Courts have no inherent power to order closed procedure – Al Rawi in the Supreme Court

1 Crown Office Row’s Peter Skelton appeared for The Security Services in this case. He is not the author of this post.

Al Rawi and others (Respondents) (Respondents) v The Security Service and others (Appellants) [2011] UKSC 34 – read judgment; read press summary

At the centre of this appeal was the court’s power to order a “closed material procedure” for the whole or part of the trial of a civil claim for damages.  The question arose as a “preliminary issue” – a point to be determined on its own – in the appellants’  compensation claim for their alleged detention, rendition and mistreatment by foreign authorities in various locations, including Guantanamo Bay.

In countering the respondents’ claim for compensation, the appellant security services claimed that they had security sensitive material within their possession which they wished the court to consider in their defence but which could not be disclosed to the respondents. They therefore sought a “closed material procedure” for this part of their defence – a procedure whereby a party can withhold certain material from the other side where its disclosure would be contrary to the public interest.

The closed material would be available to special advocates, who act in the interests of the excluded party but who cannot take instructions from them, and the court. This was, in essence, a move to expand on public interest immunity (“PII”), whereby a judge decides whether in the public interest certain material should be excluded from a hearing.

The judgment

The Court decided, unanimously, that there was no power at common law to replace PII; any such move would have to be done by legislation. A closed material procedure, unlike the law relating to PII, involves a departure from the principles of open and natural justice, which are essential features of a common law trial. The fact that the court has no inherent power to abrogate the common law right to a fair trial is shown by the enactment of legislation in specific cases. Here the departure from the open justice principles in introducing a form of closed material procedure has been necessitated by the public interest in the protection of national security: see for instance the closed material procedure in certain employment proceedings, whose compliance with Article 6 the Supreme Court has affirmed today.

Courts therefore have no power to order a closed material procedure in the absence of statutory authority. Some of the Supreme Court panel would have held that the court has the power, in certain circumstances, and where the parties consented, to order a closed material procedure. They disagreed, however, over what those “certain circumstances” are.

A more detailed consideration of the court’s differing views on this matter will follow in a full case analysis shortly.

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