Secret justice: do we have a compromise?

The Parliamentary Committee on Human Rights has now responded to the Government’s consultation on the proposals set out in their  Justice and Security Green Paper Cm  8194. The idea is to extend “closed material procedures” so as to be available in all civil proceedings, i.e. not just in some highly restricted national security contexts such as deportation appeals before SIAC (the Special Immigration Appeals Commission), control orders, and their successor regime known as TPIMs.

On the one side…

is the independent reviewer of terrorism legislation, David Anderson QC, who has concluded that secrecy of evidence should be maintained in civil procedures as well; after reviewing secret evidence relating to a small selection of civil claims, he reported that issues in some damages claims could not be determined at all without resort to a closed material procedure.

On the other  …

are the Special Advocates, who are employed in these procedures involving “closed material”,  to represent the interest the interests of the person who is excluded.  So far they have been critical of the proposals, having lodged a collective response to the proposals, and they have recently responded to Anderson with a supplementary paper.

The JCHR has taken up their conclusions, agreeing with them that “closed material procedures are inherently unfair”

As Special Advocate Angus McCullough QC told the Committee,

there is an important flexibility in PII that would be replaced and lost if the proposals in the Green Paper were adopted”[para 11]

The JCHR’s proposals

The Committee acknowledges the gravity of the concerns behind the Green Paper. It acknowledges in particular the anxieties of the US that intelligence information is not predictably handled in the UK courts.  The Committee proposes that the problem can be addressed in a way that is more “proportionate” than a broad extension of the closed material procedure set out by the Green Paper. The common law that allows the removal of sensitive security evidence from proceedings on “public interest immunity grounds”  is useful, but it must be predictable, otherwise whole cases go to the wall for lack of evidence or sensitive material is inappropriately exposed. The Committee proposes that this common law procedure would be improved by the following steps:

1) introducing a presumption, written in to legislation, against disclosing any sensitive intelligence material

2) requiring courts to acknowledge a specific list of factors which require disclosure of security-sensitive material

3) obliging courts, before removing all evidence critical to the case under PII, to consider halfway house devices such as redactions, confidential rings and “in private” hearings so that a claim can be properly determined with some of the evidence still intact

The Committee notes the “avoidable” anxiety that has been created by the Green Paper about the “freedom and ability of the media to report on matters of public interest and concern”.

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7 thoughts on “Secret justice: do we have a compromise?

  1. Thanks, Rosalind, for this speedy comment on the JCHR’s report. I think that it is crucial to note that David Anderson QC’s willingness to contemplate the use of closed procedures is subject to some important conditions which are not met by the proposals in the Green Paper. These may be seen from his original evidence to the JCHR: http://terrorismlegislationreviewer.independent.gov.uk/publications/memorandum-for-jchr.
    In particular, he indicates that any application of closed procedures should be subject to a test of strict necessity, should be pursuant to a decision of a judge (not the Government), and that existing closed procedures should be improved. Thus, although there is remains a significant difference between the position of the Special Advocates (of whom I am one) and that of the Independent Reviewer, neither body supports the Green Paper’s proposals. This also reflects the conclusions of the vast majority of respondents to the consultation (including many powerful contributions from NGOs), as can be seen from the published responses at: http://consultation.cabinetoffice.gov.uk/justiceandsecurity/responses-to-the-consultation.

  2. A lot of the disclosures that have been harmful to the securoity services have been brought about by lawyers dredging up anything that may pervert the course of justice regardless of the harm it does to the national security or our image.
    Maybe the lawyers shoudl try a lttle harder to uphold the law and decide cases on its merits and not on the basis of how much money they can earn by gradding out everything that is unnecessary to the basic facts?

  3. Thanks Angus, you correctly express my views! Your link to my first memorandum doesn’t seem to work – it can be found from my website http://terrorismlegislationreviewer.independent.gov.uk/.

    In that document I describe the proposed application of closed material procedures to any case involving sensitive material as “overbroad and unsupported by evidence”, and the notion that Ministers should trigger closed material procedures, subject only to judicial review, as “profoundly wrong in principle”. I have also deprecated the tendency of Ministers to characterise their CMP proposals as justified by national security – whereas in fact the debate is about procedural fairness and open justice. The JCHR agreed with me on all these points.

