Some Northern Ireland MPs have united in opposition to suggested proposals to extend the UK Government’s powers to monitor people’s phone, email and internet records. Some don’t appear to have an opinion… Although there does seem to be some dispute about the actual proposals themselves.
Meanwhile, as the BBC report, the UK Government has actually consulted on other proposals to replace the public interest immunity [PII] system with an extended closed material procedures [CMP] in all civil cases, including inquests, involving evidence whose disclosure might harm the public interest. The Guardian’s Joshua Rozenberg covers criticism of the proposals here.
That system [PII] was developed by the courts to deal with the problem of evidence that may be too sensitive for one side in litigation to disclose in the normal way to the other. A judge looks at the material and conducts a balancing exercise, weighing up the public interest in non-disclosure against the public interest in open justice. If the former outweighs the latter, neither side can rely on the excluded evidence and the judge makes no use of it.
By contrast, there is no balancing exercise in a CMP. One party – effectively, the government – decides that evidence is too sensitive to be disclosed to the other side. If the court agrees that disclosure would harm the public interest, the judge can rely on the “closed” evidence while the non-government party can not. That party’s interests are represented by a “special advocate”, a lawyer who is not allowed to tell him what the evidence says.
In some circumstances, the special advocate may be able to give the party whose interests he represents a gist of the evidence, allowing that party to give effective instructions to the special advocate (such as “I was abroad that week”). Under the government’s proposals, even that safeguard would not apply in certain categories of case. The JCHR rightly recommends judges should always conduct a balancing exercise, even with CMPs, and that the government should always have to disclose sufficient evidence in CMPs to allow effective instructions to be given to the special advocate.
As the consultation website notes
- proposes introducing legislation to make closed material procedures (CMPs) more widely available in civil proceedings for use in rare instances in which sensitive material is relevant to the case
- seeks the views of the public on the applicability of CMPs to inquests, with separate consideration of the framework under which inquests operate in Northern Ireland and Scotland
Among the respondents to the consultation [all pdf files] are the lobby groups British Irish Rights Watch and the Committee on the Administration of Justice, the NI Human Rights Commission, and the Police Service of Northern Ireland.
In general, I think that the strengthening of procedures in certain areas would be welcomed. The key area of interest for me, however, in relation to the Paper lies in how the proposals will impact on inquest proceedings in Northern Ireland.
My view is that the proposals, as outlined in the Paper, raise significant Article 2 concerns. As you will be aware, the case of Jordan-v-UK set out a number of requirements which must be met iii order for an inquest to be deemed to be Article 2 compliant, in particular effective public scrutiny and the involvement of the family in relation to access to information. The proposals, as they stand, potentially create a barrier to meeting those requirements and may attract criticism.
I would share the concern raised in the paper that any vetting of members of the deceased’s family, in order to overcome the problem of them seeing closed material, has the potential to be seen as intrusive and insensitive. Equally, vetting of the jury also raises issues which would require particular consideration.
Additionally, I believe that the issue of “gisting” raises particular issues in coroners’ cases. Where a jury was involved in a case, it may be difficult for the coroner to “gist” effectively in order to ensure the jury had sufficient information to deliver a verdict. In a case without a jury, it may be difficult to deliver a reasoned judgment in case involving closed material.
I have spoken to the Attorney-General for Northern Ireland in relation to these Article 2 issues and he shares my concerns.
While this area will obviously require careful handling in Northern Ireland, any difficulties faced in the implementation of the proposals in one part of the UK would be likely to have implications for the other jurisdictions.
On a wider note, while implementation of the proposals in relation to civil proceedings more generally has yet to be worked through, it seems reasonable to assume that they will impact on both court and judicial resources. I would seek a commitment that the UK Government will provide the additional funding needed to cover any associated costs.
Given their impact on transferred matters, careful liaison will be required in the further development and implementation of these proposals and I would ask that your officials keep mine apprised of all developments.
Watch this space, then…