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The JCHR Inquiries into the Government's Proposals

"It is regrettable that the Green Paper overlooks the very considerable impact of its proposals on the freedom and ability of the media to report on matters of public interest and concern. This is a serious omission. The role of the media in holding the government to account and upholding the rule of law is a vital aspect of the principle of open justice, as has been amply demonstrated in the decade since 9/11. We are also concerned about the impact of the proposals on public trust and confidence in the courts. We recommend that the Government expressly recognises these considerations in its framework of "key principles" guiding the development of policy in this area. We also expect the human rights memorandum accompanying the forthcoming Bill to include a thorough assessment of its impact on media freedom and on continuing public confidence in the administration of justice." (JCHR Report, para 127)

On 4 April 2012, the JCHR published the Report of its Inquiry into the Justice and Security Green Paper (Our summary of the Report's main points).

The Committee found that the Government had not provided evidence for its case that closed material procedure should be extended to all civil proceedings and inquests.

The Committee notes that the objectives of the Green Paper are legitimate objectives, but it disagrees with the Government's view that the proposed changes are not a radical departure from open justice traditions and insists that the Government has failed to make out the case that legislation along the lines proposed is necessary.

While the Report understandably focuses on the potential unfairness of the proposals to non-government parties to civil and judicial review proceedings as well as inquests, it makes a significant number of important observations on the adverse effect the proposals could have on the media and the wider public's interest in open justice. In particular, the Report has a whole section dedicated to the Proposals' impact on 'media freedom and democratic accountability' - something the Report defines as "the missing issue in the Green Paper" (pp. 55-65)

JCHR Inquiry website

LTRK Submission to JCHR's Legislative Scrutiny of the Justice and Security Bill, 28 June 2012

LTRK Supplemental Submission to the JCHR Inquiry into the Justice and Security Green Paper, McNamara, L., (9 Feb 2012)

LTRK Submission to the JCHR Inquiry on the Government's Green Paper on Justice and Security, McNamara, L., (20 Jan 2012)

JCHR Inquiry into Justice and Security Green Paper: Written Evidence

Oral hearings before the JCHR:

The JCHR Report's main points

1. Responses to the Government's Green Paper were not made public automatically; JCHR recommends all responses be public unless respondent request confidentiality (26-31).

2. Recommends finding a suitable way to consult the judiciary where legislative proposals go to the heart of the administration of justice (32-33).

3. Notes that Justice Secretary's oral evidence suggesting reforms would be narrow was at odds with very broad proposals in the Green Paper. Recommends oral evidence now be reflected by confining the Government's proposals to national security sensitive material (36-47).

4. Criticises Green Paper's failure to address admissibility of intercept evidence and refers to its predecessor Committee's recommendations in this regard (48-50).

5. Accepts the theoretical possibility that some cases could not be tried fairly because of the amount of evidence that would be excluded under PII. However, the Committee finds that the Government has not demonstrated that this theoretical possibility is in fact a real and practical problem (56-72).

6. Criticises the Government's tendency to, in the absence of specific evidence, fall back "on vague predictions about the likelihood of more cases being brought in future… and spurious assertions about catastrophic consequences of information being wrongly disclosed" (72).

7. Points out that, outside of Norwich Pharmacal applications, there is no risk of such disclosure because disclosure cannot be ordered by a court" (72).

8. Agrees with the Special Advocates' evidence that CMP is inherently unfair and Lord Kerr's judgment in Al Rawi that evidence which is insulated from challenge may positively mislead the court (81-86).

9. Recommends that there should always be a judicial balancing of interests when deciding upon issues of disclosure (99-103).

10. Recommends that in all cases where CMP is used, sufficient information should be disclosed to the excluded party to enable them to give effective instructions to a special advocate (104-106).

11. Finds that even if the Government had made out a case for extending CMP to all civil proceedings, the JCHR would not favour the model proposed in the Green Paper (109).

12. Agrees with many submissions that the mere availability of CMP would circumvent the current ability of the Courts to use their inherent "resourcefulness in finding ways of ensuring sufficient disclosure without causing damage to the public interest"(116).

13. Recommends that SIAC's jurisdiction be extended to incorporate proceedings concerning the executive's refusal to grant naturalisation or excluding individuals from the UK which are currently dealt with by the Administrative Court (117).

14. Recommends that PII, as it applies in cases involving national security issues, be put on a statutory footing with, for example:

a. A statutory presumption against disclosure of intelligence material which is rebuttable only with compelling reasons;

b. Express factors which the courts must have regard when balancing competing interests;

c. A requirement that the court consider a non-exhaustive list of devices which may assist the court in avoiding damaging disclosures (122).

15. Recommends that further attention be given to the increasing tendency for parties to proceedings to consent to the use of closed material procedures between themselves (123).

16. Finds that the Government has failed to produce evidence for a fundamental change to the way inquests are conducted (125-139).

17. Doubts that the Green Paper's proposals regarding inquests would be compatible with the UK's obligations under Article 2 ECHR (140-144).

18. Completely rejects the Government's argument that the control principle should be absolute, arguing that this would be inconsistent with the rule of law (161-165).

19. Recommends Norwich Pharmacal jurisdiction be put on a statutory footing which would increase legal certainty for courts and the UK's intelligence partners (190-192).

20. Recommends that proper consideration be given to the problem of closed judgments and court reporting (207-210).

21. Expresses concern about the negative impact of the proposals on public trust and confidence in both the Courts and the Government (211-214).

22. Recommends that consideration be given to including 'open justice' as an express criterion to be taken into account and given due weight by the courts "when conducting the judicial balancing exercise" in the statutory amendment and clarification of the law on PII (214).

The Government's response to the JCHR Report can be found here
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Dr Lawrence McNamara

School of Law