National security, risk, and accountability

Thesis

This thesis explores issues of procedural fairness across the major statutory counterterrorism powers which require the Closed Material Procedure (CMP) in judicial review. It also considers the Justice and Security Act 2013 which applies to civil proceedings of any nature engaging national security concerns on a discretionary basis. The analysis construes procedural fairness broadly by considering its application both in the curial context and inside the relevant administrative organisations. It argues that procedural fairness in the CMP should be understood as part of the routine risk-management responsibilities of administration and administrative law, as opposed to an initiative which is 'exceptional' by virtue of its national security subject matter. Procedural fairness in the CMP could be invigorated by taking seriously the presence of risk and risk assessment in the application of the statutory powers by the executive and in the operation of the CMP itself. This thesis also argues that the extension of the CMP to damages actions under the Justice and Security Act 2013 raises greater normative problems than actions in the existing province of the CMP. This is because such claims, whilst not the sole province of the Act, concern executive accountability for tortious actions, as opposed to judicial review of executive riskmanagement of terrorism. The analysis concludes with two critical recommendations for improving procedural fairness in law and administration in the relevant subject matters; but ultimately recognises that these are but a first step in a broader project which requires the development of an interdisciplinary substantive theory of necessary secrecy.

Authors: Hooper, H

• Alternative title: The closed material procedure
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: closed material procedure; judicial review; public law; counterterrorism; administrative law; national security; procedural fairness
• Subjects: closed material procedure; civil procedure; public law; counterterrorism; National security; Judicial review