¹ The US ‘state secrets’ doctrine has been interpreted in recent years as a strong bar to numerous national security claims that probably would have been litigated further in the UK and European courts than was permitted in the US: see, eg, United States v El-Masri 479 F.3d 296 (4th Cir 2007) and Mohamed v Jeppesen Dataplan 614 F.3d 1070 (9th Cir 2010).

² See A v United Kingdom (2009) 49 EHRR 29.

³ See Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union [2008] ECR I-6351.

⁴ Justice and Security Act 2013. The Act addresses three matters: (i) it reforms the United Kingdom Parliament's oversight of intelligence and security; (ii) it allows for ‘closed material procedure’ to be more widely used in civil litigation in the UK; and (iii) it ousts the courts' Norwich Pharmacal jurisdiction (Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 (House of Lords)) in national security and other sensitive cases. This article deals only with the second of these three reforms (with regard to the others, see further the references below at n 76).

⁵ Roach, Kent, ‘The Post 9/11 Migration of Britain's Terrorism Act 2000’ in Choudhry, Sujit (ed), The Migration of Constitutional Ideas (Cambridge University Press 2006) 374Google Scholar.

⁶ Duncan v Cammell Laird [1942] AC 624.

⁷ ‘National security’ is a phrase that gained currency in the UK only from the Cold War period. In the 1940s lawyers spoke instead about ‘defence of the realm’ and material the disclosure of which would be ‘injurious to the public interest’: see Townshend, Charles, Making the Peace: Public Order and Public Security in Modern Britain (Oxford University Press 1993)Google Scholar.

⁸ Woods v Duncan [1946] AC 401.

⁹ Glasgow Corporation v Central Land Board 1956 SC (HL) 1.

¹⁰ Conway v Rimmer [1968] AC 910.

¹¹ R v Chief Constable of the West Midlands Police, ex parte Wiley [1995] AC 274 .

¹² Conway v Rimmer (n 10) 952.

¹³ Burmah Oil v Bank of England [1980] AC 1090; see also Air Canada v Secretary of State for Trade [1983] 2 AC 394.

¹⁴ See Tomkins, Adam, The Constitution after Scott (Oxford University Press 1998) 197–99Google Scholar.

¹⁵ Wiley (n 11).

¹⁶ For example, disclosure subject to redactions or disclosure into a closed ‘confidentiality ring’. There appears to be disagreement at the moment over whether disclosure may lawfully be made into a ‘confidentiality ring’: in R (Serdar Mohammed) v Secretary of State for Defence [2012] EWHC 3454 (Admin) it was held that this could be done; in AHK v Secretary of State for the Home Department [2013] EWHC 1426 (Admin), by contrast, it was ruled that it could not.

¹⁷ As in R (Al Sweady) v Secretary of State for Defence [2009] EWHC 1687 (Admin) and [2009] EWHC 2387 (Admin).

¹⁸ Control orders were coercive (but non-criminal) measures imposed by the Secretary of State on an individual who was reasonably suspected of involvement in terrorism-related activity. They were seriously invasive of civil liberties and were highly controversial, and were replaced as from 2011 by Terrorism Prevention and Investigation Measures (TPIMs). TPIMs are broadly similar to control orders, although there are some differences of detail.

¹⁹ Under the Counter-Terrorism Act 2008 and the Terrorist Asset-Freezing etc Act 2010.

²⁰ Joint Committee on Human Rights, 16th Report of 2009–10, House of Lords (HL) 86, House of Commons (HC) 111, para 58. An excellent and detailed account of the position down to 2009 is provided in Justice, ‘Secret Evidence’, June 2009, http://www.justice.org.uk/data/files/resources/33/Secret-Evidence-10-June-2009.pdf.

²¹ Namely, the Security Service (MI5), the Secret Intelligence Service (MI6) and Government Communications Headquarters (GCHQ). See, respectively, the Security Service Act 1989 and the Intelligence Services Act 1994.

