Justice and Security Bill published...a review......

So the long awaited JSB has been laid before Parliament today.  If passed it will permit Closed Material Procedures (CMPs) in some civil proceedings. There are going to be three stages:

FIRST STAGE - IS PII GOING TO BE CLAIMED?

The Secretary of State (S/S) must first decide whether to make or to advise another person (for example a Chief Constable) to make a claim for PII in respect of the national security disclosure.  If the claim is made and accepted by the Court - then the information is protected, will not be disclosed and will not be relied on and the matter ends there.  If the claim is not made or not accepted by the Court (i.e. S/S or other relevant person wants to rely on the disclosure or the Court thinks that the information should be disclosed under a CMP and not withheld completely) then we move to stage 2:

SECOND STAGE - APPLICATION FOR A DECLARATION

The S/S can make an application in proceedings before the High Court (Court of Session in Scotland)  or Court of Appeal for a declaration that a application for Closed Material Procedures (CMPs) may be made in the proceedings.  The Court has to grant that application if it considers that the proceedings might involve disclosure (by anybody) damaging to the interests of national security. If the Court grants the application, then we move to stage 3:

STAGE THREE: 

The relevant person who ordinarily would be required in the normal course of civil litigation to disclose documents may apply to only disclose those documents to the Court, a Special Advocate (SA) and the Secretary of State (where not a party).  In other words, the relevant person would be excused from having to disclose the documents to the other parties to the proceedings and would disclose those documents instead to the SA.  The Court must grant this application if it considers that the disclosure would be damaging to the interests of national security.  The Court can at the same time order a gisting exercise.  If the relevant person does not get permission to withhold the evidence and refuses to disclose it, then the Court can force the relevant person to make concessions or can make other coercive orders in default.  If permission is granted then the CMP will proceed as it does now in current CMP proceedings (like in TPIMs/SIAC etc) with hearings concerning the national security evidence held in camera and excluding everybody but the SA.  Parts of judgments dealing with the national security information which be closed.  The application for CMPs has to be made without notice and without any other party being present (obviously - holding the hearing with all the parties present would defeat its object).

WHY THREE STAGES?

The Bill is designed to permit S/S to intervene in proceedings to which he or she is not a party.  For example if some other agency or third party not under the control of the S/S were to be involved in proceedings in which they might be required to disclose national security information, S/S can use the first stage to intervene in order to seek a declaration that CMPs will be used.  Indeed it seems that there will be amendments to the CPR to place a duty on parties to notify S/S when CMPs might be necessary.  Once the CMP stage 1 declaration is in place, then the relevant party will be able to make an application to withhold disclosure within a CMP at stage 2.  The rules of PII are expressly preserved so that if the relevant party neglected to make a CMP application at stage 2, then S/S could still intervene with a PII certificate to protect the information.  It might have been better to permit the Court to alert the S/S of the national security issue of its own motion - in case the parties had not spotted it - this is the case with PII - where it is everybody's duty, including the Court's, to take the PII point where it arises.

THE COURT & NOT HMG WILL DETERMINE THE "DAMAGING TO THE INTERESTS OF NATIONAL SECURITY " QUESTION:

This is seen as a great prize by those who oppose this Bill, but the Court is likely to defer to some extent to S/S on this question.  There is a similar jurisdiction to hold closed proceedings in the Employment Tribunal and Underhill P has given guidance in the EAT on how the national security question is to be approached:

What is in any event clear from the numerous authorities cited to me is that they contain no explicit consideration of the correct approach to be taken where a party asks the court to make an exception to the rule of open justice in the interests of national security. For the reasons that I have given there is a limit to the useful guidance that can be given. However, I think that it is possible to say the following:

(1) Any exception to the rule of open justice has to be justified. It is, as emphasised in all the cases to which I have referred, a strong rule and any justification has accordingly to be cogent.

(2) It is uncontroversial that the interests of national security are capable of justifying such an exception. But, as a matter of principle, in any case where the exception is invoked, and specifically in the case of an application under rule 54 (2), the court or tribunal must make a judicial assessment of whether they do so in the particular case. That will in principle involve striking a balance between, on the one hand, the seriousness of the prejudice to national security which is asserted, and the degree of risk that that prejudice may occur if the exception sought is not made; and, on the other, the extent of the infringement of the principle of open justice embodied in the rule and the risk of prejudice to the public interest or the interests of the individual in the particular case. On ordinary principles, the more serious the infringement of the principle the greater the prejudice, or risk of prejudice, needed to justify it: thus it will be easier to justify, say, the anonymisation of witnesses or the redaction of documents than the conducting of an entire hearing in private.

