Bill threatens principles of ‘open and natural justice’

A bill before the House of Lords this week threatens the principles of ‘open and natural justice’, the Law Society has warned.

The Justice and Security Bill, which had its second reading in the House of Lords today (19 June), proposes extending closed material procedures (CMP) - or secret trials - to all civil proceedings. The Law Society, in a parliamentary brief, said the bill threatens the principle that allows all parties to see and challenge all evidence relied upon before the court and to combat that evidence by calling evidence of their own.

The Society recognises that there are circumstances where national security demands the confidentiality afforded by a CMP, but there is no evidence that current procedures provide insufficient safeguards, it said.

The Society dismissed government fears that the ‘Norwich Pharmacal’ jurisdiction, which allows the courts to order a person involved in another’s wrongdoing to disclose information, could lead to the disclosure of intelligence provided by allies. The Society said that placing the ‘Norwich Pharmacal’ jurisdiction on a statutory footing, with a detailed statutory definition of the test to be satisfied, would prevent the disclosure of security-sensitive materials under all but the most exceptional circumstances.

The Society added that it is concerned about the wider implications of CMPs on civil litigation and professional ethics, in particular how solicitors can best advise clients when not ‘privy to the information’ being used against them. Solicitors will also be unable to fulfil their ethical duty of providing clients with accurate cost estimates if they cannot assess the weight of opposing evidence, the Society said.

During the bill’s second reading, civil rights campaigning group Liberty held a protest outside the Supreme Court. Liberty director Shami Chakrabarti (pictured) said: ‘The bill replaces judicial discretion with executive control and destroys the age-old principle that everyone is equal under the law.’