²² Justice and Security Act 2013, s 6(11): closed material is that whose disclosure ‘would be damaging to the interests of national security’. In control orders or TPIMs cases, by contrast, closed material is that whose disclosure ‘would be contrary to the public interest’ (eg, TPIMs Act 2011, Sch 4, para 4(c)). National security is only one of several public interests that may be cited as justification for closed material in control orders and TPIMs cases; others include international relations and the prevention and detection of crime. Thus, the definition of closed material is narrower under the Justice and Security Act than it is under the control orders and TPIMs legislation.

²³ At the time of writing there are 54 special advocates on the list.

²⁴ Chamberlain, Martin, ‘Special Advocates and Procedural Fairness in Closed Proceedings’ (2009) 28 Civil Justice Quarterly 314Google Scholar and ‘Update on Procedural Fairness in Closed Proceedings’ (2009) 28 Civil Justice Quarterly 448Google Scholar. See also Otty, Tim, ‘The Slow Creep of Complacency and the Soul of Justice’ [2012] European Human Rights Law Review 267, 269–70.Google Scholar

²⁵ Joint Committee on Human Rights, 9th Report of 2009–10, HL 64, HC 395.

²⁶ European Convention for the Protection of Human Rights and Fundamental Freedoms (entered into force 3 September 1953) 213 UNTS 222 (ECHR).

²⁷ A v UK (n 2).

²⁸ Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269 (AF (No 3))

²⁹ A v UK (n 2) [220].

³⁰ AF (No 3) (n 28) [59]. See further on this requirement Home Office v Tariq [2011] UKSC 35 [2012] 1 AC 452.

³¹ Wiley (n 11) 280.

³² Chahal v United Kingdom (1996) 23 EHRR 413.

³³ Mr Chahal was detained pending his deportation; his detention was held to be compatible with ECHR, art 5(1)(f).

³⁴ Chahal (n 32) [144].

³⁵ ibid [131].

³⁶ In a powerful critique David Jenkins has strongly criticised the poor comparative technique of the European Court of Human Rights in Chahal. To the extent that the Court recommended this model to the UK, it did so ‘without adequate justification, background context, or cautions as to its future use’: Jenkins, David, ‘There and Back Again: The Strange Journey of Special Advocates and Comparative Law Methodology’ (2010–11) 42 Columbia Human Rights Law Review 279, 281Google Scholar. In the same article Jenkins later states (ibid 289) that the Court ‘only superficially understood’ the Canadian system and that it ‘mischaracterised’ it, overlooking ‘persistent difficulties regarding procedural fairness’.

³⁷ In accordance with statute (RIPA, s 69), the rules are made by the Secretary of State: see Investigatory Powers Tribunal Rules 2000, SI 2000/2665.

³⁸ As an exception to this, hearings that are purely on points of law may be conducted in public. Rulings that are purely on points of law may similarly be in public.

³⁹ Kennedy v United Kingdom (2010) 52 EHRR 4.

⁴⁰ ibid; the rather disturbing factual background to the case is given at paras 5–20.

⁴¹ ibid para 184.

⁴² ibid para 187.

⁴³ ibid para 188.

⁴⁴ R (A) v Security Service [2009] UKSC 12, [2010] 2 AC 1.

⁴⁵ AKJ and Others v Metropolitan Police Commissioner [2013] EWHC 32 (QB).

⁴⁶ Several complaints have been made to the IPT (including by Liberty) in light of the disclosures in 2013 emanating from Edward Snowden that GCHQ and the US National Security Agency have engaged in much more widespread surveillance than was previously thought. Similar applications have also been lodged at the European Court of Human Rights, on which see the documents available here: https://www.privacynotprism.org.uk/news/2013/10/03/gchq-to-face-european-court-over-mass-surveillance.

⁴⁷ Al Rawi v Security Service [2009] EWHC 2959 (QB) (High Court); Al Rawi v Security Service [2010] EWCA Civ 482, [2010] 3 WLR 1069 (Court of Appeal); Al Rawi v Security Service [2011] UKSC 34, [2012] 1 AC 531 (Supreme Court).

⁴⁸ Al Rawi [2010] ibid [11].

⁴⁹ ibid [12].

⁵⁰ ibid [14].

⁵¹ ibid [16], quoting English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409.

⁵² Al Rawi [2010] (n 47) [17].