(3) Thus far the exercise would appear to be an application of the principle of proportionality of a conventional kind; and one where, because of the importance of the principle of open justice, there is a heavy burden on the party seeking the restriction. But that is not the whole picture. "The interests of national security" constitute a factor of a rather particular nature. Where those interests are indeed genuinely engaged the stakes are high: they will involve real risks to the national interest generally and, typically, real risks (of a more or less direct nature) to the lives of members of the armed forces or the security services or of others. An established risk of such outcomes must of its nature weigh heavily in the opposite balance against the principle of open justice, important though that is. Of course sometimes it will not be self-evident that any such asserted risk is indeed present or is serious. In such a case, however, the tribunal needs to be aware that the risks in question will often be of a kind which it is not well-placed to assess - even if, which will itself often be disproportionate or unrealistic, appropriate direct evidence relating to the risk could be adduced before it. Tribunals therefore need to approach the task of assessing the risk with a clear understanding of the inherent limitations in their ability to do so.
(4) Those cautionary observations do not mean that the proportionality exercise is unnecessary or that it can only have one outcome whenever an application for measures under rule 54 (2) is made. Tribunals can and should not abdicate their responsibilities to make the necessary assessment whenever national security is invoked. But they do mean that it will be necessary for tribunals to approach any such application with a recognition of the weight which must necessarily be accorded to any real risk to the interests of national security and of the limits to the assessment of that risk which it may realistically be possible to carry out.

It may be that it was with these points in mind that the draftsmen chose the word "expedient" rather than "necessary". But, whether that is so or not, I believe that the question whether an order under rule 54 (2) should be made should be approached in accordance with the foregoing guidance.

NORWICH PHARMACAL

Following the burning of HMG's fingers in Binyam Mohamed, the Bill effectively removes national security disclosure from this jurisdiction.  I suspect this will be controversial - especially where UK involvement in rendition is being alleged.

 INQUESTS NOT INCLUDED

Inquests are not included within the scope of these provisions - this will cheer a lot of people up - although it will leave Coroners unable to consider national security evidence in full as they will continue to have no power to sit fully in camera (see the 7/7 Inquest issue on that point).  Neither are county courts - although no doubt any proceedings where a CMP is necessary (certain claims made by prisoners spring to mind) could be transfered to the High Court.   None of the Tribunals are included - although I note that clause 11(2) permits S/S to widen the scope of these provisions by Henry VIII orders.  

A GOOD BILL?

Save for the Norwich Pharmacal clauses - where I think that the Court should have the say on the national security issue - I think this is a good bill and I support the introduction of CMPs as set out in previous posts here and here and here and here.  It is a second best solution; but it is necessary.  As Underhill P said above and as the European Court of Human Rights has accepted ( A v United Kingdom (2009) 49 EHRR 29). - national security is so important to all of us that it is one of those rare occasions when a breach of article 6 is justified and a necessary exception to open justice is required. 60 cases are apparently awaiting the passage of this bill (presumably stayed after Al Rawi).  60 cases which would have to be struck out or settled for potentially the wrong reasons without this Bill.  I cannot put the point better than David Anderson QC, the Independent Reviewer of Terrorism Legislation (and notice that unlike most commentators - he has seen the actual files....):

It is however apparent to me, after inspecting the files I have been shown and speaking to counsel involved, that under the current law there are liable to be cases that are settled ... which, had a CMP been available, would have been fought to a conclusion. This is an undesirable state of affairs .... We are in a world of second-best solutions: but it does not seem to me that the level of injustice inherent in the use of a CMP in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought’.

EAT to lose lay members......and other employment law reforms....

What was I saying about fighting for the industrial jury?

Now its appellate big brother in the EAT is going- clause 12 of the newly introduced Enterprise and Regulatory Reform Bill - the default position is going to be


Proceedings before the Appeal Tribunal are to be heard by a judge
alone.


Unless the Judge orders that lay members should be present.  I am not as upset about this as losing lay members in Employment Tribunals as the EAT only hears appeals on the law - still another example of lay involvement in civil just being eroded  - all for the sake of saving ££££££££

In a similar vein clause 6 of the Bill seems to be putting Judges in the Employment Tribunal at risk in certain limited circumstances...what's a legal officer?


