The British government released a green paper on justice and security a few days ago — entitled, appropriately enough, the “Justice and Security Green Paper.” The full text is available here. For a briefer summary, here is the statement delivered by Lord Chancellor and Secretary of State for Justice Kenneth Clarke on October 19. For executive summary enthusiasts, the executive summary, stripped of footnotes, reads as follows:
1. The first duty of government is to safeguard our national security. In delivering this duty, the Government produces and receives sensitive information. This information must be protected appropriately, as failure to do so may compromise investigations, endanger lives and ultimately diminish our ability to keep the country safe.
2. Sensitive information can be used to prevent terrorist attacks, to disrupt serious crime networks and to inform decisions such as deportations and asset freezing. Such decisions are often challenged and reliable procedures are needed to allow such cases to be heard fairly, fully and safely in the courts. Some such procedures exist but the Government believes that there is scope to make improvements in response to recent court rulings.
3. Where the Government takes executive action and that action is subsequently challenged in the courts, there is ultimately the option – however damaging to national security – of dropping the action and withdrawing the case if we assess that the sensitive material will not be adequately protected due to disclosure requirements. In recent years, however, the Government has been called on to defend itself in increasing numbers of civil court proceedings initiated by others in which sensitive information is at the heart of the case and where withdrawing from the case without a potentially costly financial settlement is not an option.
4. The existing concept of Public Interest Immunity (PII) enables sensitive material to be excluded from such cases but excluding key material means that the case cannot always be contested fairly for both sides. If too much material is excluded from court the Government may have little choice but to settle cases without a chance to defend itself.
5. In these and other such civil proceedings, judges are having to deliver judgments without being able to take into account key information. This weakens the UK’s reputation as a free and fair democracy, respectful of human rights and the rule of law. It also means that security and intelligence agency activity risks not being properly considered through the justice system. Allowing this status quo to continue leaves open the increasing risk that the taxpayer will foot the bill to settle cases that the Government is prevented from defending. For the other parties in such proceedings too, this situation is clearly unsatisfactory. In exceptional cases material currently excluded under PII could benefit their case. And although parties may benefit financially or in other ways when a case is settled, they too – and the public as a whole – are left without a clear, independent ruling on the full facts of the case.
6. This Green Paper aims to respond to the challenges of how sensitive information is treated in the full range of civil proceedings. It will not look at the operation of criminal proceedings, nor the potential use of intercept as evidence. It seeks to find solutions that improve the current arrangements while upholding the Government’s commitment to the rule of law. We urgently need a framework which will enable the courts to consider material which is too sensitive to be disclosed in open court, but which will also protect the fundamental elements that make up a fair hearing. These issues have recently been considered by the Supreme Court, and this Green Paper seeks to build on these judgments.
7. At the same time, it is more important than ever that the public has confidence that the Government’s national security work is robustly scrutinised, and that the bodies that undertake this work are as credible and effective as possible. So alongside the challenges arising in the courts, the Government has also taken this opportunity to examine the independent oversight arrangements for our security and intelligence agencies. A committee of Parliamentarians, two independent Commissioners and a specialist tribunal already exist and do a huge amount to ensure that the security and intelligence agencies are properly scrutinised and held to account. Yet the Government believes more can be done to modernise these arrangements and ensure that the oversight system as a whole is fit for the future role that is required.
8. Through this Green Paper, the Government wants to gather the best possible picture of the public’s views on these issues in order to inform development of policies and legislative proposals.
9. The proposals outlined in this Paper apply across the UK in those policy areas where the UK Government’s responsibilities extend across England, Northern Ireland, Scotland and Wales. Aspects of policy highlighted in the document will interact with matters which are devolved. The UK Government and the devolved administrations will continue to work closely together to ensure that the critically important objectives of the Green Paper are met. Respecting the judicial systems in Scotland and Northern Ireland, the UK Government will use the period during the consultation to work with the devolved administrations on how best to effect changes in each jurisdiction.
