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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This week's counter-terrorism bill will expand minister's powers - and face accusations of injustice.

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  • rate this

    Comment number 73.

    Chipping away at well established civil rights continues I see.

    Our law is celebrated throughout the world. Almost a thousand years of history have shaped and honed it into something other countries try to emulate.

    So why are we going backwards now?

    Are we aspiring to be just like a 3rd world country with kangaroo courts being the norm?

  • rate this

    Comment number 72.

    I believe in CMP, but only under extreme need. I worry that it may become too common-place. Justification should be documented & that justification (in brief) should be available to the public - without revealing crucial details.
    Of course, the more public court hearings the better.
    In all cases, the defendent has the most to loose and therefore must be best protected.

  • rate this

    Comment number 71.

    In camera?? How secret is secret? If its off the street and tried and punished without anyone knowing that is TOO secret. If keeping some evidence off public record but available for the defendent to refute it is less secret but not publically available. Relativity. If the accused does not know the charge nor the evidence it is too secret. Witnesses and evidence gathering --similar considerations

  • rate this

    Comment number 70.

    59. Joseph_F
    People arrested for tweets (thought crimes, see 1984)

    A tweet is more than just a thought...

  • rate this

    Comment number 69.

    Secret courts already exist in this country - they operate under the misnomer "family courts". I suggest for those unaware of their mode of conduct the review some of Christopher Bookers articles on this subject.

  • rate this

    Comment number 68.

    There has been too much secrecy within our gvt which is how they have been able to get away with 'theft' from the country's purse for so long. . . . . . .As with everything, nothing is perfect, but they shouldn't 'upset the apple cart' with the judicial system or it could end up 'rotting', and costing the poor ole tax payer even more

  • rate this

    Comment number 67.

    why does this goverment insist on wasting time and money in attempting to replace 'in place' systems?

  • rate this

    Comment number 66.

    It is UK governments 1st responsibility to maintain national security & protect our people/nation, from enemys & to check immigrants coming into UK, the main line of defense against enemys slipping into UK.

    Even now, they do not count immigration in/out so in effect as consequence UK government are ALLOWING & designing terrorist threats to enable introduction of perverse regressive laws

  • rate this

    Comment number 65.

    Why is it that the govt feel that they can not get a fair trial in open court? If they feel this then surely their evidence or methods of gathering this evidence is dodgy.
    I would not support the idea of closed courts for me they represent ideas of democracy from the 16 and 17th century.
    If the govt feel they need these powers then maybe we should reconsider whether we are really a democracy.

  • rate this

    Comment number 64.

    Every time government comes up with some intrusive piece of legislation such as routine web-monitoring their apologists come out with the old 'Nothing to hide - nothing to fear..' mantra.

    Okay - this cuts both ways.

    What is the government trying to hide with these proposals for secret courts? What have they got to fear?

    Come on lads - sauce for the goose and all that.

  • rate this

    Comment number 63.


    In October 1973, being questioned at a meeting of the Harvard Law School Forum, Sir Norman did not deny that torture had taken place, claiming that: "when dealing with "Irish terrorists" any methods were justified."

    We have enough problems with Open Courts and Gag orders,
    Spycatcher and Peter Wright taught us nothing obviously!!

  • rate this

    Comment number 62.

    Would closed courts return us to these dark days..
    Norman Skelhorn -wiki

    Skelhorn became entangled in the row that erupted around the use of torture in Northern Ireland. Prime Minister Edward Heath had banned sensory deprivation in light of the report by Sir Edmund Compton into
    internment and interrogation techniques used by the British Army and the Royal Ulster Constabulary.

  • rate this

    Comment number 61.

    Let us NOT forget where the Labour Party was before the ware and even after it. How many people were killed in the name of communism? Think it was nearly a tie between Adolf and Uncle Jo Stalin.
    They also sang the Red Flag right up until the 80s in Conferences.
    Get off your soapbox and go and read some history.

  • rate this

    Comment number 60.

    Joseph F. .You are kidding me??
    Politicians pick Judges, a defendant can be lied to by police before he is charged to trap him.
    Entrapment is legal in the US. Your phone can be tapped with no warrant, need I go on?
    NOT ONE of you institutions would sand up to what we in Europe consider to be decent and just.
    So glad I am not a US citizen, would rather live here with checks and balances than yours.

  • rate this

    Comment number 59.

    So....Cameras watching your every move, people arrested for tweets (thought crimes, see 1984), now secret courts. Good show UK. Way to make me feel better about our incompetent leadership in the United States of America, we've still a long way to fall before reaching your level. Cheers > : )

  • rate this

    Comment number 58.

    The methods we employ to do business would be embarrasing to politicians and security services.
    This means they will get their secret courts, in some form, to enable the control of procedure that they dream of.
    Policies and operations undertaken for foreign national and private interests have been on the rise for decades and we at home would not be best pleased, if all was revealed to us.

  • rate this

    Comment number 57.

    "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........" Baroness Manningham-Buller Former D.G. of MI5.
    It was deeply distressing for me to return from serving my country to find that nothing was like it was claimed to be - but unlike her & others, I did something about it. Play on shall we Baroness?

  • rate this

    Comment number 56.

    There is nothing about this, or many other questionable policies of the UK government, that make them different from what happens in Middle Eastern regimes.

    Nothing. Spin it and introduce new words and catchphrases and sound bites. Makes no difference.

    If the government ( and I include labour) continue. . then physical action will need to be taken. Take that any way you like.

  • rate this

    Comment number 55.

    Pot calling kettle, pot calling kettle - come in, over.
    Just what exactly is a terrorist, another mans freedom fighter?
    Let's play Goodies vs Baddies?
    But who decides if the goodies are really goodies!
    Might they not be covert baddies, just pretending to be goodies?
    Play in their ballpark, on their pitch, with their referee, and by their rules - and they win hands down every time.

  • rate this

    Comment number 54.

    There have been cases recently where terrorists have not been tried because doing so would have meant divulging MI5 secrets that would have allowed other terrorists to avoid capture.

    So I am in favour of allowing closed courts in such cases, PROVIDING a well known independent observer is allowed to attend and he/she declares afterwards if the secrecy was justified. If not, the defendant goes free


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