Decisions by legal officers
(1) In section 4 of the Employment Tribunals Act 1996 (composition of a tribunal),
after subsection (6C) insert—
“(6D) A person appointed as a legal officer in accordance with regulations
under section 1(1) may determine proceedings in respect of which an
employment tribunal has jurisdiction, or make a decision falling to be
made in the course of such proceedings, if—
(a) the proceedings are of a description specified in an order under
this subsection made by the Secretary of State and the Lord
Chancellor acting jointly, and
(b) all the parties to the proceedings consent in writing;
and any determination or decision made under this subsection shall be
treated as made by an employment tribunal.”


Clause 12 will give HMG powers to further cap compensation for unfair dismissal:


The limit as so varied may be—
(a) a specified amount, or
(b) a specified number multiplied by a week’s pay of the individual
concerned,
or it may be the lower of those things.
(3) Different amounts may be specified by virtue of subsection (2)(a) in relation to
employers of different descriptions.
(4) An amount specified by virtue of subsection (2)(a)—
(a) may not be less than median annual earnings;
(b) may not be more than three times median annual earnings.


& Clause 13 introduces fines for naughty employers- so less money for employees, but more for HM Treasury?


13 Power of employment tribunal to impose financial penalty on employers etc
(1) After section 12 of the Employment Tribunals Act 1996 insert—
“Financial penalties
12A Financial penalties
(1) Where an employment tribunal determining a claim involving an
employer and a worker—
(a) concludes that the employer has breached any of the worker’s
rights to which the claim relates, and
(b) is of the opinion that the breach has one or more aggravating
features,
the tribunal may order the employer to pay a penalty to the Secretary
of State (whether or not it also makes a financial award against the
employer on the claim).
(2) The amount of a penalty under this section shall be—
(a) at least £100;
(b) no more than £5,000.


Lots to look forward to.....................

More support for Closed Material Procedures...

Further to my earlier post reporting support for CMPs from Mitting J and an even earlier post than that....

The Royal United Services Institute for Defence and Security Studies has come out in favour of CMPs in civil cases -the report is here.

Lord Carlile of Berriew CBE, QC is one of the authors who echoes my own position:

Public Interest Immunity [PII] is available for national security in such cases: however, if the result of refusing disclosure of documents means that there cannot be a fair hearing, the Government has little option but to settle the proceedings. This can result in the unwelcome outcome of terrorists being paid large sums of taxpayers’ money.

He quotes his successor as Independent Reviewer of Terrorism Legislation, David Anderson QC:

‘It is however apparent to me, after inspecting the files I have been shown and speaking to counsel involved, that under the current law there are liable to be cases that are settled ... which, had a CMP been available, would have been fought to a conclusion. This is an
undesirable state of affairs .... We are in a world of second-best solutions: but it does not seem to me that the level of injustice inherent in the use of a CMP in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought’.

Lord Carlile goes on:

I agree with those observations, made after a careful examination

of all the available evidence. CMPs offer no injustice, whereas the

absence of them may well lead to injustice to intelligence agencies,

and thereby to the public purse.

Here here

The bill is out on Thursday.....

Fight for the Industrial Jury...

The Court of Appeal resisted the temptation to interfere with an Employment Tribunal's judgment because it thought better to trust to the:

the commonsense, practical experience and sense of justice of the ET sitting as an industrial jury.

Gover and others v Propertycare Ltd [2006] EWCA Civ 286 per Buxton LJ

It seems that HMG does not want litigants enjoying the expensive luxury of being judged by that jury and on 6th April the right to trial by the industrial jury was removed in unfair dismissal cases. These will now be heard by a judge alone and that judge alone will have a discretion to order trial by jury having regard to these matters [sub-section 1 is jury; subsection 2 - judge alone]:

(a) whether there is a likelihood of a dispute arising on the facts which makes it desirable for the proceedings to be heard in accordance with subsection (1),

(b) whether there is a likelihood of an issue of law arising which would make it desirable for the proceedings to be heard in accordance with subsection (2),

(c) any views of any of the parties as to whether or not the proceedings ought to be heard in accordance with either of those subsections, and

(d) whether there are other proceedings which might be heard concurrently but which are not proceedings specified in subsection (3),
I urge all practitioners to make the views of their clients known under (c). The delicious result of procuring justice for your client by a majority decision of the lay members of the Tribunal over the battled hardened single vote of the Employment Judge is a reminder that the courts and tribunals of England and Wales are concerned with justice and not only with law.  Last night I watched the new episode of Silk - full of the usual procedural and professional inaccuracies and outrages but it did show a jury rejecting the legal directions of a judge and exercising their constitutional freedom to do as they please in the provision of justice.  The cause of action is unfair not unlawful dismissal - the industrial jury should judge what is fair or not; not a lawyer of 5 years or more standing who has not worked on the shop or office floor; who does not know what the jury knows....

