Publications

Response to green paper on justice and security

Government wishes to introduce sensitive material# obtained by its security and intelligence services# in civil cases through Closed Material Proceedings (CMPs). A CMP would be triggered in cases where the public disclosure of such sensitive material would be ‘likely to result in harm to the public interest’. If implemented# these proposals would fail to satisfy the UK’s human rights obligations under Article 6 ECHR and Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) (the right to a fair trial).
The Commission’s response states:

• Public interest immunity is sufficient for protecting the public interest in civil cases.
• The use of closed material procedures should not be broadened any further.
• The special advocate arrangements should be revised for existing closed material procedures only. The changes should ensure that the ‘suspect’ is aware of the evidence against him and be able to challenge it.

Government also proposes introducing CMPs in inquest proceedings. The Commission states that CMPs are not suitable for inquests and will fail to satisfy the Article 2 ECHR requirement for an effective investigation in which there is sufficient involvement of the next-of-kin and public scrutiny to ensure accountability.
The Commission advises that human rights compliance requires that decisions around disclosure of evidence should be left to judicial control not given to the executive# which is inherently an interested party if not the defendant in civil cases.
The Commission contends that Government has failed to put forward sufficient evidence as to why the current system of public interest immunity is not working sufficiently and how its proposals are compatible with its human rights obligations.
The Commission states that Government’s proposals in relation to reform of the oversight and scrutiny of intelligence and security services do not go far enough as to be truly rigorous and independent of Government. In any case# even radical reform of existing oversight and scrutiny arrangements could not be compensation for waning the right to challenge Government through the courts.
justice-and-security-green-paper-january-2012.pdf