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
AnonymousCode 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
-
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

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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
which CMP engage in these two different forms of power.
Chapter One
2 Carl Schmitt, PoliticalTheology: Four Chapters onthe ConceptofSovereignty (University ofChicago 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 LawandMichel Foucault’ [1988] 18 OxfordJournal of Legal Studies 75
4
Paul RabinowandNikolas Rose, ‘Thoughts onthe Concept of Biopower Today’[2006]154:3Biosocieties 477

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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, andthe GovernanceEffects of MonitoringRegimes’ [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
7
Paul RabinowandNikolas Rose, ‘Thoughts onthe Concept of Biopower Today’[2006]154:3Biosocieties 477
8
Michel Fouacualt, Society Must be DefendedIV: Link BetweenDiscipline andBiopower , Lectures at The CollegeDe 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 LawandMichel Foucault’ [1988] 18OxfordJournal ofLegal Studies 76
13
Michel Foucault, TheHistory of Sexuality Vol 1. Part 4 (Penguin Books 1978)88-89
14
Victor Tardos ‘The LawandMichel Foucault’ [1988] 18OxfordJournal ofLegal Studies 91.
15
Paul RabinowandNikolas Rose, ‘Thoughts onthe Concept of Biopower Today’ [2006] 154:3Biosocieties 477

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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 beingthe 17and18th
century,TheArchaeologyof 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 RabinowandNikolas Rose, ‘Thoughts on theConcept ofBiopower Today’[2006] 154:3 Biosocieties 477
18
19
ibid 77

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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
20
Paul RabinowandNikolas Rose, ‘Thoughts onthe Concept of Biopower Today’ [2006] 154:3Biosocieties
21
John Stuart Mill, OnLiberty and Other Essays (OxfordUniversity 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 LawandMichel Foucault’[1988]18 OxfordJournal of Legal Studies 84-85

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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: TheBirth of the Prison (Penguin 1977) 87
26
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: TheBirth 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]UKHL28.
32
Control orders are discussedin chapter two.This order was a non-derogatingcontrol order.
33
[2007]UKHL45

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]UKHL28,paragraph 54
35
Michel Foucault, Discipline andPunish:The Birth of thePrison (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, ‘TheLawandMichel 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 theDark Side (Verso 2010)
40
Ulrich Beck, ‘The Terrorist Threat:WorldRisk Societyre-visited’ [2002] 19Theory CultureandSociety39-55
41
Gabe MythenandSandra Walkate,‘Criminology andTerrorism, WhichThesis? Risk Societyor 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 andthe Arms of Mass Destruction (OxfordUniversityPress 2003)
44
Michel Foucault, DisciplineandPunish: The Birthof the Prison (Penguin 1977) 178.
45
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, DisciplineandLaw’ in Post (ed),Lawandthe Orderof Culture(University ofCaliforniaPress 1991) 139
47
Gabe Mythen andSandra Walkate, ‘Criminology andTerrorism, WhichThesis? Risk Societyor 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 PartyConference, March2004, citedin Waugh(2004:5)
49
Beck, U, ‘The Terrorist Threat: WorldRisk Societyre-visited’. Theory, CultureandSociety, 19:39-55at page 32.
50
ibid
51
The headof the IraqSurvey Group opinedthat weapons of mass destruction hadneverbeen developedin 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 andSandra Walkate, Criminology andTerrorism,WhichThesis? Risk Society or
Governmentality. Brit J Criminology (2006)46, at page 389.
53
As reportedon 20th
August by http://www.bbc.co.uk/news/uk-237636625
54
As reportedon 20th
August 2013by <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
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 andthe UK Supreme Court: Judicial Deference as Judicial Dialogue’ [2010] 14International Journal of
Evidence andProof208
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 fromthe DarkSide’ (2010 Verso)
61
R v Horncastle andothers [2009] UKSC 7
62
Article 6(3)(d) ECHR
63
Engels andOthers v The Netherlands(1979-80)1EHRR 14
64
See also Campbell andFell 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 detaileddiscussion of thehearsay rule see R v Horncastle judgement per LordJudge.
66
Ibid 7
67
See footnote9.

