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The Justice and Security Act 2013 (c. 18) is an Act of the
Parliament of the United Kingdom The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body of the United Kingdom, and may also legislate for the Crown Dependencies and the British Overseas Territories. It meets at the Palace ...
, firstly to provide for oversight of the Security Service (MI5), the
Secret Intelligence Service The Secret Intelligence Service (SIS), commonly known as MI6 (MI numbers, Military Intelligence, Section 6), is the foreign intelligence service of the United Kingdom, tasked mainly with the covert overseas collection and analysis of Human i ...
(MI6), the Government Communications Headquarters (GCHQ), and other parts of the UK intelligence community, on intelligence or security matters; secondly to provide for the establishment of closed material procedures (CMP) in relation to certain civil proceedings; and thirdly to prevent the making of court orders for the disclosure of what the government deems to be sensitive information. The Bill was published as a Justice and Security Green Paper on 3 October 2011. It was presented to Parliament on 28 November 2012. It completed its
House of Lords The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
Committee stage on 7 February 2013. It had its second reading debate on 18 December 2012, and its third reading and report stage on 7 March 2013.


Justice and Security green paper

On 3 October 2011, Kenneth Clarke the then Justice Secretary at the Ministry of Justice representing the Government, published a Justice and Security green paper proposing to make secret procedures available in all types of civil proceedings. The green paper proposed that, even when the Government is itself involved in proceedings, it should have the power to decide for itself whether to invoke the secret procedure, with only a very limited review by the court. Most secret procedures to date had been confined to a few specialist types of cases, usually immigration, cases involving issues of
national security National security, or national defence (national defense in American English), is the security and Defence (military), defence of a sovereign state, including its Citizenship, citizens, economy, and institutions, which is regarded as a duty of ...
, and control order proceedings involving terror suspects. With the proposals in the green paper, this power would be used only in cases involving national security, but also in any other case where the Government decides that the disclosure of sensitive material would be likely to result in 'harm to the public interest'. The controversial Green Paper became the Justice and Security Bill 2012–13, and was sponsored through Parliament by Kenneth Clarke (in the
House of Commons The House of Commons is the name for the elected lower house of the Bicameralism, bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of ...
) and by Lord Wallace of Tankerness (in the
House of Lords The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
) before becoming the Justice and Security Act 2013 on 25 April 2013.


Closed material procedures

If you are before a court, whether in criminal or civil proceedings, you can see and challenge the other side's evidence. In a civil case the judge will give detailed reasons for their decisions, and the whole process will be subject to scrutiny by the public and press. Closed materials are never shown to the other party, or his lawyers, who are excluded from parts, if not all of the hearing. The government considered that there are some cases where the court can decide the case, without giving the other party any details of the case against him . Those that pushed for this radical change to the British justice system were concerned about the dangers arising from the disclosure of sensitive material, and also the dangers of non-disclosure of materials involving government accountability.


Public interest immunity

The British justice system has a set of rules called
public-interest immunity Public interest immunity (PII), previously known as Crown privilege, is a principle of English law, English common law under which the English courts can grant a court order allowing one litigant to refrain from Discovery (law), disclosing evidence ...
(PII), which is a principle of English
common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
under which the English courts can grant a
court order A court order is an official proclamation by a judge (or panel of judges) that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying o ...
allowing one litigant to refrain from disclosing
evidence Evidence for a proposition is what supports the proposition. It is usually understood as an indication that the proposition is truth, true. The exact definition and role of evidence vary across different fields. In epistemology, evidence is what J ...
to the other litigants where disclosure would be damaging to the
public interest In social science and economics, public interest is "the welfare or well-being of the general public" and society. While it has earlier philosophical roots and is considered to be at the core of democratic theories of government, often paired ...
. At the extreme, public interest immunity rules may mean that a case cannot be heard at all. This is an exception to the usual rule that all parties in litigation must disclose any evidence that is relevant to the proceedings. In making a PII order, the court has to balance the public interest in the administration of justice (which demands that relevant material is available to the parties to litigation) and the public interest in maintaining the confidentiality of certain documents whose disclosure would be damaging. It is of note that fewer PII certificates have been issued in recent years. For example, MI6 have not succeeded in obtaining a PII certificate since the 1995 Tomlinson case, and have thus been subject to court scrutiny for investigations such as the inquest into the death of the Princess of Wales. In '' Crown Prosecution Service v Paul Burrell'' 002a public interest immunity certificate allowed the prosecution to apply to the judge for a ruling that disclosure of certain information would be harmful to the public interest and should not be made public.


