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Justice and Security Bill

Foreword by Ken Clarke

It is a fundamental tenet of democratic society that even the most sensitive parts of the state – such as the security and intelligence agencies – need to be properly accountable for what they do. The Government believes that the UK’s intelligence services are the finest in the world, and we are hugely grateful for the sacrifices they make in defending public safety. But it is also right that they are properly scrutinised in Parliament and beyond and – where serious allegations are made against the security and intelligence agencies – that they should be heard and resolved in a court of law.

So no-one can be satisfied with the current situation whereby, in a small number of nonetheless important cases, no judgment is passed on very grave allegations. The problem relates to civil claims against the British Government, with claimants typically seeking significant amounts in damages, but where the facts of the case turn on highlysensitive information. In such circumstances, the security and intelligence agencies have had no way of presenting their evidence in court without putting their methods at risk and their agents in danger. The consequence has been that the Government has had to cease to defend itself, leaving state action unscrutinised, citizens with no independent judgment on very serious allegations, and the taxpayer liable for settling cases which may have no merit.

Equally troubling has been the separate matter of the so-called ‘Norwich Pharmacal’ jurisdiction. Originally concerned only with matters of intellectual property law, Norwich Pharmacal allows someone fighting a court case on the other side of the world to apply to a court in London for intelligence information either belonging to the UK, or provided to us by our allies. No other country in the world has such a jurisdiction. Indeed there is not even a parallel jurisdiction inScotland. No other country in the world allows this kind of legal tourism to happen – for the good reason that it undermines confidence among other countries that might otherwise share vital intelligence with us. In the UK we are already seeing the consequences, with measures in place from some of our allies to regulate or restrict intelligence exchanges.

It was to sort out these problems that in 2011 I brought forward our Justice and Security Green Paper. It set out proposals to equip our courts system to handle sensitive intelligence material better through the introduction of Closed Material Procedures, to protect our intelligence sharing relationships through the reform of the Norwich Pharmacal jurisdiction, and to improve parliamentary scrutiny of the security and intelligence agencies and wider intelligence community. These are issues of profound significance that go to the heart of the nation’s democratic values, and the Government welcomes proper examination of its proposals.

The Bill which I believe is focussed and proportionate will ensure that civil cases whichare currently not heard, will be heard, whilst also ensuring that no evidence currently heard in open court will be heard in secret in future. As a result of the changes the Bill introduces, allegations made against the Government will be fully investigated and scrutinised by the courts, Government will no longer be forced to resort to settling cases which it believes have no merit for significant sums of taxpayers’ money and justice will be done for claimants. 

Rt Hon Kenneth Clarke QC MP