Explaining the UK’s ‘secret justice’ bill

Kenneth Clarke and the Lord Chief Justice. Photo Ministry of Justice UK

By Nigel Inkster, Director of Transnational Threats and Political Risk

The United Kingdom justice and security bill published yesterday has been widely criticised by lawyers and civil-rights campaigners for allowing courts to hear evidence in closed sessions in cases of national security. They argue that this erodes a long-established right to open justice. Even UK Justice Secretary Kenneth Clarke (above, left) has acknowledged that the bill is ‘less than perfect‘. However, since a Green Paper was introduced last year for discussion, the bill has undergone substantial modifications to try to assuage some of its critics.

The final bill only applies to civil cases involving national security, instead of all cases dealing with sensitive information. Judges, rather than ministers, will determine whether the national-security argument is valid, and whether the use of ‘Closed Material Proceedings’ (CMP) offers the best option for balancing national security and justice. Coroners’ inquests dealing with classified material will never be held in camera.

Under the new bill, the government will be able to use the CMP mechanism to defend civil actions where its defence relies on the use of classified material. The plaintiff’s counsel will not be able to attend the closed hearing in which the judge takes the classified evidence. This means plaintiffs never get to see the material on which the government’s defence is based. Instead, plaintiffs’ interests will be represented by ‘special advocates’ with high security clearance. This already happens with cases heard by the Special Immigration Appeals Commission (SIAC) involving intelligence material.

The reasons for this proposal date back to 2010 when the British government made a ‘without-prejudice’ out-of-court settlement to Binyam Mohamed and 15 other former Guantanamo inmates who sued the UK security and intelligence services for alleged collusion in rendition and torture by foreign intelligence services. The decision to settle was not because MI5 and MI6 were reluctant to defend the cases; indeed, their inability to do so caused much anger and frustration within the ranks. However, without an appropriate mechanism for safely handling classified material in the civil courts, ministers were obliged to prevent the risk to national security that the use of such material in open court might have precipitated.

Earlier in the Mohamed case, classified US material was put into the public domain against the wishes of the American and British governments. Afterwards, Washington threatened to review the basis for US–UK intelligence cooperation unless it was given assurances that no further such breaches of trust would occur.

Mohamed, who was detained by the US as a terrorist suspect after 9/11 and subjected to ill-treatment, sought to use classified US documents in his lawsuit against the British government. With no prospect of obtaining this material from the US authorities, Mohamed’s lawyers filed a ‘Norwich Pharmacal’ order. This is a legal device whereby an innocent third party with information relating to unlawful conduct can be compelled by a court to make that information available to the person suffering damage from such conduct. The device has been widely, and almost exclusively, used in intellectual-property cases. Mohamed’s case, in which the court ruled the British government must make the evidence public, was the first use of a Norwich Pharmacal application in a security and intelligence context.

Section 13 of the new bill seeks to limit Norwich Pharmacal proceedings, by prohibiting courts from forcing the disclosure of ‘sensitive information’ (which it defines widely). The government and intelligence community wish to be able to offer intelligence partners – which in today’s world could mean almost any intelligence service – solid assurances that shared material will be protected, and not in future shared. In a world in which closer intelligence cooperation is needed to address a wide range of security challenges, such a diminution of trust could prove detrimental to UK national-security interests.

It is possible to argue, as some civil-liberties advocates have, that the new measures are an overreaction to a small group of cases borne of exceptional circumstances and unlikely to recur. But in a world where intelligence is pertinent to far more issues than during the Cold War, it is highly probable that one or more individuals will in future seek redress through the British justice system for perceived damage from the actions of the intelligence community. It remains to be seen whether the proposed measures will be adequate to address such concerns.

Finally, the bill proposes a revision of parliamentary oversight mechanisms for MI5 and MI6. Under it, the Intelligence and Security Committee (ISC), established in 1994 to oversee the administration and finances of the intelligence and security service, will report to parliament rather than just the prime minister. The committee’s remit will also be expanded to include oversight of operational matters other than current operations – a formal recognition of the broadening ISC role.

Although the British media often assumes that the intelligence and security services are resistant to democratic oversight, the intelligence community itself initiated such oversight; it was not imposed by government. The only concern the intelligence and security community will have is whether sensitive information can remain as well protected under the new arrangements as it has been; the ISC has an exemplary record for not leaking secrets.


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