making a decision about the closed material procedure.
2. The judge has no discretion in ordering closed material procedure if persuaded that disclosure would be damaging to national security. There are, unlike in PII applications, no counterbalancing considerations of the public interest.
3. The scope of the provisions against third party disclosure are extremely wide. The Secretary of State’s can issue a certificate not only because disclosure would cause damage to national security but also ‘the interests of the international relations of the UK’.
These provisions clearly trespass into key fair trial protections of the common law and of Article 6 of the European Convention on Human Rights. The English legal system has tolerated closed material procedures or their equivalent in the past but rarely at its high points in terms of the rule of law and the protection of civil liberties. Sir Walter Raleigh was convicted and sentenced to death on the evidence of a Popish plot given by his friend, Lord Cobham. Cobham had been tortured on the rack to give evidence but bravely rescinded it in a letter to Raleigh. Raleigh’s plea to examine the witness and his evidence fell on deaf ears though interestingly he made his case with reference to the practice of civil procedure at the time: ‘Were the case but for a small copyhold, you would have witnesses or good proof to lead the jury to a verdict; and I am here for my life!’ The right to examine and, thereby, challenge evidence is fundamental to any trial, civil or criminal.
The Equalities and Human Rights Commission, soon to have its budget – and, thereby no doubt, its wings – clipped by the government, has advised that the key provisions in the bill are not only contrary to the common law but also Article 6 of the European Convention on Human Rights. It has obtained a supporting opinion from John Howell QC of Blackstone Chambers and Eric Metcalfe, once of JUSTICE and now of Monckton Chambers, to back up its view. Their argument is as erudite and as convincing as you would expect. No doubt, if passed, these provisions of what will become the Justice and Security Act will be challenged in court. The view of the Commission, following that of counsel, is that:
- The provisions of the Bill relating to the introduction of a closed material procedure are incompatible with the common law right to a fair trial of an excluded party;
- The options to invoke a closed material procedure and to make a closed material application are incompatible with article 6 of the European Convention on Human Rights …
- • The options given to a relevant person to elect not to comply with orders of the court for disclosure and to provide a summary of evidence … are likewise incompatible with article 6 of the Convention …; and
- There is no clear definition of national security or what constitutes sensitive material. Furthermore clause 6(3) prohibits a court from considering whether the interests of justice outweigh those of national security.
If this legal opinion is right then the bill contains a contradiction on its face by providing in clause 11(5) that:
Nothing in sections 6 to 10 and this section …
- (b) is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention.
But let us return to the policy considerations behind the Bill. Much has been said about its origins. Controversy has been intense. The government’s case has been the need to establish a “framework which will enable the courts to consider material which is too sensitive to be disclosed in open court, but which will also protect the fundamental elements which make up a fair hearing”.
In advancing the bill, Ken Clarke lamented the fact that sensitive information had been witheld from the courts because of fears that it would be disclosed. He said:
This has rendered the UK justice system unable to pass judgment on … vital matters: cases either collapse or are settled without a judge reaching any conclusion on the facts before them.
The Government is clear that this situation is wrong. It leaves the public with questions unanswered about serious allegations, it leaves the security and intelligence agencies unable to clear their name, and it leaves the claimant without a clear legal judgment on their case.
In the green paper, the government specifically took on the argument that PII could satisfy the problems:
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 proceedings—judgments in these cases risk being reached based only on a partial and potentially misleading picture of the overall facts. When applied to proceedings … which involve substantially all and only sensitive material, justice seems barely to be served as the case is struck out for lack of a mechanism with which to hear it.
Ken Clarke’s argument would have been the stronger if the case which actually gave rise to the government’s original proceedings had not been Al Rawi, better known perhaps as involving Binyam Mohammed, and relating to damages for extraordinary rendition and detention in Guantanamo Bay. The Court of Appeal ruled in May 2010 that the court had no power in an ordinary civil claim for damages to order a CMP. In November, Ken Clarke announced that the Government had reached a mediated settlement with the former Guantanamo detainees over their civil damages claims. The details of the settlement were confidential but press reports suggested that the former detainees received £20 million). No admissions of culpability were made. Mr Clarke said that the Government had decided to settle the case in order to avoid litigation which could have cost £30 million to £50 million and lasted three to five years.
