an architecture of panopticism

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An Architecture of Panopticism?

A Foucauldian Critique of Closed Material Proceedings in the United Kingdom

Queens University Belfast

LLM Human Rights Law

Anonymous Code 41955

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Contents

Abstract 3

Introduction 4

Methodology 7

Chapter One

- Biopower 14

- Jurisprudence/ Law and Power 18

- Disciplinary Power 23

- Governmentality and Modern Applications 26

Chapter Two

Part 1

- The Right to a Fair Trial 33

- Article 6 ECHR 34

- Secret Courts 40

Part 2

- Closed Material Proceedings Case Law 43

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Chapter Three

- Justice and Security Act 58

- Surveillance 62

- Human rights Discourse 64

Summary and Conclusion 66

Bibliography 69

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Abstract

This paper is based on a Foucauldian critique of Closed Material Proceedings (CMP) in the

United Kingdom in an attempt at re-evaluating the importance of Foucault’s work in the

operation of modern law. By employing the theoretical perspectives of biopower and

disciplinary mechanisms, this paper seeks to demonstrate the implications of the way in

which CMP engage in these two different forms of power. Through a Foucauldian looking

glass of governmentality and risk theory the paper attempts to explain the wider culture of

surveillance and control with particular regard to counter-measures against the “new

terrorism.” Within the hierarchy of information-producing intelligence and security agencies,

can develop an understanding of how modern law represents itself in relation to closed

material proceedings. This paper argues that an architecture of panopticism exists in relation

to closed material proceedings in the UK and the wider human right discourse masks the

necessity for legitimacy underlying techniques of power.

Introduction

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which CMP engage in these two different forms of power.

Chapter One

Chapter one will focus on Foucault’s theories of biopower and disciplinary mechanisms and

their development in a contemporary analysis within law generally. The paper will draw from

work done in this area by legal theorist Victor Tardos. He methodically examines the

criticism of Foucault, by legal and sociological thinkers, and in doing so challenges the

status quo in liberal legal thinking. It then examines the relationship between biopower and

disciplinary power and how the former dovetails into the latter; expanding these forms of

power as manifestations of governmentality. For Foucault discipline is not singularly about

the control of individuals to prevent certain acts but it produces subjects with their own

individuality. The chapter will end with an analysis through the foucauldian looking glass of

governmentality and risk theory to explain the wider culture of surveillance and control with

particular regard to counter-measures against the “new terrorism” and the government

sponsored moral panic which often result in the formation of legislation that restricts civil

liberties, in particular, the right to a fair trial.

Chapter Two

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This chapter is divided into two parts. Part One of this chapter will engage Foucault’s

theories of biopower and disciplinary mechanism in an examination of closed material

proceedings, having regard to the right to a fair trial, both in common law and through anti-

terrorist legislation the UK. It will focus on cases that involve “suspected terrorists” as these

cases take up centre stage in the human rights debate regarding the right to a fair trial. They

also provide rich examples in which to demonstrate Foucauldian theory. This chapter argues

that the Article 6 right to a fair trial criteria in which this paper intended to measure “secret

courts” is defunct. In a Foucauldian analysis, the standards laid out in Article 6 discussed

further in chapter three.

Part two of this chapter argues that many of the cases below have been brought to ,

representing numerous underlying power relationships. Further, that closed material

proceedings form part of an on-going process of panopticism that already exists within the

architecture of power, which lies at the heart of this paper. Drawing on cases from the

European Court of Human Rights as well as domestic cases, it seeks to demonstrate through

case law that both: the margin of appreciation, and the doctrine of proportionality permit

Member States latitude in how they govern their own practises and procedures within the

disparate legal systems. It is arguable that in regard to the minimum guarantees laid down by

Article 6 ECHR the UK have been successful in circumventing these standards by limiting

the material a defendant can see on the grounds of “national security”. This chapter argues

that there is a shift away from European jurisprudence on the right to a fair trial, in favour of

“democratically enacted legislation” and their own well established precedents.1

Chapter Three

1 Marny Requa, “Absent witnesses and the UK Supreme Court: judicial deference as judicial dialogue”, 2010 14

International Journal of Evidence and Proof. Page 208

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This chapter argues that Part One of the Justice and Security Act 2013(JSA) indicates a

multiplicity of power relations between the various networks of intelligence services that

operate through the conversion of data into information that may be useful in the “war against

terror”. The conversion of this data to “useful” information is not consequential but

contextual, and very much depends on: who decides what data is to be converted, how that

data is collected and verified, etc. Once the harvested data is converted to information, this

information is power, not only to those collecting or evaluating the data but those you receive

the data or information who can now act on the basis of this information. From the JSA we

can see the information hierarchies that exist in the UK and power relationships that are

implicit in the system of secret information. This paper argues that this fracturing of power

shapes law using the techniques of governmentality and surveillance . Further, it argues that

closed material proceedings represent one of the on-going processes that form part of the

architecture of panopticism. To a large extent this has been ignored by legal commentators,

politicians, judges and Human Rights NGOs, in favour of a rights based discourse, and in

doing so both the judiciary and the executive may have “normalised” to a certain degree at

least the covert form of power of subjective judgements hidden in the harvesting of

information.

The second part of this chapter will argue that human rights discourse surrounding closed

material proceedings, based on the accounts provided by the major actors in this arena, is a

form of power that circulates in the social field and attaches to strategies of domination used

by the government, as well as a strategy of resistance used by the judiciary, legal

commentators, ECtHR and NGO’s.

Methodology

7

This paper is based on a Foucauldian critique of Closed Material Proceedings in the United

Kingdom in an attempt at re-evaluating the importance of Foucault’s work in the operation of

modern law. By employing the theoretical perspectives of biopower and disciplinary

mechanisms, this paper seeks to demonstrate the implications of the way in which CMP

engage in these two different forms of power.

As the thesis is based on qualitative research, the methodology was essentially carried out by

way of applying a Foucauldian methodological approach. It was important initially to extract

from an extensive range of writing, and theories propounded by Foucault that could relate to

modern law. As a social scientist and a historian of ideas, he did not devote a great deal of

time to law, but did write prolifically on closely related subject matters; of politics, territory,

populations, prisons and sexuality, inter alia. It became possible then to draw from the vast

array of his work some of his essential theories, even though at times it was difficult to

examine some of the sweeping generalisations that Foucault makes and does not appear to

flesh out in further reading. Although Foucault had not concerned himself to a large degree

with law, and the body and breadth of work left by him is voluminous and deeply complex, it

still appeared possible that some of his theories of biopower and disciplinary mechanisms

could relate to modern law. Thus it was imperative that further research, reading and analysis

was carried out in an attempt to relate Foucault’s theories of biopower and disciplinary

mechanism to modern law and re-evaluate it in a modern context.

After researching legal data bases first, it became apparent that the net would have to be cast

wider into sociological and anthropological field of study, in order to access the best quality

of knowledge in this still wide area. This thesis extrapolated some ideas of theorist Victor

Tardos. He methodically examines the criticism by legal and sociological thinkers, in

particular Foucault, and in doing so challenges the status quo in liberal legal thinking.

Examining an Augustian approach, his work disseminated the relationship between biopower

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and disciplinary power, and how the former dovetails into the latter; expanding these forms

of power as manifestations of governmentality. From this it became possible to draw on the

liberal human rights discourse, which essentially is based on Augustian principles of

freedoms, which became instrumental in latter part of the thesis.

Choosing the legal field

Foucault’s idea of ‘panopticism’ laid out in Part 3 Chapter 3 of his book Discipline and

Punish was of particular interest. This could be used to evaluate the controversy surrounding

the New Justice and Security Act 2013 and in particular to closed material proceedings. It

was critical to examine the archaeology of panopticism to apply his theory of panopticism as

a power mechanism to a modern application of law.

The theory of panopticism was developed from Jeremy Bentham in 1843 in relation to the

creation of a utopian type prison, that optimised the way in which a prisoner could be

disciplined, through the possibility of constant surveillance, without the regulatory power

being seen by the prisoner. Thus Bentham developed the panopticon-prison, detailed in

chapter one of this paper. Bentham’s work is also voluminous, forensically detailing every

conceivable aspect of prison life. Volume 4 of his works details the panopticon as the

ultimate model of prisons. Foucault expands on this idea and creates a theory around the

possibility of various modern forms of invisible disciplinary mechanism. It was not critical to

this paper to prove the link between panopticism and the need to actually discipline the

subject, but rather it was important that the architecture for panopticism exists. This then

became the central argument in the thesis. That within the modern legal field there was a

potential for the architecture of panopticism to exist in the UK legal system.

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The next step in the methodology was to examine closed material proceedings both; as

forming part of an entire system of law, where, how and why they existed, and also whether it

was possible that closed material proceedings formed part of a larger architecture of

panopticism in the UK legal system.

By applying Foucault’s theories of biopower and disciplinary mechanisms to closed material

proceedings, it became possible to argue that the expression of modern law represents the

underlying power relationships that exist in a wider framework of intelligence surveillance.

As closed material proceedings are mainly used where there is ‘sensitive information’ that

may damage national security. The cases involve those suspected of terrorist associations.

This has led to widespread use of various observational techniques in order to monitor or

control suspects. The paper then attempted to demonstrate that closed material proceedings is

a form of power, exercised through governance and discipline. In order to make this

connection in a methodological approach it was important to examine whether modern law

was changing in order to embrace this phenomenon of ‘new terrorism’, and whether closed

material proceedings formed part of a new architecture. There was still a gap in being able to

understand the social construction of the terrorist risk and the introduction and extension of

closed material proceedings. Mythen and Walkate in their study of Criminology and

Terrorism base their analysis on a Foucauldian looking glass of governmentality which was

instrumental in tying together Foucauldian theory of biopower and disciplinary power, with

the social construction of the terrorist risk. It then became possible to argue that the risk of

terrorism has led to the widespread use of intelligence agencies, evidenced by the Justice and

Security Act 2013. This paper suggests institutional manoeuvrings, various methods of

observational techniques and assessments, may have translated the threat of a terrorist attack

into a measurable objective.

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In order to assess this hypothesis using a Foucauldian methodology, it was crucial to examine

the development of closed material proceedings, not in isolation but as part of the wider legal

system. This was done by examining the procedures in relation to the right to a fair trial.

Additional Criteria of Article 6 ECHR

Initially, this thesis intended to use Article 6 ECHR as a benchmark on which to measure and

evaluate closed material proceedings. However, as the research developed it became apparent

that in a Foucauldian methodology, Article 6 was defunct. The examination and analysis of

closed material proceedings and the related case law, indicated a possible human rights

discourse that may operate in relation to the right to a fair trial. Almost all the criticisms

analysed that related to closed material proceedings, used in some form the human rights

narrative to critique the operation of such proceedings. This was evidenced in both the case

law, at domestic and European level, as well as by non-governmental organisations such as

Liberty, Reprieve, and various other Human Rights Groups. The minimum standards laid out

in Article 6 of the ECHR formed the yard-stick on which the proceedings were criticised.

From this supposition it was possible to widen the net and research whether other major

actors in this legal field, were also using a rights based narrative on which to applaud or

condemn closed material proceedings. In researching this idea the thesis extrapolated quite a

wide range of governmental and non-governmental papers, from Liberty’s Committee stage

briefing on Part 2 of the Justice and Security Bill in the House of Commons to the Sixth

Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism

Act 2005. It also considered House of Commons papers, such as the Select Committee on

Constitutional Affairs Seventh Report and the Joint Committee on Human Rights, 9th Report

in 2007-2008. The Special Advocates instructed in closed material proceedings were the only

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interested parties, that appeared to rely to a lesser extent on the rights narrative, set out in

their response to Consultation to the Justice and Security Green Paper. Therefore, based on

the research it is possible to construct a human rights discourse, which can attach itself to

strategies of both domination and resistance, however more analysis would be required to

consolidate this supposition.

Employing a Foucauldian methodological approach analysing case law, meant that the

examples would have to demonstrate each step of the central hypothesis: closed material

proceedings engage to a large extent with Foucauldian theories of biopwer and disciplinary

mechanisms, and as such, form part of an architecture of panopticism in the UK.