⁵³ Scott v Scott [1913] AC 417 and A-G v Leveller Magazine [1979] AC 440.

⁵⁴ Al Rawi [2010] (n 47) [18].

⁵⁵ ibid [30].

⁵⁶ HC Deb, 6 July 2010, vol 513, col 175.

⁵⁷ HC Deb, 16 November 2010, vol 518, col 752.

⁵⁸ HC Deb, 19 October 2011, vol 533, col 905.

⁵⁹ Al Rawi [2011] (n 47) [7] (Lord Dyson).

⁶⁰ ibid [14].

⁶¹ ibid [41].

⁶² ibid [36].

⁶³ ibid [93].

⁶⁴ See Al Rawi [2010] (n 47) [69]–[70]; see also on the same point Al Rawi [2011] (n 47) [69] (Lord Dyson).

⁶⁵ In Al Rawi itself, the government claimed that it had 250,000 relevant documents in its possession and that PII may have to be claimed for as many as 140,000 of these. It was estimated that the PII process in the case would take upwards of three years to complete: see Al Rawi [2011] (n 47) [135] (Lord Clarke).

⁶⁶ ibid para 120. Cases before Al Rawi had been litigated under a CMP with the consent of the parties (eg R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin)) but the High Court ruled after Al Rawi that, owing to the Supreme Court's decision in that case, this was no longer permissible: see AHK and Others v Secretary of State for the Home Department [2012] EWHC 1117 (Admin).

⁶⁷ Al Rawi [2011] (n 47) [159]–[62] and [175].

⁶⁸ Lord Mance said in Tariq (n 30) [40] that neither possibility – ie having to settle an unmeritorious claim or having a claim struck out as untriable – was one which the law ‘should readily contemplate’. In the same case Lord Brown went further. He said that the submission that the government never has to disclose sensitive material because it can simply pay up ‘I find not merely unpersuasive but wholly preposterous’ (ibid [84]).

⁶⁹ Carnduff v Rock [2001] EWCA Civ 680, [2001] 1 WLR 1786 [33] (Laws LJ).

⁷⁰ ibid [49]–[50] (Jonathan Parker J).

⁷¹ Lord Mance stated in Al Rawi [2011] (n 47) [108] that, as he understood it, ‘no member of the Supreme Court doubts the approach in Carnduff as a possibility … [A] successful claim to PII can make an issue untriable’ (emphasis added).

⁷² Al Rawi [2011] (n 47) [189].

⁷³ ibid [86].

⁷⁴ HC Deb, 6 July 2010, vol 513, col 177.

⁷⁵ Cm 8194, October 2011.

⁷⁶ On Parliament's Intelligence and Security Committee, see the Intelligence Services Act 1994 and the Justice and Security Act 2013, ss 1–4; on the Intelligence Services Commissioner, see RIPA and the Justice and Security Act 2013, s 5. The Green Paper also contained proposals that the highly controversial use made in the Binyam Mohamed (n 118) litigation of the court's Norwich Pharmacal (n 4) jurisdiction should be reversed. This is an important but highly complex matter, which there is no space to discuss here. For a full account of the Binyam Mohamed case, see Tomkins, Adam, ‘National Security and the Due Process of Law’ (2011) 64 Current Legal Problems 215Google Scholar; for analysis of the provisions in the Justice and Security Bill on Binyam Mohamed and Norwich Pharmacal, see the House of Lords Constitution Committee, 4th Report of 2012–13, HL 31; and see now the Justice and Security Act 2013, ss 17–18. See also R (Omar) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 118.

⁷⁷ Cm 8194 (n 75) [2.2].

⁷⁸ ibid [2.5].

⁷⁹ ibid [2.7].

⁸⁰ ibid 71.

⁸¹ nn 28–30 and accompanying text.

⁸² ibid [2.10]–[2.46].

⁸³ ibid [2.53]–[2.71].

⁸⁴ The responses are available at http://consultation.cabinetoffice.gov.uk/justiceandsecurity/responses-to-the-consultation.

⁸⁵ Cm 8364, May 2012.

⁸⁶ Joint Committee on Human Rights, 24th Report of 2010–12, HL 286, HC 1777 (April 2012) (JCHR 24th Report).