    As to the Special Advocates’ proposals for improving the fairness of CMPs, I have described some of them as “difficult to resist” and in my report last month on control orders have recommended a forum chaired by a High Court judge with the power to recommend changes to the applicable rules and practice. As you know better than anyone, these concerns are especially acute where there is no guarantee of sufficient disclosure to allow effective instructions to be given to a special advocate.

    In short, I oppose the proposals for the extension of CMPs as they are set out in the Green Paper.

    The confidential enquiries referred to in my supplementary memorandum (which I made at the prompting of a number of MPs) do however suggest to me that there are two categories of High Court case so infused with national security evidence that a judge could take the view that a CMP for all its imperfections would be fairer than the alternatives of strike-out (cautiously endorsed by the Supreme Court in al-Rawi) or forced settlement. These are naturalisation/exclusion judicial reviews (which have obvious similarities with the deportation cases already dealt with by CMP in SIAC) and – more controversially – a small number of civil damages claims that, it is said by the defendants and their counsel, would be fought to a conclusion were a CMP available but which would have to be struck out or settled if it is not, in either case without the allegations being tested in court.

    Both I and the JCHR in a little-noticed part of its report (para 117) have accepted that the first category could properly be dealt with by CMP, perhaps within the SIAC framework. That leaves the second category. Only the Government knows how large that category is. If it wishes to proceed with its proposals in relation to civil damages claims, the challenge will be to devise a regime that adds CMP to the judicial armoury while ensuring that it is used only where strictly necessary to avoid injustice. That won’t be an easy task.

  4. On the threat to intelligence-sharing, see http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/9187353/American-intelligence-agencies-spooked-by-Britains-open-courts.html – echoing points made in my supplementary memorandum.

    But it would be unfortunate if the Government were to use well-founded fears of a reduction in intelligence-sharing, which justify proportionate limitations on the Norwich Pharmacal power, as a scare tactic in order to achieve its unrelated proposals on secret civil trials. Existing PII procedures do not risk compromising foreign intelligence. The secret trial proposals must stand or fall by their ability to produce just outcomes.

  5. It looks like the government is trying to hide something. We`ll see what will happen.
    Also, isn`t is a violation of Article 6 of the European Convention on Human Rights? It provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time.

  6. Thanks for your comment ‘thelegalstopuk’. You raise a good question about Article 6. The answer is not as straightforward as it would first appear. This is because Article 6 only applies to “the determination of [a person’s] civil rights and obligations or of any criminal charge”. The ‘criminal charge’ part is clear enough. But Strasbourg has taken a restrictive view of the meaning of ‘civil rights and obligations’ (see the commentary on Article 6 in the ‘Topics’ section of the blog, although that could do with a bit of updating). The upshot is that it is far from clear what (if any) of the range of civil proceedings to which the Government is proposing to extend closed procedures would fall within the scope of Article 6. Where Article 6 does apply, both the European Court of Human Rights in Strasbourg and the House of Lords (following Strasbourg’s lead) have held that closed procedures are capable of being compliant with its provisions, but only if the affected person is given sufficient information of the case against him to enable him to give effective instructions to his lawyers. That requirement of a minimum level of disclosure has a significant effect in reducing, but by no means eliminating, the unfairness of closed proceedings. However, as explained above, it is not clear that even this limited safeguard provided by Article 6 would apply to civil claims, such as those alleging serious wrongdoing on the part of the state.

  7. The secret evidence is the British Public enemy No1 , if we examine deep we will find who ever invented secret evidence is taking the British for a stupid Nation .secret evidence are made by Iran and Muslim Brotherhood , then handed over to those who are to be trusted to make law of the jungle . Iran want to have slice of the cake in Iraq and Afghanistan and after 9/11 the Brotherhood brunch of the ben Ladin who were scarred and they knew the government will came after them together with salafi they pretend and Muslim parliament also the Muslim council and all those who pretend to help they knew exactly who was the guilty to confuse the government to arrest the wrong people . My name is Jamal im one of the victim of so called secret evidence ,more then 10 years of Torture until now im waiting for the british Government to call me in the for justice . this is my interview with BBC you can check with Narach pury for full interview you will find it interesting .http://news.bbc.co.uk/2/hi/uk_politics/4509530.stm

    this is Iran pretend to help the west with no condition . the question is that who was suplaying the secret evidence in London to arest the wron people ofcourse jack traw was happy to arest people so he can ivide Iraq http://www.youtube.com/watch?v=Cf3fcoXx0pI

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