The Case Law

It was more practical to split Chapter Two into two parts, rather than create a separate chapter

for the case law. This allowed for closed material proceedings to be examined wholly and

contextually. Also, the importance of surveillance to the thesis was paramount warranting a

separate paragraph and the use and control of intelligence information.

The case law had to demonstrate at least some of the elements of; (1) surveillance as a

technique of control, (2) that the consequences of the surveillance was the production of the

sensitive material, that would not be disclosed and would result in closed material

proceedings, and that this material was based on micro-subjective judgments made in the

context of terrorism and may result in a form of panopticism (3) the measures implemented

as a result of (1) and (2) could be interpreted as mechanisms of control, and (4) closed

material proceedings could possibly be seen as to be part of the architecture of panopticism.

It was also necessary to demonstrate the importance that the state attaches to the secrecy of

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certain information for reasons other than national security. Some of the case law attempts to

support this argument.

The thesis relied on the Justice and Security Act 2013 to support the points made above,

together with the work of Larry Cata Backer on how regulatory power has become fractured.

Using surveillance as a technique of governance, this paper suggests ways in which

governance is increasingly elaborated through the techniques of its own power. It was of

particular importance in explaining the dissemination of data from surveillance operations,

and how this data is converted into “useful material” for particular objectives. Control of the

choice of data/information to be collected, may be perceived as a mechanism of control. This

would prove critical in any attempt at a Foucauldian understanding of how biopower may

engage with closed material proceedings.

Once the strands were pulled together of how biopower and disciplinary mechanisms engage

with closed material proceedings, a more holistic picture began to emerge. Questions also

arose to whether the human rights discourse, together with other techniques of power, are

possibly masking the necessity for legitimacy in relation to what may be termed an

architecture of panopticism in the UK. This is a question for future papers due to the

restraints of a 20,000 word limit.

“Sovereign is he who decides on exception”

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Schmitt2






Chapter One

2 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (University of Chicago Press 2005) 5

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Chapter one will focus on Foucault’s theories of biopower and disciplinary mechanisms and

their development in a contemporary analysis within law generally. The paper will draw from

work done in this area by legal theorist Victor Tardos. He methodically examines the

criticism, by legal and sociological thinkers, of Foucault and in doing so challenges the status

quo in liberal legal thinking. It then examines the relationship between biopower and

disciplinary power and how the former dovetails into the latter; expanding these forms of

power as manifestations of governmentality. For Foucault discipline is not singularly about

the control of individuals to prevent certain acts but it produces subjects with their own

individuality. The chapter will end with an analysis through the Foucauldian looking glass of

governmentality and risk theory to explain the wider culture of surveillance and control with

particular regard to counter-measures against the “new terrorism” and the government

sponsored moral panic, which often result in the formation of legislation that restricts civil

liberties, in particular, the right to a fair trial.

1. Biopower

Michel Foucault was a French theorist and one of the most influential thinkers of the

twentieth century3. He wrote extensively in the sixties, seventies and eighties as a social

scientist and a historian of ideas and developed his theory of biopower. Biopower can be

described as numerous and diverse techniques for achieving the subjugation of bodies and

control of populations, not because power was all embracing but because it was everywhere.4

This paper seeks to re-evaluate bio-power today and its relevance in contemporary legal

3 Victor Tardos, ‘The Law and Michel Foucault’ [1988] 18 Oxford Journal of Legal Studies 75

4 Paul Rabinow and Nikolas Rose, ‘Thoughts on the Concept of Biopower Today’ [2006] 154:3 Biosocieties 477

15

analysis with particular regard to the emergence of Closed Material Proceedings in the U.K.

The Justice and Security Act 2013 sets out in Part 1 an oversight of intelligence and security

activities and the handling of “sensitive” information that will be excluded from the public

arena if there is a possibility they could prejudice the operation of the intelligence services in

the UK. Part 2 introduces on a much wider footing, the possibility of closed material

proceedings in civil litigation. This paper argues that the increase in information technology

and the complex network of Intelligence agencies set out in the Act changes the framework

of power relationships in the legal field. Much surveillance work is carried out in the UK by

these intelligence agencies and this changes the landscape of regulatory power.

“Law no longer serves its traditional function either as an organic repository of the regulation of a

political community or as the positive expression of the will of the political community as legitimately

enacted through its representatives in government”5

Law is not supported by surveillance as a mechanics of enforcement.”6 Instead, the

mechanics of enforcement becomes law itself, in the shape of subjective judgments that

decide what is to be observed, recorded and analysed.

Thus, this paper argues the Foucauldian notion of biopower engages with modern law

through the technique of governmentality and surveillance.

Biopolitics, according to Foucault, is the expression of bio-power that arose in the second

half of the eighteenth century to manage and shape populations in contradistinction to the

individualising operation of disciplinary power that were already functioning from the

5 Lary Cata Backer (2007) ‘Global Panopticism : States, Corporations, and the Governance Effects of Monitoring Regimes’ [2007] 15:XXX

Indiana Journal of Global Legal Studies 41

6 ibid

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seventeenth century.7 .However, that does not necessarily mean that bio-power acts in

opposition to the individualising characteristics of disciplinary power,

but it does dovetail into it, integrate it, modify it to some extent and above all, use it

by sort of infiltrating it, embedding itself in existing disciplinary techniques. This new

technique does not simply do away with the disciplinary technique, because it exists

at a different level, on a different scale, and because it has a different bearing area and

makes use of very different instruments.8

The relationship between disciplinary power and that of biopower is one of convergence and

asychronicity, in effect complimenting each other. In his College de France lectures from

1975-69 he outlines a paradigm: one pole of biopower focuses on politics of the human body,

attempting to maximise its forces and integrate it into efficient systems; the other pole is one

of regulatory controls, a biopolitics of the population, focusing on the species body, birth,

life, morbidity, etc. . By The nineteenth century, he argues that the two poles were conjoined

by great technologies of power.10

the great overall regulations that proliferated throughout the nineteenth century... are

also found at the sub-State level, in a whole level of sub-State institutes much as the

medical institutions, welfare funds, insurance, and so on.11

Chapter three examines Part 1 of the Justice and Security Act 2013 and the underlying

complexity of networks that harvest data for the production of information that may be useful

in the battle against the “war on terror”. It argues that the technologies of surveillance operate


8Michel Fouacualt, Society Must be Defended IV: Link Between Discipline and Biopower , Lectures at The College De France 1975-76

(Palgrave Macmillan 2003)242

9 ibid.

10 ibid.

11 ibid, 250

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as a regulatory mechanism and that surveillance represents complex assumptions and value

judgments and is not merely a normative exercise in the gathering of information through

observation. This paper argues that biopower may engage with modern law.

Thus, we can see from this that biopower is a technology for managing populations. Power

has morphed from essentially preventing transgression, to directing the individual,

community and population. This is distinguished from an Augustinian concept of law, which

still remains the prevalent jurisprudence in the western world: that of rules and sanctions12.

Tardos believes that this no longer effectively describes various ways in which power

manifests itself; instead we need to re-evaluate the relationship between the law and various

forms of power. In Foucault’s words “in political thought and analysis we still have not cut

of the head of the king”13.

Bio-power on the other hand operates instead in polar respects of discipline and

governmentality and so does not work in a series of acts but instead on the lives conceived

biologically of the individuals.

The transformation of law became what Foucault termed Governmentality14 In the twentieth

century States not only developed or supported insurantial mechanisms of security , but

gathered together, organised and rationalized the loose threads of medical provision,

specified regulated standards of housing, engaged in campaigns of health education and the

like. Even liberal States also played their part in their role in the battle against degeneracy,

imposing immigration controls, sometimes legitimating compulsory or quasi-compulsory

sterilization...15

12

Victor Tardos ‘The Law and Michel Foucault’ [1988] 18 Oxford Journal of Legal Studies 76 13

Michel Foucault, The History of Sexuality Vol 1. Part 4 (Penguin Books 1978) 88-89 14

Victor Tardos ‘The Law and Michel Foucault’ [1988] 18 Oxford Journal of Legal Studies 91. 15

Paul Rabinow and Nikolas Rose, ‘Thoughts on the Concept of Biopower Today’ [2006] 154:3 Biosocieties 477

18

Foucauldian analysis of modern techniques of power poses some difficulties for the theorists:

justification of law appears to be quite removed from the way in which law actually expresses

itself when we see how discipline and governmentality operate. In a Foucauldian

understanding of surveillance it has been used in the past as a regulatory mechanism of law.

At this moment in time the changes that have occurred through the power of governmentality

in the elaborate field of information, evidenced in the recent JSA, changes this power

dynamic within the legal field splintering the power relationships. The attention paid to the

many forms of surveillance and the handling of the data/information produced by these

agencies listed in the Act mean that law is now expressed differently through different forms.

It is not the JSA that gives power to these intelligence information agencies, it is rather that

the power of these agencies is expressed by the Act. Thus, the justification of law appears

removed from the way in which law expresses itself.

JS Mill’s efforts to legitimise law appear ineffectual in these circumstances. As we have seen,

the “free spaces” in which law is supposed to protect has been filled with techniques of power

and are no longer there only to prevent harmful transgressions but now fulfil wider and

various roles in regard to relationships within the population.

2. Jurisprudence/ Law and Power

While much of Foucault’s work did not concern itself with how law operated historically, it

nevertheless offers scholars some insight into the transformation of the institutions of power.

Foucault argued that sovereign power of the king in classical times16 had the right to decide

life or death, the right of a ruler to seize property and ultimately to kill those subjects who

acted against him. Later sovereignty was displaced to the state, but that deduction became

16

Foucault describes the Classical as being the 17 and 18th century, The Archaeology of Knowledge 175

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only one element in many mechanisms to re-enforce, monitor and control, organise and

optimise the subject.17 This paper argues for a re-evaluation of relationships between the law

and modern forms of power. By examining the operation of closed material proceedings this

paper argues that not only has the topography of law changed but that the power relationships

between the judiciary and the state have also been fractured. In the operation of closed

material proceedings both the judiciary and the executive mask the lack of legitimisation of

the value judgments being made every day, by a vast array of surveillance operations and

techniques carried out by the intelligence agencies listed in the JSA. This paper argues that it

is not necessarily that the closed material proceedings are undemocratic and contrary to

natural justice, but that the architectural framework on which these courts are based is

fundamental flawed.

Much jurisprudence has focused on the question “what is law” but it has failed to recognise

the historical differences in the law’s evolution.18 Foucault in his work highlights the

inadequacy of liberal understanding of law, which essentially asks the question “what acts

ought to be permitted and which acts ought to be prohibited?”19 Hence, what is not prohibited

in liberal thought creates “a space was the individual can do and be what he so chooses.

Whereas Foucault’s understanding of biopower relations is not only legal or social

interdiction but incorporates

rationalised attempts to intervene upon the vital characteristics of human existence-

human beings, individually and collectively, as living creatures who are born, mature,

17

Paul Rabinow and Nikolas Rose, ‘Thoughts on the Concept of Biopower Today’ [2006] 154:3 Biosocieties 477 18

Victor Tardos ‘The Law and Michel Foucault’ [1988] 18 Oxford Journal of Legal Studies 76.

19

ibid 77

20

inhabit a body that can be trained and augmented, and then sicken and die and as

collectives or populations composed of such living beings20

Surveillance, as a technique of biopower is one mechanism through which this can be done.

By examining some of the case law in relation to closed material proceedings we can see that

specific ethnic groups have been targeted for observational purposes the justification given is

“the war on terror.”

