The Justice and Security Bill:
“focused and proportionate” 1 or a derogation of the right to a fair trial?
ABSTRACT:The UK Government has proposed the Justice and Security Bill with the stated intention that it will “…modernise judicial, independent and parliamentary scrutiny of the Agencies to improve public confidence that executive power is held fully to account …better equip the courts to pass judgment in cases involving sensitive information; and … protect UK national security by preventing damaging disclosures of genuinely national security-sensitive material.”2 The vehement backlash to the Bill by the media and civil society is endemic of a topic that has become central to political debate on the balance of personal liberty with national security over the last ten years. Previous applications of several of the provisions of the Bill in other circumstances have led many organisations,3 including the existing body of special advocates, to claim that they have“…absolutely nothing to do with the traditions of adversarial justice as we have come to understand them in the British legal system.”4 The following paragraphs address the reasoning outlined above and deduce whether the mechanisms that the Bill introduces will achieve the Government’s proposed goals, or whether they instead constitute a derogation from the UK's obligations under international law that is neither focused nor proportionate.
In his landmark ruling in the case of Scott v Scott 
, Lord Shaw ruled that a hearing in camera5
amounted to “a violation of that publicity in the administration of justice which is one of the surest guarantees of our liberties and an attack upon the very foundations of public and private security.”6
Almost a century on from this ruling, the Justice and Security Bill is the latest in a raft of measures in the UK that have been introduced to achieve the declared goal of serving the interests of justice and national security.
The UK Government has proposed the Justice and Security Bill with the stated intention that it will “…modernise judicial, independent and parliamentary scrutiny of the Agencies to improve public confidence that executive power is held fully to account …better equip the courts to pass judgment in cases involving sensitive information; and … protect UK national security by preventing damaging disclosures of genuinely national security-sensitive material.”7
The vehement backlash to the Bill by the media and civil society is endemic of a topic that has become central to political debate on the balance of personal liberty with national security over the last ten years. Previous applications of several of the provisions of the Bill in other circumstances have led many organisations,8
including the existing body of special advocates, to claim that they have“…absolutely nothing to do with the traditions of adversarial justice as we have come to understand them in the British legal system.”9
The following paragraphs address the reasoning outlined above and deduce whether the mechanisms that the Bill introduces will achieve the Government’s proposed goals, or whether they instead constitute a derogation from the UK's obligations under international law that is neither focused nor proportionate. In doing this I will address the existing jurisprudence on each of the key provisions contained within, the relevant articles of international legislation and the response from the European Court of Human Rights to similar existing practices.
The original Green Paper on Justice and Security, published in October 2011, started a consultation process during which ninety responses were received from organisations and individuals across the UK, many of which were fed back through the Joint Committee on Human Rights (JCHR). These responses were then compiled intoreports, the most recent of which, Legislative Scrutiny: Justice and Security Bill10
suggested a series of amendments which were then referred to the House of Lords in conjunction with the Bill. Despite the Government’sdesire to make the consultation open, including making all public documents available on the Bill’s website, the JCHR raised concerns over the Home Secretary’s refusal to share the list of cases which supposedly made the Bill necessary with the existing, security-cleared special advocates.11
This hesitancy suggests a degree of uncertainty on behalf of the Home Secretary that the Bill would be perceived as completely necessary or justified if the Government’s reasoning was exposed to closer scrutiny. In a letter to the JCHR on the 17 th
July 2012, the Home Secretary stated that the special advocates’ involvement in cases against the Government and their “well-known views about the system”12
meant that they should not be allowed to view the confidential information that the Government is using to support the necessity of the Bill. This brings into question the possibility of an effective consultation if the views of the most qualified actors are dismissed at the outset due to their known opposition to the Bill. Rather than disregard the input of special advocates in this way, the Government could have utilised the unique position of the special advocates as confidential advisors to increase the credibility of a consultation process faced with massive civil society opposition and limited public information. Instead, the existing body of special advocates responded to the Bill stating their belief that “the Government would have to show the most compelling reasons to justify [the Bill’s] introduction; that no such reasons have been advanced; and that, in our [special advocates’] view, none exists.”13
