Are secret courts one step closer?

Abdel Hakim Belhadj Abdul Hakim Belhadj: Will the Libyan rendition claims be heard in secret sessions under new law?

The government's battle to introduce more secrecy to British courts returns to Parliament on Wednesday - but after a series of heavy defeats for ministers over the issue, are they, in fact, actually winning?

By the end of Wednesday, one of the most controversial pieces of legislation in recent years is expected to be halfway to becoming law.

The government's Justice and Security Bill has its Third Reading in the House of Lords, before it passes next door to be considered by MPs.

The Bill's main purpose is to create a mechanism that allows court doors to close and evidence to be heard in secret where the government says it needs to keep information from the public, on grounds of national security.


  • A court may go into secret session if:
  • a party to the proceedings would be required to disclose material in the course of the proceedings
  • such a disclosure would be damaging to the interests of national security
  • the harm to national security would outweigh the public interest in the fair and open administration of justice
  • a fair determination of the proceedings is not possible by any other means

This power already exists, but it can only be used in a limited number of circumstances, largely relating to when government lawyers are presenting to judges a secret MI5 assessment about a terrorism suspect.

The Justice and Security Bill expands the principle across all of the civil courts and it would allow the government to rely on a secret defence where it is the target of legal action - such as if it were being sued for alleged wrongdoing committed by MI5 or MI6.

Ministers and Whitehall security chiefs say the legislation is necessary to allow the government to be able to adequately defend itself in cases where it believes it cannot do so in open court. To do so would be to risk exposing information that the public expects it to keep secret in the name of national security. This may not necessarily be the particular facts of a case - but rather information that gives away how the secret intelligence and security services work.

In these cases, there would still be a public judgement - but there would also be a closed secret judgement which would contain the full reasoning why the government won or lost the case.

Start Quote

The danger of a closed material procedure is that this essential process is compromised, disastrously, precisely because one party, the very party who wishes to engage in this process of challenge to defeat the Government is expelled”

End Quote Lord Macdonald Former Director of Public Prosecutions

Critics, including much of the legal world, say that secret court sessions, known in the jargon as a "Closed Material Procedure" (CMP), may assist secret agencies to defend themselves - but they would no longer allow someone who alleges wrongdoing to get a fair hearing. That's because the individual wouldn't be present in the hearings to challenge what is being said. They would have a security-vetted lawyer representing them - you can read more about how the system works in this earlier blog.

So given the substantial opposition outside of Parliament, is the government getting its way?

Last week, peers made three changes to the bill ahead of Wednesday's Third Reading.

The key change was that peers voted to put the power to authorise closed hearings in the hands of a judge, taking it away from ministers.

They also said that judges would have a duty to balance claims of what is good for national security with claims of what is good for justice.

Finally, peers forced through an amendment that would allow either party to ask for CMP, not just ministers.

All of these made bad headlines for the government and talk of coalition rifts.

But core purpose of the bill - more use of secret evidence sessions - still stands. The amendments that passed introduce some procedural changes to how CMP would be triggered and used - but the attempts to wreck the bill completely failed.

Start Quote

It is deeply distressing to me and to my former colleagues to be accused of really wicked iniquities in the case of torture and maltreatment. We have not been able to defend ourselves. The closed material procedure gives the opportunity for this material... to be looked at.”

End Quote Baroness Manningham-Buller Former director general of MI5

Labour's position became clear in the Lords debate. It appears prepared to support the bill through to law, providing there are amendments which it says benefit justice.

But one of the harshest critics during the debate was Lord Macdonald, the former Director of Public Prosecutions. He told peers that if CMP were expanded, the damage would be to justice itself.

On the other hand, the former security minister Baroness Pauline Neville-Jones argued that justice is damaged by failing to provide the government with a means of getting a fair hearing.

Who's right? Well - this is the tricky part. There are said to be some 20-odd cases in which the government feels it cannot adequately defend itself at the moment because it cannot put its defence into open court.

David Anderson QC, the terror laws watchdog, has seen material relating to three cases and concluded that CMP could be tolerable as a last resort, if there was no other fair way of ruling on them.

