Secrecy, National Security, and the Law (Level 5)

• Credit value: 15 credits at Level 5
• Convenor and tutor: Dr Bernard Keenan
• Assessment: a 3000-word essay (100%)

The problem of doing justice through law while maintaining the security of the state is as old as law itself. This module picks up the tension between justice and security, and examines it through the lens of secrecy in legal proceedings, with particular attention paid to the field of national security in the UK.

Until the 1980s, UK governments conducted issues concerned with national security and terrorism largely under the royal prerogative, which meant that actions taken in the name of security were not justiciable before the courts. Human rights law made this situation unsustainable. Since 1985, therefore, a number of acts of Parliament have brought national security powers ‘in from the cold’.

But because much national security work takes place in secret, the moves to bring prerogative powers under judicial control have in turn created a large number of courts and oversight agencies that also operate partially in secret. There are now secret proceedings in relation to terror suspects, in criminal trials, inquests, care proceedings, judicial review, claims against the state, and the interception of communication. Is it possible to do justice while keeping information secret from parties to the case, or indeed from the public at large? What does this mean for the ideals of the rule of law and open justice?

In this module we will study the history and development of secret courts and bodies over time, understand how they work in relation to different areas of law, explore the limits of how far judges and reviewers are prepared to go in challenging the government and security agencies, and critically assess whether or not these developments represent the best way to deal with the challenges and risks of national security.

Indicative syllabus

• What is open justice and what is the function of disclosure in a 'fair' legal process?
• What is national security? The history of royal prerogative and the question of non-justiciability in the legal system
• The emergence of Closed Material Procedures and Special Advocates
• The use of secret processes in relation to state security after 9/11
• A case study on the Abu Qatada saga
• The common law's response to questions of secrecy in adjudicating on questions of rendition and torture
• The recent spread of secrecy and security in law: inquests, care proceedings, criminal trials - why is secrecy growing?
• The use of secret models of oversight and review in relation to the Snowden leaks of 2013
• Risk, security and law: how does the law deal with pre-emptive decisions taken on the basis of secret intelligence, and what does this mean for the idea of justice?

By the end of this module, you will be able to:

• understand the connection between secrecy and the emergence of national security law as a distinct field that brings together constitutional law, administrative law, and human rights law, and understand what factors have influenced judicial decisions in different types of cases
• apply the current caselaw regarding the line between secrecy and disclosure according to the issues that are to be determined in a particular case
• evaluate what the historical picture tells us about the development of national security law and whether it has had a positive or negative impact on the legal system
• critically reflect on the role of human rights law in this picture, and consider the importance that law itself plays in defining the type of society that is to be protected by the measures that law enables or constrains, and query what that might mean for the future of national security law.

There will be no set textbook. We will work primarily from cases, articles and other materials provided. Each week a key case or article will be provided, along with a worksheet containing targeted questions for you to fill in once you have read the case. This will help you take notes and come to the seminar prepared to discuss the key issues.

There is a large range of material available regarding secrecy, national security and the law. You are not required to read it exhaustively. There will be a full reading list provided that will enable you to select a particular field of national security law that you wish to engage with for your final assessed essay.

However the following texts will give you a sense of the issues we shall be concerned with:

• JUSTICE, Secret Evidence, June 2009 report - www.justice.org.uk
• Laurence Lustgarten and Ian Leigh, In From the Cold: National Security and Parliamentary Democracy (Oxford University Press, 1994).
• A Masferrer and C Walker, Countering Terrorism and Crossing Legal Boundaries in Defence of the State (Edward Elgar, 2013).
• Cian Murphy, 'Counter-terrorism and the culture of legality: the case of special advocates', KLJ 24(1), 19 (2013).
• Eva Nanopoulos, 'European Human Rights Law and the Normalisation of the "Closed Material Procedure": Limit or Source?', The Modern Law Review 78, no. 6 (2015): 913-44.
• C Walker, Terrorism and the Law (Oxford, 2011).