⁸⁷ Special Advocates, Justice and Security Green Paper: Response to Consultation from Special Advocates, 16 December 2011, para 15 (Special Advocates).

⁸⁸ ibid para 17.

⁸⁹ n 63 and accompanying text.

⁹⁰ Special Advocates (n 87) para 25.

⁹¹ AHK [2012] (n 66) [78].

⁹² The Independent Reviewer of Terrorism Legislation is appointed under statute to review and periodically to report on a range of the UK's counter-terrorism legislation. David Anderson QC replaced Lord Carlile as the Independent Reviewer as from 2011: see ‘History’, Independent Reviewer of Terrorism Legislation, https://terrorismlegislationreviewer.independent.gov.uk. It is worth noting that the case files seen by Mr Anderson were selected by the government; that only three of them were claims for civil damages; and that at the material time Mr Anderson had not acted in any CMP cases. For these reasons the JCHR invited the government to show the same material to a small group of experienced special advocates, but the government declined to do so.

⁹³ See JCHR 24th Report (n 86) para 73.

⁹⁴ ibid para 122.

⁹⁵ For all the documents relating to the Bill, including its various printed versions, as well as amendment papers, select committee reports, government responses to committee reports, and debates on the Bill, see http://consultation.cabinetoffice.gov.uk/justiceandsecurity/the-justice-and-security-bill and http://services.parliament.uk/bills/2012-13/justiceandsecurity.html.

⁹⁶ This is not strictly true: the police may claim PII (as in Conway (n 10) and Wiley (n 11), for example) and so, exceptionally, may other organisations working in the public interest, such as the National Society for the Prevention of Cruelty to Children: see D v NSPCC [1978] AC 171. Nonetheless, it is clear that ordinary litigants may not claim PII – and this was the government's point.

⁹⁷ Justice and Security Act 2013, s 6(2).

⁹⁸ ibid s 6(1).

⁹⁹ Justice and Security Bill, as amended by the House of Lords, cl 6(2)(c).

¹⁰⁰ Justice and Security Act 2013, s 6(5).

¹⁰¹ Justice and Security Bill (n 99), cl 6(2)(d).

¹⁰² Al Rawi [2011] (n 47) [36] (Lord Dyson).

¹⁰³ CF and Mohamed v Foreign and Commonwealth Office [2013] EWHC 3402 (QB).

¹⁰⁴ ibid [43].

¹⁰⁵ ibid [19].

¹⁰⁶ R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115.

¹⁰⁷ ibid 131.

¹⁰⁸ Bank Mellat v HM Treasury (No 1) [2013] UKSC 38.

¹⁰⁹ Bank Mellat v HM Treasury (No 2) [2013] UKSC 39.

¹¹⁰ There were both a closed judgment and an open judgment at first instance.

¹¹¹ The court was sharply critical of the way in which the government had sought to persuade it to look at the closed judgment, with Lord Hope stating that it was ‘a misuse of the procedure’ and that the experience ‘should serve as a warning that the State will need to be much more forthcoming if an invitation to this court to look at closed material were to be repeated in the future’: Bank Mellat (No 1) (n 108) [100].

¹¹² ibid [36].

¹¹³ ibid [49].

¹¹⁴ ibid [51].

¹¹⁵ ibid [70].

¹¹⁶ Once the Bill had been passed by the House of Commons it returned to the Lords for the Upper House to consider the Commons' amendments. An attempt was made to reinstate the Lords' earlier Wiley balance and last resort amendments, but this was defeated (see HL Deb, 26 March 2013, vol 744, cols 1017–57). A number of Peers who had voted in favour of the Lords' amendments in 2012 considered that the government had done enough to meet their concerns: see the speech of the former Lord Chief Justice, Lord Woolf (cols 1043–45).

¹¹⁷ See Evans (n 66) and Al Sweady (n 17).

¹¹⁸ See R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65 and, of course, Al Rawi itself (n 47).

¹¹⁹ See Peto, Anthony QC and Tyrie, Andrew MP, Neither Just nor Secure: The Justice and Security Bill (Centre for Policy Studies 2013)Google Scholar.