Liberty's Committee stage briefing Justice and Security Bill (HoC)

Liberty’s Committee stage briefing on
Part 2 of the Justice & Security Bill in
the House of Commons
January 2013

About Liberty
Liberty (The National Council for Civil Liberties) is one of the UK’s leading civil
liberties and human rights organisations. Liberty works to promote human rights and
protect civil liberties through a combination of test case litigation, lobbying,
campaigning and research.
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have implications for human rights and civil liberties. We also submit evidence to
Select Committees, Inquiries and other policy fora, and undertake independent,
funded research.
Liberty’s policy papers are available at
http://www.liberty-human-rights.org.uk/publications/1-policy-papers/index.shtml
Contact
Isabella Sankey
Rachel Robinson
Director of Policy
Policy Officer
Direct Line 020 7378 5254 Direct Line: 020 7378 3659
Email: bellas@liberty-human-rights.org.uk Email: rachelr@liberty-human-rights.org.uk
Sophie Farthing
Policy Officer
Direct Line 020 7378 3654
Email: sophief@liberty-human-rights.org.uk
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Introduction
1. Clauses 6 to 11 of Part 2 of the Justice and Security Bill introduce secret
courts – Closed Material Procedures (CMP) - to the ordinary civil law. Clauses 14
and 15 seek to oust the courts’ common law jurisdiction to hear certain disclosure
applications. 1 In terms of scope and implications for our civil justice system, the
irrevocable change being proposed in these clauses is unprecedented. Secret courts
fatally undermine the Rule of Law, eroding bedrock principles of open justice and
equality before the law and weakening Government accountability. If Parliament
passes this bill it must do so with the knowledge that the Bill can and will prevent
serious state abuses from coming to light. Liberty urges Committee Members to table
an amendment which will remove Part 2 of this Bill (which did not appear in any
election manifesto or the Coalition Programme for Government) which will – even as
amended by the House of Lords - overturn centuries’ old principles at the heart of our
civil justice system.
2. As well as the principled objections to this type of change, there is also an
evidential reason to reject Part 2 of this Bill: the Government’s complete failure to
explain why this change is needed. Constitutional change of this magnitude should
only be considered if there is an unequivocal need for it. The Government has made
various claims about this perceived need, none of which stand up to scrutiny. Liberty
does not object to the Government’s central argument, that national security sensitive
material should not be disclosed in open court. However there is absolutely no
evidence that this harmful disclosure is occurring, has occurred, or is likely to do so in
future. The current law of Public Interest Immunity has thus far prevented any
sensitive disclosure that would genuinely damage national security. Before the law is
changed there must be a plausible explanation for the change; all we have heard
from the Government is hypotheses and hyperbole and shifting arguments as
opposition to the Bill has mounted. In the second part of this briefing we address
each of these arguments in turn.
3. This Bill has been rejected across the political, media and legal spectrum:
1 Note that this briefing addresses only these two aspects of the Bill, contained in clauses 6 to
11 and clauses 14 and 15. It does not address other proposals in this Part 2, nor the changes
to the Intelligence and Security Committee in Part 1. For further briefing on the latter, please
see para’s 57 to 66 of Liberty and Reprieve’s Second Reading briefing on the Bill in the
House of Lords, available at http://www.liberty-human-rights.org.uk/pdfs/policy12/libertyreprieve-hol-justice-and-security-bill-2r-briefing-june-2012-.pdf.
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The Scottish Government has expressed “very serious concerns” about the
introduction of closed courts Scottish courts, and has made it clear to the UK
Government that it “has concluded that it is unable to support any extension –
under any circumstance – of the Bill into devolved areas”. 2
The Special Advocates, the Government-appointed security cleared lawyers
who work in CMP, have concluded “that CMPs are inherently unfair and contrary
to the common law tradition; that the Government would have to show the most
compelling reasons to justify their introduction; that no such reasons have been
advanced; and that, in our view, none exists”. 3
The Joint Committee on Human Rights concluded in their November report on
the Bill that “we remain unpersuaded that the Government has demonstrated by
reference to evidence that there exist 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”. 4
The Liberal Democrat party passed a motion at their September 2012
conference calling for Part 2 of the Bill to be scrapped, overwhelmingly rejecting
amendments tabled by the leadership to preserve Part 2 of the Bill. 5
Conservative MP, Andrew Tyrie, in a report for the Centre for Policy Studies,
has concluded the Bill will not give Britain a justice system which is “more just nor
more secure” and “risks damaging Britain’s system of open justice and the
reputation and effectiveness of the security agencies in the struggle against
terrorism”. 6
The Times editorial on the day of Report stage in the House of Lords stated the
proposal for secret courts as proposed in this Bill “cannot be right” and is “too
deeply flawed to contemplate”. 7
2 See Letter from the Cabinet Secretary for Justice for Scotland to the Convenor of the
Scottish Justice Committee dated 22 November 2012. Available at
http://www.scottish.parliament.uk/S4_JusticeCommittee/General%20Documents/20121122_C
SfJ_to_CG.pdf.
3 See the Response of Special Advocates to the Justice and Security Green Paper, available
at http://consultation.cabinetoffice.gov.uk/justiceandsecurity/wpcontent/uploads/2012/09_Special%20Advocates.pdf
at para 15. The Special Advocates
reiterated these objections at Report stage of the Bill in the House of Lords.
4 Fourth Report of Session 2012-13 Legislative Scrutiny: Justice and Security Bill (HL Paper
59, HC 372) (13 April 2012) at para 46.
5 The full text of the motion passed is available at:
http://www.libdemsagainstsecretcourts.org.uk/conference-motion/.
6 Andrew Tyrie MP and Anthony Peto QC, Centre for Policy Studies Neither Just Nor Secure:
The Justice and Security Bill (January 2013), available at
http://www.cps.org.uk/files/reports/original/130123103140-neitherjustnorsecure.pdf.
7 “An Open and Shut Case” The Times Editorial, 19 th November 2012.
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The Daily Mail is running a campaign against the Bill, No to Secret Courts,
seeking to defend the principle of open justice which it believes is threatened by
this Bill. 8
The Guardian has repeatedly pointed out that the impetus for the Bill is “not
some abstract concern to bring more evidence to court, still less any deficiency
with public protection immunities”, rather it was the desire to contain “’political
cost’ – or, in other words, political blushes”. 9
The Law Society and Bar Council have rejected Part 2 in a joint letter to Rt Hon
Ken Clarke, the Minister without Portfolio, stating “Secret trials and nondisclosure
of evidence are potential characteristics of repressive regimes and
undemocratic societies” and concluding “this bill will adversely affect the UK’s
international reputation for fair justice”. 10
Former Director of Public Prosecutions, Lord Macdonald QC, has said the Bill
will mean that “Government wrongdoing in the area of national security is going
to be less likely to see the light of day”. 11
The Trade Union Congress passed a motion in September 2012 which makes
explicit Congress’ total opposition to the secret courts proposal. 12
4. This Bill has been prompted by litigation challenging policies of
extraordinary rendition, torture and indefinite detention without charge or trial pursued
during the darkest periods of the War on Terror. It is through this litigation, along with
investigative journalism, that such practices have been exposed. There is now no
longer any doubt that individuals were wrongly detained, rendered and appallingly
treated and tortured in the aftermath of the shocking attacks on 9/11. Most recently, a
decision of the European Court of Human Rights in December 2012 found that
German citizen Khaled el Masri had proved beyond all reasonable doubt that “at
Skopje Airport at the hands of the CIA rendition team” he had been “severely beaten,
8 See, for example, http://www.dailymail.co.uk/news/article-2109596/Cameron-defies-criticsplans-bring-secret-courts.html,
http://www.dailymail.co.uk/news/article-2153754/Climbdownsecret-courts-Nonsense-Now-worse-How-Ken-Clarkes-masterclass-spin-hid-REAL-storynew-justice-laws.html.
Editorials across the press have described the plans as: "excessive
and dangerous" (The Times), and a "chilling threat to liberty and justice" (Daily Mail); The
Guardian warns they would "shake our constitution to its common law roots," the Independent
