This week the Joint Committee on Human Rights published its Report on the UK Justice and Security Bill. Hayley Hooper provides an overview of the Bill and the Report’s conclusions.
Jeremy Bentham wrote that ‘publicity is the soul of justice’. Currently, the British government are of the view that where national security is at stake, publicity must yield. The Justice and Security Bill aims to extend Closed Material Procedures (CMPs), beyond the certain specialist tribunals and clearly defined statutory procedures into the realm of ordinary civil justice. You can access all the information about the various stages of debate here, and the Guardian newspaper has also published an informative Essential Guide. The next stage of debate is the Report Stage in the House of Lords. In anticipation of this the Joint Committee on Human Rights (JCHR) published a Report on the Bill this week. Its central concern is that the Bill represents an unprecedented departure from the British constitutional tradition of ‘the right to an open and adversarial trial of a civil claim’.
The Government claims the Bill is required to protect the confidentiality of information obtained via international intelligence sharing relationships, known as ‘the control principle’, and to protect national security in general. In Binyam Mohamedthe Court of Appeal authorised the publication of seven paragraphs, already in the public domain, relating to the treatment of Mr Mohamed whilst detained during the US ‘War on Terror’. The information had been received by the UK under the ‘control principle’, which the Court of Appeal upheld, despite denying the Foreign Secretary’s application for Public Interest Immunity (PII). The Report reveals that the US Administration reacted unfavourably to the judiciary overruling the Foreign Secretary on a matter of national security.
The Bill responds to this by removing any real judicial discretion in the initiation of a CMP, and by marginalising the role of PII. The JCHR Report criticises this both on human rights (including those rights indigenous to the common law) and rule of law grounds. The concerns of the Independent Reviewer for Terrorism, David Anderson QC, that the provisions of the Bill, if made law, could be used in an anticipated wave of litigation related to British cooperation with US-led drone warfare are also noted. One such case, Noor Khan, is currently undergoing judicial review in the High Court.
The Bill is more moderate than the controversial Green Paper, released in October 2011, which proposed wide-ranging powers to extend the scope of secrecy in civil litigation. Initially, CMPs were proposed in civil cases containing ‘sensitive material’ to protect the ‘public interest’. The Bill restricts the availability of CMPs to cases where disclosure of material may be ‘damaging to the interests of national security.’ The Report welcomes this, but cautions that overly broad definition remains a risk, recommending a statutory definition of the ‘interests of national security’ be adopted.
Other reservations expressed in the Report include the ouster clause related to the Norwich Pharmacaljurisdiction at common law. The Norwich Pharmacal jurisdiction could be used to require government to disclose information related to wrongdoing by a third state. Furthermore, concerns were expressed at the proposed exclusion of the media from court proceedings, and the failure to extend the ‘gisting’ of closed information mandated in control order proceedings by virtue of Home Secretary v AF (No. 3) to civil proceedings proceeding involving a CMP. ‘Gisting’ is the practice of providing a summary of closed evidence to the affected person in order to allow him to present an effective challenge to the allegations against him in a manner compatible with Article 6(1) ECHR.
The JCHR remains ‘unpersuaded that the Government has demonstrated … that there exist[s] a significant and growing number of civil cases in which a CMP is “essential”, in the sense that the issues in the case cannot be determined at all without a CMP.’ Their Report urges ‘necessity’ as the appropriate standard the use of a CMP, which must be judicially, not ministerially, determined.
All of the JCHR’s suggested amendments have now been tabled before parliament. The Justice and Security Bill will be a litmus test for parliamentarians. It will require them to hold government to account in their most controversial and secret of undertakings, while thinking seriously and rationally about the appropriate relationship between human rights and security.
Hayley is a lecturer at Trinity College and a DPhil candidate at Balliol College, University of Oxford. She previously worked on the AHRC Funded Project ‘Parliaments and Human Rights’.