Unlike liberal thinkers, for Foucault there is no “free space” called liberty and by tracing the

genealogy of power relations he points out that the fact that there is an absence of

legitimation in this liberty space that has not been prohibited. That is not to say however that

power relations are not at work within that space. Unlike J.S. Mill,21who believed that it is

only what ought to be prohibited that needs to be legitimised on the principle of harm, he

imagines the “free space” is filled with “natural” or “spontaneous consequences” like the man

who is overlooked for good office because he is of an inferior order.22 Foucault examines this

free space and looks at how ethical decisions are actually made; they are not natural or

spontaneous consequences, rather, these ethical decisions are also based on power

relationships. This paper argues that we can see this when we examine the architecture of

power that underpins the JSA as to the harvesting of data and the conversion of that data into

“useful information” in the pursuit of terrorists; it is in a contextual way and not merely

consequential. In liberal discourse rules are manifest as impersonal and general, and outside


John Stuart Mill, On Liberty and Other Essays (Oxford University Press 1991)

22 ibid 85-86

21

these rules the individual is free to pursue whatever he wishes, knowing that he is safe from

state interference. But Mill is aware that within this theory of liberal thought no account is

made for the encouragement of ordered and optimum behaviour of the individual. Tardos

quotes Mill in this regard and, in order to get to the nub of this crucial distinction in

Foucauldian and liberal thought on law, it is important to quote Mill in full,

It would be a great misunderstanding of this doctrine to suppose that it is one of

selfish indifference, which pretends that human beings have no business with each

other’s conduct in life, and that they should not concern themselves about the well-

doing or the well-being of one another, unless their own interest is involved. Instead

of any diminution there is a need of a great increase of disinterested exertion to

promote the good of others. But disinterested benevolence can find other instruments

to persuade people to do their good than whips and scourges, either of the literal or

metaphorical sort.’ 23

Tardos argues that from this it is difficult to see how this difference is anything more than the

difference between two ways of exercising power.24 On the principle of harm it is only what

is proscribed by law that is subject to the requirements of legitimation, interference needs

only be justified in cases of social sanction; there is an absence of legitimation in the “free

space”, which is legitimised by nature or spontaneous consequences according to Mill. It was

precisely this lack of legitimation in the Direction issued by the Secretary of State that was an

important feature, which led to the subordinate legislation being quashed in the Bank Mallet

case [chapter two].

23

ibid 8 24

Victor Tardos ‘The Law and Michel Foucault’ [1988] 18 Oxford Journal of Legal Studies 84 -85

22

In a Foucauldian analysis the law developed in the middle ages through particular

mechanisms of power. Territory was governed by power relationships: vassalage, servitude

and serfdom were manifestations of those relationships. Conflicts were resolved through

battles and wars; there could be no certainty as to outcomes. Hierarchy then develops as a

way to resolve disputes and avoid conflict, if the states ‘were able to gain acceptance, this

was because they presented themselves as the agencies of regulation, arbitration, and

demarcation, as a way of introducing order into the midst of these (prior) powers’ .25 Foucault

explains that hierarchy was a way of understanding how power was exercised, not that it was

in fact exercised in this way. Rather these power relationships were already in situ, the

hierarchy serves as a code to which power presents itself. Tardos links the codification of

power as responding to the urgent need for order. 26 The law succeeded not by exerting

violence in order to ensure compliance but through unifying power relations that already

existed. By the Classical age the codification of power relations transformed into a legal

mechanism by cementing previous relationships and thus reducing the potential for conflict.

The symbolic representation of law as the sovereign right to violence was a condition

for the law’s acceptance as well as a method for co-ordinating the form which the

legal structure took. However through a Foucauldian account, law operated as much

through co-ordination as it did through violence.27

This paper argues that a Foucauldian understanding may also relate to modern unification of

power relationships, within the hierarchy of information-producing intelligence and security

agencies, through which we can attempt to understand how modern law represents itself in

relation to closed material proceedings.

25

Michel Foucault, Discipline and Punish: The Birth of the Prison (Penguin 1977) 87

26 Victor Tardos ‘The Law and Michel Foucault’ [1988] 18 Oxford Journal of Legal Studies 86.

27 ibid 87-87

23

3. Disciplinary Power

In his book “Discipline and Punish”, Foucault describes discipline thus:

At the heart of all disciplinary systems functions a small penal mechanism. It enjoys a

kind of judicial privilege with its own laws, its specific offences, and its particular

forms of judgment. The disciplines established an infra-penalty; they portioned an

area that the laws had left empty; they defined and repressed a mass behaviour that

the relative indifference of the great systems of punishment had allowed to escape.28

Discipline is thus a mechanism of power which regulates the behaviour of individuals and is

enforced through the various and complex systems of surveillance. Power then is not

discipline but one way in which power can be exercised.

This paper argues that the use of closed material proceedings operate as a form of

panopticism. The term ‘panopticism’ was first coined by Jeremy Bentham in 1843 in a major

work that examined the construction and operation of prisons; he developed the architecture

of panoticism, a panopticon-prison, as the ultimate model in which a prisoner could be

disciplined. It consisted of a central watch-tower where a guard is installed; the windows

allow him to see all the inmates, who are contained in cells that are flooded with light from

windows on either side of the building. The cells, and thus the prisoners, can be perpetually

observed at any time, yet the surveillance is invisible. The ideal is that disciplinary power is

invisible in its application. “Panopticism is to see without being seen” 29 The essence of

which is to exercise power through observation alone. By forcing the individual to constantly

observe itself. For Foucault discipline is not singularly about the control of individuals to

28

Michel Foucault, Discipline and Punish: The Birth of the Prison (Penguin 1977) 178 29

ibid 200

24

prevent certain acts, it produces subjects with their own individuality. Individuals that

transgressed became visible in the juridical matrix to the extent that sanctions were placed on

them, whereas in a Foucauldian vision of disciplinary power the light is cast away from itself

and placed on the individual.30

This paper argues that a form of panopticism exists in relation to closed material proceedings

in the UK; both in relation to the procedures and in the processes of surveillance operations

and techniques practised by the intelligence services in the harvesting of “sensitive

information” that will form the basis of evidence against suspected terrorists. A good

illustration of how panopticism operates is the case of AF v Secretary of State for the Home

Department [2010]31

AF had dual nationality in both Libya and United Kingdom; born in England in 1980 his

mother was British and his father Libyan. His family moved to Libya in the 1980s and his

mother returned to England; he himself did not return until 2004 and so spent his formative

years in Libya. According to AF the reason for their return was a blood feud with the Gadaffi

tribe and for better employment opportunities. He was briefly married but lived with his

father in a council flat on the outskirts of Manchester. His sister lives in Paris with her two

children. A control order32 was made against him in 2006 which confined him to his flat for

18 hours a day. Subsequent to a court decision in Secretary of State for the Home Department

in JJ and others [2007]33 the previous control order was replaced. The second control order

subjected him to a 14 hour curfew and to electronic tagging, to an area of 9 square miles. He

had been refused permission to visit his mother three times, his sister and her family refused

to visit because of the traumatic experience of one child when AF was first arrested. Friends

were unwilling to visit. He only had one Arabic-speaking friend in the area he was allowed to

30

ibid 200-227 31

[2009] UKHL 28. 32

Control orders are discussed in chapter two. This order was a non-derogating control order. 33

[2007] UKHL 45

25

visit, which is not where he gravitated to before. He was not permitted to attend the mosque

he normally attended; the mosque he was permitted to attend was Urdu-speaking, a language

he did not speak. He could not visit his Arabic-speaking general practitioner. He could not

continue his English studies as there were no places in the area he was permitted to go. He

was cut off from the outside world. In the judgment of Ousley J he concluded that the effects

of the control order as described by AF were the effects which the restrictions were meant to

have.34

The perpetual penalty that traverses all points and supervises every instant in the disciplinary

institutions compares, differentiates, hierarchizes, homogenises, excludes. In short it

normalizes35.From this example of a control order, it is possible to see the same panopticon

effect. The perpetual observation, the tagging, the isolation, yet the disciplinary forces cannot

be seen. The subject of the observation becomes the object. The disciplinary power is

invisible; the object of the observation can only observe himself. The closed material

proceeding that take place in order for AF to challenge the restrictions placed on his being; do

not permit him to see the case against him. This paper argues that these proceedings, as well

as the processes of surveillance in the UK operate a disciplinary power that is a modern form

of panopticism . Thus a Foucauldian vision of panopticism engages to a large extent with

modern law when we examine the processes and procedures that embed closed material

proceedings.

34

[2009] UKHL 28, paragraph 54 35

Michel Foucault, Discipline and Punish: The Birth of the Prison (Penguin 1977) 192

26

4. Governmentality and Modern Applications

Foucault has written extensively on the history and origins of disciplinary institutions:36

Discipline operates on individuals and acts as opposed to governmentality that

operates on particular groups of individuals. Governmentality through its techniques

are directed towards making adjustments in the population and their economic

condition and legislation is one method in which these adjustments can occur. It is

only when we consider the way in which biopower is formed and operated can we

then begin to consider the role played by modern law.37

This paper argues that from the procedures of closed material proceedings in the UK we can

see that the use of widespread intelligence operations, which harvest data, convert it into

information that may be used against an individual or groups of individuals in proceedings

and subjective decisions, may have devastating effects on individuals or minority groups that

are being targeted in surveillance operations made in the pretext of finding terrorist cells.

Whether the information is good material or not, and whether it is used or not is not the

critical element. What is crucial, is the fact that the architecture exists to permit both

governance and panopticism to thrive out of the limelight and without the need for

legitimation.

Tardos asks two fundamental questions; what is the role of courts in modern society? And

why is it that law and power have continued to justify themselves in a way that has little

relation to their modern functioning?38 It is with these questions in mind that this paper in

chapter two will examine the role of courts in regard to CMP’s in the UK.

36

ibid. 37

Victor Tardos, ‘The Law and Michel Foucault’ [1988] 18 Oxford Journal of Legal Studies 86 38

ibid 98

27

It would be remiss however, not take account of the world-wide changes that have occurred

in the last decade that have led to the introduction of what some have termed the erosion of

civil liberties and in particular the right to a fair trial.39 Since the events of September 11th

2001 risk-theory has been further developed40 to examine features of ‘new terrorism.’

Sociologists, Mythen and Walkate, through the Foucauldian looking glass of

governmentality, examine this risk theory to explain the wider culture of surveillance and

control. They offer a critique of the ways in which the terrorist threat is being discursively

and materially shaped by law and other institutions.41 The new terrorist threat, as

promulgated by security experts and governments, has intensified the feeling that we are

living in risky times. As Chomsky points out, even defining terrorism is a sticky activity. 42

“In many cases, it is not so much the specific mode of violence as the underlying motivation

that may lead to a crime being categorised as terrorism. 43 Differentiated from other types of

crime because its motivational factors which are usually political and /or religious, terrorism

is generally directed against civilian targets intending to cause insecurity to a country or

population.44 We are reminded by Mythens and Walkate that the category ‘terrorist’ is a

subjective and moral judgment: “one person’s ‘terrorist’ is another person’s ‘freedom

fighter’”. These polar positions can change over time because of cultural and political shifts

that may occur. Northern Ireland is a prime an example of such a shift.45There are many

different forms of terrorism, with different targets and with different aims: from ethnic

cleansing, jihads or wars of independence. States must be able to protect their territory and

population from the ‘omnipresence’ of terrorism; they must be able to evaluate the risk and

39

Gareth Pierce, Dispatches from the Dark Side (Verso 2010) 40

Ulrich Beck, ‘The Terrorist Threat: World Risk Society re-visited’ [2002] 19 Theory Culture and Society 39-55 41

Gabe Mythen and Sandra Walkate, ‘Criminology and Terrorism, Which Thesis? Risk Society or Governmentality’ [2006] 46Brit. J.

Criminology 379-398 42

Noam Chomsky, The culture of Terrorism (Seven Stories Press 2001)39 43

Phillip Jenkins, Images of Terror: Fanatacism and the Arms of Mass Destruction (Oxford University Press 2003) 44

Michel Foucault, Discipline and Punish: The Birth of the Prison (Penguin 1977) 178.

45

Gabe Mythen and Sandra Walkate, ‘Criminology and Terrorism, Which Thesis? Risk Society or Governmentality’ [2006] 46Brit. J. Criminology 381.