Special advocates

A submission to government ministers, from 57 of the 69 current special advocates, stated CMPs "represent a departure from the foundational principle of natural justice, that all parties are entitled to see and challenge all evidence relied upon before the court, and to combat that evidence by calling evidence of their own". The submission stated that "Government ministers should not be endowed with discretionary powers to extend unfairness and lack of transparency to any proceedings to which they are themselves party". Further warning, "it would leave Britain with more draconian rules than any other country in the world, more suited to despotic regimes such as
Iran Iran, officially the Islamic Republic of Iran (IRI) and also known as Persia, is a country in West Asia. It borders Iraq to the west, Turkey, Azerbaijan, and Armenia to the northwest, the Caspian Sea to the north, Turkmenistan to the nort ...
and
North Korea North Korea, officially the Democratic People's Republic of Korea (DPRK), is a country in East Asia. It constitutes the northern half of the Korea, Korean Peninsula and borders China and Russia to the north at the Yalu River, Yalu (Amnok) an ...
". Barrister Martin Chamberlain, who has worked in secret courts since 2003, describes a system of justice worthy of
Franz Kafka Franz Kafka (3 July 1883 – 3 June 1924) was a novelist and writer from Prague who was Jewish, Austrian, and Czech and wrote in German. He is widely regarded as a major figure of 20th-century literature. His work fuses elements of Litera ...
, describing Josef K’s fictional ordeal in '' The Trial'', as closed material procedures in Britain in the 21st century. "As a special advocate, you are able to see and hear both the ‘open’ and ‘closed’ evidence. But often, the Government witness will refuse to answer particular questions in open court, and the issue will have to be pursued by the special advocate in a closed hearing. But, after seeing the closed material, I am prohibited from speaking to my client. So I will never know if he had an alibi or an innocent explanation and nor will the court".


Opposition


Right to a fair trial

The right to a fair trial has been defined in numerous regional and
international human rights instruments International human rights instruments are the treaties and other international texts that serve as legal sources for international human rights law and the protection of human rights in general. There are many varying types, but most can be cla ...
. It is one of the most extensive human rights and all international human rights instruments enshrine it in more than one article. The right to a fair trial is one of the most litigated human rights and substantial case law has been established on the interpretation of this human right. Despite variations in wording and placement of the various fair trial rights, international human rights instrument define the right to a fair trial in broadly the same terms. The aim of the right is to ensure the proper administration of justice. As a minimum the right to fair trial includes the following fair trial rights in civil and
criminal In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definiti ...
proceedings: * the right to be heard by a competent, independent and impartial tribunal * the right to a public hearing * the right to be heard within a reasonable time * the right to counsel * the right to interpretation There are several concerns that the Bill makes no provision whatsoever for recording and reporting on the use of CMPs, nor for any notice to be provided for CMPs, nor is there any provision for closed judgments or materials to be reviewed, or opened when secrecy is no longer required. Also that
defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one juris ...
s will not be allowed to be present, or know or challenge the case against them, and must be represented by a security-cleared special advocate, rather than their own lawyer. The government's commitment to ''open justice and transparency'' has not been addressed, in spite of the
Joint Committee on Human Rights The Joint Committee on Human Rights is a joint committee of the Parliament of the United Kingdom. The remit of the committee is to consider human rights issues in the United Kingdom. Membership , the members of the committee are as follows: Se ...
24th Report (Ch 6) that identified democratic accountability and media freedom as "the missing issue in the Green Paper". The bill establishes an unnecessary, unjustifiable regime of secrecy, with the potential to become widespread in cases already beset by secrecy, and in which CMPs would not result in fairer trials. The Bill denies the press and public to know about important matters of public interest. The scope of amendments to the Bill fall well below what the Joint Committee on Human Rights recommended The Joint Committee on Human Rights also said "in all the evidence it had received, apart from that of the Government, the proposals indicate a 'radical departure' from ancient principles of 'open justice and fairness. The committee criticised Home Secretary Theresa May for refusing to allow even special advocates to have access to information so they could assess whether secret trials were necessary.


