The justice and security bill's most controversial element is the extension of secret courts, known as closed material procedures (CMPs), into the civil courts in England and Wales. Opponents believe the powers will enable ministers, rather than judges, to manipulate the way evidence is withheld or presented in the courts – depriving claimants of a fair trial. The government claims the reform will enable judges to hear a greater range of national security cases.
In May 2010, the government was forced to pay out millions of pounds in compensation to Binyam Mohamed and other former Guantánamo Bay detainees after the court of appeal rejected requests by MI5 and MI6 that they be able to present security evidence in secret. Rather than reveal sensitive intelligence, the government settled out of court claims for wrongful imprisonment and complicity in torture.
Former justice secretary Ken Clarke argued that the UK justice system was unable to pass judgment on vital matters, denying claimants judicial findings while intelligence agencies cannot clear their names. The government says the bill is designed to ensure such a predicament never recurs by extending the use of secret courts while preserving intelligence-sharing with the US and other allies.
Critics counter that without transparent justice, abuses of power will remain hidden. The bill has provoked deep anxiety among civil liberties groups, senior lawyers and politicians who fear it overturns long-established common law precedents about fair and open justice. The Labour party supports some elements but argues the secret court developments are too widely drawn and create damaging mistrust.
Closed material procedures are not unprecedented: they are used in employment tribunals, special immigration appeals commission hearings and the investigatory powers tribunal. The justice and security bill would extend them into the main civil courts, allowing the government to exploit intelligence material to defend itself against allegations such as torture.