Once the consultation process was closed, the Bill was put before the House of Lords and passed to the House of Commons with several of the aforementioned amendments on 28 th
November 2012. These amendments mirrored the concerns of the JCHR over the content and possible applications of the Bill and related primarily to the use of closed material procedures in the consideration of civil claims and the lack of judicial oversight in the adjudication of such.14
The order by which the Bill and its amendments have been proceeding through the Houses of Parliament demonstrates its highly political nature. Originating the Bill in the House of Lords has allowed the Government to counter the amendments proposed and, while the Bill will still pass back to the House of Lords for approval after the Commons, the reactions of the Government will inform this debate and restrict the degree of further amendment attempted. The amendments originally produced in the House of Lords led to three landslide Government defeats, in some cases by up to one hundred votes.15
The subsequent disregarding of several of these amendments in the House of Commons is an augury of the ‘ping pong’ process that will inevitably come into play in the next stages of this Bill.16
Closed Material Procedures
The practice of a closed material procedure arises when a party to proceedings requests that certain evidence is heard in camera
with only the requesting party, the judge and a special advocate present.17
The special advocate is charged with reflecting the interests of the absent party as far as possible in order to ensure the requesting party is not abusing the process.18
The logic behind this is that it allows the judge to consider evidence that would be impossible or impractical to disclose in an open court.19
The right to a fair trial is enshrined in the European Convention on Human rights under Article 6 and the concept of closed material procedures relates primarily to sub sections (1) and (3: b, c and d), which include the right to “examine or have examined witnesses against him”,20
“to defend himself in person or through legal assistance of his own choosing”21
and to “have adequate time and the facilities for the preparation of his defence.”22
The International Covenant on Civil and Political Rights (ICCPR) similarly contests closed material procedures under Article 14 (3b) which states that a defendant has the right “[t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”.23
This right has been interpreted by some legal scholars to the extent that “adequate facilities” would cover “…access to documents and other evidence, including all materials that the prosecution plans to offer in court against the accused or that are somehow relevant”.24
While access to evidence is clearly breached by a closed material procedure, the accused’s ability to communicate with “counsel of his own choosing”25
would also raise a concern over the role of special advocates in representing defendants or claimants.
While the requirements of the ECHR and ICCPR are quite similar in their practical application, the ECHR provides greater detail and, through the mechanisms of the Council of Europe and the European Court of Human Rights, is considerably more binding. As a result, the preamble of the Justice and Security Bill only considers an assessment of compatibility with the ECHR through the Human Rights Act 1998, not the ICCPR. Due to the dualist application of international law in the UK, the Human Rights Act 1998 is always cited when referring to UK obligations under the ECHR. At the outset of a Bill the proposing Minister will be required to make a statement of compatibility with the Human Rights Act 1998. This is not always possible, however, and in some cases it is necessary to issue a declaration under section 19 (1) (b), which declares that the Minister cannot make a statement of compatibility with regards to the Bill.26
It is important to note that this declaration does not necessarily constitute a statement of incompatibility, but a statement of uncertainty. The extensive amendment of the original Bill in the House of Lords, often on grounds of incompatibility with the ECHR, demonstrates that a statement of compatibility was not necessarily correct in this case. The value of a statement of compatibility is further brought into question by the many contexts within which the Human Rights Act can be suppressed.27
Lawson-Cruttenden deduces from these that any lawyer defending a public authority against alleged breach of Articles 5 onwards “could drive a coach and horses through the Act”.28
This flexible interpretation of obligations reaffirms the assertion made in A and Others v The United Kingdom29
that conflict with the ECHR is more likely to be on the grounds of disproportionality than principle.30
