Commission's response to consultation: Justice and Security Green Paper

Issued by the Ministry of Justice October 2011

Introduction

Whilst the first duty of government is to safeguard its people a close second is the protection of their fundamental human rights. This includes not only their security but also their liberty and their right to a fair trial. . The UN has repeatedly reaffirmed the importance of protection of human rights, in particular when combating terrorism, as have the domestic Courts.

In this response, the Commission has analysed the proposals put forward both in respect of sensitive material in civil proceedings (chapters 1 and 2) and proposals for reform of oversight of the work of the Agencies (chapter 3).
From its analysis the Commission has identified a number of human rights issues in the proposals in the Green Paper, particularly in respect of the use of closed material. The Commission does not consider that the evidence base in the green paper supports the need to amend closed material proceedings. The scope of the proposals would involve a significant expansion of exceptional court proceedings into the civil justice system. Our analysis shows that closed material procedures can never be completely fair, are likely to violate the principles of Article 6, the right to a fair trial, and that the current system of Public Interest Immunity works well as a means of protecting sensitive information that also respects the common law principles of open justice and natural justice. In relation to inquests the evidence shows that there is no need for closed material procedures, and that coroners and judges have significant experience of managing these issues within the current regime.

As the green paper recognises, there is a need to reform the systems of oversight of the agencies. The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has developed good practices for oversight of intelligence work. Good practice 6 states “Intelligence services are overseen by a combination of internal, executive, parliamentary, judicial and specialized oversight institutions whose mandates and powers are based on publicly available law”. While in places the current regime meets or excels these guidelines, in significant areas the Commission considers that the current regime of oversight falls short. There is a need for further strengthening of the oversight functions of the Intelligence Services Committee, the respective Commissioners and the Courts.

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Last Updated: 23 Jan 2012