Secret Courts: What You Need to Know

Secret Courts: What You Need to Know

On Thursday, the Justice and Security Bill will have its third and final reading in the House of Commons, having passed the House of Lords in November 2012. The Bill has effectively two purposes: the first is to alter how the security services such as MI5, MI6 and GCHQ are supervised; the second is to regulate how sensitive evidence may be disclosed in civil trials. The Bill has caused much controversy, with various observers claiming that it restricts freedoms and undermines the legal system, while others argue that it is a necessary reform that promotes justice.

The commentators

The Bill has provoked much debate on both sides of the argument. Liberty have condemned the Bill as ‘rotten to the core’ and that it ‘fatally undermines the rule of law’. Their argument is rooted in the potential abuses of power that could result from restricting access to government information. Writing in The Guardian, Henry Porter has similarly condemned the new law as complex and inappropriate for the UK’s legal system, remarking that ‘justice is never served by secret courts, neither in Beijing, nor here’.

Those in favour of the legislation have focused on the reforms contained within the Bill. Writing for Conservative Home, Liam Fox MP claimed that the Bill makes greater scrutiny of the security services possible by providing the courts with new ‘practical tools’ for their work. In a letter to The Times, former Lord Chief Justice Lord Woolf remarked that the reforms:

will ensure that both the Government and the claimant are given the greatest opportunity to put their case, and that concerned citizens will have the benefit of a final judgment on whether serious allegations have foundation.

The law

The Bill is neatly divided into three sections, but only Parts 1 and 2 have any real meat. Part 1 reforms the supervision of the intelligence and security services by the Intelligence and Security Committee, which is to be formed of members of both Houses of Parliament. This committee have oversight over all intelligence and security matters in the Government. Crucially, the reforms extend the power of the committee to keep tabs on the activities of government, especially as a wider number of governmental departments and agencies take on intelligence powers and functions.

Liberty have condemned the Bill as ‘rotten to the core’ and that it ‘fatally undermines the rule of law’.

Part 2 of the Bill enables the courts to use a ‘closed material procedure’, which is a long-winded way of saying ‘secret evidence’.  At present the Government is unable to fully defend civil claims where there is evidence involving national security. This follows a Supreme Court decision in Al Rawi and others v Security Service and others [2011] UKSC 34 where it was held that procedures for secret evidence used by lower courts were unlawful. Following that case, evidence was to either be fully disclosed, or not at all. Part 2 of the Bill reverses this position. It sets out procedures for using secret or closed material, how those procedures should be reviewed, as well as making provisions for special advocates.

The ‘closed material’ procedure is outlined in sections 6–8. In order to hear ‘closed material’, the court applies two tests. First, that the material is suitable to be heard in secret. Second, that it would be in the interest of ‘fair and effective’ justice that the material could be heard. Having made the declaration, the court must keep the declaration under review. To assist in these procedures, special advocates are appointed under section 9 of the Bill. While these advocates represent those not entitled to access secret information, they are not responsible to these people as lawyers. They are appointed by the Attorney General for England and Wales and must be a qualified lawyer.

Section 15 reforms the Norwich Pharmacal jurisdiction, which affects access to information about third parties’ wrongdoing. This procedure has increasingly been used to obtain sensitive information from the Government, often material that has been shared by foreign governments. The Bill tightens the way in which the procedure can be used, by preventing ‘sensitive information’ (principally from the security services) from being disclosed to third parties. In all other respects, it leaves the Norwich Pharmacal jurisdiction unchanged.

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