PANEL SESSIONS III TUESDAY JUNE 26 2018 11.00 AM – 12.30 PM

Room: CYTT 3.11

  • SECRECY AND ACCOUNTABILITY IN NATIONAL SECURITY LAW
    This panel seeks to examine issues surrounding secrecy in security-related public law cases. Specifically, the panel will focus on exploring how UK courts have managed secrecy, and the potential implications for state accountability. The panel is chaired by Dr Hayley Hooper, and Dr Fergal Davis will act as a discussant.
    • Judicial Control over the Use of Closed Material Procedures
      This paper identifies the key challenges posed by the innate secrecy of closed material procedures (CMPs), highlighting the concomitant importance of judicial control over their use. Judicial independence is of fundamental importance in any democracy of which judicial decision-making powers are an essential element, even in the national security context. In the UK, the Justice and Security Act 2013 extended the availability of CMPs to all civil proceedings. The Act appears to preserve judicial decision-making power at the initial stage of ordering the use of a CMP, however it does not adequately address concerns regarding the way such power is structured. This paper advances an alternative framework, which delineates the steps of the decision-making process and assigns varying degrees of deference in accordance with the appropriate limits of judicial and executive power. This approach seeks to reconcile underlying competing interests and offer a more rigorous approach to proceedings.
    • Assuming Facts as an Alternative to Secret Evidence
      The UK Investigatory Powers Tribunal, the court responsible for determining human rights claims with regards to state surveillance, has developed procedure which serves to reduce the reliance on secret evidence in a case. Rather than establishing security-sensitive facts regarding the UK’s surveillance regime in closed proceedings, the procedure involves assuming certain facts regarding the nature of the surveillance regime to be true. The Tribunal then usually rules on the legality of the regime – on the basis of assumed facts – in open proceedings, while primarily only using closed sessions to assess specific instances of surveillance. The paper assesses this form of procedure and the impact it has on accountability. It is argued that while it may help to promote greater openness surrounding the judicial process in surveillance cases, it brings with its own limitations from the perspective of holding the Government to account with regards to its surveillance practices.