The Justice and Security Act 2013 (c. 18) is an act of the Parliament of the United Kingdom, firstly to provide for oversight of the Security Service (MI5), the Secret Intelligence Service (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 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, 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) and by Lord Wallace of Tankerness (in the House of Lords) 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 (See also Ex parte.). 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 (PII), which is a principle of English common law under which the English courts can grant a court order allowing one litigant to refrain from disclosing evidence to the other litigants where disclosure would be damaging to the public interest. 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 [2002] a 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 and North Korea". Barrister Martin Chamberlain, who has worked in secret courts since 2003, describes a system of justice worthy of Franz Kafka, 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".
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Opposition
Right to a fair trial
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