The power to order a CMP was taken by the government to the Supreme Court. It argued that the court had inherent jurisdiction to order a CMP. The court disagreed but a side row ensued of farcical proportions over the publication in the judgement of information which, it turned out, was initially claimed to be of the deepest confidentiality and concern to the Americans. However, it was subsequently shown to be contained in an open judgement of a US court which, as far as I know, you could get on the itnernet. However, it was its experience in this case that prompted the government to advance its proposals for a statute-based CMP scheme. All sorts of background factors have been hinted at or suggested, including that the government is advancing its bill only at the demand of the US which has otherwise threatened to withdraw sharing intelligence information.
The bill has given rise to considerable controversy. The Liberal Democrat annual conference voted against it. I would discount almost any factual assertion made for its justification as partisan save for one. That is David Anderson, QC. He is the independent reviewer of terrorism legislation and he was given sight of a limited number of cases where a CMP might be relevant. He told the Parliamentary Joint Human Rights Committee in June that he thought the provisions overall ‘disproportionate’ but he did accept that he had been shown three cases where existing provisions potentially presented difficulties. His view was that CMP might be ‘tolerable’ in a small number of cases on four conditions:
- where it was ‘a last resort to avoid cases being untriable’;
- the decision to trigger a CMP must be for the court and not for the Government;
- intercept evidence should be admissible in those closed material proceedings, as it is in all other closed material proceedings and would be under Schedule 2 to the Bill’’;
- continuing efforts were made to improve the closed material procedure, not least by setting up a committee under the chairmanship of a High Court judge
Mr Anderson’s views did not endear him to the special advocates who have taken a more hostile position to CMP and have pointed out that he saw only one side of the cases that so persuaded him.
I want to add just one final consideration. I spent some of the week reading Ian Cobain’s book ‘Cruel Britannia’, a history of the UK’s involvement in torture from the Second World War to its collusion in relation to US-led activity in extraordinary rendition and torture. This is not a time when the government should be given the balance of any doubt in relation to secrecy and national security. It is time for secrets to come out of the cupboard, not a time for them to attempt to shove them back in. The allegations in the Binyam Mohammed case were of the gravest kind. They amounted to connivance by the UK in an organized network of torture locations, of which Guantanamo was only the most visible. The prima facie evidence of UK connivance in renditions using UK territory grows ever more convincing and the denials of ministers like Jack Straw and David Milliband ever less comforting. Undoubtedly, one of the great triumphs of the Human Rights Act has been the significant strides that it has allowed in holding power to be accountable, even in the deepest bastions of the secret state.
The provisions in the bill are designed to turn back the clock and to replace the cloak of secrecy. In such current circumstances – where the actions of the UK government from its repression of insurrection in the last vestiges of empire in Kenya to its collusion with the US – are beginning to emerge from the shadows, this is not the time to allow mandatory secrecy to be re-imposed. It is not as if we must have CMP or nothing. The alternative is PII procedures which have developed in variety and sophistication and include ‘gisting’ and redaction. There is simply no evidence that a judge has ever allowed disclosure of information which is damaging to national security. Of course, judges are alive to the danger of publication. And, yes. That may inhibit government on occasion in putting its full case but that, I am afraid, can be argued as the unfortunate consequence of dissimulation, denial and obstruction in the past.
In conclusion, the views of JUSTICE, my employer until Tuesday last week, are clear and I agree with them. The bill’s provisions on CMP are unfair, unnecessary and unjustified. If you are unpersuaded by that comprehensive dismissal then the minimum acceptable position would be the adoption of the four restrictions advocated by Mr Anderson. His four conditions could easily be written into the bill. Perhaps, we will see next week that they have been. If not, the struggle must continue.