In order to understand the opposition to the use of closed material procedures in civil cases, it is necessary to review how these have been used in the UK to date and how similar practices have been employed in US courts to determine the context of such measures. Since the Prevention of Terrorism Act 2005, closed material procedures have been used in the UK as a mechanism for bringing control orders against members of the public who are suspected of terrorist activities. They have also been available in employment tribunals31
and Special Immigration Appeals Commission (SIAC) hearings32
over the past decade, resulting in UK jurisprudence relating predominately to these areas. One of the most cited cases in discussions around this process is the case of A and Others v United Kingdom
, the ruling of which has had a significant influence on subsequent rulings around closed material procedures in the UK. In the wake of this case the House of Lords was required to rule on the compatibility of the special advocate procedure, as outlined in the Prevention of Terrorism Act 2005, with the European Court’s decision. The Court held that where “…the open material consists purely of general assertions and the case against… is based solely or to a decisive degree on closed materials the requirements of a fair trial would not be satisfied, however cogent the case based on the closed materials may be”.33
While this is quite an extreme set of criteria by which to make a closed material procedure incompatible, it is a suggestion of the intent of the Court in this area and demonstrates the UK’s requirement to comply with such standards. The division of opinion over closed material procedures and the fine distinctions over their permissibility is further demonstrated by the seemingly contradictory rulings in the joined cases of Tariq v Home Office34
and Al Rawi v Home Office.35
In Tariq v Home Office
the Court was assessing the compatibility of closed material procedures with Article 6 of the ECHR when backed up by national legislation relating to employment tribunals. The Court ruled that under these circumstances there was no absolute requirement for the defendant to be provided with sufficient access to evidence in order to instruct their defence, if doing so could potentially be damaging to national security.36
In his closing remarks, Lord Dyson concluded that, in the case of compensation for discrimination in an employment tribunal, it is “…a less grave invasion of a person's rights than the deprivation of the right to liberty… [and that]…the presence of an independent court and a special advocate are likely to go a long way to making up for the fact that Mr Tariq will be unable fully to participate in the proceedings.”37
The assertion to be drawn from this is that in an employment tribunal the presence of a special advocate is sufficient for ensuring an appropriate level of justice. Relating this to civil cases more generally is of central importance to the Justice and Security Bill and is, in part, key to the Government’s justifications. This case is currently pending before the European Court of Human Rights38
and the similarities with the Justice and Security Bill logic are likely to give significant influence to its outcome on the future debate on closed material procedures in the UK.
This case has further importance as it highlights the relationship between national security and open justice for the individual, a relationship that is often referred to as the ‘Wiley Balance’.39
The ‘Wiley Balance’ more generally, is a process of balancing the needs of national security with those of the public. In his closing remarks in the original case, Lord Woolf stated that if “the
public interest in the disclosure of the documents was greater than the public
interest in their immunity, then the court could order that the documents be
This balance assessment is an essential aspect of all national security legislation and requires an effective consultation with a variety of stakeholders to establish its parameters. In the consultation on the Green Paper on Justice and Security it has been argued that very little effective consultation was carried out around the reasoning for introducing the Bill and therefore that the Government failed to effectively discharge the burden of proof in justifying the Bill.
It was the Court’s reluctance to rule on the permissibility of closed material procedures in civil cases in Al Rawi v Home Office
that led to the development of the Justice and Security Bill. In his concluding remarks, Lord Hope stated that “…it is a recognition that the basic question raises such fundamental issues as to where the balance lies between the principles of open justice and of fairness and the demands of national security that it is best left for determination through the democratic process conducted by Parliament, following a process of consultation and the gathering of evidence.”41
Foster, however, has interpreted this to signify acquiescence to Parliament and concludes that public interest becomes synonymous with Government interest, as it is only the entity that can decide what public interest means.42
The Court’s hesitance to rule on the permissibility of closed material procedures demonstrates the importance of such a balance on the future of national security legislation in the UK and adds further importance to a proper consideration of the implications of the Justice and Security Bill.
