The very existence of secret courts currently being legislated for by the Government may itself be a secret, it has emerged.
During debates in the Lords on the Justice and Security Bill, ministers confirmed that the fact the Government has applied for a Closed Material Procedure (CMP) – a process in which the public, press and the claimant is excluded from the court – could itself remain a secret.
CMPs would already allow the Government to present secret evidence to a judge without challenge from the other side in the case, in a process which is at odds with Britain's open and adversarial tradition of justice. This new development lays open the possibility that the very occurrence itself of a CMP would not be made public.
It was confirmed by Government minister Baroness Stowell, who told the Lords: "in some instances the fact of the application [for a CMP] will not be made public."
Reprieve's Executive Director, Clare Algar said: "This is a deeply disturbing development, reminiscent of super-injunctions in its excessive secrecy. Yet instead of merely covering up footballers' indiscretions, these courts could be used to sweep serious state human rights abuses – such as torture – under the carpet. If this Bill passes, it will badly damage centuries of British legal tradition and make it far harder for the citizen to hold the state to account."
Notes to editors
1. For further information, please contact Donald Campbell in Reprieve's press office: +44 (0) 207 427 1082 / (0) 7791 755 415 / firstname.lastname@example.org
2. Background information on the Justice and Security Bill can be found here: http://www.reprieve.org.uk/investigations/secret_justice
3. The full exchange from the Lords debate on the Justice and Security Bill is as follows:
Baroness Stowell of Beeston: I shall come on to the issue of redacted judgments in a moment. As to whether the press should be notified at the point of application for a CMP, it may well be informed, but it will not be informed if the issue is related to national security. That is the clear distinction between this kind of case and a PII case because, if the Secretary of State is making an application under CMP, she is doing so because she considers national security to be at risk. [...]
Lord Falconer of Thoroton: From what the Minister said, I am not clear whether it is envisaged that the fact of an application being made for a closed material proceeding should be kept secret. I had not understood that that was the purpose of the Bill or that any rules of court could be made to make the fact of the application secret. What is the Government's intention towards that process? Is it intended that there will be certain circumstances when even the fact of an application under Section 6 is to be kept secret?
Baroness Stowell of Beeston: As I understand it, in some instances the fact of the application will not be made public because that is also what happens now under PII. If the knowledge that the application has been made could give rise to concern about national security, it would not be made public.