10. In developing proposals to address these challenges we have been guided by the following key principles; that:
• rights to justice and fairness must be protected
• even in sensitive matters of national security, the Government is committed to transparency – and to demonstrating that we have no fear of scrutiny of even the most contentious public issues – and that it is in the public interest that such matters are fully scrutinised
• we must protect our sensitive sources, capabilities and techniques and our relationships with international partners, whose co-operation we rely on for our national security
• as much relevant material as possible should be considered by the courts in order that judgments are based on a complete picture and that justice is done more fully by reducing the number of actions that have to be settled or dropped
• Parliament should assist the courts by ensuring that appropriate mechanisms are available for handling these challenging cases and by clarifying when and how they can best be used
• reforms drawn from existing, tried and tested procedures will be easier to implement and more likely to succeed
• any proposals contain the necessary flexibility to be valid in any context or circumstance in which they may be required in the future
• effectiveness and credibility should be key considerations when considering possible improvements to the oversight arrangements of the security and intelligence agencies
Areas of consultation
11. In considering the possible range of responses to these challenges, we have divided our proposals into three broad areas:
• Enhancing procedural fairness
• Safeguarding material
•Reform of intelligence oversight.
Enhancing procedural fairness
12. Proposals in this section seek to maximise the amount of relevant material available for consideration in civil proceedings, while at the same time ensuring that sensitive material is afforded appropriate protection. The Government’s objective is to ensure that proceedings are fair and full and to minimise the number of proceedings that cannot be tried because appropriate procedures do not exist to handle them.
Closed material procedures
13. There are already a number of specific legal contexts in which procedures are provided for in legislation so that sensitive material can be handled by the courts, most notably in the Special Immigration Appeals Commission. Such procedures have been shown to deliver procedural fairness and work effectively, and similar mechanisms are used internationally. The Government proposes introducing legislation to make closed material procedures (CMPs) more widely available in civil proceedings for use in rare instances in which sensitive material is relevant to the case.
Question: How can we best ensure that closed material procedures support and enhance fairness for all parties?
Closed material procedures in inquests
14. Extending CMPs for inquests involves particular challenges, because of the distinct nature of inquests from other civil proceedings, including the fact that inquests are conducted by a coroner and sometimes with juries. The Government seeks the views of the public on the applicability of CMPs to inquests.
Question: What is the best way to ensure that investigations into a death can take account of all relevant information, even where that information is sensitive, while supporting the involvement of jurors, family members and other properly interested persons?
15. Inquests in Northern Ireland operate under a different framework.
Question: Should any of the proposals for handling of sensitive inquests be applied to inquests in Northern Ireland?
16. The role of Special Advocates, who act in the interests of the party affected by the CMP, will be critical to the success of the proposed expansion of CMPs. The Government considers that there are some improvements that could be made and will ensure that further training and support are provided to Special Advocates. One area under particular consideration is the communication between the Special Advocate and the individual concerned after sensitive material is served (which requires the court’s permission). The Government is giving consideration to reforms in this area to encourage Special Advocates to make use of existing procedures. An option could be for a ‘Chinese wall’ mechanism between government counsel and those clearing communications within an agency. The Government does not propose involving a separate judge in this process.
Question: What is the best mechanism for facilitating Special Advocate communication with the individual concerned following service of closed material without jeopardising national security?
17. This section considers the disclosure requirements developed in recent case law to provide the party affected by the CMP with a summary of some of the closed material, even where that is damaging to national security, and the merits of legislating to clarify the contexts in which provision of such a summary is and is not required (the so-called ‘AF (No.3)’ 4 or ‘gisting’ requirement).
Question: If feasible, the Government sees a benefit in introducing legislation to clarify the contexts in which the ‘AF (No.3)’ ‘gisting’ requirement does not apply. In what types of legal cases should there be a presumption that the disclosure requirement set out in AF (No.3) does not apply?
Other proposals regarding procedures for handling sensitive material in civil proceedings
18. Consideration is given to:
• providing judges with more active case management powers in the pre-hearing phase to replicate best practice from more ‘inquisitorial’-type proceedings (where proceedings are controlled and directed by the judge rather than the parties)
• establishing a ‘specialist’ court with appropriate safeguards to hear civil proceedings where sensitive material is relevant
• prospects for reform of the Investigatory Powers Tribunal (IPT).
Question: At this stage, the Government does not see benefit in introducing a new system of greater active case management or a specialist court. However, are there benefits of a specialist court or active case management that we have not identified?
Question: The Government does not see benefit in making any change to the remit of the Investigatory Powers Tribunal. Are there any possible changes to its operation, either discussed here or not, that should be considered?
19. Another approach to resolving the challenges outlined above would be to reinforce existing mechanisms to prevent harmful disclosure of sensitive information.
