Litigating the Legacy in Secret: CMP Declarations in Northern Ireland

Rights NI is delighted to welcome this guest post from Christopher Stanley of KRW LAW LLP.  

The Justice and Security Act 2013 (JSA 2013) contains a provision at section 6 for a party in a civil action, for example a claim for damages, to apply for a declaration from the presiding judge that a closed material procedure attaches to the proceedings. This means that a disclosure request for sensitive materials held by a party to the proceeding and which are deemed damaging to the interests of national security can only be assessed by the judge and a Special Advocate who is only able to convey the gist of the material to the other parties to the proceedings who cannot challenge the assessment made by the court of the sensitive material.

The decision to apply for a closed order proceeding declaration will take place after the party making the request for the declaration has made a decision as to whether a public interest immunity (PII) certificate should apply to the material. PII has been the process by which sensitive material, most controversially relating to state held intelligence, has been litigated. If the PII certificate is upheld then the sensitive material is not disclosed, if is not then it can be disclosed in full. The point is that in a PII claim if the certificate is upheld no party to the proceedings can rely on the sensitive material.

The CMP legislation in effect allows the authority holding the sensitive material to release it to the court for assessment by the judge and the Special Advocate who then relays the gist of the contents to the party requesting the disclosure. It is therefore enabling sensitive material to come before the court and to be relied upon by the party in possession of the sensitive material but not to the party who may claim the sensitive material is necessary for the just and fair settlement of the claim. The argument relied upon by the government in proposing the legislation was that the CMP would enable more issues of national security to come before the courts and enable the intelligence services to justify their actions before the independent judiciary. The context for introducing the legislation were the allegations being made against the security services relating to its actions in combating terrorism after 9/11.

There are two safeguards in the CMP legislative schema introduced by amendments in the progress of the Bill through the Houses of Parliament. The first safeguard is at section 6 (5) that the CMP declaration is “in the interests of the fair and effective administration of justice in the proceedings to make a declaration.” The second is at section 7 (2) “The court must keep the declaration under review, and may at any time revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings” and section 7 (3) “The court must undertake a formal review of the declaration once the pre-trial disclosure exercise in the proceedings has been completed, and must revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings.”

The Justice and Security Bill was introduced to the House of Lords by a Liberal Democrat government spokesman.  It was subject to intense debate in the House of Lords and a highly critical report from the Joint Committee on Human Rights (see: JCHR JSA) which took evidence from a range of sources including the Panel of Special Advocates and the Independent Reviewer of Terrorism Legislation.  It was accepted that in camera proceedings, PII litigation and closed proceedings in immigration and employment litigation had been under counter-terrorism legislation since 2000. However, the offence of the CMP identified particularly by the JCHR and the House of Lords was the attack on open justice and security service accountability. The opposition to the CMP provisions of the Bill had been articulated by the UK Supreme Court in  Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34; [2012] 1 AC 531 where Lord Dyson stated at 47:

“Closed material procedures and the use of special advocates continue to be controversial. In my view, it is not for the courts to extend such a controversial procedure beyond the boundaries which Parliament has chosen to draw for its use thus far. It is controversial precisely because it involves an invasion of the fundamental common law principles to which I have referred [viz, open justice and natural justice particularly the right to know the case to be answered]. I would echo what Lord Phillips said in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010]2 AC 269. ‘How [the] conflict [between full disclosure of the allegations against a party and other aspects of the public interest] is to be resolved is a matter for Parliament and for government, subject to the law laid down by Parliament’”

This view had been previously articulated by Lord Hoffman in R v Home Secretary, ex parte Simms [2000] 2 AC 115 at 131:

“…the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”

Lord Dyson’s opinion was quoted by Mark Durkan MP during the passage of the Bill through the House of Commons at the Second Reading on 18 December 2012:

“I come from a part of the world where the state has done many things and failed to do many things. People attributed all sorts of reasons and pure motives to it, saying, “They wouldn’t have done that if they didn’t have to.” We know from last week’s revelations that that logic absolutely stinks. One of the worst things was that all down the years, when such things were happening, they were not sufficiently challenged by enough people in this Chamber and in other places. When we receive such legislation, we must question it and ask what the compelling reason for it is. We must also look to those who know something about such things. Lord Justice Kerr has been widely quoted today on the subject of closed material proceedings, but he was not the only one to make significant statements in the al-Rawi judgment. Lord Dyson, giving the lead judgment, said that the introduction of closed proceedings in ordinary civil claims would involve “an inroad into a fundamental common law right.”” (Column 779: see Hansard 18 12 12)