28

take whatever measures are necessary for the protection of the population. Risk has been

measured in the past by technical and statistical methods to predict the probabilities of the

manifestation of harm, supposedly assessed based on past experience to predict future

outcomes. Risk relates to forecasting and preparing for possible eventualities.46 The actual

manifestations of harm remain unpredictable and uncertain. For Foucault risk is

operationalized as a method of regulation through which populations are surveyed, and the

management of populations through actuarial techniques is seen as a fundamental form of

power. The thresholds of risk have been staked out by the various disciplines of medicine,

science, economics, etc. There has been a move from disciplinary power to biopower

Accordingly there has been a swing away from the individualised category of

dangerousness towards the collectivised logic of risk. Through institutional

manoeuvring, various modes of profiling and assessment have de-subjectivised

notions of threat and transformed risk into an objective, actuarial concept... Rather

than being as a tool for monitoring disparate individuals, risk works as a ‘moral

technology’, regimenting and cajoling populations. Through the implementation of

disciplinary practices - e.g. criminal sentencing, police surveillance and health

insurance. 47

This paper argues that the risk of terrorism has led to the widespread use of intelligence

agencies set out in the 2013 Justice and Security Act, through institutional manoeuvrings,

various methods of observational techniques and assessments have transferred threat of a

terrorist attack into an objective that can be measured, and through the implementation of the

46

Francois Ewald, ‘Norms, Discipline and Law’ in Post (ed), Law and the Order of Culture (University of California Press 1991) 139 47

Gabe Mythen and Sandra Walkate, ‘Criminology and Terrorism, Which Thesis? Risk Society or Governmentality’ [2006] 46Brit. J. Criminology 385.

29

processes and procedures of closed material proceedings we can attempt to understand the

way in which power is exercised through governance and discipline.

Individuals are encouraged to become self-policing. The government operates more covert

forms of power than in the past, through risk based techniques that are more subtle and

oblique expressions of power. The public are frequently reminded of the threat of terrorism

looming large and which knows no geographical boundaries. The dominant political narrative

of this epoch is summed up by Tony Blair in his address to the Labour Party Conference in

2004

We have got to be totally vigilant in the face of the threat because all major countries

around the world face the same threat.48

Reminding us of the universality of the manufactured risk described by Beck.49 “there are no

bystanders anymore.” Al Qaeda has supposedly terrorist cells in ninety different countries in

the world, with the potential to strike anywhere at any time in the world50. This

unpredictability of terrorism evades the breadth of regulatory institutions, and governments

concede that they cannot guarantee public safety. Mythen and Walkate argue that this has

enabled political elites to circulate decidedly fanciful claims to justify violence. They are

alluding here to Saddam Hussein’s ability to assemble and dispatch chemical weapons within

45 minutes, which was later proven to be a falsehood.51They relate Foucault’s

governmentality theory,

to counter-measures against the new terrorism, the discursive construction of a

terrorist other and the extension of a culture of surveillance and control. It is clear that

neo-liberal agencies of crime control are employing risk-based techniques to assess

48

Address to the Annual Labour Party Conference, March 2004, cited in Waugh(2004:5) 49

Beck, U, ‘The Terrorist Threat: World Risk Society re-visited’. Theory, Culture and Society, 19:39-55 at page 32. 50

ibid 51

The head of the Iraq Survey Group opined that weapons of mass destruction had never been developed in Iraq.

30

the level of terrorist threat and to make future projections of danger. In both the

United States and the United Kingdom, security services have utilized predictive

databases and intelligence-gathering to inform safety assessments.52

This is clearly witnessed in the case of Edward Snowden, who has been granted temporary

asylum in Russia, having blown the whistle on US and UK’s intelligence services extensive

internet and phone surveillance on the NSA and GCHQ sites, respectively.53 The data

collected by these and other intelligence agencies indicates how the classification of

suspected terrorists is carried out by identifying offenders by risk values rather than

addressing them as rational social actors. The concerns for the State are risk control and thus

risk management, such as preventative detention, witnessed earlier in the case of AF. It was

recently reported that a 28 year old Brazilian national was held for 9 hours at Heathrow

airport under section 7 of the Terrorism Act 2000 and questioned in regard to terrorist

offences. He was carrying “journalist materials” to assist a Guardian journalist who has been

publishing the leaked documents possessed by the fugitive Edward Snowden54. Whatever the

rights and wrongs of the detention it sends a clear warning to all, that anyone can be detained

and subjected to gruelling interrogation for hours whether they are suspected of terrorism or

not.

The dominant discourses of terrorism already discussed can function as a tactic of

disciplinary control, through which right thinking members of society are encouraged to keep

in line and observe governmental objectives. Unfortunately, the so called “war on terror” and

the “axis of evil” have labelled entire countries as pariah states.

52

Mythen, Walkate at page 389 Gabe Mythen and Sandra Walkate, Criminology and Terrorism, Which Thesis? Risk Society or Governmentality. Brit J Criminology (2006) 46, at page 389.

53

As reported on 20th

August by http://www.bbc.co.uk/news/uk-237636625 54

As reported on 20th

August 2013 by <http://www.bbc.co.uk/news/uk-237636625>

31

Regrettably, the war on terror is providing a multi-purpose rationale for a variety of

authoritarian measures, including punitive restrictions against asylum seekers, illegal

detention and unwarranted forms of surveillance. The hasty introduction of repressive

legislation, granted under the 2000 Terrorism Act and the 2001 British Anti-

Terrorism, Crime and Security Act has weakened, not enhanced democracy.55

As Mythen and Walkate argue, procedures for identifying terrorists are indiscriminate trawls

of “suspect populations” which are being dreamt up, marginalised and put under suspicion.

The point is not so much about the risk itself, but who or what risk gets attached to.

Probabilities of offending based on quantitative judgments are not being used; instead

qualitative value judgments are being used in regard to birthplace, skin colour, ethnicity and

religion. From this we can see how the construction of a suspect population is creating

”subjects” , such as in the case of AF; on the basis of their ethnicity, cultural or religious

traits. Governmentality lends itself to the possibility that interest groups have the ability to

capitalise on unforeseen events.

In keeping with a Foucauldian logic, terrorism is providing a political lexicon through

which ulterior motives are being camouflaged and hidden agendas executed.56

Thus, we can see from this that Foucauldian theory of biopower and disciplinary power can at

least attempt to engage our understanding of the social construction of the terrorist risk, the

extension of institutional methods coupled with the coercive power of the state. And how the

discourse of risk and the use of surveillance as a disciplinary power through which

populations are governed constructs a “terrorist other”. This Foucauldian perspective on

terrorism is crucial if we are to understand why Foucault is relevant in relation to how

55

Gabe Mythen and Sandra Walkate, ‘Criminology and Terrorism, Which Thesis? Risk Society or Governmentality’ [2006] 4 6Brit. J.

Criminology 390. 56

ibid 392

32

modern law operates in regard to the processes and procedures that encompass closed

Material Proceedings in the UK.

33

Chapter Two

Part 1: The Right to a Fair Trial

This chapter will engage Foucault’s theories of biopower and disciplinary mechanism in an

examination of closed material proceedings, having regard to the right to a fair trial, both in

common law and through anti-terrorist legislation the UK. This chapter will focus on cases

that involve “suspected terrorists” as these cases take up centre stage in the human rights

debate regarding the right to a fair trial. They also provide rich examples in which to

demonstrate Foucauldian theory. This chapter argues that the Article 6 right to a fair trial

criteria in which this paper intended to measure “secret courts” is defunct in a Foucauldian

analysis, and that the standards laid out in Article 6 of the European Convention of Human

rights form part of the human rights discourse. This paper argues that the cases below have

been brought to court as a result of the anti-terrorist legislation in the UK, which is

expression of modern law and represent numerous underlying power relationships. And, that

the closed material proceedings form part of an on-going process that already exists within a

panoptic architecture, which lies at the heart of this paper.

Surveillance, as a technique of biopower, is carried out by the complex web of intelligence

gathers in the UK, observing and harvesting data into “useful information”. Subjective micro-

decisions are made in the context of the war on terror, and may form the basis for punitive

measures, indefinite detention, asset freezing or control orders. This paper argues that CMP

are one of the on-going processes in a much wider architecture of panopticism . Assisted by

the European Court of Human Rights on the grounds of essentially two well established

principles of European jurisprudence: the margin of appreciation, and the second, the doctrine

of proportionality. The former permits Member States latitude in how they govern their own

practises and procedures within the disparate legal systems. Drawing from case law in this

34

area it is arguable that in regard to the minimum guarantees laid down by Article 6 ECHR,

the UK have been successful in circumventing these standards by limiting the material a

defendant can see on the grounds of “national security”. This chapter argues that there is a

shift away from European jurisprudence on the right to a fair trial, in favour of

“democratically enacted legislation” and their own well established precedents.57

Article 6 European Convention on Human Rights and Common Law position

The European Convention on Human Rights adopted in 1950, its main objective was to bring

large scale human rights violations to light through interstate applications. However, it has

had more success in bringing to light isolated cases of human rights violations. Article 6 (the

right to a fair trial) is at the heart of the Convention and continues to offer members of the

states of the European Community protection from miscarriages of justice or arbitrary

decisions by member states. Over the years a corpus of European jurisprudence has

developed and the European Court of Human Rights (ECtHR) has extended the application of

“criminal charge” to include disciplinary and regulatory offences. This paper argues that this

may be understood in a Foucauldian perspective as a form of biopower and disciplinary

mechanisms. The autonomous concept of the ECtHR as to “criminal charge” was propounded

in Engels and Others v The Netherlands,58 where the court had to decide whether disciplinary

offences in the military amounted to ‘a criminal charge’. The fact that member states

classified the offences differently was only one of three criteria the court considered, the

other considerations were the nature of the offence and degree and severity of the penalty that

could be incurred. The importance of the classification was that it would only attract the

57

Marny Requa, ‘Absent Witnesses and the UK Supreme Court: Judicial Deference as Judicial Dialogue’ [2010] 14 International Journal of Evidence and Proof 208 58

(1979-1980) 1EHRR 647

35

protection of Article 6 guarantees of the right to fair trial if it was considered to be a criminal

offence. The court made use of ‘criminal charge’ ‘as being an autonomous concept in the

ECtHR. The court was aware that if contracting states at their discretion were able to classify

an offence as disciplinary instead of criminal the operation of Article 6 would be subordinate

to their sovereign will and this could lead to results incompatible with the purpose and object

of the convention. This paper argues that this recognition of ECtHR that some disciplinary

offences have a similar effect as a criminal charge lends itself to a Foucauldian analysis.

These disciplinary offences are a result of the operation of biopower, through

governmentality, the many diverse techniques of control; the military having its own infra-

penalties. These regulations are found throughout society, in prisons, hospitals, schools, in a

whole level of Sub-State institutes and the Engels case is an example of biopower connecting

with the individualising characteristics of disciplinary power.

Thus, whether the offence is defined as civil or criminal the position differs; both at common

law and in regard to Article 6 of the ECHR. Nevertheless, there are common principles that

relate to both civil and criminal law: the right to a fair and public hearing, within a reasonable

time by an independent and impartial tribunal established by law. In the interests of morals,

public order or national security in a democratic society the public may be excluded. Where

the interests of juveniles or the protection of the private life of the parties so require, or when

it is strictly necessary in the opinion of the court where publicity would prejudice the interests

of justice the court may exclude the public and the hearing will be in camera.59 Common law

in the UK courts over the years has developed a body of principles in relation to a fair trial,

some of which have become enshrined into legal processes in criminal law. The grave nature

of a criminal trial in determining guilt or innocence is of such import, not only in the interests

59

Article 6(1) ECHR

36

of the accused, but in the interest of society as a whole, since miscarriages of justice have the

ability to undermine not only the rule of law but democracy.60

Closed material proceedings relate essentially to the procedure on admissibility of evidence.

