The Joint Committee on Human Rights today announces its inquiry into the proposals set out in the Government’s recent Green Paper on Justice and Security. This inquiry will begin taking oral evidence in the New Year. The Chair of the Joint Committee, Dr Hywel Francis MP, wrote to the Justice Secretary, the Rt Hon Kenneth Clarke QC MP, on 8 November seeking more information from the Government on the human rights impacts of areas of the Green Paper’s proposals. (Copies of the letter to the Justice Secretary and his response are available on the Committee’s website: www.parliament.uk/jchr).
Scope of the inquiry
The Committee is not seeking to replicate the Government’s own consultation. Please do not send copies of general responses to the Government’s Green Paper. The Committee is inquiring into the compatibility of the proposals in the Green Paper with the UK’s constitutional tradition of open justice and fair hearings and its international human rights obligations in relation to the same. It is seeking evidence in relation to a number of more specific questions which are identified below. Responses should only cover those questions on which the individual or organisation has relevant experience or expertise.
1. Does any evidence exist of the scale of the use of secret evidence in the 14 contexts which the Government has identified in which closed material procedures are already provided for in legislation?
2. Are there any other contexts in which closed material procedures have been used which have not been included in the Government's list of 14?
3. Has the Government demonstrated the necessity of legislating to make closed material procedures available in all civil proceedings?
4. What evidence exists of the scale of the problems relied on by the Government to justify the proposals in the Green Paper? In particular:
- Apart from the case of Carnduff v Rock, are there any other examples of cases in which civil proceedings against the Government have been struck out because the determination of the claim would have required the disclosure of sensitive information and the case was therefore not triable?
- Apart from the 16 civil claims settled in relation to the Guantanamo civil litigation, are there any other examples of cases in which civil claims have been settled by the defendant because the only way to defend the claim would have been to disclose sensitive information?
5. Is the law of Public Interest Immunity ("PII") inadequate to deal with the problem of sensitive information in judicial proceedings, and if so why?
6. What actual examples exist of current procedures resulting in the damaging disclosure of sensitive material?
7. Do you agree with the Government that a hearing in which a judge has seen all the evidence is more likely to secure justice than a hearing where some evidence has been ruled inadmissible?
8. Are there any circumstances in which the availability of closed material procedures in civil proceedings is preferable to public interest immunity and positively human rights enhancing?
9. Should the availability of a closed material procedure be a decision for the Court, or for the Executive subject only to judicial review?
10. Should there always be balancing by the court of the interests of the administration of justice on the one hand and the interests of national security on the other?
11. If there is justification for changing the current legal framework, how widely should any new regime apply? Should it be confined to information which may harm national security if disclosed, or should it apply more generally to “sensitive information” the disclosure of which is damaging to “the public interest” more broadly defined?
12. If closed material procedures are to be made more widely available in civil proceedings, how might their use be confined to wholly exceptional circumstances?
13. Does any jurisdiction provide particularly pertinent comparative lessons?
14. Do you agree with the Government that closed material procedures have proved that they are capable of delivering procedural justice?
15. If you have experience of the operation of closed material procedures, did you consider them to be fair? If not, why not?
16. Can the system of special advocates be made to operate any more fairly and effectively than it currently does?
17. Is it possible to identify specific contexts in which the AF (No. 3) disclosure obligation (also known as “the gisting requirement”) does not apply?
18. What will be the impact of the proposals in the Green Paper on the freedom of the press?
19. Does the courts’ power to order disclosure of material to a claimant to assist in other legal proceedings (the so-called Norwich Pharmacal jurisdiction) risk the disclosure of material which could damage national security? If so, should that jurisdiction be removed from the courts where disclosure would harm the public interest or could further safeguards be introduced to minimise that risk?
20. If you have experience of the operation of the Investigatory Powers Tribunal, did you consider its proceedings to be fair? If not, why not?
21. Should the Investigatory Powers Tribunal have exclusive jurisdiction over Human Rights Act claims against the Intelligence Services?
22. Do the proposed reforms to the Intelligence and Security Committee enhance the democratic accountability of the intelligence and security services sufficiently to justify increased restrictions on the right to a fair hearing and to open justice?
Those submitting evidence are of course free to raise other issues which they think have an important human rights component. The Committee intends to take oral evidence towards the end of January and into February. The deadline for submissions to the Committee is Friday 20 January. Short submissions are preferred, It would be useful if submissions longer than six pages could include a one-page summary.
A copy of the submission should be sent by e-mail to email@example.com and marked “Justice and Security Green Paper”. An additional paper copy should be sent to: Committee Office, Joint Committee on Human Rights, House of Commons London SW1A 0AA.
It would be helpful, for Data Protection purposes, if individuals submitting written evidence send their contact details separately in a covering letter. You should be aware that there may be circumstances in which the Joint Committee on Human Rights will be required to communicate information to third parties on request, in order to comply with its obligations under the Freedom of Information Act 2000.
A guide for written submissions to Select Committees may be found on the parliamentary website at: http://www.parliament.uk/commons/selcom/witguide.htm Please also note that:
- Material already published elsewhere should not form the basis of a submission, but may be referred to within a proposed memorandum, in which case a hard copy of the published work should be included.
- Evidence becomes the property of the Committee, and may be printed, placed on the Internet or circulated by the Committee at any stage. You may publicise or publish your evidence yourself, but in doing so, you must indicate that it was prepared for the Committee. Evidence published other than under the authority of the Committee does not attract parliamentary privilege. If your evidence is not printed, it will in due course be made available to the public in the Parliamentary Archives.
- All communications to the Committee about the inquiry should be addressed through the Clerk or the Chair of the Committee, whether or not they are intended to constitute formal evidence to the Committee.