fears a move "towards the closed courts...so favoured by despots," and the Financial Times
has cautioned against the "Kafkaesque cases" which would result.
9 http://www.guardian.co.uk/commentisfree/2012/sep/25/liberal-democrat-secret-justiceproposals-editorial?newsfeed=true
10 http://www.guardian.co.uk/law/2012/nov/17/lawyers-challenge-clarke-justice-bill
11 http://www.telegraph.co.uk/news/uknews/law-and-order/9298039/Ministers-may-use-secrethearings-to-hide-wrongdoing-MacDonald.html
12 See Motion 16, page 11 of the TUC Congress 2012 Agenda, available at
http://www.tuc.org.uk/the_tuc/tuc-21349-f0.pdf.
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sodomised, shackled and hooded, and subjected to total sensory deprivation”. 13
While the UK was not involved on this occasion, the findings of the Court put beyond
doubt the practices of the US, our closest ally, at least during this period. In mid-
December 2012 it was also revealed that the UK Government had settled, for
£2.23m, a claim brought by Sami al-Saadi, a prominent Libyan dissident who in 2004
was forced to board a plane in Hong Kong with his wife and four young children in a
joint UK-US-Libyan operation. They were then flown to Libya, where all of them were
initially imprisoned. Saadi was then held and tortured for years. On news of the
settlement Mr al-Saadi stated -
I started this process believing that a British trial would get to the truth in my
case. But today, with the Government trying to push through secret courts, I
feel that to proceed is not best for my family. I went through a secret trial once
before, in Gaddafi’s Libya. In many ways, it was as bas as the torture. It is not
an experience I care to repeat. Even now, the British government has never
given an answer to the simple question: ‘Were you involved in the kidnap of
me, my wife and my children?’ I think the payment speaks for itself. 14
It is a bitter irony that a key plank of the Government’s formal response to such
revelations is this Bill, which, if passed, will make it far easier for past and future
failings to remain secret. Rather than shine a light on dark practices which have no
place in a liberal democracy, the Government has committed to a policy that will limit
accountability and transparency.
5. Furthermore, history shows that the catchall provision of ‘national
security’, which will trigger closed courts, has been widely cast. Accordingly this Bill
threatens to allow for closed courts in cases going far beyond the torture/rendition
sphere, from police negligence to historical claims of torture by colonial forces. In the
months and weeks leading up to the Bill’s Second Reading in the House of
Commons a steady stream of events yet again laid bare the danger of this Bill.
Whether it is shocking State collusion in the murder of solicitor Pat Finucane, the
long-running police cover-up of the Hillsborough disaster; a wall of institutional
silence over the Jimmy Savile sex abuse allegations or phone-hacking at News
13 The treatment of el Masi was “carried out in the presence of state officials of Macedonia
and within its jurisdiction”. El Masri v the former Yugoslav Republic of Macedonia (App No.
39630/09) European Court of Human Rights (13 December 2013).
14 http://www.bbc.co.uk/news/uk-20715507
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International, we can be in no doubt that powerful institutions resist transparency and
accountability.
6. Liberty does not believe Part 2 of this Bill can be remedied by any
amendment. The Government has failed to make the evidential case that the Bill is
necessary and the Bill has been opposed across the political sphere, by the legal
profession and across the media. We therefore do not set out any proposed
amendments in this briefing. We instead urge Committee Members to vote against
Part 2 standing part of the Bill; a vital move to protect the Rule of Law and ensure
that the fundamental underpinnings of our civil justice system remain intact.
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PART 1
Outline of the Bill
Extension of closed court procedures
7. Clauses 6 to 10 of the Bill allow for the introduction of a ‘Closed Material
Procedure’ to ordinary civil law proceedings. Under clause 6, upon application a court
may make a declaration that the proceedings are those in which CMP could be
allowed (the “CMP declaration”). 15 The declaration may be made if the court
considers that: (a) national security sensitive material may have to be disclosed
during the course of the proceedings; (b) the degree of harm in such disclosure
would outweigh the public interest in the fair and open administration of justice; and
(c) a fair determination of the proceedings is not possible by any other means. 16 In
making that decision the court is able to consider material which would not otherwise
be admissible, including evidence obtained from intercept. 17 Once a CMP declaration
is made, closed courts are made available for the rest of the proceedings, resulting in
part or the majority of the hearing taking place without the claimant, their lawyer, the
press or the public present. Clause 7 then governs each application for CMP made
after the court’s declaration. Clause 7 states that Rules of Court must make provision
for how CMP will work in practice; for example, the Rules must stipulate that any
application under clause 6 must always be considered in the absence of every other
party to the proceedings and their legal representative. 18
8. The CMP model currently takes place in a limited number of discreet
areas (see para’s 44 to 45 below). Where a CMP is ordered, the party who has
obtained the declaration will be able to present material to the judge in support of
their case while the other party, and their lawyers, are entirely excluded from the
court room. Instead, a Special Advocate may be appointed to represent their
interests. 19 A Special Advocate is a security cleared, Government-appointed lawyer
whose role is, ostensibly, to represent the person excluded from the court room,
although the Advocate’s duty is expressly owed to the court not their ‘client’. 20 Having
a Special Advocate in a closed court should not be viewed as providing any
15 Clause 6(1).
16 Clause 6(2).
17 Clause 6(3).
18 Clause 7(1)(b).
19 Clause 8(1).
20 Clause 8(4).
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semblance of a normal, fair trial. The ability of an SA to properly test the evidence
and represent the party excluded from the court will be minimal. The SA is prohibited
from directly communicating with the litigant without permission and can never
discuss the content of the secret evidence. The SA will be unable to challenge nondisclosure
by the Government or challenge evidence relied on in secret proceedings,
and they have little practical ability to call their own evidence. This means that a
judge will make a decision about crucial matters in a case based on unchallenged
evidence. In the end, two judgments will be produced – a closed judgment which will
not be disclosed, based on material presented in CMP, and an open judgment based
on the rest of the case not held behind closed doors. If sensitive material is crucial to
the core decision made, the entirety of the judicial reasoning will never be made
public or given to the excluded party who has lost their case.
9. Under the current law the modern judiciary have developed the common
law of Public Interest Immunity to address the problem of possible disclosure of
national security sensitive material in open court. PII principles allow a balance to
be struck between the requirements of justice and the protection of the public
interest. Under PII, if a Minister considers that disclosure of a document could harm
the public interest he or she must sign a certificate to that effect. The court then
considers the issue – looking at the material in question if necessary – and balances
the public interest in withholding the document against the interests of justice in
disclosing it. PII does not operate to exclude entire categories of material. Rather the
judge has to engage with the facts in question, weighing factors such as the
relevance of the material concerned, its particular sensitivity and the interests at
stake (including their seriousness). The judge must simultaneously consider a
number of mechanisms by which material can still be disclosed, while maintaining a
requisite level of confidentiality. If a judge decides that the nature of certain material
requires some protection there are many more options available to a judge than
simply refusing disclosure. These include, for example, allowing redactions, providing
for the protection of the identity of witnesses, in camera hearings and imposing
confidentiality rings. Ultimately if none of these measures can be deployed the judge
will exclude the material and neither side can rely on it – in contrast to the Bill, which
allows one party to rely on material detrimental to the other side’s case which
remains untested and unchallenged.
10. PII is an important constitutional mechanism for dealing with national
security sensitive material. It ensures that material which is disclosed as evidence is
9

