Thursday, 31 January 2013

Catching up with the Justice and Security Bill

The Justice and Security Bill completed its progress through the House of Lords in November 2012 and is now being considered by a House of Commons 19 strong Public Bill committee - (see Parliament for the make-up of the committee etc).  The Bill purports to enhance Parliamentary scrutiny of the security services and, very controversially, to introduce 'closed material procedure' (CMP) into civil cases.  This procedure will build into civil litigation closed hearings with minimal publicity and even greater use of Special Advocates.  As previously pointed out on this blog, the use of Special Advocates has seen a considerable increase over the last 10 years and, in many areas of legal process, it can no longer be said that there is truly open justice.  Rather, secrecy reigns.

In the House of Lords, an amendment to the Bill was passed which would require judges, when faced with an application for CMP, to balance the interests in national security with the public interest in the fair and open administration of justice.  As reported by Lawrence McNamara (Reader in Law and Research Fellow at the University of Reading) writing on the UK Human Rights blog, this amendment is now under attack by the government which seeks to effectively reverse the Lords amendment.  The government wish the Bill to state that closed material proceedings may be used if disclosure of information would be damaging to the interests of national security and  “it is in the interests of the fair and effective administration of justice” to use closed material proceedings.  McNamara argues that this will prevent any consideration of the public interest in open justice.  He says: 'As the history of the bill’s progress shows, the government has explicitly set about removing that requirement. There is no need or requirement for balancing competing public interests. It does not matter, it seems, how small the damage to national security would be.'

The history of the Bill might resurface if and when the Bill becomes law and any questions of interpretation arise.  For example, could it be argued that at least some consideration of open justice requirements is implicit even in the government's amendment?  The history of the Bill would probably suggest not.  Herein lies the problem of Pepper v Hart- seen at the time as a flawed decision (Law Society Gazette) and see the excellent article by barrister David Manknell published on the One Crown Office Row website.  I mention this (tentatively), in passing, as food for thought.

In addition to the criticism of CMP, the Bill is open to criticism with regard to the Prime Minister's powers to nominate individuals for membership of the Intelligence and Security Committee (Clause 1).  No individual will be able to become a member unless so nominated though, after nomination, it is a matter for each House of Parliament to appoint its share of members.  The right to nominate appears to make the composition of the committee less independent of the executive.  The Chair of the Committee will be chosen by the committee members.

The Bill has attracted a vast array of comment.  For example: Amnesty UKThe Guardian 15th October 2012, Amnesty International 15th October 2012 - report 'Left in the Dark: the use of secret evidence in the United Kingdom", Liberty 'For their eyes only.' and, very significantly, Special Advocates who have consistently opposed the Bill and argued strongly that the case for it is not made out.  There is also the Centre for Policy Studies Report 'Neither Just nor Secure' by Anthony Peto QC and Andrew Tyrie MP.

See also Open Justice, Security and Secrecy - University of Reading - where there is a webpage of resources about this Bill.


  1. I'm not a lawyer but I do sincerely hope the changes wonn't result in driving more people to non profit pro bono lawyer associations like : They are making a difference but there are way too many people who needs help but can't afford it. Make legal processes streamlined, fast, efficient and reduce the sometimes outrages legal expenses.

    1. I am unable to comment re because I know nothing about it. (It is based in New York City and San Fransisco). English lawyers sometimes undertake pro bono work and it may increase to some extent given the reductions in legal aid put in place by the present government. Time will tell. Of course, lawyers have to earn a living and they can have considerable expenses such as rent to chambers etc. Thus, pro bono work will always be exceptional and lawyers will turn to more profitable (non legally aided) work.

      The Justice and Security Bill is of course about civil cases in which the government sees national security implications.