The case of Al Rawi v Home Office
was primarily concerned with addressing closed material procedures under UK Common Law in relation to the UK Government’s alleged complicity in the rendition, detention and torture of the claimants. With regard to closed material proceedings in this case, Lord Dyson remarks that “…party A who is in possession of the closed material will know whether there is material on which it may wish to rely…but it is difficult to see how opposing party B will know whether his case will be assisted by, or even depend to a significant extent on, the closed material held by A without knowing what the material is and what it contains.”43
While being distinctly different to his judgment in Tariq earlier that day, this comment also highlights a paradox inherent in the majority of closed material procedures in that the Government, as the sole holder of the sensitive information, can choose to only submit evidence that is damaging to the claimant and not submit evidence in its possession that would support the claims, leading to considerable risk of a misrepresentation of evidence. This paradox was supposedly remedied by amendment44
in the House of Lords allowing both sides to request a closed material procedure; however this presupposes that the claimant knows of the existence of such information. This amendment was later dropped at the House of Commons Committee stage, where the relevant section was altered to remove “all of the parties” and insert “every other person entitled to make such an application in relation”.45
This is considerably more ambiguous and could be read to mean only the party which is already aware of the relevance of the restricted information, which would therefore rule out a request from the claimant.
The practice of the United States in this area provides a useful context to the development of this Bill due to US involvement in intelligence sharing agreements with the UK and its similar stance on anti-terror legislation over the past decade. In the United States, the withholding of sensitive information is covered under the Classified Information Procedures Act 
Section 4 of the CIPA states that when restricting information which is relied on in court, the Government may “…substitute a summary of the information for such classified documents, or…substitute a statement admitting relevant facts that the classified information would tend to prove.”47
The CIPA further says that “[t]he court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone”.48
This implies that under the US system it is only possible for the Government to make such a request, which seems to be the direction the Justice and Security Bill is taking. The substitution of a summary of the information to the other party in order to allow for a semblance of equality of arms is very similar to ‘gisting’ as proposed in the UK; a process which the JCHR notes would increase the fairness of closed material proceedings and should automatically apply in all cases to allow for a degree of adversarial opportunity.49
The adversarial nature of a trial proposed by the European Court of Human Rights is that “…both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and evidence adduced by the other party”.50
The European Court has dealt with this issue directly in its case-law and has ruled that the principle is relative to the context.51
In the case of Jasper v United Kingdom,
the Court stated that “[i]n any criminal proceedings there may be competing interests, such as national security… which must be weighed against the rights of the accused”,52
but “only such measures restricting the rights of the defence which are strictly necessary are permissible”53
and these must be mitigated as far as possible.54
The role of the European Court in light of this judgment is not to create standard criteria for non-disclosure, but to deduce whether the domestic court took all precautions to ensure that the right was upheld as far as possible in the circumstances. As a result of the ambiguous nature of some of the European jurisprudence, the provisions for the right to a fair trial under the ECHR are at times less substantive than those available under UK common law. In the case of Official Solicitor v K
, a more robust definition of the adversarial trial was set out in that “a person or other properly interested party must have the right to see all the information put before the judge, to comment on it, to challenge it and if needs be to combat it, and to try to establish by contrary evidence that it is wrong. It cannot be withheld from him in whole or in part.”55
It is this provision that has led to the development of the special advocate procedure in the UK as a safeguard for ensuring the process is “…as fair as could reasonably be achieved”56
in the most extreme cases.
