The Justice and Security Green Paper - Human Rights Joint Committee

The Justice and Security Green Paper - Human Rights Joint Committee Contents

3 Extending Closed Material Procedures to all civil proceedings

The Green Paper proposal

51. The central proposal in the Green Paper for responding to the fairness and accountability concerns outlined in Chapter 1 above is to legislate to make closed material procedures more widely available in civil proceedings.

52. The Green Paper argues that extending the availability of closed material procedures to civil proceedings generally will enhance procedural fairness, because it will minimise the number of proceedings that cannot be tried because appropriate procedures do not exist to handle them. It is the Government's view that "it is fairer in terms of outcome to seek to include relevant material rather than to exclude it from consideration altogether and that the public interest is best served by enabling as many such cases as possible to be determined by the courts."

53. The main impetus for this part of the Green Paper has been provided by the decisions of the Court of Appeal[24] and Supreme Court[25] in the case of Al Rawi v The Security Service that the courts have no power at common law to order a "closed material procedure" in a civil claim for damages. The case arose out of the claims by Binyam Mohamed and others for compensation for their alleged detention, rendition and mistreatment by foreign authorities, in which they alleged the UK authorities, including the intelligence services, had been complicit. The Government wished the court to see security sensitive material in their defence which could not be shown to the claimants, and asked the court to order a closed material procedure to enable it to do so.

54. In short, the Supreme Court held that the use of closed material procedures in civil proceedings, in the absence of express statutory authority, was not permitted by the common law because it was in breach of the well-established principles of open justice and natural justice. Closed material procedures involved a departure from many of the essential features of a common law trial, and while the Supreme Court recognised that departures from those fundamental principles were in principle capable of justification, it was for Parliament to decide whether such departures were justified, as it had already done in certain specific contexts such as deportation. On the same day, in the case of Tariq, the Supreme Court held, by a majority of 8-1, that the use of a statutorily authorised closed material procedure in the specific context of security vetting was lawful.

55. The Government, in this Green Paper, now proposes to obtain the statutory authority that the Supreme Court in Al Rawi said would be required for the radical departure from the common law principles of open justice and natural justice that would be involved in making closed material procedures available in the full range of civil proceedings.

Evidence of the need for change

56. The Green Paper suggests that there are 27 cases currently before the UK courts to which sensitive information is central, and that in many of these cases "judges do not have the tools at their disposal to discharge their responsibility to deliver justice based on a full consideration of the facts".[26]

57. Some witnesses in our inquiry were strongly of the view that the case for change is not made out. In their view, ordinary principles of PII are adequate to ensure that issues can be tried without harmful disclosures. The special advocates, for example, say that their experience both as special advocates and as practitioners conducting civil litigation in a variety of contexts leads them to the view that existing PII procedures are "generally workable."

58. A number of NGOs also rejected the Government's argument that extending the availability of CMPs will enhance procedural fairness by ensuring that cases will be tried which otherwise would not be tried. Liberty, for example, believes that the likelihood of future cases being struck out due to the unavailability of CMPs is exaggerated. It points out that the case of Carnduff v Rock is the only previous example of such a case that the Government can point to, and in Liberty's view that case was "arguably wrongly decided, not least because relevant PII case law was not put before the court." JUSTICE also considers the case of Carnduff v Rock to be exceptional and "of dubious authority." It is unaware of any other case in which a claimant has been denied access to court because their claim has been struck out. Even if hypothetical cases can be envisaged in which the trial could not proceed because too much relevant material attracts public interest immunity, Liberty and JUSTICE both argue that the probability of this risk materialising is too small to justify the far-reaching proposal of making CMPs available across the full spectrum of civil proceedings.

59. JUSTICE rejected the Government's assertion that PII is not adequate to deal with the protection of sensitive information in judicial proceedings, arguing that there is no significant evidence to show that the current system of PII is failing or has led to the disclosure of sensitive material. It argued that the necessary justification for such a radical departure from the existing practice has not therefore been made out by the Government.

60. Other witnesses, however, were prepared to accept in principle that there may be some cases in which the application of the ordinary law of PII does not produce a fair result, because a fair trial of the claim cannot proceed due to the amount of material which cannot be disclosed on public interest grounds. The Bingham Centre for the Rule of Law, for example, accepts that exceptional resort to a closed material procedure in a civil action could potentially be justified in three types of case, subject to strict compliance with certain guiding principles:

Where the conventional PII balancing exercise would result in such material being withheld from disclosure that the case would have to be struck out rather than determined on the available evidence, in order to avoid unfairness to the defendant;
Where the conventional PII exercise would result in such material being withheld from disclosure that the claimant's claim cannot succeed;
Where both parties consent to a closed material procedure and that course is approved by the court.

61. We accept that under the current law it is theoretically possible for there to be some cases in which a fair trial of a civil claim cannot proceed because of the amount of material which cannot be disclosed on Public Interest Immunity grounds. If this theoretical possibility were to materialise, it would mean that some cases (where the withheld material is central to the claim) would be struck out, which is particularly problematic where the claim concerns a serious human rights violation, as it would deprive the individual concerned of an effective remedy and would also prevent the Government from being held accountable. It would also mean that cases (where the withheld material is central to the defence) would have to be settled even though there may be a defence to the claim, which may wrongly undermine public confidence in the public authority concerned.