seen by both sides, ensuring that material must subject to challenge by the other
party for it to be counted as evidence. This guarantees the principle of equality of
arms upon which our adversarial justice system is based. Importantly, in providing for
a balancing exercise PII also ensures that the maximum amount of evidence in a
case is placed before the courts.
11. As originally drafted the Bill replaced PII with CMP. Following amendment
in the House of Lords, the Bill now makes both CMP and PII available. In practice,
Liberty believes that even if PII is still an option, the lure of CMP and the advantages
it will give to Government will prove too great a temptation for the Government, as
well as placing enormous pressure on the courts to order a CMP when it is applied
for. As outlined below, as the operation of PII has not failed to protect our national
security, there is no need to insert CMP as additional remedy in the ordinary civil
courts system.
Ousting the Norwich Pharmacal jurisdiction
12. Part 2 of the Bill also proposes to completely oust the court’s ability to
hear certain applications for disclosure. A Norwich Pharmacal (NP) application 21 is a
common law equitable remedy that enables an applicant to obtain disclosure of
information from a respondent who is associated with arguable wrongdoing of a third
party in a set of very specific circumstances. So, for example, a claimant who has
been extraordinarily rendered and consequently tortured may sue the company
which operated the flight. The claimant may seek information held by the UK
Government for documents or information in its possession which would prove that
the flights took place (for example, by refuelling on its property) to assist it making out
its claim against the company.
13. In order for the application to be granted, the court applies a five stage test: 22
(i) there must be arguable wrongdoing on the part of a third party;
21 Established in Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133;
and Rule 31.18 of the Civil Procedure Rules (Vol. 1).
22 As summarised by the Court in Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] EWHC
625 (Ch).
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(ii) it must be necessary for the claimant to receive the information by making the
NP application – i.e. if the information can be obtained by another route, the court
may refuse to grant the order;
(iii) the defendant must be “mixed up” in that arguable wrongdoing;
(iv) the defendant must be able or likely to be able to provide the information
necessary to allow the wrongdoer to be sued – i.e. the information sought must
be within the scope of the available relief; it should not be used for wide-ranging
disclosure or evidence-gathering; and
(v) the court must be satisfied that it should exercise its discretion to make the
order sought.
14. Clauses 14 and 15 of the Bill will oust this jurisdiction for cases where
disclosure of ‘sensitive information’ thought to be held by the Government or a public
agency is sought by a claimant to assist him to make out a claim against a third party
in which the Government may be involved. A court will be unable to order disclosure
of the information sought where that information is ‘sensitive information’ (cl 14(2)).
What could potentially fall in the category of ‘sensitive information’ is dangerously
wide-ranging. The term will include information:
held by an intelligence service (which includes the Security Service; the Secret
Intelligence Service; the Government Communications Headquarters; or any part
of Her Majesty’s forces or of the Ministry of Defence which engages in
intelligence activities);
obtained from, or held on behalf of, an intelligence service;
derived in whole or part from information obtained from, or held on behalf of, an
intelligence service; or
relating to an intelligence service. (Cl 14 (3))
15. Sensitive information will also include any information specified or described
in a certificate issued by the Secretary of State, in relation to the proceedings, as
information which the party should not be ordered to disclose (cl 14(3)(e)). A
certificate can be issued where the Secretary considers it would be contrary to the
public interest, because it would cause damage to national security or the interest of
the UK’s international relations, for disclosure of the information itself, the fact of its
existence or whether it is even held (cl 14(4), (5)).
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16. The Secretary of State’s decision to issue a certificate can be judicially
reviewed, but only on the ground that the Secretary ought not to have determined
that disclosure of the material in question would be contrary to the public interest (cl
15(2), (3)). Any judicial review proceedings will be able to be heard in closed
proceedings under clause 7 of the Bill.
17. The primary motivation outlined by the Government for this reform is to deal
with the aftermath of the Binyam Mohamed torture litigation – discussed in further
detail below – although the clauses go far wider than the specific national security
context of that case. The Government also argues the reform is necessary to combat
a “damaging form of legal tourism” where a person who is fighting a case outside this
jurisdiction applies to UK courts using the NP jurisdiction to “force disclosure of
intelligence information” held by the British Government. These arguments are
spurious. In the Binyam Mohamed litigation, current law ensured that no sensitive
material was publicly disclosed. The conduct of the Agencies was, however, criticised
in the resulting judgment; criticism that we believe has driven the internal campaign
for this reform.. Ousting this jurisdiction will however remove an important avenue of
redress for victims of Government wrongdoing. Again this will be based on
hypothesis rather than an identified threat to national security. Accordingly, we urge
the Committee to reject clauses 14 and 15 of the Bill.
Extension of CMP - Amendments made in the House of Lords
18. Since its introduction as a broad brush Green Paper late last year, these
proposals have been mired in controversy and contention both inside and outside
Westminster. The Bill had a rocky passage through the House of Lords, with
principled arguments against Part 2 made across the House. During Report stage,
Labour Peers Lord Dubs and Baroness Kennedy QC, and Liberal Democrat Peers
Lord Strasburger and Lord Thomas of Gresford QC, tabled amendments to leave
clauses 6 to 11 out of the Bill; although the amendments were ultimately
unsuccessful, it is notable that Labour Peers abstained from these votes. 23
19. In addition to wrecking amendments, there were also a number of
Government defeats leading to new provisions being inserted into the Bill which
23 See 45, 51, 54, 55, 57 & 61 of the Second Marshalled Amendments to be Moved on Report
as at 19 November 2012, available at http://www.publications.parliament.uk/pa/bills/lbill/2012-
2013/0027/amend/ml027-rii.htm.
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attempt to provide safeguards for the operation of closed courts. Amendments made
to Part 2 were in the main related to clause 6:
(i) Either party, or the court of its own motion, is now able to apply for a CMP
declaration under clause 6(1). Prior to this change only the Government
could apply for the declaration. 24
(ii) The court now has marginally more discretion when considering an
application for a CMP declaration under clauses 6(1)( and (2) – a court
“may”, rather than “must” make the declaration upon hearing an
application for one. Prior to this change the court was given a rubberstamping
role – this was not, as spun by the Government at the time of
the Bill’s publication, a procedure allowing for a judge to make a decision
about whether a CMP is necessary, rather the provisions of clause 6
effectively required the declaration to be made once the Government
applied for it.
(iii) In deciding whether to make a declaration the court must consider
whether harm to national security of disclosure would “be likely to”
outweigh the public interest in the fair and open administration of justice.
The court must also consider whether a fair determination of the
proceedings is not possible by any other means: cl 6(2)(c). New clause
6(6) provides that before making a declaration the court must consider
whether a claim for PII could have been made in relation to the material.
20. Liberty believes that no amount of amendment will remedy the
fundamental flaws in this Bill. Closed courts have no place in our adversarial justice
system. If they are introduced, untested evidence will be given in Court that could
mislead a judge and result in a perverse judgment. The consequence is that the
Government could be cleared of grave wrongdoing for which it is culpable. No
amount of judicial bells and whistles will remedy the fact that this Bill is incapable of
delivering fairness or justice and will fatally undermine the British justice system.
21. We therefore urge Parliamentarians to reject Part 2 of this Bill. In the
second part of this briefing we test each of the Government’s arguments attempting
to justify the introduction of these most illiberal proposals.
24 Before amendment the clause 6(1) provided “The Secretary of State may apply to the court
seised of relevant proceedings for a declaration that the proceedings are proceedings in
which a closed material application may be made to the court.”
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PART 2
Liberty’s rebuttal to the Government’s arguments for the Bill
“The Bill is needed because the Government has to settle cases which have no
merit.”
22. The Government argues it has been forced to settle claims to avoid
disclosing sensitive material, meaning ‘no justice at all’ for the parties and
unnecessary expense to the taxpayer. It relies on the Al Rawi litigation 25 as a case in
point. In Al Rawi victims of extraordinary rendition, torture and extended detention
without charge or trial in Guantanamo Bay alleged the complicity of the UK
Government and the Intelligence Agencies in their abuse alleging liability for assault,
negligence and other torts.
23. The first problem for the Government is that in Al Rawi it wasn’t in
fact forced to settle the claim. Instead the Government chose to settle the claim at
a relatively early stage. Public Interest Immunity (PII) (the existing system for
ensuring that national security is protected in litigation) and accompanying
mechanisms were never attempted. The Government cannot therefore credibly state
that it had no option to settle the case because of problems with the operation of PII.
As the JCHR has observed, the Al Rawi litigation “simply cannot bear the weight
being placed upon it by the Government…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.” 26 The Special Advocates also
strongly refute the Government’s claim that it was forced to settle the Al Rawi claims.
24. The second major problem with the Government’s argument is that it
opted to settle the claims before the Supreme Court had determined whether a
Closed Material Procedure could be allowed. While the Court of Appeal ruled
against the use of CMP, the Government was granted permission to appeal to the
Supreme Court for determination on whether parts of the Government’s case could
be heard in closed session. However, rather than waiting for the outcome of this
appeal, the Government chose to settle the claims in November 2010 for an
undisclosed sum. The Government cannot credibly claim that the cases were settled
25 Al Rawi et al v Security Service & Ors [2011] UKSC 34.
26 See the 24 th Report of Session 2010-2012: The Justice and Security Green Paper.
Available at: http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/286/286.pdf.
14

