My right hon. and noble friend the Advocate-General for Scotland (Lord Wallace of Tankerness) made the following written ministerial statement:
Today (Tuesday 29 May 2012) my right hon. and learned friend, the Lord Chancellor and Secretary of State for Justice is laying before Parliament the Government’s response to the consultation on justice and security which was published on 19 October, as well as a response to the report by the Joint Committee on Human Rights on the same issue. I have also introduced the Justice and Security Bill which aims to deal with three main problems which have arisen with judicial and parliamentary scrutiny of the security and intelligence agencies.
First, a number of civil cases are not being heard in our courts because they hinge on national security sensitive evidence which the courts recognise cannot be disclosed openly. At present the Government’s only option is to try to settle these cases—often for large sums of money—even where the case has no merit.
Secondly, a damaging form of legal tourism has developed which allows someone fighting a case outside the UK to apply to a court in London to force disclosure of intelligence information held by the British, sometimes provided by our allies. This is seriously undermining confidence among our key allies, including the US.
Thirdly, parliamentary oversight of the intelligence community has been criticised as having too limited a remit.
There were 90 responses to our consultation, and the Government are grateful for the wide-ranging views we received. Many respondents recognised the underlying problems that they are trying to address. However, there was considerable concern that plans on closed material procedures (CMPs) were drawn up in a way that was excessively broad in scope and risked undermining this country’s proud tradition of civil liberties.
The Government’s position has always been that protecting the public should not come at the expense of our freedom. So, we have listened carefully to the views of those responding, including the work of the JCHR. We have extensively revised the measures in order to put beyond doubt that they are proportionate, targeted and include strong safeguards. On our central proposal to introduce CMPs we have now ensured that the judge has a more central role, and will be able to grant a CMP only in relation to civil cases involving national security evidence—not crime or international relations. Inquests have been excluded, and we were never intending to make CMPs available in the criminal courts. The Bill ensures that no evidence currently heard in open court will be heard in secret in future, but that claims such as mistreatment or complicity in torture brought against the intelligence and security services which cannot currently be heard, can be heard.
Closed Material Procedures
The Government are strongly committed to open and transparent justice. However, courts have long accepted that highly sensitive intelligence material—for example, the names of security agents or information about the techniques used by the intelligence agencies—cannot be disclosed in open court. Under current rules, the only way of protecting this sort of material is to remove it from the courtroom entirely by applying for public interest immunity (PII). A problem arises in a tiny number of cases which hinge on secret intelligence material, where—if a PII application is successful—all, or most, of the material central to the case is excluded from consideration. The result is that these cases are not heard in court at all, meaning that cases have to be settled with no independent judgment on very serious allegations.
The settlement of the civil damages claims brought by former Guantanamo Bay detainees is an example of the inadequacies of the PII system. The evidence the Government needed to rely on in order to defend themselves was highly secret intelligence material, which could not be released in open court. The only option would have been to claim PII for the material. This process could have taken up to three years to complete, but there would still have been no judgment on the claims made: if a PII claim was successful the very material the Government needed to rely upon to defend their actions would have been excluded. The Government’s only practical option was therefore to settle the claims, for significant sums, without admitting liability.
The Government are therefore bringing forward proposals to allow this material to be heard in court in what is known as a “Closed Material Procedure” (CMP) which provides the safeguards needed to ensure that sensitive material can be taken into account by the court, while ensuring that the damage to national security that would arise if it were openly disclosed can be prevented. CMPs are already available in a number of other areas of the civil law, in these cases the CMP would work as follows:
the Minister must first consider whether to make a claim for public interest immunity or whether to advise another to do so;
the Minister would then apply to a judge who will determine whether the CMP can go ahead on the grounds that there was some material relevant to the case, the disclosure of which would damage national security;
even where a CMP is granted, all evidence currently heard in open court would continue to be heard in open court, including all allegations against the state;
only the particular pieces of national security evidence would be heard in closed court, and in relation to these pieces of material the judge will decide whether a summary of the evidence must be made available to the other party for the proceedings to be fair. And, in all cases, a special advocate will have access to material on behalf of the claimant that would currently be precluded. The overall effect for the claimant will be that they receive at least as much information as they would following a PII exercise;
as recommended by the JCHR, judicial reviews of naturalisation and exclusion cases will be heard by the Special Immigration Appeals Commission (SIAC).
Many respondents to the consultation on these proposals made the point that closed material procedures are a departure from the tried and tested fundamentals of open justice. I entirely agree with them in principle—no Government propose measures in this area lightly. But CMPs are already available in a number of areas of law for the good reason that where the courts have recognised that the best option of hearing evidence in open is not available, they provide a fairer outcome than the alternative which is no justice at all. This is recognised by both the domestic and international courts. Lord Woolf finding for example that,
“it is possible.. .to.. .achieve justice” in a CMP (M v SSHD).
The Bill also aims to ensure the protection of our intelligence sharing relationships and our domestically generated intelligence through reform of what is known as the “Norwich Pharmacal” jurisdiction—which has recently been used to allow someone fighting a case outside the UK to apply to a court in London for access to intelligence information held by the British, sometimes provided by our allies.
The aim of a Norwich Pharmacal application is to force a third party to disclose information which the claimant feels may be relevant to a case they are bringing elsewhere. Although developed in the intellectual property sphere, in the last three years there have been no fewer than nine attempts to use this jurisdiction in relation to secret intelligence which either belongs to the UK Government, or which our allies have shared with us. No other country in the world has such a jurisdiction. Indeed, there is not even a parallel jurisdiction in Scotland.
As the purpose of the proceedings is solely to gain disclosure of material, the Government do not have the option to withdraw from or settle these proceedings. If disclosure is ordered, and the Government do not succeed in an application for PII, the Government must release secret intelligence into the public domain.
We expect our allies to protect intelligence material we share with them from disclosure, and they expect the same from us. The inadequacies in our current ability to properly protect classified information provided by foreign Governments has already seriously undermined confidence among our key allies, including the US. Robust legislative measures are essential to restore confidence among our allies, which is vital to our national security.
Therefore the Government intend to make the following changes to the Norwich Pharmacal jurisdiction:
For agency held material—The Government intend to legislate to exempt material held by or originating from one of the agencies from disclosure under a Norwich Pharmacal application.
For national security or international relations material—The Government also intend to legislate to allow a Minister to sign a certificate in Norwich Pharmacal cases to protect non-agency material which would cause damage to national security or international relations if disclosed. That certificate can be reviewed on judicial review principles. If upheld, the information could not be disclosed.
These measures have no impact on claims that the Government, or the security and intelligence agencies, have been directly involved in wrongdoing, nor do they prevent someone enforcing their convention rights.
Finally, and very importantly, the Bill will improve parliamentary oversight of the security and intelligence agencies, most notably giving the Intelligence and Security Committee (ISC) the power to oversee the agencies’ operations, not just their administration, expenditure and policies—as is the case now. The ISC will be given a wider remit, and will in future report to Parliament as well as the Prime Minister. Parliament will be given the power to vote to reject the ISC’s membership. The power to withhold information from the ISC moves from the heads of the intelligence and security agencies to the Secretary of State responsible for that agency.
The Bill deals with issues of profound importance which go to the heart of our democratic values. The proposals it brings forward aim to improve executive accountability, equip our civil court system to handle sensitive intelligence material, and improve parliamentary scrutiny of the security and intelligence community.