The Full Story
In 1641, Parliament abolished the Star Chamber. It was one of the most important moments in English legal history. The Star Chamber was a secret court where the Crown could try anyone without a jury, without public scrutiny, and without the right to know the evidence against you. Its abolition established a principle that endured for centuries: justice must be seen to be done.
In 2013, Parliament passed the Justice and Security Act. Buried within it was a provision for Closed Material Procedures. Under these procedures, a court can hear evidence in secret. One side, the government, can present its case behind closed doors. The other side, the citizen, and their lawyer can be excluded entirely. They may never know what evidence was used against them. They may never know why they lost.
The government's case was practical. Some civil claims involve intelligence material that cannot be aired in open court, ministers argued, and without closed procedures the government had to settle such cases untested; better a judge who sees all the evidence than a judge who sees none. Critics answered that a case you cannot see is a case you cannot answer, and that every secret procedure in history, the Star Chamber included, has been justified by the claim that secrecy was essential.
The Act passed. Closed Material Procedures are now used in civil cases across Britain. A citizen can be sued, or can sue the government, and have the case decided on evidence they are not allowed to see. Special advocates are appointed to represent the excluded party's interests, but they cannot tell their own client what the secret evidence says.
Critics said it took centuries to abolish secret justice and one Act of Parliament to bring it back. Supporters said the comparison breaks down: independent judges, statutory limits, no punishments. Where it holds, a party affected by evidence they cannot see, is exactly where the debate continues.
Why This Matters
The Justice and Security Act 2013 reopened one of the oldest questions in English law: can justice that is not seen to be done still be justice? When citizens can lose cases on evidence they never see, the relationship between the state and the individual changes. Supporters argue CMPs let a judge weigh evidence that would otherwise never be tested at all. Critics, including a group of the special advocates who work within the system, call it fundamentally unfair. The Star Chamber's abolition in 1641 set the principle; the 2013 Act tests whether that principle admits exceptions.
Key Facts
- ✓Open justice principle dates to Magna Carta 1215: Clause 40 of the 1215 Magna Carta: "To no one will we sell, to no one deny or delay right or justice." The principle of open courts is a fundamental common law rule, reinforced by centuries of case law. Scott v Scott [1913] AC 417 confirmed open justice as a constitutional principle.
- ⚠"Eight hundred years" of open justice: defensible narrative compression. Magna Carta was sealed in 1215 (811 years ago as of 2026). The open justice principle predates Magna Carta in practice but the charter codified it. "Eight hundred years" is a rounded figure used in common discourse about English legal heritage.
- ✓English courts were open to the public: the open justice principle is one of the most fundamental common law rules. Lord Hewart CJ in R v Sussex Justices [1924]: "Justice should not only be done, but should manifestly and undoubtedly be seen to be done."
- ✓The Star Chamber existed and held closed proceedings: the Court of Star Chamber sat at the Palace of Westminster from the 15th century. Under the early Stuarts it became notorious for arbitrary justice, no jury trials and proceedings hidden from public scrutiny, and was used as a political weapon, particularly under Charles I. Whether it used torture is disputed: torture warrants in the period ran through the Privy Council under the royal prerogative, not as ordinary Star Chamber procedure.
- ✓Star Chamber: secret trials, no jury, no appeal. The Star Chamber operated without juries, in closed session. Its rulings could not be appealed. It could impose any punishment short of death (though fines, imprisonment, mutilation, and pillory were common). It became a byword for arbitrary power.
- ⚠The accused never saw evidence against them (Star Chamber): the Star Chamber process was inquisitorial rather than adversarial. Defendants were interrogated, sometimes under oath ex officio (forced to swear to answer truthfully before knowing the charges). While defendants could respond to charges, the process was heavily weighted against them. The claim is a defensible characterisation of the power imbalance, though the procedure was more complex than a simple "you never saw the evidence."