Since this paper is a Foucauldian analysis of how closed material proceedings engage with

biopower and disciplinary power is important to examine the safeguards that relate to the

procedure itself61. The right of the defendant to be informed of the case against him, to be

given any information available to the prosecution that is relevant to the case, to be present at

the trial and confront and cross-examine the witnesses who are called to give evidence

against him and to be informed of the identity of those witnesses, is at the heart of the right to

a fair trial. This safeguard is laid out in Article 6(3) (d) of the ECHR:

to examine or have examined witnesses against him and to obtain the attendance and

examination of witnesses on his behalf under the same conditions as the witnesses

against him…62

Unlike Engels above, the problems with most of the anti-terrorist case law below is that

because the cases involve “suspected terrorists” they haven’t actually been accused of a crime

and thus will not attract the minimum guarantees laid out in Article 6(2) and (3) which are

specific to criminal trials. Much of the case law then in closed material proceedings are

categorised as “civil” proceedings. However, because the ECtHR has developed its own

“autonomous concepts” and what it deems as a criminal offence may differ from Member

states categorisations of crimes,63 the court will examine, inter alia, the degree and severity of

the possible penalty that could be incurred and the nature of the offence.64

60

Gareth Pierce, ‘Dispatches from the Dark Side’ (2010 Verso) 61

R v Horncastle and others [2009] UKSC 7 62

Article 6(3)(d) ECHR 63

Engels and Others v The Netherlands(1979-80) 1EHRR 14 64

See also Campbell and Fell v UK (1984) 7 EHRR 165

37

That is not to say that this protection did not exist at common law in the UK. Rules of

evidence have developed in such a way to adduce the “best” possible evidence to be placed

before the jury or judge so that there is a better prospect of the evidence being reliable. Over

a period of time in an effort to find the “best” evidence, more and more exceptions to the

hearsay rule were created by the judiciary and statutes until the exceptions rather than the rule

became the norm.65 Thus, in 1968, the Civil Evidence Act abolished the hearsay rule in civil

proceedings. Almost all hearsay evidence was ruled inadmissible, regardless of whether it

assisted the defence or the prosecution.66 As Lord Philips describes the hearsay rule in the

Horncastle Judgment:

There were two principal reasons for excluding hearsay evidence. The first was that it

was potentially unreliable. It might even be fabricated by the witness giving evidence

of what he had alleged he had been told by another. Quite apart from this, the weight

to be given to such evidence was less easy to appraise than that of evidence delivered

by a witness face to face with the defendant and subject to testing by cross-

examination.67

Thus, much of the evidence that had less probative value than prejudicial effect was excluded

in both criminal and civil hearings. The Criminal Evidence Act in 1965 and the Police and

Criminal Evidence Act in 1984, and later and more significantly the Criminal Justice Act

1988, made changes to the hearsay law, one of the most significant changes which is still on

the statute books, is section 78(1) of the latter 1988 Act, which provides that,

In any proceedings the court may refuse to allow evidence on which the prosecution

proposes to rely to be given if it appears to the court that, having regard to all the

circumstances in which the evidence was obtained, the admission of the evidence

65

For detailed discussion of the hearsay rule see R v Horncastle judgement per Lord Judge. 66

Ibid 7 67

See footnote 9.

38

would have such an adverse effect on the fairness of the proceedings that the court

ought not to admit it.68

This section was written in as a safeguard for the proper administration of justice. Provisions

in The Criminal Justice Act 2003 has largely replaced much of the hearsay rule, however,

some residual power and specified categories have been retained in “the interests of

justice”.69

The right to a fair trial whether in the common/statute law in the UK or Article 6 of the

ECHR, is not an unqualified right, as we have seen the court retains an inherent jurisdiction

to allow/disallow certain evidence at common law that could lead to an unfair trial.70Statute

law in the UK, particularly in the last ten years or more, has introduced a plethora of anti-

terrorist legislation that has permitted evidence that would have otherwise been disallowed by

the rules against admission of hearsay evidence, legitimised on the ubiquitous ground of

“national security”.71 As The Right Honourable the Lord Kerr of Tonaghmore explains in his

MacDermott Lecture in May 2013:

When one speaks of the right to a fair trial, of course, many think of a criminal trial.

The reality of the so called “War on Terror” in the legal context, however, is that, for

the most part the battle over fundamental rights has not been fought in the criminal

arena...Instead, what has exercised the courts on very many occasions has been the

treatment of those whom the state suspects of involvement in terrorism but either is

not able to or has elected not to prosecute. The range of measures that the state has

68

Section 78(1) Police and Criminal Evidence Act 1984 69

For further reading see Report of The Law Commission 4th April 1997 (Law Com No 245) on “ Evidence in Criminal Proceedings:

Hearsay and Related Topics. 70

See section 78 Criminal Justice Act 2013. 71

The Right Hon the Lord Kerr of Tonaghmore Justice of The Supreme Court (2013) The MacDermott Lecture 2013, Refelections on

Human Rights Law and the War on Terror with particular consideration of the Right to a Fair Trial. Thursday 2 May 2013. The Great Hall

Queen’s University of Belfast.

39

used in relation to such people is extremely wide. Those measures have taken the

courts into unprecedented territory.72

This paper argues a Foucauldian understanding of biopower engages in the human rights

discourse, of which the right to a fair trial takes up centre stage. This human rights discourse

[right to a fair trial] is a complex form of power that circulates in the social field, not only in

the UK but in the wider European context. This form of power has attached itself to strategies

of domination and resistance. In the above speech the “battle over fundamental rights” is

central to understanding of how Foucauldian thought on discourse can attach itself to both

sides in the battle, through complex power relationships between the judiciary, the

government and European institutions.

Some of those measures that Lord Kerr speaks of (such as detention without trial, attempts at

deportation and asset freezing) have been based on the ground of “national security” and,

more importantly, any evidence touching on national security issues brings into play the right

to a fair trial.73 There is little doubt that the anti-terrorism legislation in the last ten or so years

has encroached on fundamental rights of the population under the auspices of protecting

“national security”.74 These restrictive measures support a Foucauldian understanding of both

biopower and disciplinary power. Through these measures or techniques of control, we are

able to see the diverse techniques of power at play in the legal field. Through the lens of

governmentality, it is possible to see the power of the plethora of intelligence agencies that

produce harvested data, converted to ‘useful information’ that may be used to control the

suspect population, ‘the terrorists’. . On a disciplinary level, apart from the penal measures

themselves, individuals are encouraged to become self-policing.

72

ibid 7 73

ibid 8 74

ibid 3.

40

The state, in many cases75 has relied on material it does not wish to disclose to the affected

party or the wider public because it perceives releasing this material will itself present a

threat to national security. This material is called “closed, secret or contrary to public

interest”.76 This secret material will form the basis for the state’s case against the affected

party in order to restrict his liberty, deport him, freeze his assets or defeat a civil claim for

damages against the state. Thus Closed Material Proceedings were born from the Special

Immigration Appeals Commission Act,77 and added to by the anti-terrorism legislation78 and

most recently the Justice and Security Act 2013, which will place CMPs on a more concrete

footing within the UK jurisdiction. This Act will be discussed in more detail in chapter three.

Secret Courts

Parliament introduced Closed Material Proceedings in 1997 when the Special Immigration

Appeals Commission (SIAC) was created by an Act of the same title. Special Advocate

Procedures79 were adopted by the Home Secretary as part of a new dispensation, following

the case of Chahal v United Kingdom [1996].This case involved an Indian national and Sikh

separatist, resident in the UK and suspected by the Home Secretary of involvement of

terrorist activities. The Home Secretary wished to deport him but he claimed that if he were

returned to India he would be tortured. He was unable to challenge the decision to deport as it

was based on ‘sensitive intelligence material.’ Disclosure of the evidence against him was

75

See A and others v SSHD [2004] UKSC 56. 76


Human Rights Law and the War on Terror with particular consideration of the Right to a Fair Trial. Thursday 2 May 2013. The Great Hall

Queen’s University of Belfast 10

77

Special Immigration Appeals Commission Act 1997. 78

Terrorism Act 2000, Anti-Terrorism Crime and Security Act, Act Counter-Terrorism Act 2008 79

Section 6 Special Immigration Appeals Commission Act 1997

41

precluded by Public Interest Immunity [discussed below]. He was not permitted any

representation before the Immigration Advisory Panel80. He claimed the procedure breached

his rights under 5(4) ECHR81. The ECtHR agreed that the review hearing could not

effectively review the grounds of his detention. The court was influenced by the fact that in

other jurisdictions, such as Canada, there existed security cleared counsel who were able to

test the strength of the state’s case.

In response to Chahal, the UK government passed the above Act, which introduced the

Special Advocate Procedures. Barristers were particularly chosen and appointed by the

Attorney General. They were able to view closed evidence on behalf of their clients, but they

were hampered somewhat by the fact that once they had viewed the secret evidence they

were prohibited from discussing that material with their clients. The introduction of special

advocates was regarded by the Secretary of State as providing sufficient guarantees of

procedural fairness for the suspect.82That is not to say that there existed no closed material

proceedings before this time. Cases of Public Interest Immunity (PII) was the ‘normal’

procedure for dealing with sensitive information In such cases, the crown gives the judge the

sensitive information, he can then assess and decide whether the information is so relevant to

the defence case that it is to be disclosed, or whether only part of the evidence should be

disclosed, or whether to use special measures, such as using screens to protect the witnesses

identity. If the Crown does not want the information disclosed, they drop the case, so the non-

disclosed information is not then used in the trial. Thus, the judge can disclose the material

80

This panel is commonly known as the three wise men 81

Article 5 (4) ECHR- “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if his detention is not lawful.” 82


Human Rights Law and the War on Terror with particular consideration of the Right to a Fa ir Trial. Thursday 2 May 2013. The Great Hall

Queen’s University of Belfast 12.

42

relied on by the state to the defence, if fairness requires it.83The difference between PII

procedure and CMP’s procedures is that in the former, disclosure to the defence may be

made, whereas in the latter disclosure is never made to the defence. PII is an important

constitutional mechanism for dealing with material sensitive to national security, which is

disclosed as evidence having been seen by both sides, ensuring that material must be subject

to challenge by the other party before it becomes evidence.84 Special Advocates have no

instructions and no ability to challenge the material on which the government wish to rely on.

These secret courts may have begun their life in Immigration Appeals, but now they permeate

other areas of civic life85, and, since April 25th 201386, will blanket all civil jurisdiction

where (in the opinion of the Secretary of State) there is sensitive material which might cause

‘damage to the public interest’ [note that this has changed from national security]. One of the

difficulties pointed out succinctly by Jeannie MacKie, a barrister in Doughty Street

Chambers, is that “Public Interest is not the same as government interest”.

To understand the nature and difficulties that secret courts present, it is important to develop

some of the domestic and European case law in relation to the right to a fair trial, and, in

particular, non-disclosure to the defence of the case against him, on the grounds of “national

security”.

83

Jeannie Mackie, barrister at Doughty Street Chambers. Secret Courts consultation is a cover up 84

Liberty’s Commitee stage briefing on Part 2 of the Justice and Security Bill in the House of Commons January 2013. 85

See Also sections 90-92 of the Northern Ireland Act, which provides for S.A in specialist employment and discrimination law, section 5 of The Terrorism Act 2000, in determining appeals against proscribed organisations, section 70 The Anti-Terrorism, Crime and Security Act

2001 (related to pathogens), Rules 7A and 7B of The Employment Tribunals Rules of Procedure (Scotland) and in Northern Ireland Sentence Review Commission. House of Commons- Constitutional Affairs- Seventh Report paragraph 5. 86

Justice and Security Act 2013

43

Part 2: Closed Material Proceedings Case Law

One of the landmark cases that effectively illustrates how this legislative framework operates

in practise is A and others v Secretary of State for the Home Department [2004]87. Although

it does not deal with Article 6 per se, it is an important case in relation to CMPs and it could

be argued that if an individual can be indefinitely detained without trial, in effect any article 6

rights have been thwarted. The case involved section 23 of the Anti-Terrorist Crime and

Security Act 2001.The legislation permitted the pre-emptive detention in Belmarsh Prison of

foreign suspected terrorists without charge, but the judicial committee of the House of Lords

found that this was in contravention to the European Convention of Human Rights and such

detention was ruled unlawful on the grounds of being disproportionate and discriminatory. As

Lord Hope summed up:

An individual who is detained under section 23 will be a person accused of no crime

but a person whom the Secretary of State has certified that he

“reasonably...suspects...is a terrorist” (section 21 (1)). The individual may then be

detained in prison indefinitely.88

A’s only chance of appeal was to the SIAC and only there can he challenge the

reasonableness of the Secretary of State’s suspicion that he is a terrorist, but has no right to

know the grounds on which she holds these suspicions. The Special Advocate appointed to

represent him may know the case against his client but he is forbidden from disclosing it to

A, so cannot take instructions from his client or refute the allegations made against him. As

Lord Hope so aptly puts it:

87

A and others v SSHD [2004] 56. Although the right to a fair trial was not central to the case it illustrates well the modern power relationship between the courts and the executive which is central to this paper, particularly in a Foucauldian analysis. 88

A and others v SSHD [2004] UKHL 56

44

Indefinite imprisonment in consequence of a denunciation on grounds that are not

disclosed and made by a person whose identity cannot be disclosed is the stuff of

nightmares, associated whether accurately or inaccurately with France before and

during the revolution, with Soviet Russia in the Stalinist era and now associated, as a

result of section 23 of the 2001 Act, with the United Kingdom.89

His denunciation of the legislation could not have been clearer. The detainees of Belmarsh

were still however being held as detainees as the court did not have the power to order their

release90. This resulted in an application to the European Court of Human Rights (ECtHR) A

v UK (2009).91 The Strasbourg court held; that despite the government’s derogation notice

under Article 15 of the Convention, indefinite detention without trial was “disproportionate.”