There are many critics of closed material procedures, but the process of their use as part of the Control Orders mechanism has on occasion been lauded as providing the controlee with substantial access to procedural justice.57
In the case of Secretary of State for the Home Department vMB 
, Lord Brown states that the special advocate procedure “…will in fact safeguard the suspect against significant injustice.”58
This ethos is echoed in many reservations with the current Public Interest Immunity (PII) practice which involves extensively redacting confidential information from all documents, effectively removing it from consideration altogether. PII has also been criticised for its impracticality in certain cases. One of the arguments proposed in favour of CMPs is that it would permit the submission of vast amounts of confidential information without requiring a large team and many weeks to properly undergo a PII procedure. Closed material procedures provide for an alternative where an application of PII would not be appropriate, either because it would be impractical or because it would disallow all evidence available in the case, however this again requires a balance to be struck between the importance of the evidence to the case and the damage done to perceived justice if it is submitted. This conflict was most dramatically raised in the case of Carnduff v Rock 
involving a Court of Appeal decision to strike out a claim by a police informant for money due under alleged contractual arrangements. The court held that, in order to pursue a fair trial, information would need to be disclosed which would be contrary to the public interest, but any attempt to litigate the claim without the evidence in question would prevent the appropriate application of justice.59
While the Carnduff
dilemma has not come up for direct scrutiny by the Supreme Court in this context, Lord Mance referred to the problem in his remarks in Al Rawi 
, suggesting that “the court is faced not with a binary choice, between trial with or without the material for which PII has been claimed, but with a trinary choice: the third possibility is no trial at all—whoever happens to be the claimant then has no access to the court at all.”60
Arguments such as this have been aired widely by supporters of the Bill over the past few years, raising the suggestion that it is better that one party has access to evidence than force the consideration of a case along different lines. It is important to note in this context that many of the civil cases against the Government involve complicity in human rights abuses. The degree of consideration of the evidence therefore raises a conflict between the victim’s recourse to justice and compensation and the Government being able to defend its actions through consideration of evidence in a forum that the victim cannot access. The UN Human Rights Committee has previously made suggestions in favour of holding a trial in absentia. In the case of Mbenge v DRC 
the Committee remarked that “… [the] requirements of due process enshrined in article 14 cannot be construed as invariably rendering proceedings in absentia inadmissible irrespective of the reasons for the accused person's absence. Indeed, proceedings in absentia are in some circumstances…permissible in the interest of the proper administration of justice.”61
This should not be taken as approval of trials in absentia in general, but it indicates an acknowledgement that a fair and open trial is not possible in all cases.
The decision to grant a closed material procedure is currently at the discretion of the court. One of the alterations that the initial draft of the Justice and Security Bill proposed was to transfer this power to Ministers. Under the proposed structure, Ministers would decide whether the disclosure of evidence would not be in the interests of national security and the Court was obligated to order a closed material procedure.62
This could have led to closed material procedures becoming a mechanism to prevent the publicising of embarrassing information, rather than just information damaging to national security. This provision has since been removed to place the decision with the Judge, but its original inclusion belies a lack of faith from the Government in the reliability of Judges ruling in their favour.
As has been demonstrated in the jurisprudence above, there is no occasion where a closed material procedure provides for a fair and just resolution of a case, even in the most extreme of circumstances this is still a compromise. While it is important that cases can be tried and justice can be achieved, a direct application of the principles enshrined in the Bill on closed material procedures removes the claimant’s ability to rebut questionable evidence and uphold the adversarial system. As a result, the conclusions obtained from utilising such procedures could be at best a partisan version of the truth and at worst a gross perversion of the justice system. If this Bill is to go ahead, as seems likely in the current political climate, the Government must ensure that the Bill is amended to include safeguards against abuse of these provisions in cases other than those posing the most extreme national security risk; and that sufficient provision is included for ‘gisting’ to ensure that as much information as possible is provided to claimants in civil cases.
The Intelligence and Security Committee
Another of the stated aims of the Justice and Security Bill is to review the mandate of the Intelligence and Security Committee in line with the previously declared goal of making “the intelligence services more accountable to Parliament for their actions.”63
The first alteration to note is that the Committee will, from the enactment of the Bill, be referred to as the Intelligence and Security Committee of Parliament, rather than just Intelligence and Security Committee. This notable addition clearly demonstrates a desire to foster a perception of Parliamentary oversight; whether this is outlined in the detail of the Bill requires closer scrutiny of the provisions.