- ✓Parliament abolished the Star Chamber in 1641: the Habeas Corpus Act 1640 and the Abolition Act 1641 (16 Charles I c.10) abolished the Court of Star Chamber. This was a key achievement of the Long Parliament in the lead-up to the English Civil War.
- ✓The Justice and Security Act received Royal Assent in 2013: the Justice and Security Act 2013 (c.18) received Royal Assent on 25 April 2013. It introduced Closed Material Procedures into civil proceedings in England and Wales.
- ✓CMPs: defendant cannot see the evidence. Under CMPs (Part 2 of the Act), the court can order that material be disclosed only to the court, the Secretary of State, and special advocates. The other party (typically the claimant/defendant) is excluded from the closed part of proceedings and cannot see the material.
- ✓CMPs: defendant's own lawyer cannot see the evidence. The claimant's own chosen legal representatives are excluded from the closed sessions. Only security-cleared special advocates, appointed by the Attorney General, may see the closed material.
- ✓Special advocates cannot communicate with the defendant about what they've seen: once special advocates have seen the closed material, they are prohibited from communicating with the excluded party or their legal representatives about the content of that material without permission from the court. In practice, such permission is very rarely granted. This is a fundamental constraint acknowledged by special advocates themselves.
- ✓Special advocates have criticised the system: multiple special advocates have publicly criticised CMPs. In 2012, during the Bill's passage, a group of special advocates wrote to the Times calling the proposed system "fundamentally unfair." Individual special advocates including Martin Chamberlain QC and Angus McCullough QC have given evidence to parliamentary committees highlighting the inherent limitations of the role.
- ✓Binyam Mohamed case and MI5 complicity in torture: in R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010], the Court of Appeal ruled that a summary of CIA intelligence reporting on Mohamed's treatment, which showed MI5 knew of his mistreatment, should be disclosed. The case was central to the political context driving the JSA 2013. The government's desire to prevent similar disclosures was widely reported as a key motivation for the Act.
- ✓The Act was passed despite opposition from lawyers and the House of Lords: the Bill faced significant opposition during its passage. The House of Lords inserted amendments (including a requirement for judicial balancing of open and closed justice) which were partially overturned by the House of Commons. Liberty, Justice (the legal charity), the Law Society, and numerous legal academics opposed key provisions.
- ⚠RIPA 2000, surveillance without warrants: the Regulation of Investigatory Powers Act 2000 did not eliminate the need for all warrants, but it created a broad framework for surveillance by public bodies, some of which did not require judicial authorisation (e.g., directed surveillance and covert human intelligence sources could be authorised by senior officials, not judges). Local councils were found to have used RIPA powers for minor matters (e.g., monitoring school catchment areas). The characterisation "surveillance without warrants" is a defensible simplification of the criticism that RIPA enabled excessive surveillance with insufficient judicial oversight.
- ✓Investigatory Powers Act 2016, internet history stored by law: the Investigatory Powers Act 2016 (the "Snoopers' Charter") requires telecommunications operators to retain Internet Connection Records (ICRs) -- a record of every website visited -- for 12 months. This was widely criticised by privacy campaigners. The provision is in Part 4 of the Act.
- ✓Police, Crime, Sentencing and Courts Act 2022, right to protest restricted: the PCSC Act 2022 gave police expanded powers to impose conditions on protests, including noise-based restrictions (previously protests could only be restricted for serious public disorder, not noise). It created the offence of "intentionally or recklessly causing public nuisance" (max 10 years imprisonment). It was widely criticised by civil liberties organisations as restricting the right to protest.
- ✓"372 years later" (1641 to 2013): 2013 minus 1641 = 372 years. Arithmetically correct.
- ⚠How often CMPs are used: CMPs have been used in civil cases since 2013, but exact numbers are not publicly verifiable, which is itself part of the criticism. An earlier version of this entry estimated 'dozens of cases'; that figure cannot be verified and is no longer asserted.