62. However, we have found it very hard to reach an evidence-based view as to the likelihood of this theoretical possibility materialising, and therefore of the scale of the problem to which this part of the Green Paper is said to be a response. The difficulty is not simply a question of not having the benefit of access to the material concerned or to the parties to the litigation in which these issues are arising. It is also a matter of lacking a firm evidence base from which to evaluate competing claims by lawyers about how the law of PII works in practice.

63. In our view, the hypothetical possibility of Public Interest Immunity preventing the fair determination of an issue clearly exists, but the critical question is whether evidence shows that this is a real, practical problem at all, or one that exists on the scale suggested in the Green Paper, or on a scale sufficiently significant to warrant legislation.

64. Whether this is a hypothetical or an actual problem therefore became a central question in our inquiry. In his written evidence to our inquiry, the Independent Reviewer of Terrorism Legislation, David Anderson Q.C., was "prepared to accept" that civil cases in which PII could not produce a fair result and for which CMPs could thus be appropriate are "likely to exist". He said[27]

If there are cases sufficiently saturated in secret material to require the use of a CMP in other contexts (SIAC, control order/TPIMs), it is logical to suppose that there may be civil cases of which the same can be said.

65. However, he said that he had been unable to resolve the evidential question about the actual scale of what he acknowledged to be a hypothetically conceivable problem, due to lack of information. In his capacity as Independent Reviewer, he had sought to find out whether each of the 27 cases referred to in the Green Paper could be fairly resolved only by means of a CMP, but was told that this could not be discussed in relation to ongoing claims. In oral evidence to us he therefore said:[28]

I was not able to ascertain from the Government [...] how many of those cases it could really be said were incapable of being fairly tried without a closed material procedure.

66. So, although he thought it "likely" that a problem does exist, he was unable to assist us with any informed estimate of its size or gravity.

67. In view of the troubling lack of evidence of any actual cases demonstrating the problem which the Green Paper asserts to exist, we pressed the Secretary of State as to what specific evidence the Government is relying on to demonstrate that the current legal framework of PII is inadequate and forcing the Government to settle cases to which it has a substantive defence which it cannot disclose.[29] The only specific example referred to by the Secretary of State were the claims made by the Guantanamo Bay detainees in the Al Rawi litigation. Apart from the claims in that case, the Secretary of State said "I am told there are 27 case in the pipeline—I have not seen all these cases—where this could be raised. It is becoming more common."[30] He did not have a figure for the number of cases which the Government had settled solely because it was unable to disclose the basis of its defence rather than because of the strength of the substantive claim.[31] Nor did he take up the invitation to give us specific evidence from past or existing cases that demonstrate that PII is inadequate.[32]

68. We were surprised by the vagueness of the Government's evidence on what we regard as the critical factual question at the heart of their case for extending CMP in civil proceedings. The only actual case cited by the Government is the Al Rawi litigation itself, and that case simply cannot bear the weight being placed upon it by the Government. The claims to compensation in those cases were settled by the Government before the PII process had been exhausted, and before it had been finally decided whether the court had the power to order a CMP to take place. In our view, the Al Rawi cases are clearly not examples of cases which the Government had no choice but to settle because they would have been untriable without a CMP. Rather they appear to be examples of cases in which the Government would have preferred to have a CMP rather than the usual PII process.

69. Apart from Al Rawi, no other specific case has been provided by the Government as an example of the problem which the Green Paper asserts to exist. Our direct request to the ministers to identify for us specific cases where PII had been exhausted leaving the issues untriable and the Government no choice but to settle was not answered.[33] The 27 cases referred to by the Green Paper as being in the pipeline turn out on closer inspection not to be cases in which the Government has identified that there is a real risk that the Government will be unable to defend them without a CMP, but a very much broader category of cases "where we could have a situation where sensitive information of relevance to the safety of the public and the state [...] could become relevant."[34]

70. Being unable to provide any specific examples of cases which the Government had been forced to settle because the law of PII had left the issues incapable of judicial resolution, or to provide any plausible indication of the approximate number of such cases which are about to arise, the ministers in oral evidence shifted their emphasis from the scale of the problem and the number of likely cases to the significance of the impact of disclosure of sensitive information if it were to occur in even a single case.[35] James Brokenshire MP, the Home Office Counter-Terrorism Minister, for example, said that while he understood the desire to focus on the numbers of cases, including the 27 referred to in the Green Paper, the impact of disclosure in even a small number of cases could be quite significant. The Secretary of State said:[36]

It only needs one case to go wrong [...] We think there are 27 cases, but in the worst case scenario one case blowing up our intelligence penetration of a very dangerous group of people would be very, very bad from a national point of view."

71. We found this a somewhat surprising shift in the Government's justification for the proposal to extend CMPs because, as the Independent Reviewer pointed out in his evidence, the Government's case for making CMPs more widely available in civil proceedings is not based on national security arguments, since, other than in Norwich Pharmacal proceedings, the Government cannot be forced to disclose material which it does not wish to disclose, but can instead bring the proceedings to an end.

