In its original form the Bill said that a court “must” use closed material proceedings if there would be a disclosure of information that would harm national security interests. It would not matter how small the damage, it would not matter whether there were other public interests in disclosure of the material, and the court had no discretion.
The Lords changed this provision. As well as turning “must” into “may” so that the court would have discretion, they inserted a balancing principle. If closed material proceedings were to be used then some further conditions must be satisfied. Notably, closed material proceedings could only be used if: (1) the degree of harm to national security interests would be likely to outweigh the public interest in “the fair and open administration of justice” and (2) a fair determination of the proceedings would not be possible by any other means.
The result was that the Bill, while still deeply flawed, had one of its worst deficiencies remedied.
Yesterday, the government’s amendments revealed its plans to substantially reverse those changes. With amendments 55 and 64 it proposes to throw out the above balancing process. It would be replaced with a provision that says closed material proceedings may be used if disclosure of information would be damaging to the interests of national security and “it is in the interests of the fair and effective administration of justice” to use closed material proceedings. This is very worrying change.
Of special note, there is no longer a consideration of the public interest in open justice. As the history of the bill’s progress shows, the government has explicitly set about removing that requirement. There is no need or requirement for balancing competing public interests. It does not matter, it seems, how small the damage to national security would be.
There are many other reasons to be worried by this Bill but the overt attempt to remove any consideration of open justice is extraordinary.
The members of the Committee, whatever their political stripes, should reject this amendment and retain the existing balancing, open justice and fairness requirements. Rejecting it would be entirely consistent with the government’s stated commitments to openness and transparency. In the Lords, Baroness Stowell assured the House that the government was making continued efforts “to ensure as much openness and transparency as possible.” If that really is the government’s commitment then it should withdraw this amendment. If it is not withdrawn, then it should be rejected.
Dr Lawrence McNamara is a Reader in Law and ESRC/AHRC Research Fellow at the University of Reading where he runs the Law, Terrorism and the Right to Know project. He gave evidence regarding media and open justice matters to the Joint Committee on Human Rights and has submitted written evidence to the Public Bill Committee regarding a range of matters related to transparency, accountability and openness. Email: l.mcnamara@reading.ac.uk Twitter @UniRdg_LTRK
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