The court also held that where a decision to certify certain suspects as “international

terrorists” (under section 21), was based “solely or to a decisive degree on closed materials,

the procedural requirements [for the Convention] would not be satisfied”92. The court went

on to say,

[t]he Special Advocate could perform an important role in counterbalancing the lack

of full disclosure and lack of a full, open adversarial hearing by testing the evidence

and putting arguments on behalf of the detainee during the closed hearings. However,

the special advocate could not perform this function in any useful way unless the

detainee was provided with sufficient information about the allegations against him to

enable him to give effective instructions to the special advocate93

89

A and others v SSHD [2004] UKHL 56 90

Supreme Court has no power to strike down an Act of Parliament, it can however, quash subordinate legislation that has been made ultra vires. 91

A V UK (2009) 49 EHRR 29 92

ibid at paragraph 220 93

As per Lord Kerr quoting from the decision of the A v UK [2004]

45

Thus, in order to comply with the minimum standard laid down in Article 6 sufficient

information had to be supplied to the suspect so that he could instruct the appointed counsel

or, at the very least, the “gist” of the case against the suspect should be supplied.

There are two points of import; the first is that, under Article 15 of the Convention, countries

may derogate from the right to a fair trial in certain circumstances,

In time of war or other public emergency threatening the life of the nation any High

Contracting Party may take measures derogating from its obligations under this

Convention to the extent strictly required by the exigencies of the situation, provided

that such measures are not inconsistent with its other obligations under International

law... 94

We can see from the above case that the government relied on the human rights convention,

to derogate from the minimum guarantees set out in Article 6, by invoking Article 15 of the

convention. The ECtHR, necessarily defines the derogation in broad terms to permit the

governments of member states to protect its populations. Drawing on a Foucauldian analysis,

this case supports the supposition that the UK government invoke the human rights discourse

as a form of power that is attached to a strategy of domination. Both the domestic court and

the European CtHR also invoke the same human rights discourse, in regard to Article 6 as a

form of power that is attached to a strategy of resistance.

The second point is based on Foucault’s theory of panopticism, explained in chapter one, and

the effects that indefinite detention has on those individuals subjected to such orders.

Professor Michael Welch, author of several books in this area, has written about the effects of

panopticism in Guantanamo Bay. This paper argues that some of the effects suffered by

detainees in Guantanamo can be applied to detainees that are held in Belmarsh and other

94

Aricle 15(1) ECHR Obligations under International law are essentially relating to the Geneva Conventions 1 -1V 12 August 1949 and the Hague Convention 1907

46

detention centres in the UK. In the process of being sent to a detention camp, the detainees

undergo some form of “judicial judgment” of their status as wrong-doers, either through the

courts or as in the case of A above or through some direction of the Secretary of State as a

“suspected terrorist.” Welch argues that the process of judgment continues within the penal

regime.95Guards and staff all possess the power to discipline the prisoners when their conduct

violates the internal rules, or that they have acted “out of line.”96The infra-penalty, “a

partitioned area the law left empty” is central to the “normalising judgment” within all

disciplinary regimes, such as the “teacher-judge”, “social worker-judge”, “probation officer-

judge,” and, in this case, “guard-judge.” Welch quotes Foucault

It is on them that the universal reign of the normative is based. “Along with infra-

penalty, normalizing judgment as a modality of disciplinary power contributes to how

daily routines and everyday behaviour in prisons are shaped; even the slightest

violations of rules could meet with minor physical punishments, deprivations, and

petty humiliations.97

The individual becomes a case, an object for clinical study and scientific gaze; the individual

is compared with the others, judged, measured; and it is the individual who has to be trained,

corrected, “normalised.” Welch’s work is a contribution to a body of work that recognises the

unintended consequences of imposing power on prisoners.98

This paper argues that because much of the case law regarding closed material proceedings is

based on the non-disclosure of “sensitive material” that may damage the national interest,

these courts cannot be viewed in a vacuum and operate as part of a continual process of

95

Michael Welch, ‘Guantanamo Bay as a Foucauldian Phenomenon: An analysis of Penal Discourse, Technologies, and Resistance’ [2009] The Prison Journal <http://tpj.sagepub.com> Accessed online 96

ibid 10 97

ibid

98 See also John J Jr Dilulio, Governing Prisons: A comparative study of correctional management (1987 New York Free Press)

47

panoticism. The “suspected terrorists”, are already under the observational gaze, having been

judged through the diverse surveillance techniques carried out by the network of intelligence

agencies in the UK. Many of those “suspected terrorists” will have already experienced some

form of punishment, in the form of detention, asset freezing or control orders. Thus, closed

material proceedings become a continuation of the techniques of normalisation aimed at

transforming detainees into docile, obedient, and “useful for generating “enormously valuable

intelligence” for the war on terror.””99

Before the Belmarsh cases were heard in Strasbourg, the detainees were released, with some

being placed under Control Orders). Control Orders operate in a very restrictive manner to

curtail the freedom of individuals and this paper has argued (in Chapter One) that they are an

extension of the Foucauldian idea of panopticism.

Al Rawi v The Security Services 100 is a civil case brought for damages in which the claimants

were British nationals who had been extraordinarily rendered and held subsequently in

Guantanamo Bay. There was significant evidence of the complicity by the UK’s Security

Services, in relation to Binyam Mohammad’s, et al, detention and torture. The Security

Services requested that the High Court invoke its inherent jurisdiction of a closed material

session, in which they could put their sensitive material before a judge and an appointed

special advocate, acting on behalf of the claimants. As there was no statutory basis for

ordering a closed material procedure, the state argued that the court could order such a

procedure by invoking their inherent power and that this would lead to the judge viewing all

the relevant material which would be “fairer”. This argument wasn’t accepted by the

Supreme Court and in the words of Lord Kerr:

99

Michael Welch, ‘Guantanamo Bay as a Foucauldian Phenomenon: An analysis of Penal Discourse, Technologies, and Resistance’ [2009] The Prison Journal 4 <http://tpj.sagepub.com> Accessed online 100

Al Rawi et al v The Security Services & Ors [2011] UKSC 34

48

Two principles of absolute clarity stood out from the judgments in both the Court of

Appeal and the Supreme Court. The first was that a party to proceedings should be

informed of the material that would be used to challenge his claim and that he should

have a full opportunity to answer the case in open court. The second principle was

that the first principle should not be derogated from unless authorised by

unambiguous statutory provisions.101

Quoting Lord Neuberger of Abbotsbury as Master of Rolls in the Court of Appeal, in the

above case102, Lord Kerr continued:

... the principle that a litigant should be able to see and hear all the evidence which is

seen and heard by a court determining his case is so fundamental, so embedded in the

common law, that, in the absence of parliamentary authority, no judge should override

it...a litigant’s right to know the case against him and to know the reasons why he has

lost or won is fundamental to the notion of a fair trial.103

The Supreme Court gave a similar condemnation of the departure from the open justice

principle when it stated that “The open justice principle is not a mere procedural rule. It is a

fundamental common law principle...”The second defence launched by the state was that it

was preferable to place the closed material in front of a judge rather than not to have material

seen. Lord Kerr104 perceptively rejected this supposition by challenging the assumption that

once the judge has viewed the closed materials he will be in a better position to reach a fair

result, saying that it is only truly valuable if the evidence is capable of withholding challenge.

He goes further by pointing out that unchallenged evidence can “positively mislead.”

101

The Right Hon the Lord Kerr of Tonaghmore Justice of The Supreme Court (2013) The MacDermott Lecture 2013, Refelections on Human Rights Law and the War on Terror with particular consideration of the Right to a Fair Trial. Thursday 2 May 2013. The Great Hall Queen’s University of Belfast 16 102

ibid 103

ibid 104

ibid

49

However astute and assiduous the judge, the proposed procedures hands over to one

party considerable control over the production of relevant material and the manner in

which it is to be presented. The peril that such procedure presents to the fair trial of

contentious litigation is both obvious and undeniable.105

This paper argues that the procedures of closed material proceedings engage with both

biopower and disciplinary mechanisms. In the quote above Lord Kerr is speaking of power,

when he speaks of “considerable control” but this is only half of the story. The government

may have the control over the “relevant material” and whether or not it will be disclosed. But

this masks the underlying power embedded within the production of this “relevant material”,

the archaeology of this material, how the data is harvested and contextually converted to

become “relevant material”, useful for the purpose of terrorism . The significance is, that

whilst the government will to some degree have to justify why they should not disclose the

relevant material, no such justification is necessary to the network of data and information

harvesters, that necessarily make subjective judgments in the process of corroborating,

verifying and assessing such information. As such both biopower and disciplinary power

engage to a large extent with the processes and procedures that are necessarily interconnected

with closed material proceedings: through the techniques of governmentality, in the form of

the intelligence networks that exist (some of which are outlined in the JSA), as a mechanism

of disciplinary power, through various operational techniques of surveillance by the network

of intelligence agencies.

In Al Rawi, the court could not invoke its inherent jurisdiction to have a closed material

hearing; more importantly, it could not exercise its power to do so in a way that would deny

individuals their fundamental right to participate in a trial that accorded with the common law

105

Lee v The Queen (1998) 195 C.L.R. 594, paragraph 32.

50

principles of open and natural justice.106 As Lord Kerr points out, such a departure from these

enshrined principles should be democratically legislated for. Lord Kerr quotes Professor

Martin Dockray in this regard:

Where procedure is as important as substance, procedural changes require the same

degree of political accountability and economic foresight as reform of an equivalent

rule of substantive law.107

Interestingly, the government settled the Al Rawi cases for undisclosed damages and has used

this case to highlight the need for the Justice and Security Act 2013. One reason put forward

has been that Guantanamo claims were too saturated in intelligence material to proceed108.

But as Liberty argues in their response to the government’s green paper on the JSA, the

government frequently overestimates its secrecy requirements, which is tantamount to

governmental abuse. The following three examples highlight this argument;

(i) Binyam Mohmed v Secretary of State for Foreign and Commonwealth Affairs

[2009]109

MI5 unexpectedly withdrew documents that it had previously insisted should not be

disclosed. The Court of Appeal found that previously redacted information to be anodyne

and already in the public domain.

(II) Al Sweady v Secretary of State for Defence [2009] EWHC 1687 (Admin)110

The Ministry of Defence claimed that material relating to interviewing techniques of

“tactical questioning” could not be disclosed to claimants. It was later conceded that that

a significant proportion of the redacted material had previously been disclosed in open

106

The government settled the case out of court for an undisclosed amount. 107

Professor Martin Dockray, ‘Inherent Jurisdiction to Regulate Civil Proceedings’ (1997) 113 LQR 120, 131 108

Liberty’s Committee stage briefing on Part 2 of the Justice and Security Bill (2013) in the House of Commons at paragraph 26. 109

[2009] EWHC 2549 (Amin) 110

[2009]EWHC 1687 (Admin)

51

hearings and was already in the public domain. The MoD was ordered to pay out £1

million in indemnity costs.

(III) Home Secretary V AN [2010]111

In an appeal against a control order, the Home Office’s case collapsed after reinstatement

of previously redacted material. This material referenced internal Home Office

documents in which it was admitted that there was no need for a control order because the

suspect was detained on remand in Belmarsh Prison.