72. After hearing the ministers' evidence on this question we were therefore inclined to the view that the Government had not demonstrated by reference to evidence that the fairness concern on which it relies in this part of the Green Paper is in fact a real and practical problem. If it were, it seemed to us that the Government ought to be able to identify some examples of actual cases in which it could demonstrate, or at the very least plausibly argue, that it had been forced to settle the case because the PII exercise would result in so much material being withheld that it would be impossible for the Government to defend the case. It seemed to us that, in the absence of such specific evidence, the Government had fallen back on vague predictions about the likelihood of more cases being brought in future in which intelligence material will be relevant,[37] and spurious assertions about the catastrophic consequences of information being wrongly disclosed[38] (spurious because outside of the Norwich Pharmacal context there is no risk of such disclosure because the disclosure cannot be ordered by a court). These do not in our view come anywhere close to the sort of compelling evidence required to demonstrate the strict necessity of introducing Closed Material Procedures in civil proceedings in place of Public Interest Immunity.

73. However, we received further important evidence and argument on this critical factual issue after the ministers gave evidence. They had indicated to us that the Independent Reviewer of Terrorism Legislation "is someone we very much want to reassure and have onside"[39] and that he would be given further access and details in relation to the 27 cases mentioned in the Green Paper to be able to examine the issue for himself. In a supplementary memorandum provided to us on 19 March 2012 the Independent Reviewer added to his previous evidence on this question, following a meeting he had on 14 March with representatives of the Government and of all three intelligence services and counsel to try to obtain further information about the precise nature and scale of the problem to which making CMP generally available in civil litigation is said to be the solution. The Independent Reviewer explains that at that meeting he was "talked through" seven of the cases currently before the courts to which sensitive information is central, was given the opportunity to ask questions and was given access to secret material in relation to each case. As a result of his consideration of the cases he was shown at that further meeting, and his consideration of the secret material to which he was given access, the Independent Reviewer is now persuaded that

"there is a small but indeterminate category of national-security related claims, both for judicial review of executive decisions and for civil damages, in respect of which it is preferable that the option of a CMP—for all its inadequacies—should exist."

74. The cases for which the Independent Reviewer is persuaded the option of a CMP is necessary fall into two categories: certain judicial review cases and some damages claims.

75. The judicial review cases seen by the Independent Reviewer in which he is persuaded of the necessity to have a CMP available as an option are challenges to decisions to refuse naturalisation (two cases) and an exclusion decision (one case). In these cases, the challenge is to executive decisions which are based wholly or partly on sensitive information. The Independent Reviewer reports that there are currently over 50 refusal of naturalisation decisions which are based wholly or partly on sensitive information. The Administrative Court has selected four lead cases to determine the appropriate procedure for dealing with them. We consider the substantive question of whether closed material procedures should be made available in such cases below.

76. The three damages claims considered by the Independent Reviewer raise allegations of complicity in detention, rendition and torture by other countries in which, in his view, there is material of central relevance to the issues that "it seems highly unlikely" could ever be deployed other than in a closed hearing. After inspecting the case files and speaking to counsel involved (presumably counsel representing the Government in those cases), the Independent Reviewer has concluded that "under the current law there are liable to be cases that are settled (or the subject of a Carnduff v Rock application) which, had a CMP been available, would have been fought to a conclusion." He considers that this is undesirable and that, in a world of second-best solutions, it is better that the option of a CMP be available than that the case be either struck out or forced to settle.

77. However, we have also received a submission from a number of special advocates, including those who gave oral evidence to us, commenting on the Independent Reviewer's supplementary memorandum.[40] In this submission, the special advocates expressed concern at the conclusion reached by the Independent Reviewer on the basis of his review of three cases chosen by the Government to present to him. They point out that the Independent Reviewer, when reviewing the cases and material presented to him,

has not had the benefit of a countervailing independent but experienced party, such as a special advocate, to test the claims or contentions made by the advocates for the Government's proposals.[41]

78. The special advocates take issue in particular with the Independent Reviewer's view that, in each of the three damages claims he has reviewed, "there is material of central relevance to the issues that it seems highly unlikely could ever be deployed in open."[42] The special advocates point out that this conclusion does not necessarily mean that a CMP is the only means by which such a claim could be tried. It overlooks the fact that a range of mechanisms exist to enable sensitive material to be adduced in evidence without being "deployed in open" and without resort to a CMP. Whether or not such mechanisms would strike a satisfactory balance in relation to the relevant material is precisely the purpose of the PII balancing exercise, which the Independent Reviewer himself has not conducted. The special advocates say that their combined practical experience of handling sensitive material in civil claims indicates that, where there is no alternative (because a CMP is not available), a way can normally be found for the claim to be heard "acceptably fairly, and without unacceptable disclosure of sensitive material." The flexible and imaginative use of ancillary procedures (such as confidentiality rings and "in private" hearings) has meant that to date there is no example of a civil claim involving national security that has proved untriable.