Enshrining Public Interest Immunity (PII) in legislation
20. Consideration is given to enshrining the common law principle of PII in legislation and to include a presumption against the disclosure of categories of sensitive material, such as that held by the Government but owned and originated by an international partner. However, in order to conform with our domestic and European obligations, any statutory presumption would likely have to be rebuttable, so there would be little advance on the current system. If the reforms to extend CMPs are introduced, PII would have a reduced role, in any case. The Government does not propose to pursue this option.
Question: In civil cases where sensitive material is relevant and were closed material procedures not available, what is the best mechanism for ensuring that such cases can be tried fairly without undermining the crucial responsibility of the state to protect the public?
Court-ordered disclosure where the Government is not a primary party
21. This relates to a special category of civil claim – where a claimant seeks disclosure of sensitive material to assist them in another set of proceedings, usually abroad. A CMP is not sufficient to protect the material, because it is actual disclosure of that sensitive material that is sought. The Government proposes to limit the role of the courts in cases in which individuals are seeking disclosure of sensitive material, where the Government is not otherwise a party, particularly into foreign legal proceedings over which we have no control (via so-called ‘Norwich Pharmacal’ applications). This section considers several options to reduce the potentially harmful impact of such court-ordered disclosure, including introducing legislation to clarify that Norwich Pharmacal principles should not apply where disclosure of the material in question would cause damage to the public interest.
Question: What role should UK courts play in determining the requirement for disclosure of sensitive material, especially for the purposes of proceedings overseas?
Reform of intelligence oversight
22. Proposals in this section examine ways in which the existing independent and parliamentary oversight bodies may be made more effective, and be seen to be more effective, thus increasing public confidence. The Government is keen to hear views on the appropriate balance between independent and parliamentary oversight. The key overarching consultation questions on oversight reform are as follows.
Question: What combination of existing or reformed arrangements can best ensure credible, effective and flexible independent oversight of the activities of the intelligence community in order to meet the national security challenges of today and of the future?
Question: With the aim of achieving the right balance in the intelligence oversight system overall, what is the right emphasis between reform of parliamentary oversight and other independent oversight?
The Intelligence and Security Committee
23. The Intelligence and Security Committee (ISC) provides parliamentary oversight of the security and intelligence agencies. The Government supports a number of proposals to modernise the ISC and change its status, remit and powers. A key question for reform is whether the status of the ISC can be changed, to strengthen its links to Parliament. The Government proposes, in line with the ISC’s own proposals, that it becomes a statutory Committee of Parliament. The Government is also committed to working with the ISC to provide public evidence sessions and agrees with the ISC’s proposal to have the power to require information from the security and intelligence agencies, with a veto resting with the Secretary of State.
Question: What changes to the ISC could best improve the effectiveness and credibility of the Committee in overseeing the Government’s intelligence activities?
24. Independent oversight of the security and intelligence agencies is also provided by the Intelligence Services Commissioner and the Interception of Communications Commissioner. In order to improve their effectiveness and credibility, this section examines whether to broaden their remit and outlines changes already taking place to increase the public profile of the Commissioners. The potential benefits of creating an Inspector- General are also examined.
Question: What changes to the Commissioners’ existing remit can best enhance the valuable role they play in intelligence oversight and ensure that their role will continue to be effective for the future? How can their role be made more public facing?
25. An alternative approach for independent oversight would be for an Inspector-General, which concentrates more oversight functions in one body. Importing such a system into the UK would require an overhaul of the Commissioner arrangements and would need careful management to ensure that its remit did not overlap with the ISC. The Government is considering whether the benefits of such a system would outweigh the costs. A number of approaches could be taken. Question: Are more far-reaching intelligence oversight reform proposals preferable, for instance through the creation of an Inspector-General?
How to respond to the consultation
26. This is a public consultation to which anyone with an interest may respond. The Government invites the contribution of evidence, ideas and recommendations in response to the questions posed in this Green Paper.
Responses should be sent to justiceandsecurity@ cabinet-office.x.gsi.gov.uk by Friday 6 January 2012.
Responses can also be filed online on the website http://consultation.cabinetoffice.gov.uk/justiceandsecurity
Alternatively, responses can be sent to the following postal address: Justice and Security Consultation, Cabinet Office Room 335, 3rd Floor, 70 Whitehall, London SW1A 2AS.