As Browne-Wilkinson P held in the EAT in the landmark case of Iceland Foods v Jones

the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.

Keep applying for trial by industrial jury!   It is what your client deserves......

Lord Steyn said in R v Conner (albeit in the criminal context):

Lord Devlin observed "that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives": Trial by Jury, (1956), p 164. This was a reference to the candles that were lit in London in the windows of London houses following the acquittal of the seven Bishops in 1688: see Macaulay, The History of England from the Accession of James II, (1849) vol 2, at p 389.The jury is an integral and indispensable part of the criminal justice system. The system of trial by judge and jury is of constitutional significance. The jury is also, through its collective decision-making, an excellent fact finder. Not surprisingly, the public trust juries. 

New Bills.....New Courts....

Following HMQ's speech from the throne, the Crime and Courts Bill has been laid before Parliament:

As trailed here, it abolishes all the little local county courts and replaced them with one County Court:  clause 17 of the Bill does the business:



There is to be a court in England and Wales, called the county court, for the purpose of exercising the jurisdiction and powers conferred on it


As I said in my earlier post it is very sad for all those local courts with their little foibles and local practices....but what is more alarming is the the list of the Judges who will be able to sit in the new Court alongside the usual CJs, Recorders, DJs, DDJs....

• District Judge (Magistrates’ Courts),
• a person appointed under section 30(1)(a) or (b) of the Courts-Martial (Appeals) Act 1951 (assistants to the Judge Advocate General),  
• a judge of the First-tier Tribunal by virtue of appointment under paragraph 1(1) of Schedule 2 to the Tribunals, Courts and Enforcement Act 2007, 
• a member of a panel of chairmen of employment tribunals established for England and Wales

Quite what that set of unsuitable and untrained judges will be doing in The County Court is beyond me........

The Bill also abolishes the Family Division of the High Court, the family jurisdiction of the county courts and the Family Proceedings Court (Magistrates administering family justice) and amalgamates them all into one single Family Court.

We are also awaiting a Justice and Security Bill as most recently discussed here.

As well as a Defamation Bill to end the right to jury trial in this area -draft bill here

An Enterprise and Regulatory Reform Bill is also expected and will include this:

Workplace dispute resolution Overhaul of the employment tribunal system and transformation of the dispute resolution landscape.

Providing options outside the employment tribunal process by encouraging ‘early conciliation’ where all claimants would lodge details of their claim with Acas giving parties the opportunity to engage in conciliation and renaming compromise agreements as ‘Settlement’ Agreements to more accurately reflect their function and encourage greater use. Improving the tribunal system by increasing flexibility and encouraging employer compliance

We wait with baited breath....

 

Closed Material Procedures...squaring the circle

Looks like Mitting J is making my point for me- as set out in my post here- he wants to explore in a two day permission hearing whether he can impose CMPs on a judicial review challenging the lawfulness of information supplied by our intelligence agencies to their US counterparts -

according to the Telegraph:

Mr Justice Mitting has raised the prospect that a case being brought against the Foreign Office by the son of a drone strike victim could only be heard behind closed doors, because of the national security implications.
As I said in my earlier post - there are some cases which can only be heard using CMPs - and in their absence all that can be done is settlement or strike out - as the solicitor for the Claimant realises (as qouted by the Telegraph)

If the hearing decides that the case cannot be heard in public, it would be struck out but Mr Stein said he would appeal against any such ruling.

I also note that Tim Otty QC (who has acted as the open advocate for the claimant in many of these cases) has published an article on this subject in which he says many good and laudable things; but fails to come up with an answer to the conumdrum of how national security claims are to be fairly considered by a Court....he seems to be barking up the wrong tree - claiming that PII does not damage national security:

There is no evidence that the existing PII system jeopardises national security. Either the Court rules in the Government’s favour on a PII application, in which case, by definition, no material is released. Or, if it rules against it, and the view of the Government remains that national security would be jeopardised then it is open to the Government to take a range of steps: either to concede the relevant point so as to render the disclosure irrelevant, or to concede the claim so as to bring an end to the proceedings. Again, on both bases, no material would be released.

But that rather makes the point - without CMPs and with only PII, then HMG has open to it a very attractive set of options: concede the evidential point or settle -  Otty does not appear capable of seeing that such a situation is as much a denial of justice to one side (the State - the taxpayer) as it is for claims to be struck out in the manner proposed by Mitting J above.

The circle needs to be squared - and CMPs are, despite their ugly unattractive qualities, the square.