79. We welcome the supplementary evidence of the Independent Reviewer which makes an important contribution to our understanding of a central issue in the Green Paper. It contains the first material we have seen that could be said to constitute evidence in support of the Government's proposal to extend CMPs in civil proceedings. It is clearly the product of a conscientious attempt to obtain further information about the evidence base for the Government's assertions, by an Independent Reviewer who has exhibited a wholly appropriate open-mindedness to the possibility that there is a lack of evidence to support the Government's proposals. When considering his evidence it is important to remember that his function is not a judicial function, but an independent reviewing function which requires him to have unrestricted access both to intelligence material and to key personnel within the Government and the security and intelligence services. Being based on his access to such material to which we and other witnesses to our inquiry do not have access, it is also an assessment of the evidence which must be accorded due weight.

80. However, we believe that the special advocates are right to caution against treating the views of the Independent Reviewer, after reviewing the material in the three damages claims, as evidence that the issues in those cases are incapable of being determined at all without resort to a closed material procedure. In our view, that question can only be reliably answered after a full and proper, judicially conducted Public Interest Immunity exercise, in which the balance between the public interest in the administration of justice and the public interest in avoiding harmful disclosure is struck in relation to each piece of evidence, with the possibility of applying to each piece of material one of the range of options which constitute less than full disclosure. We therefore remain of the view that we reached after hearing evidence from the Ministers that the Government has still not demonstrated by reference to evidence that the fairness concern on which it relies in this part of the Green Paper is in fact a real and practical problem.

The inherent unfairness of Closed Material Procedures

81. In the special advocates' view, the proposals in this part of the Green Paper are based on an unsound premise: that CMPs in the contexts in which they are already used are both fair and effective. They take issue with the Green Paper's central contention that CMPs have been shown to be capable of delivering procedural fairness and that the effectiveness of the special advocate system has been central to that. The special advocates say that their experience as special advocates leaves them in no doubt that CMPs are "inherently unfair". As Angus McCullough QC put it:[43]

In principle it appears obvious that, if a person is involved in proceedings and they are not told all of the evidence and allegations against them, and they are therefore unable to answer them, that is inherently unfair. You do not need to be a lawyer or, indeed, a special advocate to appreciate that. In addition, the proceedings are contrary to the principle of open justice. Of course open justice is not an inflexible principle, but it is one which requires justification if it is to be breached. Of course, the courts have powers to disapply it, to make anonymity orders, to sit in private, but those incursions require strict justification. Closed proceedings represent the most extreme incursion into that principle because the opacity in relation to the proceedings is total. There is no transparency at all in relation to closed proceedings. As a matter of principle, they are unfair for both of those reasons. A party does not know the case against them, or a significant part of it, and so cannot answer it, and that is contrary to the principle of open justice.

82. The special advocates disagree that they "work effectively" and they do not deliver real procedural fairness. Neither the provision of special advocates, nor the AF (No.3) disclosure obligation, where it applies, are capable of making CMPs "fair" by any recognisable common law standards.

83. Almost all of the evidence we received in the course of our inquiry supported the unequivocal view of the special advocates in their evidence, that closed material procedures are inherently unfair. A number of witnesses told us that the inherent unfairness of closed material procedures might be justifiable where the alternative was an even more unfair procedure, but could never be justified to cut down the fairness of an existing procedure.

84. The Government's case, however, is not that the determination of claims in a closed material procedure is necessarily fair, but that it is less unfair for the issues in a case to be determined in that way than for them not to be determined at all. Where PII leads to the withholding of material that is central to a claim, that claim would have to be struck out, and where it leads to the withholding of material that is central to a defence, the defendant would be forced to settle the proceedings. In either case, the Government argues, the law of PII as it currently stands leads to unfairness. The Green Paper therefore proceeds on the premise that it is fairer in terms of outcome to seek to include relevant material, rather than to exclude it from consideration altogether, even if the other party is unable to see that material.

85. Many witnesses considered that the Government's argument in this part of the Green Paper had already been cogently rejected by Lord Kerr in Al Rawi who said:[44]

The appellants' second argument proceeds on the premise that placing before a judge all relevant material is, in every instance, preferable to having to withhold potentially pivotal evidence. This proposition is deceptively attractive—for what, the appellants imply, could be fairer than an independent arbiter having access to all the evidence germane to the dispute between the parties? The central fallacy of the argument, however, lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one's opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial.

86. We do not agree with the Government's claim in its Green Paper that the extension of closed material procedures will enhance procedural fairness. We agree with the evidence of the special advocates that closed material procedures are inherently unfair. We also agree with Lord Kerr in Al Rawi, that evidence which has been insulated from challenge may positively mislead the court.

Closed material procedures and public interest immunity compared

87. The Green Paper contains a short explanation of PII in Appendix B and a longer explanation of CMP in Appendix C. A more detailed description of how PII works in practice is contained in paras 140-151 of Lord Clarke's judgment in the Supreme Court in Al Rawi and others v The Security Service and others.[45]

PUBLIC INTEREST IMMUNITY

88. "Public Interest Immunity" is a set of judge-made principles which represents the common law's response to the problem of dealing with the disclosure of sensitive information in litigation. The parties to litigation are under an obligation to disclose to the other side all material which is relevant to the fair determination of the issues in the litigation. PII is a common law exception to this general principle, based on the courts' realistic appreciation that the disclosure of certain material may cause damage to the public interest. The categories of public interest recognised by the law of PII include (but are not confined to) national security, international relations and the prevention or detection of crime.

