Hugo Rosemont on Secret Evidence and Civil Justice in Britain

In Today's Headlines and Commentaries, Raffaela notes the controversy in Britain that has erupted over the possibility of using secret evidence in certain civil cases. Hugo Rosemont, a Security Policy Adviser to the UK security industry and a doctoral student, writes in--in his personal capacity--with a detailed account of the controversy. Rosemont, who blogs at www.hugorosemont.com, describes it as follows:

The Secretary of State for Justice in the UK, Kenneth Clarke QC MP, yesterday defended on the BBC’s flagship “Today” radio programme the idea that it would be desirable to introduce some form of closed procedure to allow and protect the use of sensitive intelligence information in civil judicial proceedings. This followed reports that the Deputy Prime Minister is not satisfied with his current proposals and the publication of a critical report by an influential Parliamentary Committee on Human Rights about the Government’s approach to the issue. Amidst the media storm, the Prime Minister outlined his own responsibilities for national security and his view that there are “gaps” in the UK’s defences. He also sought to reassure the public that any new measures would be taken forward in a “responsible, moderate, calm and reasonable manner.” How did we reach this point and what are the proposals? As previously covered on Lawfare (here and here), the UK Government published a high profile “Justice and Security Green Paper” on 19 October 2011. The consultation document included proposals on how sensitive information should be handled in civil judicial proceedings (rather than criminal cases which are outside of the scope of the paper and which have well-trodden mechanisms for protecting such information) and considered how to strengthen oversight of the security and intelligence agencies. New measures are needed in the case of the former, it was argued, because in the absence of stronger protections and an “increased volume of court cases” brought against the Government affecting the intelligence agencies it is finding it increasingly necessary to reach out-of-court settlements to prevent the release of sensitive security information. Whilst critics might argue that it is convenient that the proposals aim towards legislation which would primarily benefit the Government, supporters suggest that existing arrangements are the worst of all worlds for the state, those making appeals against it because justice is not reached, and the British taxpayer who finds itself having to foot the bill in out-of-court settlements. The increasing exposure of the activities of the British intelligence agencies to civil proceedings may be surprising to some readers in the US; for this reason, it is worth noting that on this side of the pond, there are significant pressures to enable litigation and judicial process even in the area of national security that in the United States would be precluded by the states secrets doctrine. For example, it has been well documented that there has been greater public suspicion of the activities of the security services in recent years; that there is an arguably less widely-accepted (or at least more sceptical) view of the severity of the threat posed by terrorism and the associated need to reform the judicial process in line with it; and that there exists the strong influence of human rights legislation in the UK and across Europe in this area. In short, American and British judicial systems look different even if the US and UK Governments may often both seek to protect sensitive information from being released in court. The consultation period closed in January 2012 and many of the resulting submissions have now been published in full on the Government’s dedicated consultation website. This source is a treasure trove of material and shows both the wide variety of opinion and illustrates the degree to which the fight back against the Government’s proposals is underway. In addition to the formal responses, the Daily Mail Newspaper published an article in February by a senior Conservative politician, David Davis MP, who suggested that the Government’s proposals would be more fitting of regimes like Syria, Iran and North Korea. On 5 March, The Guardian Newspaper published a letter outlining the opposition to the proposals of a number of well-known figures, including Mr Davis, and subsequently expressed its own distaste of them in an editorial. As referred to above, the Joint Committee on Human Rights concluded in a report released yesterday (4 April) that “the Government has failed to make the case for extending "closed material procedures" to all civil proceedings and to inquests”. What is causing the commotion? At the heart of the proposals, as the British Foreign Secretary explained in a well-documented speech in November 2011, is “the proposed introduction of legislation to make the mechanisms known as closed material procedures (CMPs) – already used elsewhere in the UK court system – available to the full range of civil proceedings.” He could not have been clearer in stating the Government’s position: “The justice system is not currently equipped to pass judgment in national security cases involving information so sensitive that it cannot be disclosed in a courtroom.” Whilst some would be instinctively sceptical about the motives for seeking to update the judicial process to allow for sensitive information to be presented in a trial, taken at face value the Government clearly believes that the existing framework is “unfit for purpose” in ensuring fair hearings at the same time as protecting information relating to national security. How seriously should objections