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 Article written by Dominic Casciani Dominic Casciani Home affairs correspondent

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  • rate this

    Comment number 53.

    Read the key clause, only winners will still be The Executive, The Security Services, The Police &.....The National Interest.
    Just who determines what The National Interest is?
    Just who determines what's in our best interest, or that of our country?
    Same old, same old.
    We do not have democratic processes, except the right to vote.
    After which we have an uncontrolled elective dictatorship.

  • rate this

    Comment number 52.

    There is only one reason why government would want secret courts and that is to protect itself from democratic scrutiny. Secret courts are a corruption of justice and the urge to have them should be reason enough to stop them ever becoming reality.

  • rate this

    Comment number 51.

    I don't know about anyone else but I always feel that people who want to do anything regarding justice secretively have something dodgy to hide & that applies to both sides of a case!

  • rate this

    Comment number 50.

    Sorry, proceedings kept even from participants in the case never mind the public do not constitute justice.

    The only thing you might justifiably want to conceal is the identity of a member of the security services, and that's trivial - basic spycraft includes creation of fake identities! Everything else must be open to public scrutiny, nothing else is acceptable.

  • rate this

    Comment number 49.

    So how come we give Iran such a hard time for having a secret police?

    I mean, the ability to prosecute without evidence, to detain without charge, to try and convict without a public hearing, to use opinion over law...should we be inviting some of their guys over to train ours?

    That is ultimately what our "elected" government's asking for after all. Heck, let's just legalise torture too.

  • rate this

    Comment number 48.

    Which ministers are trying to "bring in a closed court"? Sounds very subversive... next thing they'll be knocking on your door - whoever "they" are.. paranoid - me? Should I be? ;-)

  • rate this

    Comment number 47.


    This just PROVES laziness of government & also an ULTERIOR MOTIVE, this REPRESSIVE bill can be extended to other situations.

    With all the EXPENSIVE lawyers/experts etc paid by TAXPAYERS, government should have by now created a system that protects inteligence services but provides COMMON JUSTICE, but, they DONT want it

  • rate this

    Comment number 46.

    Maybe I'm being a bit paranoid but is there any link with HYS posts that sometimes inexplicably disappear...?


  • rate this

    Comment number 45.

    MI5 and the UK establishment (for want of a better word), want to have their cake and eat it. They want to put certain people away but don't want their own dirty dealings exposed to the light of day. If this goes ahead then MI5 might as well change their name to the Stassi. If MI5 cannot gather evidence by methods compliant with our open justice system then they are not fit for purpose.

  • rate this

    Comment number 44.

    I can see moving to North Korea to enjoy some of the freedom available there being a real possibility if the UK keeps following its present track.

    So far we're abandoning human rights, encouringing passive surveilance against the entire population, engaging in indefinate uncharged detention and controlling what people eat & drink...anyone think that "security" is getting a little too expensive?

  • rate this

    Comment number 43.

    Of course sometimes we have to have"secret courts "when dealing with things like the Islamic threat and the work of our brilliant secret services,I do worry about the use of them with domestic issues though especially after the way the police and courts where turned into something resembling the militia in a banana republic during the miners strike.

  • rate this

    Comment number 42.

    This is fine as long as the Judiciary do not have an agenda : There have been past cases of corruption and subsequent `cover - up` within the judicial process and these powers would make it easier for uncomfortable cases to disappear.

  • rate this

    Comment number 41.

    One fundamental concept of British justice was that justice should not just be done, but it should be *seen* to be done. Without being able to monitor the process it is impossible to tell if the courts are being fair or not.

    How are you supposed to defend yourself when you are not allowed to even see the evidence against you? Honestly this scares me more than any "terrorist" can.

  • rate this

    Comment number 40.

    Lets NOT forget how close MANY Torys were to Nazism before WWII, & also how enough of them wanted to just surrender to Nazism & join Nazi ruling machinery in Britain, you hear LITTLE of this ATTROCIOUS TRUTH.

    Lets also NEVER forget how it USED TO BE IN BRITAIN, with landowners/elite controlling & deciding common peoples (surfs) fate, using & ABUSING them, UK JUSTICE is going BACK TO THE FUTURE

  • rate this

    Comment number 39.

    If closed courts mean terrorists geting the justice they deserve then im all for it,if such courts would curtail the powers of judges like that lunatic who refused to deport abu qatada because of his human rights then it can only be a good thing

  • rate this

    Comment number 38.

    Every time a politician uses the phrase 'it's not in the Public interest' or 'it's not in the National interest', what they mean is, there is something that will embarrass the government, department , minister or a well connected donor, that we want to hide.
    When they say 'it's a matter of National Security', then they're complicit in some serious wrong doing, right up to illegal under UK law.

  • rate this

    Comment number 37.

    Quote: "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."
    Do those who mislead us & who break their own laws, European Laws & International Laws & agreements deserve a fair hearing, or do they deserve removing from public office for their abuse & betrayal?

  • rate this

    Comment number 36.

    Over the last 30 odd years 2 things have become ever more prevalent.
    1- creeping dilution of peoples liberties and rights.
    2- ever more greater illumination of the fact that this is happening & at a exponentially accelerating rate.
    How much longer will it be before people will be arrested & charged with what government considers they might do before any crime is committed as per Minority Report?

  • rate this

    Comment number 35.

    20: Britain would make a very inefficient Fascist State. Mind you, it might be able to excel at the Fascism of indifference and neglect ( repeat after me - I'm alright Jack!)
    As for ordinary People disappearing, they already have from the minds of those in power. To them the ordinary folk are just statistics.

  • rate this

    Comment number 34.

    Re: ziggyboy @ 26.
    I hope not otherwise we are heading for a police state!!
    Oops! far too late.
    Bernard Hogan-Howe: "Some undercover police will "almost inevitably" have sexual relationships with members of groups they are infiltrating."
    Sex is & has long been a weapon for them.
    Think Colin Stagg as just one example. They use it to obtain information & for far more sinister purposes.


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