89. Where a party to litigation claims that they are not under an obligation to disclose certain relevant material on grounds of PII, the court must conduct a balancing exercise between the public interest in the non-disclosure of the material on the one hand, and the public interest in the administration of justice (that is, in the claim being determined fairly and openly) on the other. This judicial balancing exercise is referred to as "the Wiley balance" after the case in which the correct approach to the balancing exercise was laid down.[46]

90. The principles which apply where a claim to PII is made are summarised in para. 145 of Lord Clarke's judgment in Al Rawi and can be summarised as follows (with references to case-law removed):

i) A claim for PII must ordinarily be supported by a certificate signed by the appropriate minister relating to the individual documents in question

ii) Disclosure of documents which ought otherwise to be disclosed under CPR Part 31 may only be refused if the court concludes that the public interest which demands that the evidence be withheld outweighs the public interest in the administration of justice.

iii) In making that decision, the court may inspect the documents. This must necessarily be done in an ex parte process from which the party seeking disclosure may properly be excluded. Otherwise the very purpose of the application for PII would be defeated.

iv) In making its decision, the court should consider what safeguards may be imposed to permit the disclosure of the material. These might include, for example, holding all or part of the hearing in camera; requiring express undertakings of confidentiality from those to whom documents are disclosed; restricting the number of copies of a document that could be taken, or the circumstances in which documents could be inspected (eg requiring the claimant and his legal team to attend at a particular location to read sensitive material); or requiring the unique numbering of any copy of a sensitive document.

v) Even where a complete document cannot be disclosed it may be possible to produce relevant extracts, or to summarise the relevant effect of the material.

vi) If the public interest in withholding the evidence does not outweigh the public interest in the administration of justice, the document must be disclosed unless the party who has possession of the document concedes the issue to which it relates.

91. The result of a successful claim to PII, therefore, is that the material in question is inadmissible: it is excluded from the case altogether, so it cannot be relied upon by either party and plays no part in the court's determination of the claim.

92. Until the controversy over the use made of PII in the Matrix Churchill prosecutions in the 1990s, "class claims" to PII were possible: that is, documents which fell within a certain class of material were automatically immune from disclosure. Following the Matrix Churchill controversy, the Attorney General made a statement to the House of Commons setting out a new approach to PII, in which ministers would not make "class claims" to PII but would only claim PII where the disclosure of the content of the document would cause real damage or harm to the public interest.[47]

CLOSED MATERIAL PROCEDURES

93. A "Closed Material Procedure" was defined in the preliminary issue which was the subject of the decision of the Supreme Court in Al Rawi in the following terms:[48]

"Definition of 'closed material procedure'

A 'closed material procedure' means a procedure in which

(a) a party is permitted to

(i) comply with his obligations for disclosure of documents, and

(ii) rely on pleadings and/or written evidence and/or oral evidence

without disclosing such material to other parties if and to the extent that disclosure to them would be contrary to the public interest (such withheld material being known as 'closed material'), and

(b) disclosure of such closed material is made to special advocates and, where appropriate, the court; and

(c) the court must ensure that such closed material is not disclosed to any other parties or to any other person, save where it is satisfied that such disclosure would not be contrary to the public interest.

For the purposes of this definition, disclosure is contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest."

94. In a CMP, the individual is given as much material as possible at the outset, but material which is relevant to the determination of the issues but cannot in the Government's view be disclosed without harming the public interest is withheld from disclosure as "closed material." That closed material is placed before the Court and the special advocate who is appointed to represent the interests of the party who is excluded from the closed part of the proceedings. The special advocate sees all of the closed material and can make submissions in the closed part of the proceedings that some of the closed material should in fact be disclosed.

95. Whether or not any of the closed material should in fact be open, and therefore disclosed to the other party, is a matter for the judge. However, when deciding whether closed material should be disclosed, the court does not conduct "a Wiley balancing exercise" in which it weighs the public interest in the administration of justice against the public interest in non-disclosure. The court's task in a CMP is to ensure that there is no disclosure of material which would harm the public interest. The administration of justice, in other words, is always subordinated to the protection of the public interest against harm from damaging disclosure.

96. Under the proposals in the Green Paper (para. 2.7), a CMP would be triggered where the Secretary of State decides that relevant sensitive material would cause damage to the public interest if openly disclosed, a decision which would be "reviewable by the trial judge on judicial review principles" if challenged by the other side.

SUMMARY OF THE MAIN DIFFERENCES BETWEEN PII AND CMP

97. In short, the two most significant differences between PII and CMP are:

(1) In PII, the court conducts the balancing exercise between the public interest in non-disclosure and the public interest in the administration of justice; in CMP, there is no equivalent balancing exercise by the court: the court's task is to ensure that material is not disclosed if its disclosure would cause harm to the public interest; and

(2) in PII, where the judicial balance comes out against disclosure, the material is excluded altogether from the case; in CMP, material which the court agrees should be "closed" is admissible: it is seen by the court and can be relied on by one party.