ecause CMP was not allowed as this issue was undecided at the point that the
Government opted to settle.
25. The third problem with the Government’s claim that in Al Rawi it was (and
will in future be) “forced to settle” is that this is wrong as a matter of law. Even if one
accepts the Government’s hypothetical argument that one day a case may involve so
much national security sensitive material that it would not be able to proceed, the
Government would then be able to apply for the case to be struck out. 27 If the
Government was right about the effect of the security sensitive material, the court
could strike the claim out. The Government would not have to pay any money in
settlement. The Government can therefore never be “forced to settle” because of
national security concerns. Interestingly, the Government is completely silent on why
it didn’t seek a strike out in Al Rawi.
26. The fourth problem with the Al Rawi claim is that Government (and in
particular the security services) frequently overestimate the secrecy they
require in the courtroom. While it is convenient for the Government to argue that
their defence to the Guantanamo claims was too saturated in intelligence material to
proceed, recent history suggests that the Government frequently grossly
overestimates its secrecy requirements in order to avoid embarrassment and serve
its litigation ends. Indeed Liberty is aware of a number of recent disturbing examples
of governmental abuse of what has been a privileged relationship with the Courts
built on mutual trust and respect:
a. In Binyam Mohamed v Secretary of State for Foreign and Commonwealth
Affairs 28 an MI5 insistence on non-disclosure was unexpectedly withdrawn
before the Court of Appeal. On analysis of the full text, the Court found
previously redacted information to be anodyne, and already in the public
domain.
b. In Al Sweady v Secretary of State of Defence 29 the Ministry of Defence
(MoD) initially asserted that material relating to the techniques of “tactical
questioning” could not be disclosed to claimants. At a later stage in the
proceedings it was conceded that a significant proportion of the redacted
material had previously been disclosed in open hearings and was therefore
27 Carnduff v Rock and another [2001] EWCA Civ 680.
28 [2009] EWHC 2549 (Admin).
29 R (Al-Sweady) v SSD [2009] EWHC 1687 (Admin).
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already in the public domain. The MoD was therefore ordered to pay £1 million
indemnity costs.
c. In Home Secretary v AN 30 following the reinstatement of redactions in
documentary evidence disclosed by the Home Secretary in an appeal against a
control order, it became apparent that information withheld included references
to internal Home Office documents in which it was admitted that there was no
necessity for a control order at all because the suspect was detained on
remand in Belmarsh prison. As a result, the Home Office’s case fell away and
the control order was revoked.
d. In the only decision of the Proscribed Organisation Appeals Commission
the intelligence services sought the redaction of a passage from a previous
Court of Appeal judgment in a case relating to the status of an Iranian
organisation. It transpired that the passage in question was one which stated
that the decision had been a very poor piece of administrative decision making
but did not present any risk to national security.
27. It is impossible to know for sure why the Government settled the Al Rawi
cases, but it is entirely feasible that the scale of the litigation, the strength of the
claimants’ case and the reputational damage that would have been caused by the
disclosure of embarrassing – but not security sensitive – material in open court was
sufficient motivation to settle. Indeed litigation is mediated and settled every day for
such reasons. Interestingly, Government claims about the strength of its defence in
Al Rawi when arguing for Part 2 don’t tally with wider Government and police action
arising directly out of the rendition and torture allegations; in particular the early
announcement by the current Government of a judicial inquiry into detainee
mistreatment 31 and the decision by the Director of Public Prosecutions in January
2012 to launch urgent criminal investigations into Libyan rendition and torture
following referral from the Attorney General, Rt Hon Dominic Grieve QC MP. 32 Both
of these official responses, leave good reason to believe that civil claims arising out
of the same allegations may have had high prospects of success. In any case, what
is certain is that the Government’s argument about the Al Rawi settlement is nothing
more than a claim by one party to contested proceedings about the nature and
30 12 March 2010.
31 See “Torture claims investigation ordered by Hague” The Guardian, 20 May 2010. This
announcement came before the Government settled the Al Rawi claims in November 2010.
32 See the Joint Statement by the Director of Public Prosecutions and the Metropolitan Police
Service 12.01.2012
http://www.cps.gov.uk/news/press_statements/joint_statement_by_the_director_of_public_pr
osecutions_and_the_metropolitan_police_service/
16

strength of its own evidence. There is no independent verification and there are many
examples of cases in which the Government has overestimated or even
misrepresented the case for secrecy.
“The Bill guarantees that allegations against the Government are fully
investigated and scrutinised by the courts where they otherwise would not be.”
28. The introduction of CMP would not allow allegations against Government
to be investigated and scrutinised by the courts, but would instead allow a charade of
judicial scrutiny, while co-opting the judiciary into a fundamentally un-judicial process.
This is because CMP is incompatible with the bedrock principles of natural and open
justice that sustain our adversarial justice system. CMPs are liable to produce unjust
outcomes which obscure rather than reveal the truth. Even taking the Government’s
case at its highest, ‘more hearings’ is not the same as ‘more fairness’ or ‘more
transparency’. In dictatorships the world over, the concern is rarely that there are not
enough judicial proceedings, but rather that judicial procedure is so flawed that just
outcomes are not secured.
29. Fundamental to our adversarial system of justice is the principle that
every litigant is equal before the law: this includes having equal opportunity to
present and to test evidence. In the words of Supreme Court Judge, Lord Justice
Kerr, “[t]o be truly valuable, evidence must be capable of withstanding
challenge... Evidence which has been insulated from challenge may positively
mislead.” 33 Far from advancing the cause of justice, the proliferation of CMP will
weight the scales in the Government’s favour, affording it a privileged position in
litigation. Under CMP the Government - but not the claimant - would have the
opportunity to present its evidence in secret. The claimant would be deprived of the
opportunity to present conflicting information and rebut the Government’s narrative.
Government-appointed and security vetted Special Advocates would be asked to
represent the excluded party as best they could during the CMP but they are not
allowed to discuss the evidence and therefore cannot effectively rebut claims made
by Government nor call witnesses to challenge the Government’s version of events.
The Government’s reforms would not just create inequality of arms, they would
obscure the operation of justice, with determinative aspects of the Court’s
reasoning kept secret through closed judgments. Rather than shine a light on
33 Emphasis added. Al Rawi et al v Security Service & Ors [2011] UKSC 34.
17