to the Government’s proposals be taken? Margaret Gilmore of the Royal United Services Institute (RUSI) provided a timely and useful reminder last year that whilst sometimes secrecy is necessary for national security it “should be the exception not the norm.” The Government’s proposal to put CMPs on a statutory footing, therefore, is not an insignificant move. For an excellent summary of the “pros and cons” of CMPs and the Green Paper’s other proposals see this Rapporteur Report of an event held in December 2011 by the International Security Programme at Chatham House. The paper captures the sentiment of the main objection to the CMPs proposal; “the main controversy expressed regarding CMPs is the dangers they pose to procedural fairness and the principle of open justice.” There may be no shortage of difficulties in finding an appropriate balance between justice and secrecy, but are the objections to the Government’s proposals reasonable? Whilst any moves towards increased secrecy in court should not be taken lightly, the tone of some of the objections to the proposals would seem to be exaggerated. For example, Mr. Davis’s suggestion that the proposals would be more fitting of the North Korean regime is wide of the mark in view of the Green Paper’s deliberate ambition to allow information to be used in proceedings (albeit via a different mechanism) and the checks and balances that have been proposed by the Government. Crucially, the Government has suggested that, when challenged, there should be judicial review of any decision by the Executive to seek to trigger a CMP because in its view, disclosing sensitive material would harm the public interest. As another example of the tone of the discussions, the Bingham Centre for the Rule of Law expressed disappointment that the Executive Summary of the Green Paper commenced with a statement that the safeguarding of national security is “the first duty of Government.” That would seem to be naïve at best, nit-picking at worst. Many more substantial and important points have been made. Reflecting the thrust of a significant number of them, it should go without saying that democratic governments, and in particular their intelligence agencies, should operate within the rule of law as they conduct their security operations. When they get it wrong, they should be held to account, and the proposals to develop stronger Parliamentary scrutiny of the activities of the British intelligence agencies should therefore be welcomed. In addition, notwithstanding the difficulties of presenting sensitive information in public, it is obviously desirable that all aspects of civil and criminal proceedings should be held in open court wherever possible. It is for these reasons that as the Government seeks to advance its proposals through Parliament, there would be benefit in debating whether the scope of the application of CMPs could be restricted to only the most sensitive security and terrorism-related proceedings (see Chatham House’s Rapporteur Report linked above for a good summary of the concerns that exist over the broad scope of the proposals). In addition, as has been advocated in other areas of security legislation the benefits of inserting a “sunset clause” as a check on the permanency of the legislation could be considered. However, no one should pretend that reforms to the judicial process are not desirable and that resolving the use of sensitive information in civil proceedings is a straightforward issue. As Nigel Inkster of the International Institute for Strategic Studies (IISS) has argued: “at present justice cannot be done at all and the Green Paper proposals may prove the most workable compromise.” The importance of one further element of the Government’s proposals is somewhat downplayed by its opponents; the strategic issue of how the UK Government can maintain effective intelligence cooperation with international partners, especially the US, within the rule of law. Whilst the Joint Committee on Human Rights has not been persuaded that reforms for this purpose are justified, the committee of Parliamentarians responsible for scrutinising the British intelligence agencies is the Intelligence and Security Committee (ISC) and its response  to the consultation (number 6 here) is particularly illuminating in this regard. Like the Government, it stresses in the context of the proposed judicial reforms the importance of protecting intelligence that is shared by the US and notably encourages the Government to go even further with its proposed CMPs. It cites the case of Binyam Mohamed and the regrettable release in a UK court of a summary of US intelligence material relating to it. The subsequent statement of the U.S. Office of the Director of National Intelligence indicating US regret was, the ISC argued, “a message that cannot be ignored.” It is clear that in the long term, the UK Government will only be successful in realising the aims of its national security strategy if it both operates within the rule of law and it can maintain the confidence of its closest international partners that the country’s judicial processes can handle sensitive information affecting more than British security. To its credit, the UK Government has been transparent that one of the reasons for its proposed reforms is to ensure that sensitive information shared by international partners can be protected; this is a point that the Justice Secretary reiterated yesterday. Some are likely to be suspicious of its motives in this regard, but this author is less doubtful and would argue that in principle there should be greater understanding of the sensitivity of using any US-originated intelligence in British courts (and vice versa).