During the progress of the Bill through the two Houses of Parliament and the negotiations to secure amendments to salve the harsher consequences of government control over intelligence, the government was at pains to point out that CMP would only be used in the most limited of circumstances and the debates focused on those high profile terrorism cases including extradition, deportation and exclusion including those of Binyam Mohammed and Abu Qatada. For example Kenneth Clarke MP during the House of Commons debates on the House of Lords Amendments on 4 March 2013 emphatically stated:

“We expect only a handful of cases” (Column 705: see Hansard 04 03 13)

Later, Lord Wallace of Tankerness during the House of Lords debate on the House of Commons Amendments on 26 March 2013 said:

“A recurring theme in our debates has been a genuine concern about the potential overuse of CMPs; it has been said that they might become the default position. We have sought to ensure that this should be a matter of procedure used only in very exceptional circumstances. It is this concern that has fuelled the desire to ensure that CMPs are used only as a last resort.” (Column 1018: see Hansard 26 03 13)

However this stance of the government was met with skepticism by some members of the House of Lords including Lord McDonald of River Glaven during the House of Lords debate on the House of Commons Amendments on 26 March 2013 said:

“Words are cheap. What does the future hold? The real question is: does the Bill as presently drafted secure that promise that CMPs shall remain a wholly exceptional device to be deployed only in the most wholly exceptional circumstances? The JCHR thinks not. The special advocates think not. Your Lordships’ House, when it last debated these issues also thought not.” (Column 1028: see Hansard 26 03 13)

Mark Durkan MP reflected the experience of these matters of national security and natural justice during the conflict in Northern Ireland. He references Lord Kerr’s remarks on closed proceedings in Al Rawi & Ors v The Security Service & Ors [2011] UKSC 35 which were widely cited during the debates:

“‘The central fallacy of the [Government’s] argument… lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial’” (paragraph 93).

The common law assumption of fair trial incorporating as it does both openness and accountability was analysed in the leading UK Supreme Court judgment of 2013 Osborn (Appellant) v The Parole Board (Respondent), Booth (Appellant) v The Parole Board (Respondent) and on appeal from the Court of Appeal [2010] EWCA Civ 1409 and In the matter of an application of James Clyde Reilly for Judicial Review (Northern Ireland) on appeal from the Northern Ireland Court of Appeal [2011] NICA 6 reported at [2013] UKSC 61  (summary) where Lord Reed emphasised that human rights protection is not a distinct area of the law based on the case law of the European Court, but permeates our legal system and that compliance with the European Convention requires compliance with the relevant rules of domestic law – the common law.

Despite vehement opposition expressed by many politicians, academics, human rights activists, practitioners (including the Special Advocates) and most importantly members of the judiciary who saw the legislation as fettering their jurisdiction despite the amendments accepted by the government. All those opposed to the Bill rehearsed the arguments concerning common law principles of open justice and the right to a fair trial under Article 6 of the European Convention. However, despite ‘We expect only a handful of cases’ stance of government, it is becoming clear that CMP are going to become an important weapon in the armory of the state to control intelligence disclosure. It was accepted that similar procedural closed hearings have taken place but CMP enables the government to present intelligence to be assessed only by a judge and the Special Advocate and not to be contested therefore to all extent disabling a fair hearing for the applicant in the civil claim.

Which brings us to the legacy of the conflict in Northern Ireland and three civil actions being bought against state agencies including the MOD, the PSNI, the Secretary of State for Northern Ireland and a named individual identified as a state agent. Two applications in Belfast and one application in London have all now been subject to request from the relevant government agencies for CMP. In two of these applications the claims relate to events over 20 years ago including by intelligence units no longer operating (the MOD Force Research Unit). In two of the applications the civil claim for damages involves the activities of state agents whose identity and work for the state is within the public domain. To what extent can the state agencies therefore argue that this historical sensitive material if disclosed would threaten national security 15 years after the Belfast/Good Friday Agreement? For anyone litigating the past in Northern Ireland and seeking disclosure of sensitive material it will come as little surprise to find the state guarding its secrets as disclosure in relating to conflict related inquests and civil proceedings has always been a contest between the state and victims. With the new CMP for civil actions the state has another tool at its disposal to guard the secrets of the past. These applications for declarations of CMP should not go unchallenged on the grounds of both undermining common law principles and being incompatible with the European Convention.