dark practices which have no place in a liberal democracy, the Government has
committed to a policy that will seriously undermine accountability and transparency.
30. The Government says that without CMP they will be forced to settle
unworthy cases or future worthy cases will be struck out. Liberty believes that the
likelihood of either outcome, following the completion of the PII process, is wildly
exaggerated. Further, even supposing, hypothetically, that such a case exists, we
consider that the flaws inherent in the CMP mechanism and the potential for resulting
unfairness is such, that this would not justify the general introduction of CMP to the
civil law.
“Nothing will be heard in closed court which is currently heard in open court.”
31. The Government’s assertion that nothing currently heard in open court will
be heard in secret under the Bill is legally wrong, ignoring two crucial differences
between the present and the proposed system. First, the legal test for open court
disclosure under the current PII system strikes a balance between the requirements
of justice and national security. If a Minister considers that disclosure of a document
could harm the public interest he or she must sign a certificate to that effect. The
court then considers the issue and balances the public interest in withholding the
document against the interests of justice in disclosing it. In the Bill, as intended by the
Government and unamended by the House of Lords, this key constitutional balancing
exercise was entirely removed by the Bill. Clause 6 originally required the judge
instead to ignore the possibility of using PII to ensure safe disclosures. It also held
that once the Government establishes that there is anything capable of damaging
national security which could be relevant to the case – no matter that the it has no
intention of relying on these elements of the evidence, or the fact that they are
inadmissible or could be easily redacted – the case becomes one in which CMP may
be granted throughout. As originally drafted, the Bill contained no need to
balance justice and national security. Even as amended, once a CMP has been
triggered the Government will be able to submit material in secret to a judge
meaning that much less information will be disclosed openly if the Bill is
passed.
32. Secondly, the mechanisms that the judiciary have developed under PII
ensure that as much information as possible is put in open court. PII does not
exclude entire categories of material. Rather the judge has to engage with the
18

material and case in question, weighing factors such as the relevance of the material
concerned, its particular sensitivity and the interests at stake. The judge must
simultaneously consider a number of mechanisms by which material can still be
disclosed, while maintaining confidentiality. If a judge decides that the nature of
certain material requires some protection there are many more options than simply
refusing disclosure. These include allowing redactions, providing for the protection of
the identity of witnesses, in camera hearings and confidentiality rings. CMP by
contrast is incredibly blunt and will allow whole categories of sensitive
evidence – which might have otherwise been disclosed – to be heard in closed
session. Under the Bill whole cases can be earmarked as appropriate for closed
hearings if there is just one name on one page of one document which cannot be
disclosed for reasons of national security. Thereafter the Government may apply to
present aspects of its case in private. There is no limit to the number of applications
which can be made. It is conceivable that a whole case could proceed in this way
under the Bill.
33. PII principles have developed to ensure that everything which safely can
be disclosed will be, with exclusions tightly circumscribed. In CMP, unlimited
amounts of information which would otherwise have been heard in open Court
could be kept from claimants, the press and the public.
“The Bill addresses a “genuine problem” as identified by the Independent
Reviewer of Terrorism Legislation.”
34. The Government’s Reviewer of Terrorism Legislation, David Anderson
QC, was shown 7 case files at a meeting on 14 March 2012 described by him as
being “attended by representatives of the Government and all three intelligence
services and by counsel, at which I was talked through seven of the cases, and was
left with a bundle of top secret material in each case (including evidence and
internal/external advice), which I have taken the opportunity to read.” Only three of
the cases were civil damages cases. His conclusion was that “there is a small but
indeterminate category of national-security-related claims…for civil damages, in
respect of which it is preferable that the option of a CMP…should exist”. 34
34 See the Supplementary Memorandum of the Independent Reviewer of Terrorism to the
Joint Committee on Human Rights, 19 March 2012, at para 19. Available at
http://terrorismlegislationreviewer.independent.gov.uk/publications/suppl-memojchr?view=Binary.
19

35. The first point is that, notwithstanding an extremely one-sided introduction
to the contested litigation by one party, he doesn’t conclude that CMPs are
necessary, but just that they are preferable. Second, and with respect, the Reviewer
appears not to grasp the range of solutions available under the current system. In
justifying his view that CMP is preferable he says of the material he read that “there
is material of central relevance to the issues that it seems highly unlikely could ever
be deployed in open”. This appears to convey a fundamental misunderstanding of
how PII operates in practice. As the Special Advocates have countered:
PII and other existing mechanisms enable sensitive material to be adduced in
evidence without being ‘deployed in open’ and without resort to a CMP (through
the use of ‘in camera’ proceedings, confidentiality rings, and so on. Thus, the
Independent Reviewer’s view that it is highly unlikely that the material presented
to him could be deployed in open does not entail the conclusion that a CMP is the
only means by which such a claim could be tried. 35
36. The third and very important point is that the Reviewer reached this
conclusion following an untested introduction to the case by just one side to the
contested proceedings. While the view he reaches no doubt reflects the view of those
presenting the material to him, he has not even had the benefit of a countervailing,
independent party (such as an SA) to test – even in the limited way permitted within
the confines of their role - the Government’s claims about the need to bar the litigant
from court. It is worth noting that the JCHR also rejected this part of the Reviewer’s
evidence to them. They concluded that “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…” . 36
Ironically, by agreeing to secret briefing from the Agencies and then concurring with
their unchallenged view of the material they hold, the Reviewer has starkly illustrated
the very risk posed by material which goes unchallenged.
35 Ibid, at para 7
36 See the Joint Committee on Human Rights Twenty-fourth Report of Session 2010-12, The
Justice and Security Green Paper (HL Paper 286; HC 1777) (4 April 2012), at para 11.
Available at http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/286/28602.htm.
20

37. Fourth, while the Reviewer is an eminent lawyer, he does not have the
combined wealth of practical experience that the Special Advocates have of
operating procedures to deal with sensitive material (both under statutory CMP
regimes and the common law of PII). In fact, by granting permission for him to review
the cases the Government has allowed its Reviewer to stray well outside his statutory
remit which is strictly limited to reporting on the operation of anti-terrorism
legislation. 37 By contrast the Special Advocates, given their combined experience
and expertise and the new role that the Government is proposing for them under this
Bill, would have been the more appropriate lawyers to review the pending cases that
supposedly require CMP. Instead, and despite the fact they are security cleared and
appointed by the Government to act in sensitive cases, the Home Secretary has
specifically denied the Special Advocates permission to view the Government’s socalled
evidence base. The Home Secretary’s refusal to let them see the cases is
illogical. Perhaps the Government fears that the specialist lawyers they have
appointed will conclude that CMP is not required for pending cases to proceed?
Indeed, the view of the Joint Committee on Human Rights was that granting
permission to the SA’s “would have provided the best evidence that could be made
available to Parliament as to whether there really exists a practical need” for CMP in
the Bill. Consequently the Committee “remained unpersuaded” of the Government’s
claims that there is a “significant and growing” number of civil cases in which CMP is
“essential”. 38
“The Bill sets out a fair, judge-led process. The Bill allows for CMP only after a
decision made by the judge, not a Minister”.
38. The Government maintains that because a Minister will not be triggering
the decision the process by which CMP will be allowed in a case is a judicial process
which guarantees that the CMP is ‘fair’. As explained in this briefing, closed courts,
whereby one party is able to rely on material to support their case before a judge in
secret, should never be considered fair. CMP is not a judicial procedure but rather an
anomalous mechanism imported from a context where fundamental rights were not
considered to be engaged. That it is triggered by a judge does not remedy the
unfairness of the substantive “hearing” that will follow.
37 The present Bill has no connection to counter-terrorism legislation.
38 See the Twenty Fourth Report of the Joint Committee on Human Rights, ibid, at para 46.
21

