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 33.

    This is all very scary!
    One set of rules for the powers that be, and one set of rules for everyone else.
    Why do we put up with this stuff?

  • rate this

    Comment number 32.

    Surely these Men are able to conduct the affairs of State successfully and without blushing, in Public.
    If the Courts are respectable then transparency would only build Public confidence.
    Darkened rooms and closed doors breed suspicion, justified or not.
    Come on ! Rule with honesty and integrity, if you are fit to do it.

  • rate this

    Comment number 31.

    #30 (WeAreBeingFarmed): Anyone who thinks the judiciary are removed from the people hasn't done jury service yet.

    I think the Government should think again. Justice must be seen to be done.

  • rate this

    Comment number 30.

    I don't think it matters who makes the decision to close the court doors.

    Both Ministers and the Judiciary are as far removed from the people they purport to represent and serve that there is not, and will never be, sufficient confidence in their integrity.

    In conclusion then - not a bad idea on the face of it, but I don't trust these people to act in OUR best interests.

  • rate this

    Comment number 29.

    Any evidence or allegation that cannot contested is worthless.

    There are people in this country who are locked up in secure prisons, under curfew or a control order on the basis of "Secret Charges" that they are not even told the nature of the charge or the allegation.

    It is impossible to defend yourself against something of which you are not even aware.

    Open courts are essential.

  • rate this

    Comment number 28.

    If the government were really about to "abolish the rule of law" by expressing reluctance to have secret information revealed in a public court, then they would have followed the route taken by many other states who have actually abolished the rule of law. There would have been no trial, the suspects would have simply "disappeared". But they haven't, so the trials go on.

  • rate this

    Comment number 27.

    Closed courts are sometimes necessary, and there's generally provision for them in advanced democracies.

    The welfare of children, for instance, might depend on confidentiality.

    However, very careful safeguards against abuse are needed. The simplest method is by using a panel, as many as six judges say, and have them do this on a rota basis.

    The circumstances need fine definition too.

  • rate this

    Comment number 26.

    I hope not otherwise we are heading for a police state!!

  • rate this

    Comment number 25.

    If this passes into law, I never ever want to hear a British policitian telling me about democracy, human rights, civil liberties, rule of law or due process. This is a means to cover up our double standards and hyporcisy - the exact thing which Abdel Hakim Bel Hadj's case will expose i.e. our complicity in torture and rendition in the name of 'national security'

  • rate this

    Comment number 24.

    The people of Britain are sleepwalking into becoming a fascist state. Stand up for your freedom now, before you lose any more.

    CCTV, Family Courts, Internet Censorship and so it goes on. YOUR freedom is in peril. They came for the Jews etc then they came for me.

  • rate this

    Comment number 23.

    @21 secretbanker
    There have been several viable terrorism cases reportedly dropped as details of the surveillance and infiltration measures used would have had to be revealed in open court, which would have been of great interest to friends sitting in the public gallery.

  • rate this

    Comment number 22.

    Who believes that this move to secrecy is excused by 'security cases' when it is only part of a whole package of current measures for a new and sinister state control? (And elsewhere globally).

    How long will it take for secret courts to be extended to everyone for anything?

    WWII history comes to mind.

  • rate this

    Comment number 21.

    Justice must be done, and be seen to be done. NO to closed courts.

  • rate this

    Comment number 20.

    How long will it be before people start disappearing?

  • rate this

    Comment number 19.

    If a court isn't public then it holds know accountability to the people.

    If I felt I could trust the government or the judiciary to act in the best interests of the country then I would have less of a problem with this. But both have shown that party point scoring, covering the backs of themselves and their allies and their own self interest comes first.

  • rate this

    Comment number 18.

    Anyone who has experienced the antics of grasping, out of touch inadequates who infect the legal industry would know how corrupt the existing system is.

    Show me a judge or QC who has ever done an honest days work, or for minimum wage

    Allowing further opportunities to wreck lives of potentially innocent people is abhorrent, or has the principle of Innocent Unless Proven Guilty been reversed ?

  • rate this

    Comment number 17.

    A simply unacceptable proposal, however it is dressed up.

  • rate this

    Comment number 16.

    Re: 13. Keith Burtons
    In this area, the coalition are even worse than Nu Labour.
    How is that possible - they don't come any worse!
    This government inherited most of it's problems, and like most governments, is slow at dealing with them - in a democratic manner.
    While paranoia and power skip hand-in-hand along the streets and in the palaces of London our nightmare is set to continue.

  • rate this

    Comment number 15.

    The thin edge of a very nasty and dangerous wedge.

  • rate this

    Comment number 14.

    Where national security is at risk then yes it's a good idea. However it should only be in exceptional circumstances. Lets not forget terrorists do not recognise democracy or civil rights until they got caught.


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