So the long awaited JSB has been laid before Parliament today. If passed it will permit Closed Material Procedures (CMPs) in some civil proceedings. There are going to be three stages:
FIRST STAGE - IS PII GOING TO BE CLAIMED?
The Secretary of State (S/S) must first decide whether to make or to advise another person (for example a Chief Constable) to make a claim for PII in respect of the national security disclosure. If the claim is made and accepted by the Court - then the information is protected, will not be disclosed and will not be relied on and the matter ends there. If the claim is not made or not accepted by the Court (i.e. S/S or other relevant person wants to rely on the disclosure or the Court thinks that the information should be disclosed under a CMP and not withheld completely) then we move to stage 2:
SECOND STAGE - APPLICATION FOR A DECLARATION
The S/S can make an application in proceedings before the High Court (Court of Session in Scotland) or Court of Appeal for a declaration that a application for Closed Material Procedures (CMPs) may be made in the proceedings. The Court has to grant that application if it considers that the proceedings might involve disclosure (by anybody) damaging to the interests of national security. If the Court grants the application, then we move to stage 3:
The relevant person who ordinarily would be required in the normal course of civil litigation to disclose documents may apply to only disclose those documents to the Court, a Special Advocate (SA) and the Secretary of State (where not a party). In other words, the relevant person would be excused from having to disclose the documents to the other parties to the proceedings and would disclose those documents instead to the SA. The Court must grant this application if it considers that the disclosure would be damaging to the interests of national security. The Court can at the same time order a gisting exercise. If the relevant person does not get permission to withhold the evidence and refuses to disclose it, then the Court can force the relevant person to make concessions or can make other coercive orders in default. If permission is granted then the CMP will proceed as it does now in current CMP proceedings (like in TPIMs/SIAC etc) with hearings concerning the national security evidence held in camera and excluding everybody but the SA. Parts of judgments dealing with the national security information which be closed. The application for CMPs has to be made without notice and without any other party being present (obviously - holding the hearing with all the parties present would defeat its object).
WHY THREE STAGES?
The Bill is designed to permit S/S to intervene in proceedings to which he or she is not a party. For example if some other agency or third party not under the control of the S/S were to be involved in proceedings in which they might be required to disclose national security information, S/S can use the first stage to intervene in order to seek a declaration that CMPs will be used. Indeed it seems that there will be amendments to the CPR to place a duty on parties to notify S/S when CMPs might be necessary. Once the CMP stage 1 declaration is in place, then the relevant party will be able to make an application to withhold disclosure within a CMP at stage 2. The rules of PII are expressly preserved so that if the relevant party neglected to make a CMP application at stage 2, then S/S could still intervene with a PII certificate to protect the information. It might have been better to permit the Court to alert the S/S of the national security issue of its own motion - in case the parties had not spotted it - this is the case with PII - where it is everybody's duty, including the Court's, to take the PII point where it arises.
THE COURT & NOT HMG WILL DETERMINE THE "DAMAGING TO THE INTERESTS OF NATIONAL SECURITY " QUESTION:
This is seen as a great prize by those who oppose this Bill, but the Court is likely to defer to some extent to S/S on this question. There is a similar jurisdiction to hold closed proceedings in the Employment Tribunal and Underhill P has given guidance in the EAT on how the national security question is to be approached:
What is in any event clear from the numerous authorities cited to me is that they contain no explicit consideration of the correct approach to be taken where a party asks the court to make an exception to the rule of open justice in the interests of national security. For the reasons that I have given there is a limit to the useful guidance that can be given. However, I think that it is possible to say the following:
(1) Any exception to the rule of open justice has to be justified. It is, as emphasised in all the cases to which I have referred, a strong rule and any justification has accordingly to be cogent.