39. The Bill as amended in the House of Lords provides for judicial discretion
when determining whether to grant a CMP declaration. Despite these changes at the
gateway under clause 6, once a CMP declaration has been made, when considering
each subsequent request under clause 7 for CMP the judge’s hands are tied. The
test a judge will apply under clause 7(1)(c) is simple and clear: the court is
“required to give permission for the material not to be disclosed if it considers
that the disclosure of the material would be damaging to the interests of
national security”. So, if the judge considers any part of the material to be
damaging he must grant the application and go into closed session.
The Government argues the Bill will only apply to the rare case impacting
‘national security’.
40. Under the Bill, CMP will be available in cases where material has
implications for ‘national security’, a term left undefined in the Bill. If the Bill passes it
will apply in cases far beyond the sphere of those on which the Government justifies
its introduction. It could, for example, apply to cases of historic abuse by British
colonial forces. Following the decision by the High Court earlier this year to allow
veterans of Kenya’s Mau Mau rebellion to sue the British government for abuse
suffered by over half a century ago, it is expected that there will be other claims from
Kenya and elsewhere. Officials from the Ministry of Justice and the Cabinet Office
have both confirmed that CMP could indeed be applied for in these cases. 39 Among
other cases it could also apply to civil actions against the police and civil claims
against any departments or bodies that may be linked to national security, for
example the Home Office, Ministry of Defence, Foreign Office, regardless of what the
claim relates to (from child sex abuse to unexplained deaths of civil servants etc).
41. History is testament to the national security exception being deployed
across a wide spectrum of issues and frequently for information which is not actually
sensitive at all. Claims of ‘national security’ have, for example, blocked (or attempted
to) transparency and accountability in the following contexts:
A Serious Fraud Office investigation into allegations that BAE officials paid bribes
to officials from Saudia Arabia in order to secure lucrative arms contracts was
halted, against a background of lucrative commercial contracts and diplomatic
39 See Ian Cobain “Colonial case lawyers fear secret courts plan” The Guardian 16 th October
2012, available at http://www.guardian.co.uk/law/2012/oct/16/colonial-case-lawyers-fearsecret-courts-plan.
22

elations, on national security grounds, even in circumstances where there was
clear public interest in the investigation continuing. 40
In the Binyam Mohamed litigation the Government used ‘national security’ to
attempt to prevent publication of part of a judgment which revealed British
knowledge of the torture of Mr Mohamed by US agents. The relevant paragraphs
of the judgment were eventually published as, while embarrassing for
Government, the Courts decided they did not damage national security and the
information for which redaction was claimed was anodyne and already in the
public domain. 41
A 2006, an MI5 and MI6 policy document uncovered and published by the
Guardian confirms that reputational risk is considered a potential factor for nondisclosure
. The leaked document stated that disclosure of material showing
“information will be or has been obtained through the mistreatment of detainees”
could result in “damage to the reputation of the agencies…”. The document
states that where the negative consequences of transparency of agency
knowledge and activity will “outweigh the benefits” then advice should accordingly
be taken. 42
42. It is also clear that what falls in the ‘national security’ exception is already
largely left to the state. Courts have paid considerable deference to Government
claims for ‘national security’. Lord Hoffman has stated that whether something is ‘in
the interests’ of national security “is not a question of law, it is a matter of judgment
and policy” to be determined not by judges but to be “entrusted to the executive”. 43
This judicial deference further compounds the danger of a Bill which will hand over
the advantage in any litigation to the Government defending allegations of its own
wrongdoing. It also begs the question why the Government believes that the current
judicial approach to protecting against disclosure of sensitive information poses a risk
to national security.
40 See http://www.guardian.co.uk/world/bae.
41 R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth
Affairs [2010] EWCA Civ 65.
42 See “British Government’s secret interrogation policy” published by The Guardian 4 August
2011, available at http://www.guardian.co.uk/law/interactive/2011/aug/04/mi6-tortureinterrogation-policy-document
43 Lord Hoffman at para 50, Secretary of State for the Home Department v Rehman [2001]
UKHL 47.
23

“Public Interest Immunity is unfair and threatens our security. CMP is a much
fairer option which protects both justice and security”.
43. In seeking to justify the Bill, the Government has made repeated attacks
on the present system of PII. It has argued that PII has in the past been inadequate
to protect sensitive information, although it has not been able to point to a case
where the application of PII principles has endangered national security. More
recently it has argued that PII itself is unfair and in some ways worse than the
proposals for CMP in the Bill. It has also been claimed that a judge will have a similar
role under the Bill as he currently has under PII (under the original draft of the Bill this
was far from the case). In the context of each of these arguments, the law of PII, as
well as the operation of CMP under the Bill, have either been apparently
misunderstood or misstated.
below.
44. The crucial differences between the operation of PII and CMP are outlined
Under PII the Government makes an application for some or all of its material to
be protected. The judge then balances harm to national security versus the
interests of justice in disclosure. This is a key constitutional decision which has
been entirely removed by the Bill. The Bill requires the judge to ignore the
possibility of using PII to achieve greater disclosure while preserving national
security.
Under PII, whether particular material (e.g. a single document) is excluded from
court is decided by a judge (not by a Minister). As outlined above, as originally
drafted clauses 6 and 7 of the Bill would rob a judge of any real discretion to
make disclosures once national security is engaged.
Under PII, if a judge agrees that part of the material needs to be protected, he
has a range of flexible options open to him - including the discretion to redact
only part of a document (e.g. the names of people - or anything genuinely
sensitive), the gisting of a document, or to have anonymous witnesses give
evidence behind screens etc. The judicial flexibility under PII allows as much as
possible to be disclosed and openly aired. This allows all manner of sensitive civil
claims and inquests to proceed daily. Under the Bill, as originally drafted, once a
judge finds that national security is engaged CMP has been turned on as the
effective norm for the whole case. Even with the Lords’ amendments, there will
be no need for the judge to balance justice and national security in the
24