A 2005 report by Born and Leigh deduces that “within a healthy constitutional order ministers need…a sufficient degree of control over intelligence agencies and the right to demand information from them in order to discharge their responsibilities as members of an elected executive acting on behalf of the public.”64
This oversight is essential for ensuring the democratic accountability of the security and intelligence services and is in line with the UK’s agreement, under Agenda 2000 of the European Union, to extend legal accountability to the police, military and security and intelligence services.65
Four of the five reasons put forward by Born and Leigh for restructuring and oversight are applicable to the UK:
• Due to the secrecy inherent in the work of the security and intelligence services, the public has no means of scrutinising its actions and responsibility must therefore fall to Parliament
• The special powers of the security and intelligence services to interfere with the rights of individuals carry a great risk of abuse, therefore safeguards must be provided
• The adjustment of the security and intelligence services to post-Cold War threats should be under the supervision of Parliament
• The importance of the security and intelligence services’ threat assessments on the work of other government departments requires supervision to ensure these are accurate and appropriate.66
The general thesis underpinning Born and Leigh’s work is that the Security Services should not use the ‘national security’ excuse to act outside of the law, rather it is exactly these exceptional situations that require them to be grounded in a concrete legal framework and to act within legal controls. In backing up this summation, Born and Leigh reference the case of Silver and Others v UK 
whereby the Chamber ruled that any law “which confers a discretion must indicate the scope of that discretion”.67
The key changes to the ISC brought in by the Justice and Security Bill will amount to: that the appointment of members will be by Parliament, but with the initial authorisation of the Prime Minister;68
that the consideration of information by the ISC be limited to purely historic and voluntarily provided information;69
and that the ISC must report annually to Parliament as a minimum, but must obtain Prime Ministerial approval that a report will not prejudice the functions of the Security Services or any person carrying out activities in relation to this work, before any report can be released.70
The combination of Prime Ministerial censorship of ISC reports and the restriction of oversight to information voluntarily offered by the security and intelligence services severely limits the ISC’s capacity to provide any kind of effective oversight beyond purely historic financial considerations. The functional reality of the ISC would therefore be simply a semblance of oversight in order to provide a veneer of legitimacy to the security and intelligence services. It may seem impractical in some situations, but a greater degree of Parliamentary oversight is certainly possible as has been outlined in international examples. While it would be impossible for the law to take into account all eventualities, it is possible to indicate a greater degree of specificity with regards to the actions that are encompassed within this remit and in what circumstances they apply. The function of the ISC should therefore include the ability to assess whether information provided by the security and intelligence services for cases actually constitutes a threat to national security.
There are already significant barriers to the ability of the ISC to report effectively on the operation of the security and intelligence services in the UK, in that it will not be able to disclose in full the more sensitive aspects of work that require confidentiality to ensure the safety of operatives or national security. However, the provisions of the Justice and Security Bill for the restructuring of the ISC restrict it to viewing only what has been voluntarily provided. While this voluntary provision is sometimes heralded as a significant step forward from the refusal to even acknowledge the existence of the security and intelligence services that existed not too long ago, this is not suitable justification for such a poor standard of oversight. If the ISC is to function as an effective oversight body it requires greater access to sensitive materials and the ability to visit premises, with the provision that confidentiality is enforced at the reporting stage. There is still a degree of trust imbued in this process as Parliament must be content that the Committee is performing appropriately in its oversight capacity without knowledge of the full content of reports, but this would allow for greater oversight than is currently provided for under the provisions of the Bill.
The Norwich Pharmacal procedure
The Norwich Pharmacal
procedure originated from a patent case in 1973 which set a precedent that defendants could request the disclosure of information from a third party that could be influential in demonstrating wrongdoing by another party or help to achieve justice for the applicant.71
In Lord Reid’s concluding remarks in the case he submits that if a third party is involved in some way in the wrongdoing of another “…he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers… [J]ustice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.”72
Later in the same case, Lord Reid related to the problems that could be caused through application of this procedure, but noted that “…such disclosure might cause resentment and impair good relations with other traders: but I find it impossible to believe that honest traders would resent failure to protect wrongdoers.”73
Lord Reid’s words imply that there is no danger of harming relations between two parties by prosecuting the crimes committed by their agents and holding them accountable. There is a significant distinction to be made between trade agreements and the actions of the security and intelligence services, but the basic principle behind regulation should be the same. Reservations to this procedure in the context of the security and intelligence services would then only occur in cases where, either lives are put in danger by disclosure, or disclosure would highlight wrongdoings by state officials and cause embarrassment.
The UK Government has held reservations about this idea since its inception, claiming that it harms relations between the UK and US security and intelligence services, as demonstrated in the Binyam Mohamed 74
case. In this case the claimant, invoking the Norwich Pharmacal
jurisdiction, requested the UK Government to release any information passed to them by the US authorities on the treatment of the claimant in detention at Guantanamo Bay and en route.75
This claim was eventually settled out of court, but the discord in UK-US relations caused by the possibility of disclosure was significant enough for the Government to believe the removal of this procedure to be justified.