(2) It is uncontroversial that the interests of national security are capable of justifying such an exception. But, as a matter of principle, in any case where the exception is invoked, and specifically in the case of an application under rule 54 (2), the court or tribunal must make a judicial assessment of whether they do so in the particular case. That will in principle involve striking a balance between, on the one hand, the seriousness of the prejudice to national security which is asserted, and the degree of risk that that prejudice may occur if the exception sought is not made; and, on the other, the extent of the infringement of the principle of open justice embodied in the rule and the risk of prejudice to the public interest or the interests of the individual in the particular case. On ordinary principles, the more serious the infringement of the principle the greater the prejudice, or risk of prejudice, needed to justify it: thus it will be easier to justify, say, the anonymisation of witnesses or the redaction of documents than the conducting of an entire hearing in private.
(3) Thus far the exercise would appear to be an application of the principle of proportionality of a conventional kind; and one where, because of the importance of the principle of open justice, there is a heavy burden on the party seeking the restriction. But that is not the whole picture. "The interests of national security" constitute a factor of a rather particular nature. Where those interests are indeed genuinely engaged the stakes are high: they will involve real risks to the national interest generally and, typically, real risks (of a more or less direct nature) to the lives of members of the armed forces or the security services or of others. An established risk of such outcomes must of its nature weigh heavily in the opposite balance against the principle of open justice, important though that is. Of course sometimes it will not be self-evident that any such asserted risk is indeed present or is serious. In such a case, however, the tribunal needs to be aware that the risks in question will often be of a kind which it is not well-placed to assess - even if, which will itself often be disproportionate or unrealistic, appropriate direct evidence relating to the risk could be adduced before it. Tribunals therefore need to approach the task of assessing the risk with a clear understanding of the inherent limitations in their ability to do so.
(4) Those cautionary observations do not mean that the proportionality exercise is unnecessary or that it can only have one outcome whenever an application for measures under rule 54 (2) is made. Tribunals can and should not abdicate their responsibilities to make the necessary assessment whenever national security is invoked. But they do mean that it will be necessary for tribunals to approach any such application with a recognition of the weight which must necessarily be accorded to any real risk to the interests of national security and of the limits to the assessment of that risk which it may realistically be possible to carry out.
It may be that it was with these points in mind that the draftsmen chose the word "expedient" rather than "necessary". But, whether that is so or not, I believe that the question whether an order under rule 54 (2) should be made should be approached in accordance with the foregoing guidance.
Following the burning of HMG's fingers in Binyam Mohamed, the Bill effectively removes national security disclosure from this jurisdiction. I suspect this will be controversial - especially where UK involvement in rendition is being alleged.
INQUESTS NOT INCLUDED
Inquests are not included within the scope of these provisions - this will cheer a lot of people up - although it will leave Coroners unable to consider national security evidence in full as they will continue to have no power to sit fully in camera (see the 7/7 Inquest issue on that point). Neither are county courts - although no doubt any proceedings where a CMP is necessary (certain claims made by prisoners spring to mind) could be transfered to the High Court. None of the Tribunals are included - although I note that clause 11(2) permits S/S to widen the scope of these provisions by Henry VIII orders.
A GOOD BILL?
Save for the Norwich Pharmacal clauses - where I think that the Court should have the say on the national security issue - I think this is a good bill and I support the introduction of CMPs as set out in previous posts here and here and here and here. It is a second best solution; but it is necessary. As Underhill P said above and as the European Court of Human Rights has accepted ( A v United Kingdom (2009) 49 EHRR 29). - national security is so important to all of us that it is one of those rare occasions when a breach of article 6 is justified and a necessary exception to open justice is required. 60 cases are apparently awaiting the passage of this bill (presumably stayed after Al Rawi). 60 cases which would have to be struck out or settled for potentially the wrong reasons without this Bill. I cannot put the point better than David Anderson QC, the Independent Reviewer of Terrorism Legislation (and notice that unlike most commentators - he has seen the actual files....):
It is however apparent to me, after inspecting the files I have been shown and speaking to counsel involved, that under the current law there are liable to be cases that are settled ... which, had a CMP been available, would have been fought to a conclusion. This is an undesirable state of affairs .... We are in a world of second-best solutions: but it does not seem to me that the level of injustice inherent in the use of a CMP in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought’.