Justice and Security Bill

The first part of the Justice and Security Bill is aimed at modernising and strengthening the oversight of the intelligence and security services. It would reform the Intelligence and Security Committee, making it a statutory committee of Parliament. The second part of the Bill would introduce controversial statutory provisions to allow the civil courts to use ‘closed material procedures’ to hear sensitive evidence in cases that raised national security concerns. It would preclude the courts from ordering the disclosure of sensitive information in certain circumstances. Opponents of the second part of the Bill (which is entitled “disclosure of sensitive material”) often dub the plans “secret justice” and argue that closed material procedures are unfair and unjustified.

The proposals contained in the Bill stem from an earlier consultation and Green Paper, also entitled Justice and Security. The Green Paper indicated that over recent years, the security and intelligence agencies had been affected by an increasing number of court cases, such as civil damages claims filed by former Guantanamo detainees, appeals over immigration decisions and judicial reviews of Government decisions in the national security context. The Government has made clear that it sees the need for a balance to be struck between the “transparency that accountability normally entails and the secrecy that security demands”. The Government acknowledged the need to ensure that the security and intelligence agencies are subject to effective judicial and non-judicial scrutiny in order that the public has confidence that they are working lawfully, effectively and efficiently. When introducing the Bill, the Government argued that the introduction of closed material procedures in civil cases would allow courts to consider all material relating to a case, even where national security prevented that material from being made public, to ensure that claims were properly investigated and scrutinised by the courts.

It is worth noting that closed material procedures have existed in a number of contexts for some years (section 3 of this paper provides an overview); however, in a recent court case, the Supreme Court determined that a court was not entitled to adopt a closed material procedure in an ordinary civil claim for damages (and that it was for Parliament to legislate to make closed material procedures available in such proceedings, if it wished to do so).

Second Reading of the Bill in the House of Commons is due to take place on 18 December 2012.

The Bill extends to the whole of the United Kingdom (with the exception of certain consequential amendments). The explanatory notes state that the Bill deals with reserved matters in Scotland and excepted matters in Northern Ireland: the provisions primarily relate to national security, international relations, defence and immigration and nationality. There is no effect on the Welsh Ministers or the National Assembly and no other particular effect on Wales. Provisions in the Bill, relating to the use of closed material procedures in certain exclusion, naturalisation and citizenship decisions could also be extended (with or without modifications) by Order in Council, to any of the Channel Islands or to the Isle of Man.