98. One difference which is sometimes claimed to exist by advocates of extending CMPs is that the PII exercise is much longer and more time-consuming than a CMP, and that this is therefore a reason for preferring CMP over PII. In fact, there is no reason why a CMP should take any less time than a PII exercise. It has been suggested, for example, that one of the reasons for the Government preferring a CMP in the Al Rawi litigation was that it would have avoided the need to conduct a PII exercise which would have taken three years. In fact, as Angus McCullough QC, and experienced special advocate, made clear, "it would have taken a long time to have gone through a PII procedure in Al Rawi. I do not think it would have taken any less time to go through a closed material procedure."[49]

The importance of judicial balancing

99. The Green Paper envisages that the decision whether to use a closed material procedure will not be made by the court, but by the Secretary of State, and that this decision of the Secretary of State's should only be challengeable "on judicial review principles".

100. Many of our witnesses took issue with this aspect of the Green Paper. Dinah Rose QC, for example, described it as "unprecedented in our law to permit one party to a civil claim to decide unilaterally that a procedure which favours his own case should be adopted for the trial of the claim." The Bingham Centre's evidence, which envisaged that there may be some role for closed material procedures in civil proceedings, also states that it must be for the court to decide whether and the extent to which a closed material procedure should be used. The Independent Reviewer describes this aspect of the Government's proposal as "profoundly wrong in principle": in his view, the decision whether to order a CMP must be for the court, not the Government.

101. The Secretary of State, in oral evidence, indicated that the Government wanted to bring in the judicial element to the maximum possible extent.[50] He accepted that "you cannot just have the unfettered decision of a Secretary of State" and that the judge has got to have "a proper and sensible role." However, he was also concerned about upholding the control principle, and for that reason was reluctant to concede that the decision as to whether there should be a CMPs in a particular case should be a judicial decision alone.

102. The Home Office Minister for Counter-Terrorism sought to reassure us that, even if the court's role is confined to a supervisory role at the point when the Secretary of State decides whether or not there should be a CMP, there is full judicial balancing at the subsequent stage of considering which evidence should be in closed and which in open.[51] In fact, however, this is only the case in a CMP to which the Government accepts that there is an obligation to disclose to the opposing party sufficient material to enable them to give effective instructions to their special advocate (the so called "AF (No. 3) disclosure obligation", sometimes referred to as the "gisting requirement"—the requirement to provide at least the gist of the case against). If that disclosure obligation does not apply (and the Government maintains that it does not necessarily apply in a number of different contexts in which CMPs are used, including SIAC, TPIMs proceedings and challenges to asset freezing orders), there is no balancing of interests for the court to perform, the only question for the court is whether disclosure would harm the public interest.

103. In our view, whether or not closed material procedures are introduced into civil proceedings, there should always be full judicial balancing of the public interests in play, both when deciding the appropriate procedure and when deciding whether a particular piece of evidence should or should not be disclosed. The Government's position in the Al Rawi litigation was that it should be for the courts to make the determination and the Green Paper does not explain what has changed the Government's position since that case.

The AF (No. 3) disclosure obligation

104. The "AF (No. 3) disclosure obligation" is the obligation to disclose to the opposing party in litigation sufficient material to enable them to give effective instructions to their special advocate who represents their interests in closed material procedures. The obligation applied in the context of control order proceedings, and is likely to apply in TPIM proceedings, although the Government has preserved for itself the possibility of arguing that it does not apply in certain cases. The obligation does not apply in SIAC proceedings. As a result, an individual can be deported from the UK for reasons which are never disclosed to them and are referred to only in the closed judgment.

105. The Green Paper proposes legislating to provide that the obligation does not apply in certain categories of case. Most of the evidence we received opposed this proposal, arguing that disclosure of at least the gist of the case against an individual was an essential feature of legal proceedings before a court, and that the AF (No. 3) disclosure obligation therefore ought to apply in all contexts. Lord Carlile, for example, said "I believe that AF standards should apply to all proceedings in any event. I can see no respectable argument against gisting in any circumstances."[52] We agree.

106. We recommend that the obligation to disclose sufficient material to enable effective instructions to be given to an individual's special advocate should always apply in any proceedings in which closed material procedures are used.

The reform options

OPTION (1): EXTEND CMPS TO ALL CIVIL PROCEEDINGS

107. The Green Paper proposes to legislate to make CMPs available "wherever necessary" in civil proceedings.[53] This means CMPs would be made an option for the parts of any civil proceedings in which sensitive material is relevant. The Green Paper recognises that CMPs represent a departure from the principle of open justice and that any departure should be no more than is "strictly necessary to achieve a proper administration of justice." The Government accepts that CMPs should therefore only be available in exceptional circumstances, and, where used, every effort should continue to be made to have as much material considered in open court as possible.

108. The trigger mechanism is the key to ensuring that CMPs are only used where absolutely necessary to enable the case to proceed in the interests of justice. The Green Paper proposes an approach which is said to be a "balance" between the role of the Secretary of State, who is said to be best placed to assess the harm that may be caused by disclosing sensitive information, and the role of the judge, who must ensure that the interests of justice are served. The mechanism proposed for triggering a CMP is that the Secretary of State will decide that certain relevant sensitive material would cause damage to the public interest if openly disclosed, and that ministerial decision would be reviewable by the trial judge "on judicial review principles."

