Secret justice is no justice at all

“Secret trials and non-disclosure of evidence are potential characteristics of repressive regimes and undemocratic societies.”

So said Lucy Scott-Moncrieff, president of the Law Society of England and Wales, and Michael Todd QC, chairman of the Bar Council, in a letter to Government ministers responsible for the Justice and Security Bill on Saturday.

The Bill is now in the Lords for its second reading, and today the Daily Mail has called on the Lords to “halt this draconian plan”.

We wholeheartedly support both statements.

There are two critical issues here. Firstly, the principle that if evidence is to be used against you, you have a right to see that evidence and to rebut it. To describe a process where evidence can be used against you and you have no opportunity to cross-examine it as justice is a falsehood.

For this reason, the Special Advocates who work in the existing Closed Material Procedure cases have strongly argued against the Bill – they are not allowed to discuss with those they represent the evidence that has been shown to the court.

The second issue is who decides whether evidence is withheld. On the current wording, the court ‘must’ move to a secret hearing if disclosing evidence “would be damaging to the interests of national security“. Of course, this was the argument used by the US government to prevent disclosure of evidence that may have suggested 9/11 could have been disrupted were it not for an intelligence operation being given a low priority. Hiding the incompetence and embarrassment – not to mention wrongdoing – of agencies could quite feasibly be argued a national security issue. As soon as that test is met, there is no option for the judge.

The Government has already conceded that these provisions should not apply to inquests, and that the Bill should not enable Ministers to extend the reach of CMPs further by secondary legislation.For such proposals to be included in legislation in the first place must lead to questions about the entire Bill’s suitability.

Britain has a long-established system for dealing with sensitive evidence, one that stood the test of the troubles, two gulf wars and countless other security-sensitive issues. Public Interest Immunity was not exhausted in the case the Government cites as the reason for this legislation – it attempted to introduce a legal argument that if accepted would have amounted to judge-made law on an issue of critical importance, hence the judiciary refused. Rather than return to the established legal process, the Government settled and the Justice and Security Bill is the attempt to make legal what the courts would not permit.

The letter goes on: “We believe that the plans for secret courts erode core principles of our civil justice system and will fatally undermine the courtroom as an independent and objective forum in which allegations of wrongdoing can be fairly tested and where the government and others can be transparently held to account.”


Below is the exact wording of the legislation as currently before the House of Lords:

6 Proceedings in which court permits closed material applications

(1) The Secretary of State may apply to the court seised of relevant civil
proceedings for a declaration that the proceedings are proceedings in which a
closed material application may be made to the court.

(2) The court must, on an application under subsection (1), make such a
declaration if the court considers that—

(a) a party to the proceedings (whether or not the Secretary of State) would
be required to disclose material in the course of the proceedings to
another person (whether or not another party to the proceedings), and

(b) such a disclosure would be damaging to the interests of national