The Justice and Security Bill was introduced in the House of Lords this week. Should it become law then it will have a devastating effect on the extent to which the public can find out about matters of major importance. These include the activities of those suspected of threatening security and of the authorities who attempt to counter such threats.
Do not be misled by the Daily Mail’s claim that the Bill is a “climbdown” and a victory for their campaign against secret justice. To be sure, the Mail was a key player in the government’s decision to remove inquests from the proposals, but this Bill is not victory. The Justice Secretary Ken Clarke maintains it will not result in the “public finding out less about the truth in important cases”, but that seems unlikely.
Under the bill if information emerged in civil cases that could affect national security, then the government could ask the court to use closed material proceedings (CMPs). The opposing parties and their lawyers would then be excluded from crucial parts of the case; only the judge and government parties would remain, with a special advocate representing the interests of the claimant.
The media will have no access. There is no requirement that the public be notified a CMP will be sought, even though in criminal cases seven days’ notice is required for an application to close a court on national security grounds. The media would be totally excluded from hearings which consider whether CMPs should be used, without even a special advocate representing the public interest in open justice.
It is virtually certain CMPs will become the norm in this area because the proposed rule is that if the judge thinks that a disclosure of information would be damaging to national security, then she or he must order a CMP. The judiciary defer strongly to executive judgments about what will damage national security (and the government tends to set a low threshold for damage) and, once reaching the conclusion national security would be damaged, a judge will have no discretion on the order that follows.
In theory, the legislation would not permit the government to use CMPs to cover up embarrassment. In practice, however, the outcome is likely to be different. A key rationale behind the laws is that the government must protect relationships with other countries, and especially the United States. If embarrassment to the UK government can be claimed to affect those international relationships then, in a kind of legal alchemy, non-damaging embarrassment can be transformed into damage. The result will be secrecy.
We can expect these procedures to apply in many important cases. The Justice Secretary has indicated that it is intended to apply only to a narrow group of cases, such as actions for damages by former Guantanamo Bay detainees claiming British complicity in detention or torture. The Green Paper that preceded the Bill said 27 cases were in issue, though the government refused to say what they were.
In the Law, Terrorism and the Right to Know research programme at the University of Reading, we have tried to identify the cases likely to be affected. Our list is now at around 20 cases where claimants have been subjected to detention, torture, extraordinary rendition and the like. They stretch across the world, alleging British complicity in wrongdoings from Guantanamo Bay to Pakistan, Afghanistan, Kenya, Uganda, Libya, Egypt and Bangladesh, among others.
But the reach of the Justice and Security Bill is wider than even these cases. It will also include matters that occur solely within the UK. While inquests are no longer to be subject to CMPs, any civil actions which follow inquests could fall within its provisions if intelligence sources or methods could be disclosed. That could well include cases relating to deaths as a result of shootings by police.
If police make arrests in a counter-terrorism operation and are subsequently sued for assault or false imprisonment then CMPs would very likely be sought because the action may well involve disclosure of methods used by the security services.
There will inevitably be other categories of cases in which the laws will be applied. National security is a broad church.
One of the most disturbing provisions in the Bill is the absence of any weighing of competing public interests in the decision to order the use of CMPs. The Bill removes all consideration of competing interests in open justice. No matter how strong the public interest may be in the substantive issues or in process of justice being done in the public eye, a judge cannot take account of that.
Moreover, there will be no recording of how often CMPs are used. There will be no method or point of review to determine when closed judgments can be made open. This Bill proposes that these matters are closed forever.
There is every reason to see this Bill as laying the foundations for a secret state where the executive is able to use national security as a blanket to hide proceedings from the public eye, regardless of how great the public interest in open justice might be.
This Bill will make our governments less accountable. It will make secrecy the norm. Our parliament should oppose it fiercely.