subsequent applications the Government makes under clause 7. Sensitive
material will be adduced by one side only in private.
Most crucially, under PII, if Government successfully excludes material as
sensitive, it cannot then rely on that secret unchallengeable material in defending
its own case. This secures and maintains the cornerstone of adversarial justice in
our common law justice system - equality of arms. By contrast, CMP allows the
Government to adduce secret material in closed session with the judge, from
which the claimant, his lawyer, the press and public are completely barred. This
could positively to mislead a judge to wrongly clear the Government of the
allegations made (eg. mistreatment). It co-opts an otherwise independent judge
into a one-sided, untested, secret conversation with state authorities.
45. It is accepted that the operation of PII in the criminal context has been
flawed in the past – for example, the Matrix Churchill litigation. However that scandal
led to the doctrine being completely overhauled. The modern judiciary use their
discretion under PII very robustly, regularly rejecting PII applications while balancing
the important considerations of national security and always acting with due
deference to Government arguments for non-disclosure. Judges have also
developed the ancillary tools to ensure that – even in highly sensitive contexts -
claims and inquests can proceed (for example, notably, in the 7/7 inquests).
“CMP is a normal part of our justice system”.
46. CMP is currently available in very restricted areas. It was introduced in
order to afford some sentiment of due process for administrative appeals to a subset
of foreign nationals – those for whom a national security deportation was being
considered – who otherwise had no right of appeal because they had no right of
abode in the UK. 44 It was then imported to the unlawful Belmarsh internment regime
and has since been introduced in a small number of other public safety contexts such
as the control order/TPIM regime. 45 Yet even in the very limited areas where CMP
operates its use has been highly controversial, has led to terrible injustices 46 and has
been subject to unending litigation. 47 The Special Advocates, and specialist legal
44 The procedure was created following a finding by the European Court of Human Rights
45 Under the Terrorism Prevention and Investigation Measures Act 2011.
46 See the case of Cerie Bullivant, whose control order was quashed after a finding there was
no basis of it. Cerie speaks powerfully and eloquently about the unending damage and
trauma inflicted upon his life and that of his family as they coped with punishment without
charge or trial, while never even knowing the full details of the case against him.
47 The control order regime is the most litigated of all the counter-terror measures.
25

odies such as the Constitutional and Administrative Bar Association, have
emphatically rejected that CMP is a common legal mechanism. 48 The Special
Advocates have further suggested that instead of considering greater use of CMP,
the Government should consider reviewing the flaws in the way it currently
operates. 49 If Part 2 is passed, this flawed procedure designed to provide an
administrative (and not a legal review process) to deal with a narrow category of
national security cases will be extended to the ordinary civil law. What had been
intended to be anomalous (and in some cases temporary) will become a permanent
fixture of British justice, undermining the integrity of our entire adversarial system.
47. The notion that CMP is a “normal part of the justice system” was
resolutely rejected by the Supreme Court in its Al Rawi judgment in July 2011. 50
Here the Supreme Court Justices found that CMPs were such a radical departure
from the common law tradition that the ability to create the mechanism didn’t lie
within the Court’s inherent jurisdiction. Lord Dyson, giving the lead judgment, said the
introduction of closed proceedings in ordinary civil claims would involve an “inroad
into a fundamental common law right”. “The [Public Interest Immunity] process is not
perfect, but it works well enough,” he continued. “In some cases it is cumbersome
and costly to operate, but a closed material procedure would be no less so.” Lord
Kerr, in a concurring judgment, said: “This would not be a development of the
common law, as the [Government] would have it. It would be, at a stroke, the
deliberate forfeiture of a fundamental right which … has been established for more
than three centuries”.
“The Bill complies with Article 6 of the European Convention on Human
Rights.”
48. The Government has attempted to dismiss concerns about the human
rights implications of the Bill by asserting that the Bill will comply with Article 6 of the
European Convention on Human Rights. An Opinion obtained from leading counsel
by the Equality and Human Rights Commission disagrees, definitively concluding that
clauses 6 to 11 (as originally drafted) are incompatible with Article 6. The Bill clearly
48 See the Response of the Constitutional and Administrative Bar Association to the Justice
and Security Green Paper (January 2012), at para 7. Available at
http://consultation.cabinetoffice.gov.uk/justiceandsecurity/wpcontent/uploads/2012/16_Constitutional%20and%20Administrative%20Bar%20Association.p
df
49 See the Response of the Special Advocates to the Green Paper, ibid.
50 Al Rawi et al v Security Service & Ors [2011] UKSC 34.
26

engages each of the tenets of Article 6, which encompass the right to have
knowledge of and comment on all evidence adduced during legal proceedings; 51 the
principle of equality of arms – that is, neither party can be privileged in their
procedural rights; 52 and the giving of reasons by the court for its decision in order to
ensure the right to appeal. 53
49. Most importantly, however, the litmus test for this Bill cannot be seen to
be the limited scope of Article 6. The greatest and most far reaching consequences
of this Bill will be in relation to the British common law, which for centuries has
provided far greater protection for civil fair trial rights than that now afforded by the
minimum floor of Article 6. It is against these wider principles that the Bill should be
measured. Core constitutional common law rights include the right to know the case
against you, equality of arms and the principle that no-one should be a judge in their
own cause. Under CMP these foundational principles are fatally undermined as one
party is:
denied the right to attend the trial of his own case;
denied the knowledge of another party’s statement of case;
denied knowledge of, and the opportunity to challenge, the evidence on which
another party may rely;
denied the opportunity to make submissions on another party’s case;
denied knowledge of material that may support his case or harm another
party’s case;
denied the right to receive a statement of the court’s reasons for its decisions
in his case; and
denied an effective right to appeal the decision of the court (if adverse to him),
based on that court’s reasons.
As the Special Advocates have pointed out, simply adhering to the minimal standards
of Article 6 “does not and cannot make [CMP] objectively fair”. 54
“The Special Advocates underestimate the impact they have in CMP.”
51 Vanjak v Croatia (2010) Jan 14 App No. 29889/04 at [52].
52 See, for example, AB v Slovakia (2003) March 4 th App No 41784/98 at [55].
53 See, for example, Tatishvili v Russia [2007] 45 EHRR 52 at [58], Taxquet v Belgium [2012]
54 EHRR 26 (GC) at [91].
54 See the response of the Special Advocates to the Green Paper consultation, at para 15.
27

50. The Government has suggested that the Special Advocates
underestimate the benefit they bring to individuals whose interest they represent in
closed proceedings. However, as the Special Advocates are acutely aware, the role
of the SA, who cannot substantively communicate with the person to whom the
proceedings relate, is a near impossible one. While they might be able to scan
evidence before them for inconsistencies, they cannot refute or challenge the
material as they would be able to in normal adversarial proceedings. 55
This is evident from those who know best – the Special Advocates and the judiciary:
Former Lord Chief Justice, the late Lord Bingham, has described the role of an
SA as akin to ‘taking blind shots at a hidden target’. 56
An SA has recently described acting in CMP as “shadow boxing” in
circumstances where “you are speaking into a black hole because you have no
idea if your strategy and points are on the money or wide of the mark”. 57
The Special Advocates in their submission to the JCHR on these proposals
stated
CMP… may leave a litigant having little idea of the case deployed against
him… Furthermore, and crucially, because the SA appointed on his behalf is
unable to take instructions in relation to that case, they may leave the SA with
little realistic opportunity of responding to that case. 58
Nicholas Blake QC (now Mr Justice Blake, High Court Judge) in evidence to the
JCHR has described the operation of CMPs in the Special Immigration Appeals
Commission in this way:
the public should be left in absolutely no doubt that what is happening… has
absolutely nothing to do with the traditions of adversarial justice as we have
come to understand them in the British legal system. 59
Dinah Rose QC, a former Special Advocate, has given this example to the JCHR
clearly demonstrating why the SA cannot be seen as having an impact which
alleviates the objective unfairness of CMP:
55 As pointed out by the Special Advocates and recorded by Amnesty International, Left in the
dark: the use of secret evidence in the United Kingdom (2012), at page 11.
56 Roberts v. Parole Board [2005] UKHL 45 at para 18.
57 See Amnesty International report, ibid, at page 11.
58 See the Response to the Justice and Security Green Paper from Special Advocates, at
para 13.
59 See the Joint Committee of Human Rights, 19 th Report of Session 2006-07, Counter-
Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning (HL
Paper 157; HC 394) (30 July 2007) at para 210. Available at
http://www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/157/157.pdf
28