109. For the reasons we have already explained we do not accept that the need to make closed material procedures available in all civil proceedings has been convincingly made out by the Government. Even if we were persuaded of the need, however, we would not be in favour of the model proposed by the Government in the Green Paper. Even if we were persuaded of the need, however, we would not be in favour of the model proposed by the Government in the Green Paper, for all of the reasons given by the Independent Reviewer of Terrorism Legislation in his written and oral evidence to us. First, the reach of the proposal is far too broad, applying as it does to any case involving sensitive material as defined in the Green Paper, rather than being confined to national security-sensitive material. Second, there is insufficient judicial control: instead of the judicial balancing of public interests which takes place under the law of PII, the court's role is confined to judicially reviewing the Secretary of State's decision that there should be a CMP. Third, the Green Paper does not appear to envisage that the AF (No.3) disclosure obligation applies to civil proceedings, in which case the evidence of the special advocates is clear that the measure of procedural fairness that can be provided in the CMP for the excluded party is extremely limited.

110. We are also concerned by a further feature of the Green Paper proposal which the Independent Reviewer is not concerned about, and that is the effect of the proposal on PII. The evidence we heard from practitioners with extensive experience of the law on PII, in particular Jeremy Johnson QC and Angus McCullough, was quite unequivocal that, as formulated in the Green Paper, the Government's proposal would replace PII entirely in cases where sensitive information is concerned, because ministers and public authorities would have no incentive to apply for PII rather than a CMP which clearly favours them.[54] In our view this is undesirable because there would no longer be the important judicial balancing stage at which the court holds the ring between the parties in an attempt to maximise the amount of material that can be disclosed in the interests of justice.

111. The Independent Reviewer does not share this concern. He does not consider that the PII process must always be exhausted first before a decision about a CMP is made.[55] He believes that it may be possible in some cases to tell in advance that a PII exercise will be futile because it is already clear at the outset that the case will not be triable at the end of the exercise. We disagree with the Independent Reviewer's assessment on this issue. In our view it is most unlikely to be possible to tell in advance of a Public Interest Immunity exercise whether the outcome will be that the issues in the case are not capable of being determined fairly without the withheld material. The whole purpose of the Public Interest Immunity exercise is painstakingly to look at each piece of evidence to determine how the balance should be struck, and that exercise must be gone through with all the various means of facilitating some form of disclosure in mind. As the special advocate Angus McCullough told us in evidence, "there is an important flexibility in Public Interest Immunity that would be replaced and lost if the proposals in the Green Paper were adopted."[56] Unless the Public Interest Immunity exercise is gone through first, it will not be possible to tell whether a closed material procedure is the only possible way of ensuring that the issues in the case are judicially determined. We would reject the Green Paper's proposal for this additional reason, as well as those give by the Independent Reviewer.

OPTION (2): CMP AS A LAST RESORT AND WITH JUDICIAL BALANCING

112. The Independent Reviewer is in favour of adding a CMP to the procedural armoury of the civil courts, in order to enable the resolution of claims which would otherwise be untriable. He suggests that the appropriate response to the fairness concern is to make closed material procedures available in civil proceedings, but only in a very narrowly circumscribed set of circumstances, and only to be resorted to when there is no other procedural means available for determining the issue: in other words, as a last resort.

113. Other witnesses, however, expressed concerns that the availability of a closed material procedure would in practice distort the way in which the court conducts the PII process, so that even if a statute circumscribed the availability of closed material procedures as narrowly as possible, they would in practice inevitably be resorted to much more frequently. This is partly because the judge conducting the PII exercise might be tempted to think that they can resolve all the issues satisfactorily in a closed hearing.[57] More significantly, if a closed material procedure is available as a longstop this removes the incentive on the public authority claiming PII to disclose as much material as it possibly can. Under PII it has such an incentive in order to avoid the risk that it will have to settle the claim because too much material has been withheld under PII. Lord Kerr explained the practical importance of this aspect of PII in Al Rawi:

At the moment with PII, the state faces what might be described as a healthy dilemma. It will want to produce as much material as it can in order to defend the claim and therefore will not be too quick to have resort to PII. Under the closed material procedure, all the material goes before the judge and a claim that all of it involves national security or some other vital public interest will be very tempting to make.

114. The Independent Reviewer's evidence, however, does not address the question of how to ensure that the availability of the option of a CMP, even as an absolutely last resort, will not distort the PII process that, in our view, should always take place first.

115. The special advocates, in their submission commenting on the Independent Reviewer's supplementary memorandum, similarly believe it to be inevitable that, once made available in civil proceedings generally, CMPs will be adopted in cases where fairer common law procedures could have been made to work satisfactorily, or at least less unsatisfactorily than inherently unfair CMPs. The reason for this inevitability is that the Government will have no incentive to devise a way of having the cases heard without a CMP, and every incentive for a CMP to be imposed. The special advocates therefore fear that the provision of a CMP as an option would lead to an irresistible tendency for it to be adopted for cases that could, in practice, be tried more fairly (or less unfairly) using existing procedures. They therefore remain unconvinced that the option of a CMP should be introduced in civil proceedings.