The responses from the Attorney General, Rt Hon Dominic Grieve QC MP in regard to Al-

Rawi, was that he referred his concerns relating to Libyan [extraordinary]rendition and

torture to the Director of Public Prosecutions in January 2012, who then launched urgent

investigations.112Both responses give good reasons to believe that the cases arising from the

same allegations may have had a good prospect of success. What is clear is that reputational

risk is a potential factor for governmental non-disclosure of sensitive information:

“information [which] will be or has been obtained through the mistreatment of detainees

[could result in] damage to the reputation of agencies...”113

The three above examples demonstrate the importance that the state attaches to the secrecy of

certain information. There is no doubt that there will always be exceptional times when

documents must be classed as “top secret” for security reasons. However, as we can see, that

was not what was as stake in the above cases. The government have admitted in their “secret

interrogation policy”114 that there is a reputational risk that these intelligence agencies could

be damaged. If we apply Foucauldian theory the picture becomes a little clearer. As chapter

111

[2010]EWHC 511 (Admin) 112

See “Torture claims and investigation ordered by Hague” The Guardian, 20th

May 2010. Joint statement by DPP and Metropolitan Police Service 12th January 2012 113

See “ British Goverment’s Secret Interrogation Policy” published by the Guardian 4 August 2011 as reported in paragraph 41 of Liberty’s response to the JSA green paper. 114

ibid

52

three adumbrates, the plethora of intelligence agencies and network of data harvesters are

converting multitudes of data into information in the context of terrorism. In order to do this,

value judgments are being made: judgements as to who is observed, what is observed, what

techniques are to be employed, etc. These agencies make micro-decisions that may devastate

or have a major impact on human lives, as we witnessed in the case of AN in chapter one,

and as we will see in the last case in this chapter, that of Bank Mellat. Yet, these decisions are

not subject to the rigor of democracy, nor to judicial scrutiny; they do not need to be justified

to the public. They wield power that is under the radar of legitimation, and it is this power

that the government may seek to protect when they speak of damage to the intelligence

agencies. This paper argues a Foucauldian analysis sheds light into the dark corridors of

power.

In Al-Khawaja and Tahey v UK [2009]115 and R v Horncastle [2009]116

In Al-Khawaja, the European Court found there to be violations of Article 6(1) in conjunction

with 6(3) (d) of ECHR. It found that to examine witnesses against the accused when the

convictions that were based to a decisive degree on witness statements under provisions in

the Criminal Justice Act 2003, “the court doubted whether any counterbalancing factors

would be sufficient to justify the introduction in evidence of an untested statement which was

the sole or decisive basis for the conviction of an applicant”. The Horncastle case similarly

based, but yet decided differently by the Supreme Court who concluded that Article 6 had not

been breached and that the decisive rule was unnecessary and Strasbourg did not give

sufficient consideration to English law.117These cases illustrate the judicial dialogue between

domestic courts and Strasbourg in regard to the sole/decisive rule, but more importantly it

115

[2009] 49 EHRR 116

[2009] UKSC14, [2010]2 AC 373 117

See R v Horncastle and others (2009) UKSC 14

53

reflects wider debates about the role and power relations between the ECHR and UK

constitutional system of law118. These cases are a demonstration of the wider power

relationships between the judiciary of Strasbourg and the UK. Lord Judge, in the Horncastle

case, goes to extreme lengths to flex his British cerebral muscles, in examining much

European Case law in relation to the right to a fair trial in order to demonstrate the superiority

of the British system of justice. What is noteworthy and lends itself well to Foucauldian

analysis is that it is the human rights discourse that is used as the medium for the judicial

dialogue. Not only can we see the multiplicity of force relations in the legal field, but that the

human rights discourse is attached to a strategy of domination by Strasbourg and one of

resistance by the British judiciary.

The much anticipated and landmark Supreme Court judgment in this area of Law is that of

Bank Mellat v Her Majesty’s Treasury [2013]119 In 2009, the Treasury, on behalf of the

British government, made a Financial Restrictions (Iran) Order which essentially placed

sanctions on that Iranian Bank which operated in the UK, requesting that all persons

operating in the financial sector desist from continuing to participate in any business

relationships and transactions with the bank or its subsidiaries. The power that the

government relied on to make the Order was section 63 of the Counter-Terrorism Act 2008.

The government’s rationale for “singling out” Bank Mellat was that it was identified as

having assisted Iran’s nuclear weapons and ballistic missile programme, through provision of

financial services contrary to International Law.120 Section 62 gives effect to schedule 7

which empowers the Treasury to make a direction by a statutory instrument in certain

situations of “risk” arising from terrorist financing. Paragraph 1(4) imposes the following

statutory condition

118

Marny Requa, ‘Absent witnesses and the UK Supreme Court: judicial deference as judicial dialogue?’ [2010] 14 International Jo urnal of Evidence and Proof 2 119

Bank Mellat v Her Majesty’s Treasury [2013] UKSC 39 WL 2975866. 120

UN Security Council Resolution 1737 (2006) on the suspension of proliferation-sensitive nuclear activities and Artcle 41 of the United Nations Charter.

54

...The Treasury reasonably believes that

The development or production of nuclear, radiological, biological or chemical

weapons in the country, or

The doing in the country of anything that facilitates the development or production of

any such weapons,

Poses a significant risk to the national interest of the United Kingdom.121

The Treasury made on order122 that came into effect on 12th October. The procedural ground

of the case was that the Treasury failed to give the Bank an opportunity to make

representations before making the Order, which is required by common law and by Article 6

and Article 1, Protocol of the ECHR. The substantive grounds were that the decision was

irrational, disproportionate and discriminatory. The Treasury had failed to give reasons for

their decision, and that were mistaken in fact or vitiated by irrelevant considerations. The

fundamental justification of the Treasury’s actions is that,

even as an unknowing or an unwilling actor, the bank is, by reason of its international

reach, well placed to assist entities to facilitate the development of nuclear weapons,

by providing them with banking facilities, in particular trade finance.”123

It was for the court to decide “(i) whether its objective is sufficiently important to justify the

limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii)

whether a less intrusive measure could have been used; and (iv) whether having regard to

121

Bank Mellat v Her Majesty’s Treasury [2013] UKSC 39, 2013 2975866 122

Financial Restrictions (Iran) Order 2009 SI 2009/2725 123

[2013] UKSK 39 paragraph 16 as per Lord Sumption

55

these matters and to the severity of the consequences, a fair balance has been struck between

the rights of the individual and the interests of the community”124.

Lord Sumption sums up the position thus:

The suppression of terrorism and the prevention of nuclear proliferation are

comparable public interests, but the individual right to liberty engaged in A V S.S.

Home Department can fairly be regarded as the most fundamental of all human rights

other than the right to life and limb. The right to the peaceful enjoyment of business

assets protected by article1of the First Protocol, is not the same category of human

values. But the principle is not fundamentally different.125

The fact that Bank Mellat that was singled out amongst other Iranian banks was at the heart

of the courts’ decision that the state had made a distinction that was both arbitrary and

irrational, and that the nature of the measure was disproportionate as the problem was an

inherent risk within banking. “It was as good an example as one could find of a measure

targeted against identifiable individuals”126.Interesting is Lord Reed’s dissenting judgment as

it delves into the concept of proportionality, for the ECtHR “... the concept of proportionality

has become one of the general” principles of EU law.”127

An assessment of proportionality inevitably involves a value judgment at the stages at

which a balance has to be struck between the importance of the objective pursued and

the value of the right intruded upon...One important factor in relation to the

Convention is that the Strasbourg court recognises that it may well be less placed than

a national court to decide whether an appropriate balance has been struck in the

particular national context. For that reason, in the Convention case law the principle

124

ibid 65 para. 20 125

ibid 65 at paragraph 26. The ECtHR has expanded the meaning of “civil rights and obligations” in Article 6(1) to “ all proceedings the

result of which is decisive for private rights and obligations 126

ibid 65 at paragraph 46 127

ibid 65 at paragraph 65

56

of proportionality is indissolubly linked to the concept of the margin of

appreciation...The approach to proportionality adopted in our domestic case law under

the HRA has not generally mirrored that of the Strasbourg court...128

The following principle was propounded by Lord Sumption (para 29-30) but taken up by

Lord Neuberger at paragraph 178:

... where the executive intends to exercise a statutory power to a person’s substantial

detriment, it is well established that, in the absence of special facts, the common law

imposes a duty on the executive to give notice to that person of its intention, and to

give that person an opportunity to be heard before the power is so exercised...unless

(i) the statutory provisions concerned expressly or impliedly provide otherwise or (ii)

the circumstances in which the power is to be exercised would render it impossible,

impractical or pointless to afford such an opportunity.

Although, this decision was by no means unanimous, with some of the Lords dissenting in

part on both procedural and substantive grounds, the direction made by the treasury was set

aside and the Order quashed.

This case lends itself particularly well to a Foucauldian analysis and is an example of how the

theory of biopower and disciplinary mechanisms dovetail into each other. This paper has

argued that closed material proceedings are a part of a process in the architecture of

panaopticism. The Bank Mellat case demonstrates this understanding. Before the case entered

the arena of a closed material proceedings, the bank was under surveillance; a decision had

been made that Bank Mellat would be observed out of the twenty-six or so Iranian banks that

operate in the UK. (1)This surveillance is a technique of biopower, carried out by the network

of intelligence agencies that harvest information on behalf of the government, through

128

ibid 65 at paragraph 71-72

57

governmentality. The ‘observational gaze’ was on the bank. (2)Subjective micro-decisions

had to be taken as to why Bank Mallet was to be observed, what the objective was, and how

the data would be presented as “useful” information to the government. The consequences of

the observation were not merely consequential but were contextual. They were to support the

supposition that the bank was financially assisting the Iranian ballistic missile program. (3)

The punitive measures imposed by a Direction of the Treasury were imposed to control the

operation of the bank in the UK. The bank’s assets were frozen and they were unable to

continue their business in the UK. These measures were punitive in effect and operated

through a disciplinary technique. These measures were a continuation of the processes that

began when the bank was first chosen for surveillance. (4) The closed material proceedings

forms part of the architecture of panopticism, where the observational gaze continues to shine

on the bank.

In the above case, Lord Sumption touches on the subjectiveness of the judgment of the

Treasury and that the whole notion of proportionality and margin of appreciation are

subjective judgments. However, there is little debate on the many micro-decisions that took

place before the case even reached the closed material proceedings, argueably because steps

1, 2 and 3 above, form part of a normalising process. Here, the law expresses itself as

representing the guardian of legitimacy of legislation. Now that closed material proceedings

are enshrined in the 2013 Justice and Security Act, the judiciary will have little option but to

participate in closed material proceedings as their discretion has been fettered by the new

Act. Whether the government intended to develop architecture of panopticism is beyond the

remit of this paper but, regardless of that fact, this paper argues that that the architecture

exists and the case of Bank Mallet supports this argument.

58

Chapter Three

The Justice and Security Act 2013

Closed Material Proceedings occupy a pivotal role in the human rights discourse in the UK at

this particular moment in time and as such, lend themselves to a foucauldian examination of

biopower and disciplinary power in the modern legal field. This paper argues that Part One of

the Justice and Security Act 2013(JSA) indicates a multiplicity of power relations between

the various networks of intelligence services that operate through the conversion of data into

information that may be useful in the “war against terror”. The conversion of this data to

“useful” information is not consequential but contextual, and very much depends on: who

decides what data is to be converted, how that data is collected and verified, etc. Once the

harvested data is converted to information, this information is power, not only to those

collecting or evaluating the data but those you receive the data or information who can now

act on the basis of this information.

From the JSA we can see the information hierarchies that exist in the UK and power

relationships that are implicit in the system of secret information. This paper argues that this

fracturing of power shapes law using the techniques of governmentality and surveillance.

This paper argues that closed material proceedings represent one of the on-going processes

that form part of the architecture of panopticism. To a large extent this has been ignored by

legal commentators, politicians, judges and Human Rights NGOs, in favour of a rights based

discourse, and in doing so both the judiciary and the executive may have “normalised” to a

certain degree at least the covert form of power of subjective judgements hidden in the

harvesting of information.

59

The second part of this chapter will argue that the human rights discourse surrounding

CMPS, such as “the war on terror” and the right to a fair trial based on the accounts provided

by the major actors in this arena, is a form of power that circulates in the social field and

attaches to strategies of domination used by the government, as well as a strategy of

resistance used by the judiciary, legal commentators, ECtHR and NGO’s such as Liberty and

Reprieve.

