On the 25th of April 2013, the Justice and Security Act was granted Royal Assent after the Bill’s tumultuous progression through the parliamentary drafting stages. Part 2 of the Act regulates disclosure of sensitive material under the closed material procedure (CMP), where one party and their legal representation are excluded from evidence or allegations against them in the public interest. The implications of this legislation constitute a potentially far-reaching intrusion into fundamental fair trial rights and the public interest in open justice.

Section 6 of the Act creates a judicial discretion to make a declaration permitting applications for CMP to be used. The courts may make such a declaration where two conditions are satisfied: i) a party to the proceedings would be required to disclose ‘sensitive material’ (defined in section 6(11) as ‘material the disclosure of which would be damaging to the interests of national security’); and ii) non-disclosure is in the interests of the fair and effective administration of justice. The Secretary of State or any other party to the proceedings may apply for a declaration, or the court may make one of its own motion. If the Secretary of State makes an application, they must previously have considered making a claim for public interest immunity (PII), under which the sensitive material would be removed completely from consideration by the court rather than kept and considered secretly.

Where a declaration is made, section 8 requires the relevant civil procedure rules to ensure that the person who applied for a declaration has the opportunity to apply for permission to use CMP. Section 8(1)(c) declares that ‘the court is required to give permission for material not to be disclosed [to anyone other than the court; a special advocate and the Secretary of State] if it considers that the disclosure of the material would be damaging to the interests of national security.’ Section 8(1)(d) further holds that if permission to use CMP is granted, the court must consider requiring a summary of the material to be provided to every other party to the proceedings and their legal representative.

The provisions of the new Justice and Security Act, especially those in section 8, present a real danger to the right to a fair trial, protected both as a judicially developed common law right and through the UK’s obligations under Article 6 ECHR. It is suggested that courts ought to be very wary, prior to making a declaration, that secrecy is in the interest of fair and effective administration of justice, bearing in mind the potential cost to the excluded individual. A second grave concern is that the courts need only consider providing a summary of the case against the person contained in the closed material, which goes sharply against the grain of the ‘gisting’ requirement, found in well-established lines of jurisprudence from both the European Court of Human Rights and the UK’s most senior court. With insufficient knowledge of the allegations or evidence against them, it is impossible for individuals adequately to be able to defend their interests in court. The public too has an interest in the fair and open administration of justice. The threats to these values posed by the new legislation warrant careful scrutiny by confident courts committed to the rule of law.

Natasha Holcroft-Emmess is a BCL Candidate at the University of Oxford and a frequent contributor to the OxHRH Blog.