But the Special Advocates, the security-vetted lawyers asked to act in secret cases where they already exist, don't know the full list because the Home Secretary won't tell them what it is. They say in the absence of this basic information, the government has not made a case for the Justice and Security Bill. The very people who will be charged with acting in these new cases remain unconvinced.

So that's the problem as the bill goes on. A compelling argument from government that it is trying to defend itself with one hand tied behind its back - and a compelling argument against meddling with open justice.

Will the bill get through? Some of its sternest critics believe the government will get its way in the New Year.

The first big test may come soon afterwards, with the looming legal action by former Libyan dissidents who say the UK helped to organise their kidnap and transfer to Colonel Gaddafi's regime.

Dominic Casciani, Home affairs correspondent Article written by Dominic Casciani Dominic Casciani Home affairs correspondent

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  • rate this

    Comment number 13.

    So much for democracy and protecting civil liberties.

    In this area, the coalition are even worse than Nu Labour.

  • rate this

    Comment number 12.

    This is England we do not have or want secret courts .....they're for lesser nations

  • rate this

    Comment number 11.

    It was interesting to watch and wonder while Kay's post @ 7 was 'awaiting moderation' - while both of mine went straight on the board. Having read her post I can see only two possible reasons for that, she mentioned two little words, the first beginning with the letter N, the second with the letter S, unless Kay herself knows of another reason!

  • rate this

    Comment number 10.

    Funnily enough, one big topic today is about housing, with many people pointing out that mass immigration is helping to wreck our countryside.

    And now we have this, another story about the damage done mainly by our open borders.

    How much does it take to convince the left that mass immigration is an utter disaster.

    When foreigners get into trouble here and cause us a problem, send them home.

  • rate this

    Comment number 9.

    There is no secret court...or am I to understand there is no transcript being taken, at least 2 lawyers are not present, the judge himself does not a finger in the pie.
    Secret hearings, are not ideal in a democracy. At the very minimum, the public must have available a complete list of those cases ruled subject to CMP so that if they feel they have a contribution to make, it can be vetted.

  • rate this

    Comment number 8.

    Re: 5. Paul.

    I think the low volume of comments on this topic is testimony to what the average person on the streets thinks about this.
    The 'average' person on the streets often doesn't think and rarely cares about anything which doesn't directly relate to themselves or their own. Further, and mainly due to excessive secrecy, they also have no idea what is being done in their name. Sheer bliss!

  • rate this

    Comment number 7.

    There is an understandable case for national security concerns in presenting evidence in open court hearing. However, the kinds of cases this would effect should be made explicity clear. I think secret hearing should still be something that has to be applied for as an exception and this application should have to be passed by, and the case heard by a number of justice QC's, to ensure integrity.

  • rate this

    Comment number 6.

    There is no such thing as 'justice' done under conditions of secrecy.
    Secrecy exists to protect both State & Crown and those who work or do favours for them. The aim is to protect not only those individuals involved but also those who send them out to commit criminal acts. All involved now claim to be working for us. I do not want them working for me, or to contribute to their pay & pensions etc.

  • rate this

    Comment number 5.

    If the people in question were the everyday you and me I would be concerned, but this isn't the case. I think the low volume of comments on this topic is testimony to what the average person on the streets thinks about this.

  • rate this

    Comment number 4.

    "it would allow the government to rely on a secret defence where it is the target of legal action - such as if it were being sued for alleged wrongdoing committed by MI5 or MI6."

    For the secret power of lawlessness is already at work; but the one who now holds it back will continue to do so till he is taken out of the way.
    2 Thessalonians 2:6-8

  • rate this

    Comment number 3.

    Removing the ability of the defendant to defend himself is most definitely not justice. While the ex head of MI5 may well be disappointed that her former colleagues are not permitted to defend themselves, that is the life they have chosen and absolutely no reason to prevent any man accused from offering a defence. That is why we have open justice.

  • rate this

    Comment number 2.

    Justice must be seen to be done.

  • rate this

    Comment number 1.

    They bloody well better not be - this attempt to fiddle the law is simply to stop Govt abuses being uncovered in public.... is quite frankly shameful & far more Sovietesque than talk of statutory rgeulation of the press.....


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