Stronger safeguards needed, JCHR report finds

Eighth Report: Legislative Scrutiny: Justice and Security Bill (second Report)

The Committee welcomes a number of the amendments made to the Bill by the Government, both in response to its first Report in November 2012 and to the subsequent debate during Report stage in the House of Lords.  It welcomes the Government’s acceptance that the decision as to whether closed material procedures (CMPs) should be instituted is a matter for an independent court, not for the Government; the express provision that a court will be able to revisit its decision to allow secret proceedings before a trial begins and after it has seen all relevant material; and the removal of the ability of Ministers to extend the scope of the Act by order.

It also welcomes the clarification that the CMP provisions apply only to cases involving material that would be damaging to national security if disclosed, although it calls for more clarity in the Bill to ensure that such a definition catches only material that would be truly damaging to national security.

However, the Committee is critical of a number of amendments that it concludes fall short of the protections sought in the Committee’s first Report.  In particular, the Committee repeats its call for the inclusion of a "last resort" condition, allowing the use of secret proceedings only where they are clearly necessary and a fair determination is not possible by any other means.  Such a condition was inserted by the House of Lords at Report stage, and the Committee calls for its reinstatement in the House of Commons.

The Committee also insists that a decision to hold a CMP must involve a full judicial balancing of national security on the one hand and the public interest in the fair and open administration of justice on the other.  It calls for a similar approach when deciding which material should be heard in closed session and which in open session.  It concludes that the Government’s alternative approach of allowing CMPs where it is "in the interests of the fair and effective administration of justice in the proceedings" is simply insufficient, and undercuts the positive changes made elsewhere.

The Committee also notes that the Bill as drafted would not allow for complainants to know that there is material which may assist their case and to apply for it to be considered in a CMP.  It calls on the Government to amend the Bill to allow both parties to apply for CMPs on the same basis in order to ensure a true equality of arms, or to allow for an appropriate mechanism to ensure that the Government are not unfairly advantaged.  It also demands a clear obligation be imposed that any excluded party be provided with a gist of otherwise secret material that is sufficient to give effective legal instructions, with material inadmissible if such a gist is not provided.  Finally, the Committee reiterates the call from its first Report that annual renewal should be provided for in view of the radical departure of the Bill from fundamental common law traditions.

Chair's comment

Dr Hywel Francis MP, the Chair of the Committee, said:

“We welcome the Government’s engagement with the substance of our first Report and with the issues we have identified, but call on them to go further in order to respect historic common law principles.  We remain sympathetic to the problems faced by the Government in dealing with sensitive material, but the Bill as drafted does not put in place sufficiently robust safeguards to oversee the exercise of what are very wide-ranging powers.  Indeed, the Government has softened many of the protections that amendments, recommended by this Committee in its first Report, introduced into the Bill when it was considered by the House of Lords.  We urge the Government to think again and make sure that secret proceedings are used only in cases of pressing national security need, and are the last possible resort."