The JSA 2013 provides for an oversight of the Security Services, the Secret Intelligence

Service, the Government Communications Headquarters at GCHQ and “other activities

relating to intelligence or security matters; to make provision about closed material procedure

in relation to civil proceedings; to prevent the making of certain court orders for the

disclosure of sensitive information and for connected purposes.”129The Act contains

seventeen pages by way of explanatory notes, which give some indication of the complexity

of the networks involved in the; identification, the collection, verification, management

assessment and dissemination of this data into information that may be used in “the war

against terror”.

Sensitive information is defined widely in paragraph 5 of schedule 1, and expands on

previous definitions130 beyond the “Agencies” to cover also equivalent information relating

to any part of a government department, or any part of Her Majesty’s forces, which is

engaged in intelligence or security. It is worth quoting this paragraph in full.

(a) Information which might lead to the identification of, or provide details of,

sources of information, other assistance or operational methods available to-

(I) the Security Service,

129 Introduction to the Justice and Security Act 2013. 130

See Intelligence Services Act 1994

60

(ii) the Secret Intelligence Service,

(iii) the Government Communications Headquarters, or

(iv) any part of a government department, or any part of Her Majesty’s forces, which

is engaged in intelligence or security activities,

(b) information about particular operations which have been, are being or are

proposed to be undertaken in pursuance of any of the functions of the persons

mentioned in paragraph (a)(i)-(iv),

(c) information provided by, or by an agency of, the government of a country or

territory outside the United Kingdom where that government does not consent to the

disclosure of the information.

What neither the Act nor the Explanatory Notes explains is how this collection of data

becomes useful information for a particular purpose; in this case it is the suppression of

terrorism. Larry Cata Backer, Professor of Law at Pennsylvania State University131looks at

some of the issues that surrounds the problem of the conversion of data into information;

what sort of data is to be collected, what sort of data is to be emphasised and what is to be

discarded, how data can be harvested and how that data is to be interpreted and framed in

relation to the given objectives underlying its collection, as these factors will all influence

how the outcome will look. What sets of behaviours are “applauded” or “condemned”. The

information is contextual and not merely consequential, “who uses it in what cultural context

colors the importance and character of the information at the moment of its deployment...132It

is this characteristic of making judgments and deploying those judgments within the

community under observation that can be understood as governance.” This paper argues that

131

Larry Cata Backer, ‘Global Panopticism: States, Corporations, and the Governance Effects of Monitoring Regimes’ [2007] 15:XXX Indiana Journal of Global Legal Studies 132

ibid 27

61

the JSA as a democratically legislated Act masks the power of subjective judgments

regarding the use of information and thus the necessity for legitimacy in making those value

judgments.

The ISC [Intelligence Services Committee] must exclude any matter from any report

to Parliament if the Prime Minister, after consultation with the ISC, considers that the

matter would be prejudicial to the continued discharge of the functions of the Security

Services, the Secret Intelligence Service, the Government Communications

Headquarters [GCHQ] or any person carrying out activities falling within section

2(2).

Section 2(2) relates to a memorandum of understanding (MoU) between the government and

ISC. This is somewhat more complex than it first appears, closer examination of the

explanatory notes indicates the MoU sets out delegated power to a network of governmental

organisations , including the following;

(i) Joint Intelligence Organisation in Cabinet Office

(ii) The Office for Security and Counter-Terrorism in the Home Office

(iii) Defence Intelligence in the Ministry of Defence

This is recognition of the much wider use of intelligence bodies other than those already

established intelligence agencies mentioned earlier. The fact that these intelligence networks

have widened, together with a greater protection of what information is classed as “sensitive”

is a representation of biopower through the technique of governmentality within the legal

field. The MoU is not a legal document and therefore, will not be subject to the same scrutiny

as legally enacted legislation. From this analysis this paper argues that a foucauldian

understanding of biopower and governmentality may engage with the current legal system in

relation to CMPs.

62

The seventeen pages of the explanatory notes of the Act gives some credence to the notion of

the complexity of the power relationships of intelligence networks but also of the inherent

lack of transparency, which has been an effective tool in the past for democratisation.

This paper argues that most of the criticism of the Act has not been in relation to the

collection of data and subjective values that decide what information is useful to terrorism;

instead all parties of interest have focused their attention on the human rights discourse in

relation to CMPs. In doing so this has further masked the need for legitimisation within the

various power networks that are making subjective judgments on a day to day basis when

deciding what data will be used as information.

Surveillance

Closely connected to this production of information to be used for a particular object is

another aspect of Foucauldian thought of “surveillance as a form of control”. This ties in with

the subjective judgment aspects of knowledge production, thus “the harvesting of information

for its use in producing judgment and control”133, in the context of surveillance by the

Intelligence networks in operation in the UK. This idea (that if one observes part then this

will represent the whole) can be seen quite clearly in the Bank Mellat case, (discussed earlier

in Chapter Two). The Intelligence Services picked out and closely observed one Iranian Bank

that operated in the UK. It is arguable that the intelligence services’ observation of one

Muslim bank represented the whole Muslim Banking World; this then turned the bank under

observation into a subject to be judged and then controlled. In this case, the bank was

“judged” to be assisting the nuclear ballistic programme in Iran so had to be prevented. A

Direction by the executive was given to freeze their assets and prohibit them from carrying

out their banking business in the UK. In this example we can see how surveillance can be

133

ibid 29

63

used as power applied to control. This paper argues that a Foucauldian analysis of

surveillance may lend itself well to modern law within the UK.

The JSA does not mention surveillance, yet most of the provisions relate to information that

has been harvested by various surveillance operations and techniques by a network of

Intelligence Services both here and abroad. Apart from naming the main intelligence bodies

involved in the harvesting of data it is silent as to: who may determine what information must

be produced, and what judgments may be made from the information. The importance of

such data, which the Act is proof of, increases the power of the information gatherers and the

institutions they control. “Control of the choice of data to be collected is the foundational

power of control.”134 This power is not as we have known in past juridico- legal regimes, but

it is the power to impose a regulatory regime that is not exercised by legitimate political

power. Thus regulation is presented in different terms. “Law is not supported by surveillance

as a mechanics of enforcement”135. Instead the mechanics of enforcement (as surveillance)

becomes law, in the shape of what is to be observed, recorded and analysed. This is

regulation beyond the politics and the state. Thus, this paper argues the Foucauldian notion of

biopower engages with modern law through the techniques of governmentality and

surveillance. The JSA is an indication of the changes that have occurred between law and

surveillance. Surveillance, understood as an conglomeration of techniques, value judgments

and relationships is much more complex than has been understood in the past, as a state-

centred, democratic enhancing model law is the means through which surveillance is

enforced. The JSA is proof of a new legal order in relation to surveillance and the control of

intelligence information by the fracturing of power.

134

ibid 31 135

ibid 39

64

Human Rights Discourse

As previously discussed, the modern judiciary has developed the common law of Public

Interest Immunity to address issues of national interest in regard to disclosure of sensitive

information, balancing the protection of the public interest and the fair administration of

justice and so CMPs take place in a limited amount of areas (discussed in Chapter Two). Part

2 of the JSA introduces CMPs into a much wider arena and places them on a firmer footing.

This paper argues that a foucauldian understanding of discourse can be applied to modern law

in the form of human rights discourse, in particular to CMPS in the UK. Human rights

discourse has been used both by the government as a strategy of domination as well as by its

opponents in resisting CMPs. Much of the criticism of CMPs and the introduction of these

secret courts into all areas of civil jurisdiction by the JSA, has been based on the right to a

fair trial or Article 6 of the ECHR. As discussed in chapter two; basically that CMPs fail to

provide sufficient guarantees of procedural fairness for the “suspect.” The government have

based much of their argument on the right to life/ Article 2 ECHR and Article 15 ECHR

(Chapter Two, page 7) which permits derogations from the right to a fair trial for the

protection the population in times of war or other public emergency that threatens the life of

the nation. They also argue that CMPs are compatible with Article 6 and draw on some of the

case law from Strasbourg to support this claim, together with the fact that Article 6 is a

qualified right and needs to be balanced against the right to life.

Through Foucault’s idea of governmentality we see that much of this has survived and has

been translated to a supranational level of the European Union, World Bank, and World

Health Organisation. New collective formations emerge from every area of life and with this

emerges new methods of individualisation and the concept of autonomy that comes with

mass rights, such as rights to a decent health care system, to education, standard of housing,

65

liberty and now happiness. The human rights discourse has permeated all these institutions on

a macro level. Critical legal theorist Bal Sokhi-Bulley, has recently argued the Fundamental

Rights Agency (FRA) represents a new way of speaking about rights in the European Union,

using the language of governance as it operates a model of panopticism which allows it to

carry out a new form of government. It challenges the whole notion of the European Union as

a ‘beacon on fundamental rights’ and a ‘model of apolitical progress’.136 This paper argues

that a foucauldian examination of closed material proceedings and the wider human right

discourse masks the necessity for legitimacy underlying techniques of power.

136

Bal Sokhi-Bulley, ‘The Fundamental Rights Agency of the European Union: A New Panopticism’ [2011] 11:4 Human Rights Law Review

66

Conclusion and Summary






In an attempt to develop a contemporary analysis with law generally, chapter one examined

Foucault’s theories of biopower and disciplinary mechanisms. It challenged the status quo in

liberal legal thinking, analysing the relationship between these theories and how the former

dovetails into the latter; expanding these forms of power as manifestations of

governmentality. For Foucault discipline is not singularly about the control of individuals to

prevent certain acts but it produces subjects with their own individuality. The chapter argued

that the use of closed material proceedings operates as a form of “panopticism”. This is

evident in the procedures and processes of surveillance operations and techniques practised

by the intelligence agencies in the harvesting of “information”. Thus a Foucauldian vision of

panopticism can engage with modern law with regards to closed material proceedings.

Through the Foucauldian looking glass of governmentality and risk theory, this paper

attempts to explain the wider culture of surveillance and control, with particular regard to

counter-measures against the “new terrorism” and the resultant anti-terrorist legislation,

which inevitably restricts civil liberties, in particular, the right to a fair trial. Through a

Foucauldian analysis it was possible to engage an understanding of the social construction of

the terrorist risk, the extension of institutional methods and the coercive power of the state.

Part One of Chapter two examined these theories in relation to closed material proceedings as

67

part of a wider panoptic architecture within the legal system. It was important to examine

both the common law position on the right to a fair trial, together with Article 6 ECHR, to

develop a finer understanding of how closed material proceedings engage with the right to a

fair trial.

In order to understand further the difficulties surrounding closed material proceedings it was

essential to examine domestic and European case law within Part 2 of this paper. By applying

a Foucauldian analysis to a selection of landmark cases, it was possible to see how the

theories of biopower and disciplinary mechanisms could relate to closed material proceedings

in the UK.

Part One of the Justice and Security Act 2013 gives some indication of the multiplicity of

[power] relations between the various networks of intelligence agencies. Through the

conversion of data into information, which may be useful in the “war against terror”, the

paper argued that the information is not merely consequential but contextual. This

information becomes a form of power which can now be acted on by the government and

other intelligence agencies to control through panoptic disciplinary mechanisms.

It has been argued in this paper that the Justice and Security Act 2013, highlights the

information hierarchies and the power relations implicit in the system of secret information.

Due to these information hierarchies it is clear that power has been fractured and is now

affecting law in the auspices of closed material proceedings.

To a large extent the arguments presented by most legal commentators, government and other

interested parties has focused on the right to a fair trial rather than the diverse covert methods

of how information is used as techniques of power. This paper has suggested that human

rights discourse has masked the need for legitimacy in the subjective micro judgements,

hidden in the harvesting of information.

68

In a Foucauldian understanding, the human rights discourse that surrounds closed material

proceedings acts as a form of power, that circulates in the social field and attaches to

strategies of domination used by the government, as well as strategies of resistance used by

the judiciary, ECtHR and NGOs.

This paper sought to re-evaluate the importance of Foucault’s work in the operation of

modern law, by employing the theoretical perspectives of biopower and disciplinary

mechanisms. These theories to a large degree did engage with modern law in the form of

closed material proceedings. This was an ambitious and worthwhile project, however for the

subject matter to be explored fully, a much more in-depth study is required.

69

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an architecture of panopticism

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