116. We share the concerns expressed by a number of witnesses about the difficulty in practice of confining closed material procedures to wholly exceptional cases. In our view, even the Independent Reviewer's more limited proposal for making closed material procedures available in civil proceedings would in practice lead to the use of closed material procedures in cases which currently go to trial because of courts' resourcefulness in finding ways of ensuring sufficient disclosure without causing damage to the public interest.

117. Nor do we consider that the case is made out for making closed material procedures generally available as an option in judicial review proceedings. The only evidence of the need for a CMP in judicial review proceedings is in the Independent Reviewer's supplementary memorandum and it relates solely to decisions to refuse naturalisation and decisions to exclude from entry to the UK. Those are both immigration decisions which are closely comparable to decisions which are currently within the jurisdiction of the Special Immigration Appeals Commission (SIAC). It seems anomalous to us that decisions to deport on national security grounds and decisions to deprive of UK citizenship individuals of dual or multiple citizenship on national security grounds are dealt with in SIAC but decisions to refuse naturalisation or to exclude on national security grounds are not and therefore have to be challenged by way of judicial review. We can see no reason of practice or principle why these sorts of cases should not be within SIAC's jurisdiction. We recommend that the jurisdiction of the Special Immigration Appeals Commission be amended so as to include challenges to decisions to refuse naturalisation and exclusion decisions. As we recommended above, the statutory framework should also be amended to make clear that the AF (No. 3) disclosure obligation applies in such proceedings.

OPTION (3): STATUTORY AMENDMENT/CLARIFICATION OF PII IN THE NATIONAL SECURITY CONTEXT

118. Although, for the reasons given above, we do not accept that the Government has made out the case for extending CMP in civil proceedings generally, we have during the course of our inquiry become increasingly persuaded that there is a case for statutory amendment and clarification of the way in which the principles of PII operate in the context of national security. Indeed, in our view it is the lack of clarity and certainty about the way in which PII applies in relation to national security sensitive material that has arguably made PII vulnerable to replacement by CMPs in this particular context.

119. Many witnesses in our inquiry considered that the law on PII is already sufficiently flexible to enable courts to find a way of ensuring that claims can be determined without risking disclosures which are damaging to national security. We agree but we think there is considerable scope for clarifying and improving the way in which the legal framework works in relation national security sensitive material.

120. The Green Paper itself considers the option of legislating for PII.[58] It acknowledges that it would be possible for Parliament to provide the courts with clearer guidance in statute on the application of PII in more difficult areas, by including for example statutory presumptions against disclosure of sensitive material and defining in detail the test to be applied by the court when balancing the competing interests. However, the Green Paper rejects this option on the basis that it would offer little advance over the existing practice of the courts being deferential towards the Executive on national security arguments.

121. It appears that the main reason for the Green Paper's rejection of some statutory amendment of the law on PII is that it would not provide a sufficiently strong "guarantee" to satisfy intelligence partners concerned about disclosure of information provided by them in the course of court proceedings in breach of the so-called "Control Principle". However, for reasons we explain in Chapter 5 below, we do not accept that an absolute guarantee of such confidentiality is compatible with a democratic society's commitment to the rule of law and we therefore do not consider this to be an obstacle to statutory amendment and clarification of the law on PII.

122. We recommend statutory clarification of the law on Public Interest Immunity as it applies in national security cases, including introducing statutory presumptions against disclosure of, for example, intelligence material or foreign intelligence material, rebuttable only by compelling reasons; express factors to which the court must have regard when balancing the competing public interests to determine the disclosure question; and a requirement that the court must give consideration to a non-exhaustive list of the sorts of devices (ranging from redactions, through confidentiality rings, to holding "in private" hearings and making orders to restrict publication of security-sensitive information) to which the courts may have resort in order to enable the determination of a claim without damaging disclosures.

123. We note that, notwithstanding the decision of the Supreme Court in Al Rawi, closed material procedures continue to be used in civil proceedings by the consent of the parties. Whether there is power to hold a closed material procedures where the parties agree to it was left open in Al Rawi, although some members of the Court had reservations about whether such consent could be said to be freely given under threat that their claim would otherwise be struck out.[59] Concerns were also expressed by witnesses in our inquiry that if closed material procedures were available by consent, this may lead to them being resorted to quite frequently in practice which would have the effect of keeping out of the public domain material that would otherwise become public because disclosed in litigation. In our view, whether closed material procedures should be possible where the parties consent to them is an issue which requires further attention.

24 [2010] EWCA Civ 482. Back

25 [2011] UKSC 34. Back

26 Green Paper, Appendix J, para. 11. Back

27 Memorandum of David Anderson QC, 26 January 2012, para. 7. Back

28 Evidence of David Anderson QC, 31 January 2012, Q75. Back

29 Evidence of Rt Hon Kenneth Clarke QC MP, 6 March 2012, Q191. Back

30 Ibid. Back

31 Ibid, Q 193. Back

32 Ibid, Q197. Back

33 Evidence of James Brokenshire, 6 March 2012, Q194, where Baroness Berridge's direct request for examples of caseswas answered with a description of the difference between PII and CMP which was of no relevance to the question asked. Back

34 Evidence of Rt Hon Kenneth Clarke QC MP, 6 March 2012, Q193. Back

35 Evidence of James Brokenshire, 6 March 2012, Q193 and Q200. Back