Diplomatic correspondence and National Security Council papers are examples of other categories of material that may also be sensitive.
The justification for such a broad definition is not given, nor is any evidence base given to suggestwhy this is necessary. We are concerned that such a definition may creep into other areas of lawnamely the Official Secrets Act. The broadness of this approach could lead to a significantreduction in the publication of records in the public interest, with a subsequent chilling effect onopen discussion. That the Green
Paper frames the disclosure of such material around ‘risk’ andnot the public’s right to know
underlines this concern:
CMPs reduce the risk of damaging disclosure of sensitive material.
In contrast to withholding information, the current PII (Public-interest immunity) processincentivises the government to disclose more rather than less in order to defend against the claimin Court. Lord Kerr notes in Al Rawi v Security Service :
At the moment with PII, the state faces what might be described as a healthy dilemma. It will wantto produce as much material as it can in order to defend the claim and therefore will not be too quickto have resort to PII. Under the closed material procedure, all the material goes before the judge anda claim that all of it involves national security or some other vital public interest will be verytempting to make.
Special Advocates believe they will not be in a position to challenge t
he government’s argument
on CMPs. The current arrangement
, the “Wiley balance”, is a
proper balance between the publicinterest in withholding evidence, and the proper administration of justice. The broadness of the
term ‘sensitive materials’
and the inadequate
replacement of the “Wiley balance”
will lead to adiminishment in the open administration of justice.
would like to emphasise to the committee the importance of the media in holding power toaccount through an open court system, demonstrating to the public that the open administrationof justice is upheld. As Lord Neuberger
pointed out in his lecture last year “Open JusticeUnbound”,
as fewer members of the public sit through court cases the importance of the mediareporting such cases has increased.There is no doubt that pressure from the British media (and organisations like
Index on Censorship
who sought publication) helped ensure that the deleted paragraph from the final judgement in theBinyan Mohamed case on Security Service participation in torture was made public.The judgment of the Court of Appeal in
R (Binyam Mohamed) v. Secretary of State for Foreign andCommonwealth Affairs
contains extremely powerful statements which recognise the fundamentalimportance of the media in an open judicial system. Lord Judge CJ in the judgements of the Courtof Appeal in
Binyam Mohamed v. Secretary of State for Foreign and Commonwealth Affairs
recognisesthe significant importance of the role of the media, and the strong interrelationship between open justice and freedom of expression:
In reality very few citizens can scrutinise the judicial process: that scrutiny is performed by themedia, whether newspapers or television, acting on behalf of the body of citizens. Without thecommitment of an independent media the operation of the principle of open justice would beirremediably diminished