Liberal Democrats

The issue of CMPs is controversial within the Liberal Democrats, the junior party in the coalition government. A motion put forward by Jo Shaw, former parliamentary candidate for Holborn and St Pancras, to the party's 2012 autumn conference and passed "overwhelmingly" called upon its MPs to vote against Part 2 of the bill relating to CMPs. Regardless, only seven of the party's then fifty-six MPs voted against the bill's third reading on 4 March 2013, leading to an emergency motion being filed for the party's spring conference the following weekend. The motion was coupled with Shaw's resignation from the party, and was again passed "overwhelmingly". Along with Shaw, human rights lawyers Dinah Rose and Philippe Sands, and copyright reform activist Cory Doctorow publicly announced their resignations of their party memberships following the bill's vote.


European Convention on Human Rights

Article 6 of the European Convention on Human Rights protects the right to a fair trial, an 'implied' right stemming from the 'equality of arms', that hearings should be adversarial and both parties should have access to the same evidence and witnesses. The
European Court of Human Rights The European Court of Human Rights (ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a co ...
has held that Article 6 (especially the 'implied' rights) is not an absolute right and that measures restricting the rights of the defense so as to safeguard an important public interest are lawful if "strictly necessary". On 22 November 2012, by margins of over 100 votes, peers voted to remove ministers' exclusive right to apply for secret hearings, as a "tilting of the balance away from the free individual towards the interest of the state", and give judges the discretion in deciding on secret court hearings. Lord Wallace of Tankerness, representing the Government in rejecting the Lords concerns said that "at present people assumed the Government settled controversial cases because there had been 'some wrongdoing' whereas in fact it was often that relevant material could not be put before the court".


Law Society of England and Wales

The Law Society has repeatedly stated opposition to the use of CMPs to ordinary civil proceedings. The Society contends the Government has failed to present a national security case for jeopardising these fundamental constitutional principles. The Society re-stated this position in a letter jointly signed with General Council of the Bar, to the Minister Without Portfolio, Rt Hon Kenneth Clarke MP: "Closed Material Procedures depart from an essential principle that all parties are entitled to see and challenge all of the evidence relied upon before the court, and to combat that evidence by evidence of their own. In addition, they undermine the principle that public justice should be dispensed in public, and will weaken fair trial guarantees of equality of arms, which are essential elements of the rule of law".Letter reported in The Guardian (2012), Lawyers Challenge Clarke Justice Bill, London: Guardian News Media


International concerns

On 28 February 2013, a group of international organisations, including the
American Civil Liberties Union The American Civil Liberties Union (ACLU) is an American nonprofit civil rights organization founded in 1920. ACLU affiliates are active in all 50 states, Washington, D.C., and Puerto Rico. The budget of the ACLU in 2024 was $383 million. T ...
and similar bodies from
Ireland Ireland (, ; ; Ulster Scots dialect, Ulster-Scots: ) is an island in the North Atlantic Ocean, in Northwestern Europe. Geopolitically, the island is divided between the Republic of Ireland (officially Names of the Irish state, named Irelan ...
,
Canada Canada is a country in North America. Its Provinces and territories of Canada, ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, making it the world's List of coun ...
,
South Africa South Africa, officially the Republic of South Africa (RSA), is the Southern Africa, southernmost country in Africa. Its Provinces of South Africa, nine provinces are bounded to the south by of coastline that stretches along the Atlantic O ...
,
Argentina Argentina, officially the Argentine Republic, is a country in the southern half of South America. It covers an area of , making it the List of South American countries by area, second-largest country in South America after Brazil, the fourt ...
,
Egypt Egypt ( , ), officially the Arab Republic of Egypt, is a country spanning the Northeast Africa, northeast corner of Africa and Western Asia, southwest corner of Asia via the Sinai Peninsula. It is bordered by the Mediterranean Sea to northe ...
and
Hungary Hungary is a landlocked country in Central Europe. Spanning much of the Pannonian Basin, Carpathian Basin, it is bordered by Slovakia to the north, Ukraine to the northeast, Romania to the east and southeast, Serbia to the south, Croatia and ...
, also expressed similar concerns about the controversial British 'Justice and Security legislation', warning in a joint statement: "If the UK Parliament passes this proposal into law it will be a huge setback for those of us fighting to secure truth and fairness from our own governments and within our own justice systems across the world."


See also

* Defamation Act 2013


References


External links


Legal Guidance
published by the Crown Prosecution Service on PII in criminal proceedings
Reforming Public Interest Immunity


(Dead link) {{Liberty United Kingdom Acts of Parliament 2013 Evidence law English law Privileged communication Legal immunity Ministry of Justice (United Kingdom) United Kingdom intelligence community