A secret justice climb down? Perhaps not

21 May 2012 by Adam Wagner

Angus McCullough QC and Jeremy Johnson QC, Special Advocates at the JCHR

It appears that the Government has climbed down, in part, from some of its controversial secret justice proposals.  According to the Telegraph, the Justice and Security Bill, which will be published this week, will include a provision whereby judges, not the Government, has the final say on whether a Closed Material Procedure (CMP) is used. Moreover, CMPs will be restricted to “national security cases” rather than any case “in the public interest”. 

It “remains uncertain”, however, “whether Mr Clarke will exclude inquests from being subject to the secret hearings.” Junior Justice Minister Jonathan Djanogly caused a stir last week when he appeared prematurely to announce that particular concession in Parliament, but quickly stepped back from his statement.  In view of the likely legislative bartering which will occur as the bill progresses through Parliament, perhaps this is a concession which was meant to be left until later in the process.

We will analyse the bill when it is published later this week. But as this important debate resurfaces and the manoeuvring continues, it is important to keep two things in mind.

First, the Government has already emphasised the role of judges in the process, so the first concession is probably not much of one at all. Secretary of State for Justice Ken Clarke’s evidence to the Joint Committee on Human Rights (JCRH) is summarised in its report as follows:

[Clarke] indicated that the Government wanted to bring in the judicial element to the maximum possible extent. He accepted that “you cannot just have the unfettered decision of a Secretary of State” and that the judge has got to have “a proper and sensible role.” However, he was also concerned about upholding the control principle, and for that reason was reluctant to concede that the decision as to whether there should be a CMPs in a particular case should be a judicial decision alone.

It is not clear what it means that judges will have the “final say”. This may simply mean that the decision to use CMPs, made by the Government in the first instance, will be susceptible to Judicial Review or some kind of statutory appeal process. But as David Anderson QC, the Independent Terrorism Reviewer, made clear, the decision to trigger a CMP must be for the court, not the Government. Indeed, it would be “profoundly wrong in principle” for the initial decision to be taken by the Government, which will usually be a party to the case and therefore not objective. Anderson has stated on this blog (see his comment to Rosalind’s post) that “In short, [he] oppose[s] the proposals for the extension of CMPs as they are set out in the Green Paper.” And as he said at [26] of his report to the JCHR:

It is difficult to see how this proposal could be considered, even by the Government, to be a necessary part of a civil CMP regime. In al-Rawi, counsel for MI5 argued only that “the court has the power to order a closed material procedure in exceptional cases where this is necessary in the interests of justice” (§39, emphasis added). If a judicial power to order CMP would have been satisfactory as a statement of the common law, it is not clear why an executive power should be required in the proposed legislation.

Another option, but one which is unlikely to be the Government’s choice, was proposed by the JCHR in its report, namely that judges should not just have a “final say” on whether CMPs are used, but should also be able to chose between a range of procedures, including but not limited to CMPs:

[103] …there should always be full judicial balancing of the public interests in play, both when deciding the appropriate procedure and when deciding whether a particular piece of evidence should or should not be disclosed.

Secondly, notwithstanding the welcome restriction of CMPs to cases involving national security, the apparent concessions do not address a more fundamental criticism of the proposals. As Angus McCullough QC said on this blog, the case for the introduction of fundamentally unfair secret hearings in civil proceedings has not yet been made:

[As] is frequently overlooked or misunderstood… the proposed extension of closed procedures to civil proceedings is not impelled by considerations of national security.   In this particular part of the debate, asserted concerns about the risk that information that is harmful to national security may be disclosed, or that the absence of procedures would stifle the flow of intelligence from foreign powers, are essentially irrelevant.  The purported justification for making closed procedures available in civil proceedings is based principally on concern for fairness, not national security.

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Secret evidence proposals – time to reflect