If passed, the Justice and Security bill will ensure far greater use of ‘closed hearings’ by civil courts to examine sensitive intelligence and ‘protect national security.’ The issue of so-called ‘secret courts’ is at the heart of the liberty v security debate – are we prepared to compromise on liberty to remain safe?

People are understandably concerned by the prospect of ‘secret courts.’ This unfortunate phrase evokes images of Hitler’s Gestapo or Stalin’s Cheka. Yet it is important not to let one’s judgment be clouded by these totalitarian visions. It is crucial to understand what the government is seeking to achieve and to investigate all the complicated nuances of this issue.

Where cases involve national security implications, judges already have discretion to hear evidence in camera, meaning that proceedings are closed to the public and press. Secret courts therefore already exist. The Justice and Security bill is controversial because, in its current form, it will allow ministers to decide when proceedings may be closed.

The government’s stated aim is to allow for sensitive evidence to be heard without intelligence sources being exposed. Currently, the government must either abandon cases against terror suspects who claim mistreatment, or risk putting sources at risk. Abandoned cases often result in substantial compensation payments – settling cases with former Guantanamo Bay detainees cost an estimated £20m. The government argues that an extension of closed hearings will allow more suspects to be tried and taxpayers’ money to be saved. According to Ken Clarke, the current judicial system ‘cannot deal’ with cases such as these because clearly, outing intelligence agents is not an option.

Another argument is that closed hearings allow security services to be judicially scrutinised where otherwise the case would be settled without any independent judicial examination. Consequently, failures of the government or security services will go unchecked without the possibility of closed hearings.

However, senior lawyers counter that the government will use secret courts to shield itself from allegations that Britain has been complicit in the abuse of detainees abroad, without the details ever being made public. Philippe Sands QC and Dinah Rose QC condemned the plans for proposing an ‘unfairness far greater than the one it seeks to repair.’ They also fear that powers would not be limited to national security matters. The green paper states that closed proceedings may be used whenever ‘certain relevant sensitive material would cause damage to the public interest if openly disclosed.’

According to Shami Chakrabarti, director of Liberty, the bill will change procedures for bringing a civil claim against public bodies. As well as the press and public, the claimant and their lawyers will also be ‘cleared from the courtroom.’ She claims that closed hearings will allow the government and security services to ‘have a private chat with the judge,’ turning judges into a mere ‘rubber stamp.’ Tara Lyle, policy adviser at Amnesty International UK, called the proposals ‘dangerous.’

It is true that judges have often failed to exercise ‘judicial activism’ in ordering closed hearings where appropriate. This suggests that judges need better guidance regarding national security implications. However, it is not appropriate for ministers to be deciding matters in place of judges – only judges should have the power to call closed hearings. Judges must, equally, be able to decide when it is in the public interest to ignore government demands for closed hearings. The bill states that judges must agree before a minister can order a closed hearing – but in reality this would likely be a mere rubber stamp. The House of Lords voted to give judges greater discretion to hold closed hearings, rather than obliging them to do so in national security cases.

At any rate, closed hearings must only be considered as a last resort. They must only be instigated when absolutely necessary – relating to a narrow definition of ‘intelligence evidence.’ This must be evidence that would expose and compromise intelligence officers or their sources or their capability.

Fortunately, with the Liberal Democrats opposed, and Labour eager for any opportunity to defeat the government, the bill will need to be watered down a great deal.

Despite the unsavoury nature of secret courts, there are occasions where they are a necessity. However, the bill goes too far and will undermine open justice – Parliament’s joint committee on human rights has stated that it is a ‘radical departure from the UK’s constitutional tradition of fairness.’ It risks the politicisation of our justice system and will turn judges into government puppets.

A balance must be struck (and that balance must favour liberty except in the most exceptional circumstances). After all, what use is ‘liberty’ if terrorists are free to strike at whim? Crucially, we must trust our judges to exercise their discretion – guided but never influenced by government.