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 andCriminalEvidence Act 1984
69
For furtherreadingsee Report ofThe LawCommission4th
April 1997(LawCom No 245) on“ Evidence in Criminal Proceedings:
Hearsay andRelatedTopics.
70
See section 78Criminal Justice Act 2013.
71
The Right Hon theLordKerr of Tonaghmore Justiceof TheSupreme Court (2013) TheMacDermottLecture 2013, Refelections on
HumanRights Law andthe War on Terror with particular consideration of theRight to a Fair Trial.Thursday2 May 2013.The Great Hall
Queen’s Universityof 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 andothers v SSHD [2004]UKSC 56.
76
Queen’s Universityof Belfast 10
77
Special ImmigrationAppeals CommissionAct 1997.
78
TerrorismAct 2000, Anti-Terrorism Crime andSecurityAct, Act Counter-TerrorismAct 2008
79
Section 6 Special Immigration Appeals CommissionAct 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 threewise men
81
Article 5 (4)ECHR- “Everyonewho is deprivedof his libertyby arrest or detentionshall be entitledtotake proceedings by which the
lawfulness of his detention shall be decidedspeedily by a court andhis release orderedif his detentionis not lawful.”
82
Queen’s Universityof 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, barristerat Doughty Street Chambers. Secret Courts consultationis a cover up
84
Liberty’s Commitee stage briefingonPart 2 of theJustice andSecurityBill in the House ofCommons January 2013.
85
See Also sections 90-92 ofthe NorthernIrelandAct, whichprovides for S.A in specialist employment anddiscrimination law, section5 of
The Terrorism Act 2000, in determiningappeals against proscribedorganisations,section70 The Anti-Terrorism,Crime andSecurityAct
2001 (relatedto pathogens), Rules 7A and7B of TheEmployment Tribunals Rules of Procedure (Scotland) andin Northern Ireland
Sentence ReviewCommission. House of Commons- Constitutional Affairs-SeventhReport paragraph5.
86
Justice andSecurity 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 andothers v SSHD [2004]56.Although the right to a fair trial was not central to thecase it illustrates well the modern power
relationshipbetween thecourts andthe executivewhich is central to this paper, particularly in a Foucauldiananalysis.
88
A andothers 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 andothers v SSHD [2004]UKHL 56
90
Supreme Court has no power tostrikedown an Act ofParliament, it can however, quash subordinate legislationthat has been made ultra
vires.
91
A V UK (2009) 49EHRR 29
92
ibid at paragraph220
93
As per LordKerr quotingfromthe decisionof theA 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 laware essentiallyrelatingto theGeneva Conventions 1-1V 12 August 1949andthe
Hague Convention1907

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 Bayas a Foucauldian Phenomenon: An analysis ofPenal Discourse, Technologies, andResistance’ [2009]
The Prison Journal <http://tpj.sagepub.com> Accessedonline
96
ibid 10
97
ibid
98
See also John J Jr Dilulio, GoverningPrisons: A comparative study of correctional management (1987NewYorkFree 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 Bayas a Foucauldian Phenomenon: An analysis ofPenal Discourse, Technologies, andResistance’ [2009]
The Prison Journal 4 <http://tpj.sagepub.com> Accessedonline
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
Queen’s Universityof 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) 195C.L.R. 594, paragraph32.

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 settledthecase out ofcourt foran undisclosedamount.
107
Professor Martin Dockray, ‘Inherent JurisdictiontoRegulate Civil Proceedings’ (1997)113 LQR 120, 131
108
Liberty’s Committee stage briefingonPart 2 of theJustice andSecurityBill (2013)in the House ofCommons 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 “Tortureclaims andinvestigationorderedby Hague” The Guardian, 20th
May 2010.Joint statement by DPP andMetropolitan Police
Service 12th January2012
113
See “ British Goverment’s Secret InterrogationPolicy” publishedby the Guardian 4 August 2011as reportedin paragraph41of Liberty’s
response tothe 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]49EHRR
116
[2009]UKSC14, [2010]2AC 373
117
See R v Horncastle andothers (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 andthe UK Supreme Court: judicial deference as judicial dialogue?’ [2010] 14International Journal of
Evidence andProof2
119
Bank Mellat v HerMajesty’s Treasury [2013] UKSC 39 WL 2975866.
120
UN Security Council Resolution1737(2006)on the suspensionof proliferation-sensitive nuclear activities andArtcle 41 ofthe United
Nations Charter.

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