26th September - Updated with additional material
The political and legal philosopher Jeremy Bentham
(1748-1832) wrote - "In the darkness of secrecy, sinister interest and
evil in every shape have full swing ... Publicity is the very soul of
justice ... it keeps the judge himself, while trying, under trial."
This famous statement continues to be sorely tested in the U.K.
Parliament is now in recess but, when sittings resume, one of the thorniest issues will be the Justice and Security Bill The Bill is currently in the House of Lords and sittings there resume on 8th October.
For the government, the Bill is seen as protecting intelligence material provided to the UK by other countries and the government argue that the procedures in the Bill will enable cases to be tried which might otherwise have to be settled at considerable cost without a court making a decision on the evidence. Opponents to the Bill see it as an attack on the basic principle of open justice and they also argue that it is unfair on litigants who will be unable to see key parts of the government's evidence though it would be disclosed to a "special advocate." Critics point to the Bill as a means for the government to keep its dirty linen from public view. There are serious suspicions of involvement by agents of the government in matters such as extraordinary rendition.
It was in Al Rawi v The Security Service and others
 UKSC 34 that the Supreme Court held that the court did not have
power to order a "closed material procedure" for the whole or part of
the trial of a civil claim for damages. It was for Parliament to act if
it was thought necessary.
The Bill was preceded by a Green paper which was considered on this blog:
Justice and Security Green Paper: Part 1 - The government's case
Justice and Security Green Paper: Part 2 - Proposals and consultation
The Green Paper came in for serious criticism by the Joint Human Rights Committee - see their report. The Committee concluded that the Government had failed to make the case
for extending "closed material procedures" to all civil proceedings and
to inquests. The Government had not demonstrated by reference to
evidence that the fairness concern on which it relies to justify the
proposal is in fact a real and practical problem.
The Bill (as introduced to Parliament) was also considered on this blog:
Justice and Security Bill - Part 1 - Oversight
Justice and Security Bill - Part 2
Justice and Security Bill - Second reading in the Lords
Note the trenchant criticism from those lawyers who act as Special Advocates - Special Advocates Memorandum 14th June 2012.
Evidence of David Anderson QC 19th June 2012
House of Lords Constitution Committee report
The Guardian newspaper has published - Secret Courts - the essential guide
The latest official document is the Government's Impact Assessment (IA) which adopts a "base case" against which the legislative package is examined. The base case is one in which there are no changes to how sensitive cases and intelligence oversight is currently handled in the United Kingdom.
Broadly speaking, it seems that the Oversight of the Intelligence Community provisions will be welcomed as an improvement over present arrangements. The proposed Closed Material Procedures will continue to be a major concern and, in this context, the remarks of David Anderson QC (the Independent Reviewer of Terrorism Legislation) are relevant:
"I and many others said that the judge should have the last word. In fairness to the Government, under the procedure devised in the Bill the judge does have the last word. The only difficulty is that that word is dictated to the judge by the Secretary of State. First, the judge can make a decision only if the Secretary of State makes an application and has no other jurisdiction to consider it. Secondly, when the judge does come to consider it, it is not for him to weigh up the relative merits of [Public Interest Immunity or Closed Material Procedure], or to decide what the fairest way would be to decide the case. The judge’s hands are effectively tied. If there is disclosable material that impacts on national security—as there obviously will be in any case in which an application is made—the judge is required to agree. The word “must” features in Clause 6. The judge “must” order a closed material procedure. It seems that the government have given formal effect to the requirement that the judge should have the last word, but in substance the Secretary of State continues to pull the strings."
Whatever the merits or otherwise of the Bill, it is surely exceptionally unacceptable that, in civil proceedings before the courts of law, anyone other than the judge trying the case has effective control over how evidence is to be presented.
Inquests have been removed from the scope of the Bill and the usual exclusion of intercept evidence will not apply in closed material procedures. Those are marked improvements from the position first proposed. In an earlier blogpost, I wondered whether Clause 11 in the Bill could be used to bring Coroner's Courts / Inquests within scope and concluded - tentatively - that it might. Clause 11 proposes to hand the Secretary of State a power to amend the definition of "relevant civil proceedings." It would be interesting to hear of any argument to the contrary on this point. The House of Lords Constitution Committee report recommended that this point be clarified - see their report at paras. 32 and 33.
Some very good blogposts about the Bill may be read at OF INTEREST TO LAWYERS. The author has written several posts about the Bill and he, broadly-speaking, is supportive of the Bill. His blogposts are helpfully all linked to his latest post - Lib Dems vote to oppose JSB
Of Interest to Lawyers also points out that David Anderson QC is himself arguing that the Bill is needed. Anderson has said:
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
The UK Human Rights blog has published a post by Angela Patrick (Director of Human Rights Police at JUSTICE) - Time to untangle the debate over secret courts. The post sets out a number of reasons why the proposed Closed Material Procedures are seriously flawed and Patrick notes that:
the Bill will require a judicial decision on the basis of
information provided by one side in secret, which has not been
challenged effectively. The introduction of this mechanism into the
ordinary civil justice system represents a step-change in our approach
to adversarial justice and could fundamentally undermine the credibility
of both the system and individual judges required to give judgment in