More secret justice on the horizon

19 October 2011 by Adam Wagner

The Cabinet Office has released its long awaited (by this blog at least) Justice and Security Green Paper, addressing the difficult question of to what extent the state must reveal secret information in court proceedings. A consultation has been launched on the proposals; responses can be sent via email by Friday 6 January 2012.

The review was announced shortly after the Coalition Government came to power, on the same day that Sir Peter Gibson’s Detainee Inquiry was launched. In summary, the Government has recommended that controversial Closed Material Procedures and Special Advocates are used more frequently, particularly in civil proceedings. The courts have been reluctant to take this step themselves as any expansion of secret procedures will have significant effects on open justice and the right to a fair trial.

The Green Paper begins by setting out the familiar tension between protecting national security, by ensuring that sensitive information is not revealed to the wrong people, and upholding the right of people to know the case against them in court. This tension has resulted in a number of recent court decisions in which courts have often ruled against the security services in respect of disclosure – see our most recent post on the issue.

This has meant that the courts repeatedly required the Government to disclose secret documents, meaning that the Government has been forced to settle claims in order to prevent public revelation of the documents – most notably in the Binyam Mohammed (pictured) litigation which was eventually settled for millions of pounds, The current state of the law, as put by the Justice Secretary in his Forward:

has rendered the UK justice system unable to pass judgment on these vital matters: cases either collapse, or are settled without a judge reaching any conclusion on the facts before them.

The Government has therefore made the following recommendations:

• Introducing legislation to make closed material procedures (CMPs) more widely available in civil proceedings for use in rare instances in which sensitive material is relevant to the case. CMPs, which involve Special Advocates, are highly controversial (see half-way down this post) and the Supreme Court has recently suggested that it is for Parliament to decide whether such procedures should be used in civil (as opposed to criminal) proceedings. As Rosalind pointed out in her post, the European Court of Human Rights is not inherently opposed to such proceedings as long as they are strictly necessary.

• Seeking people’s views on the difficult issue of CMPs in inquests, which are after all supposed to be a public process whereby rumours about the circumstances surrounding deaths can be allayed in public.

• Improving mechanisms by which Special Advocates, who are “critical to the success of the proposed expansion of CMPs” communicate with the person who they are representing.

• Clarify the contexts in which the ‘AF (No.3)’ ‘gisting’ requirement does not apply. In AF, the House of Lords ruled that in order to guarantee a fair hearing under article 6 of the European Convention the judge must insist in every case that the controlled person is given sufficient information to enable his special advocate effectively to challenge the case that is brought against him. It sounds here like the Government are seeking to reduce to the bare minimum the instances where such “gisting” is required.

• The Government has also suggested various procedural reforms in order to manage the expansion of CMPs, including providing judges with more active case management powers in the pre-hearing
phase to replicate best practice from more ‘inquisitorial’-type proceedings, establishing a ‘specialist’ court with appropriate safeguards to hear civil proceedings where sensitive material is relevant prospects for reform of the Investigatory Powers Tribunal (IPT).

• Limit the role of the courts in cases in which individuals are seeking disclosure of sensitive material, where the Government is not otherwise a
party, particularly into foreign legal proceedings over which we have no control.

There are also aspects of the consultation aimed at increasing public confidence in oversight of the security and intelligence agencies. This perhaps represents an implicit acceptance that the expansion of CMPs and the use of Special Advocates could decrease public confidence in the oversight of intelligence services with less damaging disclosure reaching the public eye.

This debate is extremely important and the courts have found it difficult to resolve in recent years. Judges have undoubtedly become bolder following the passing of the Human Rights Act in 2000, which has been at the heart of all of the most significant cases. But judges have also been concerned (most famously Lord Neuberger, who even changed a paragraph of his critical judgement at the request of the security services) at what the disclosure of some documents has revealed about the actions of the security services, concerns which led directly to the Detainee Inquiry.

It is interesting that the Ministry of Justice has said that the proposals will ensure

that the sensitivity of evidence does not prevent cases being heard in the courts – enabling justice to be done without compromising national security.

But, as has been pointed out by Liberty, some cases which would have reached the courts under the old system may be taken out of the public gaze by the new.

It is right that Parliament make the final decision as to where the right balance between justice and security lies. It is to be hoped that the answer it reaches will not place those two fundamental principles in opposition to each other.

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• Secret evidence v open justice: the current state of play
• 9/11 ten years on
• Even more secret evidence for government in Al Rawi case
• Mutual confidentiality between intelligence services trumped by open justice requirements