The Joint Committee on Human Rights (JCHR) today publishes a Report on the Justice and Security Bill, following its earlier Report on the Green Paper in April 2012.
The Committee welcomes some of the significant changes which have been made to the Green Paper proposals. However, it considers that the proposals in the Bill extending closed material procedures into civil proceedings still constitute a radical departure from the UK's constitutional tradition of open justice and fairness; and concludes that the Government has not yet supplied evidence justifying the need for such a serious departure from the fundamental principles of open justice and fairness. The Committee finds it unsatisfactory that, at the time of writing its Report, the Government had been unable to answer questions about the number and nature of civil damages claims pending in which sensitive national security information is centrally relevant.
The Committee also welcomes the narrowing of the scope of the Bill compared to the Green Paper, but believes that this requires further clarification. The Report recommends that the Bill’s scope should be limited to the two narrow categories of material suggested by the Intelligence and Security Committee – namely, UK intelligence material which would reveal the identity of UK intelligence officers or their sources and their capability, and foreign intelligence material provided by another country on a promise of confidentiality.
- The Committee recommends a number of other amendments to the Bill to ensure that:
- the court has a genuine discretion to make a declaration, whether on the application of either party or of its own motion, that the proceedings are proceedings in which a closed material application may be made to the court;
- the court considers whether a claim for public interest immunity could have been made before making a declaration that a closed material procedure may be used;
- a closed material procedure is only ever permitted as a last resort, where the court is satisfied that a fair determination of the issues is not possible by any other means;
- within a closed material procedure, a full judicial balancing takes place between the public interest in the fair and open administration of justice and the likely degree of harm to the interests of national security; and
- the excluded party in a closed material procedure is always provided with at least a gist of the closed material, sufficient to enable him to give effective instructions to his legal representatives and special advocates.
The Committee remains of the view that legislating to provide an absolute exemption from the courts' Norwich Pharmacal jurisdiction (that is, the courts' power to order a person involved, however innocently, in apparent wrongdoing by another person to disclose information about the wrongdoing) is not consistent with the Government’s commitment to the rule of law. It recommends that the Bill be amended to replace the current absolute exemption for certain types of intelligence information with a system of certification based on the contents of the information and subject to judicial control. The Committee also recommends that the scope of any reform should be confined to the narrower categories of information identified by the Intelligence and Security Committee.
It also recommends amendments to the Bill to address serious concerns about its impact on the freedom of the media and on public confidence in the administration of justice. In view of the significance of the Bill’s provisions and its radical departure from fundamental common law traditions, the Committee recommends that it be amended to require the Secretary of State to report regularly to Parliament about the use of the exceptional procedures contained in the Bill, and to provide for both independent review by the Independent Reviewer and annual renewal.
Dr Hywel Francis MP, the Chair of the Committee, said:
"We were disappointed that the Government failed to prove to us a pressing need to extend the use of secret evidence into civil proceedings generally. The Bill represents a very significant shift away from historic common law principles and Parliament should only accept such a departure when the necessity for it has been properly and persuasively justified.
The Committee is sympathetic to some of the problems faced by the Government in this area, but the Bill as drawn up does not address them satisfactorily at present. More safeguards are required in the Bill before we will consider it acceptable from a human rights perspective."