Secrecy, National Security, and the Law (Level 6)

• Credit value: 15 credits at Level 6
• Convenor: Dr Bernard Keenan
• Assessment: a 4000-word essay (100%)

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 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 national security? The royal prerogative and the question of non-justiciability
• The history of the Official Secrets Act and the ‘Neither Confirm Nor Deny’ policy
• The role of the media: leaks, the D-Notice system and article 10 ECHR
• From telephone tapping to mass surveillance: a case study in keeping things secret
• Human rights, the creation of SIAC, and the role of Special Advocates
• Principles of disclosing evidence: torture and the Justice and Security Act 2013
• Independent review: the role of oversight bodies and public reports
• The recent spread of secrecy and security in law: inquests, care proceedings, criminal trials - why is secrecy growing?
• Risk factors, alternative models, and the reform of the Official Secrets Act

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. Do secret proceedings do harm, or do they enable law to protect rights that would otherwise be abused with no oversight?  
• 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.