It is a fundamental requirement of the rule of law that justice must be open and fair. However, it is not always possible - even if it is preferable - to achieve both of these principles at the same time. For instance, rape victims and minors cannot be identified in reports of court proceedings and, on rare occasions, witnesses who fear for their safety are granted anonymity. Openness is sacrificed in the interests of fairness.
Where national security is concerned, this is particularly problematic. It is clearly not in the wider public interest to air in an open court secret intelligence that may derive from foreign sources and whose disclosure could be detrimental to national security. On the other hand, nor is it just to deny those who feel they have been wronged by the intelligence services the opportunity to seek redress. Achieving a balance between the requirements of security and the principles of liberty is a difficult task and one with which the Government has struggled in producing the Justice and Security Bill, published yesterday.
Ministers were forced to act following the claim for damages brought by Binyam Mohamed and others, who alleged that Britain was complicit in their mistreatment in Guantánamo Bay. During the case, the Court of Appeal ordered the disclosure of secret material obtained from the Americans, jeopardising an important intelligence relationship. In the end, the Government had to withdraw from the action and pay substantial compensation. Where was the justice in that outcome? These difficulties have been compounded by a judicial ruling known as Norwich Pharmacal, under which sensitive information can be disclosed for use in proceedings against third parties overseas. Since 2008, there have been nine applications under this ruling made by individuals seeking Government-held sensitive information - part of a marked increase in the number and diversity of judicial proceedings examining matters related to national security. It is by no means clear that they always had the interests of this country at heart.
The Bill will see an expansion of so-called "closed material procedures", where a judge views all the evidence and hears arguments from special advocates on behalf of litigants; but Kenneth Clarke, the Justice Secretary, has wisely compromised on earlier plans by agreeing that inquests should not be held in secret. This strikes the right balance. We are facing a continuing threat from terrorists whose methods are ever more sophisticated, and the manner in which we counter those threats must be protected. This measure reinforces the rule of law without giving ground to those who would do us harm.