The removal of the Norwich Pharmacal
Procedure as a mechanism for securing justice in cases of torture committed abroad draws the UK closer to these acts and amounts to turning a blind eye to actions that should constitute a breach of international law. While Parliament may make a strong case that the presence of this procedure damages UK-US relations, its repeal highlights a contradiction inherent in the Bill. Rather than increasing the accountability of the security and intelligence services, removing the Norwich Pharmacal procedure will have exactly the opposite effect both for our security and intelligence services and for those of foreign governments.
The Government’s proposed goal of increasing the democratic accountability of the Security Services is a valid one, but as has been noted above, the proposed reforms of the ISC will not achieve an internationally recognised standard of Parliamentary oversight. This goal is almost secondary in the Bill to the massive changes brought in by the extension of closed material procedures and would arguable warrant a separate consultation as the mechanisms involved are so profoundly distinct. In order to achieve true accountability, the Bill would need to be amended to include provision for visits by the ISC to GCHQ and other buildings, greater access to information rather than the voluntary procedures outlined in the Bill and greater oversight by ministers of policy-relevant decisions made by the security and intelligence services. This level of oversight is not unprecedented and is carried out to varying degrees by several European countries such as Norway and Germany.76
Several of the changes to current legislation enacted by the Justice and Security Bill demonstrate the added intention of reducing the costs incurred by the Government by being unable to defend its position with sensitive evidence in civil courts. It is important that financial considerations are not placed above achieving the fairest possible result in these cases. If there is a decision to be made between justice for a possible victim of torture and avoiding cost to the public purse, any legislation that seeks to save money by hiding evidence from effective scrutiny is not only unjust, but perverse. In order to maintain the possibility for an effective remedy in civil cases it is necessary that cases are justiciable and achieve, as far as possible, a just outcome. To this end the Bill should be, at a minimum, amended to include the provision that a closed material procedure is only applied in the most extreme of circumstances after judicial approval has been given that there is no other possibility of achieving justice in the case. The Bill should also include the requirement that a proper “Wiley Balance” procedure has been carried out to ensure that the material involved is of significant sensitivity to warrant the abuse of justice. Finally, in line with recommendations by special advocates during the consultation process, there needs to be provision to ensure ‘gisting’ of relative materials to a claimant in order that there can be as much direction as possible between special advocate and plaintiff.77
The time period from the introduction of the Bill to the House of Lords to the potential passing of the Bill will be less than a year, with the majority of activity taking place over a five month period. This head-long rush for implementation is a concern as there has been very little opportunity, after the consultation process, for a proper consideration in public of the direction in which the Bill will take the UK Courts and whether this is in fact necessary at all given the provisions currently at the disposal of Government under PII. Prior to any application of the Bill it is first necessary that the Home Secretary adequately explain the necessity for these provisions over and above the existing PII legislation and backs this up by presenting a variety of applicable cases that are currently unable to be considered to the appropriately security-cleared special advocates. This would then promote a wider consultation with the JCHR and civil society, ensuring that the process has been as transparent as possible. The combination of relative Government silence on its reasoning for the Bill, the unwarranted speed with which the Bill is being rushed through Parliament and the disregarding of several amendments suggested by the JCHR and subsequently passed by the House of Lords, undermines any legitimate argument in favour of the Bill and demonstrates its inability to stand up to effective scrutiny.
The Justice and Security Bill will further undermine public confidence in the UK justice system and increase suspicion over the UK Government’s complicity in human rights abuses at home and abroad. It will create a procedure where the applicant is never aware of why their claim for compensation for torture or maltreatment has been refused and, rather than increasing scrutiny of the actions of our security services, it will create a tangible barrier between those who have suffered at the hands of the security and intelligence services and their supposed means of effective remedy. This is not only a Bill that disregards the UK’s obligations under Article 14 of the ICCPR and Article 6 of the ECHR, but also a dangerous and unwise political move that risks further damaging the UK’s global reputation.