Suppose an allegation is made that a particular individual attended a training
camp in Afghanistan – this is a SIAC-type example – on a particular date, was
seen there, and there is identification evidence that describes the individual
as having a beard. If you are the special advocate, you cannot take
instructions to find out whether the claimant had a beard at that date or
whether he might have in his possession any photograph of himself taken at
that date showing he did not have a beard. He might be able to rebut that
identification evidence by something as simple as that, but you as a special
advocate cannot even investigate that question…you do not have a client and
you have no access to the client. You have no ability to get access to
information to rebut the material that has been put against. 60
Arguments made by Government to justify ousting the Norwich Pharmacal
jurisdiction
“Our intelligence relationships are under threat.”
51. The Government’s key argument for ousting the jurisdiction of the Courts
in these disclosure applications relates to the “control principle”. The Government
says that we need to give cast-iron guarantees to our intelligence partners that
information passed to us will remain confidential under all circumstances. The
suggestion then is that the law is changed so that, in future, evidence of unlawful
activity (such as rendition and torture) by a foreign power (in which the UK
Government may well be complicit or of which it has knowledge) is not put in the
public domain, in circumstances where the relevant information emanates from
foreign intelligence sources. This would remain the case even if there was a pressing
public interest in disclosing the material.
52. The reform in this Bill would make the ”control principle” absolute, with
very serious implications for cases like that of Binyam Mohamed. Binyam Mohamed
filed a Norwich Pharmacal (NP) application in the UK seeking disclosure of
information held by the UK authorities which demonstrated that confessions
previously made by him had been made under duress while being tortured. The
60 See the Uncorrected transcript of oral evidence given by Dinah Rose QC to the Joint
Committee on Human Rights on 24 th January 2012, at Q27, available at
http://www.parliament.uk/documents/joint-committees/humanrights/JCHR%2024%20January%20transcript.pdf.
29

application was for the disclosure of the material to his US-security cleared lawyers -
not the general public - specifically to assist Mr Mohamed’s case in the US
jurisdiction. Despite the restricted nature of the application which would have kept the
material within a secret security-cleared ring, the UK Government fought against the
NP disclosure.
53. While the NP application was accepted in theory, the domestic courts
never actually ruled on the application and the material Mr Mohamed sought was
passed to his security cleared lawyer in the US by the UK Government after the first
judgment was handed down. In any event, both the Divisional Court and the Court of
Appeal considered that the NP action did not, at any stage, threaten to undermine
national security. Both judgments made it clear that the courts gave huge weight to
the Government’s assessment of risk to national security. Further, while the NP
application was accepted in principle, the Government’s claim for PII in relation to the
material was ultimately upheld. In reaching this decision, both the Divisional Court
and the Court of Appeal made clear the seriousness with which they regarded their
residual discretion to decide whether or not an NP application should be granted. In
particular they made clear that they gave significant weight to the Government’s
assessment of risk to national security should the “control principle” be breached.
54. We believe that the Government is seriously overstating the extent to
which intelligence sharing relationships are threatened by existing legal
arrangements. The Government has produced no evidence on which to base its fear
that the courts will depart from a demonstrated commitment to withhold information
that will damage important intelligence sharing relationships. Realistically, there is no
possibility that sources, techniques, or intelligence material will be put into the public
domain. If our intelligence partners do not understand the protections built into
judicial consideration of NP applications and the law of Public Interest Immunity, it is
the responsibility of our Government to explain them.
55. The prospect of ousting the jurisdiction of our courts to hear common law
disclosure applications in order to reassure foreign States that they will not face
embarrassing revelations of wrongdoing cannot be entertained. It would effectively
put the intelligence community above the law, reversing the accountability reforms of
the past few decades by granting international diplomacy greater protection than
universal rights and freedoms. Given that a NP order will only ever be considered
where there is an arguable case of wrongdoing by another State, the granting of
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absolute secrecy by ousting the NP jurisdiction is tantamount to impunity and will do
little to encourage better operational practices in the intelligence community.
“The NP jurisdiction is a form of legal tourism and is being abused as a fishing
expedition.”
56. The Government argues the reform is necessary to combat a “damaging
form of legal tourism” 61 where a person who is fighting a case outside this jurisdiction
applies to UK courts using the NP jurisdiction to “force disclosure of intelligence
information” held by the British government. The Government has referred to the
Binyam Mohamed litigation as a case in point, however there was never an
application for public disclosure of this material, rather the material was intended only
for Mr Mohamed’s security-cleared US lawyers. Additionally, as a matter of principle,
the phrase ‘legal tourism’ fails to recognise that excluding this jurisdiction will prevent
victims of State wrongdoing of which our Government had knowledge from defending
themselves or gaining redress. In reality, the Binyam Mohamed case shows it is not
the courts which cannot be trusted to act in the public interest, but – at times - the
Government itself. It should also be borne in mind that clause 14 exempts a far
greater category of “sensitive” information. It should not be viewed as relating to the
small category of cases of torture and extraordinary rendition perpetrated by other
States.
57. In any event, the Binyam Mohamed litigation is – one would certainly
hope – entirely exceptional. Central to the courts’ acceptance of the NP application in
Mr Mohamed’s case was that the matter at issue concerned the abhorrent, medievalstyle,
torture that he had sustained. 62 The information contained in the material
ultimately helped Mr Mohamed’s defence to criminal proceedings in the US which, if
he had not been able to refute with evidence of torture, could have meant that he
faced the death penalty upon conviction.
Conclusion
58. While the UK has no written consolidated constitution, a cardinal principle
of our constitutional arrangements is that no-one – including the Government – is
above the law. It is no exaggeration to say that the proposals contained in clauses 6
61 See the letter of the Lord Chancellor regarding the Justice and Security Bill, May 2012.
62 See the judgment of the Lord Chief Justice, ibid, at para 57.
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to 15 of Part 2 of this Bill will change that for all time, sweeping away centuries of fair
trial protections. If these provisions are passed, the Government will (1) be handed a
permanent advantage to control litigation to which it is a party and (2) oust the
jurisdiction of the courts to hear certain common law disclosure applications. Neither
of these proposals must be allowed to stand. In each area, the Government has
failed to make a coherent, evidenced or principled case for change. And in the more
reflective passages of the poorly-drafted Green Paper which preceded this Bill, the
Government appeared to accept that current arrangements have not lead to
unfairness nor allowed the courts to act in a way which would jeopardise national
security.
59. To oppose Part 2 of the Bill is not to oppose to the Security Services and
the protection of national security. Liberty accepts the incredibly valuable work
undertaken by the Agencies and understands that there were distinct pressures on
their work following the atrocities of 9/11. But this Bill is either unnecessarily
pessimistic about the future practices of the Services and their partner organisations
or naively optimistic. If we believe that during the War on Terror the shaming
practices adopted by our closest ally were an aberration then Part 2 of this Bill is
unnecessarily cynical and is not needed. Alternatively, its supposed premise – that
the introduction of these proposals could help enhance accountability and procedural
fairness – is naively optimistic. While it is an open secret that the Agencies have
campaigned for this Bill, Liberty believes that they are short-sighted to think that it will
help protect their reputation. This Bill would quite possibly have the opposite effect.
Closing the courts to claimants, the public and the press when serious allegations of
wrongdoing are made and allowing the Government to present its case in secret will
fuel suspicion of wrongdoing and undermine public trust in the Agencies, the
Government and ultimately the judicial system.
Sophie Farthing
Rachel Robinson
Isabella Sankey
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