Government has still not made case for “inherently unfair” secret trials, say Special Advocates

Angus McCullough QC and Jeremy Johnson QC at the JCHR

The overwhelming majority of Special Advocates have responded to the Justice and Security Bill by stating that the case has still not been made by the Government for the introduction of closed material procedures  in other types of civil litigation. The full response is available here (PDF).

Fifty Special Advocates have signed the response. This represents an overwhelming consensus of those with substantial experience of the current system of secret hearings.

They accept that the new restriction to national security cases is an improvement, but retain the view expressed in their initial response to the Green Paper consultation, that:

CMPs are inherently unfair and contrary to the common law tradition; that the Government would have to show the most compelling reasons to justify their introduction; that no such reasons have been advanced; and that, in our view, none exists.

The response is particularly interesting in relation to the Government’s claims, supported explicitly by Ken Clarke before the Joint Committee on Human Rights, that under the revised plans the final decision of whether to hold a secret hearing would be made by a judge. Rather

… the Bill requires the judge to accede to the Government’s application for a CMP if there is any material disclosure of which would damage national security, even if the judge considers that the case could and should be fairly tried under existing public interest immunity (PII) rules and there is no need for a CMP.

In summary, the Special Advocates respond as follows:

As Special Advocates appointed to act in closed proceedings under existing regimes, we would respond to the published Bill as follows:

2.1 While we can see reasons for the proposal to add naturalisation and exclusion cases to the existing jurisdiction of the Special Immigration Appeals Commission (SIAC), we remain of the view that the case has not been made for the introduction of closed material procedures (CMPs) in other types of civil litigation.

2.2 There is one respect in which the Bill represents an improvement on the proposals in the Green Paper – the restriction of the scope of CMPs to national security cases only.

However, contrary to the assurance given by the Lord Chancellor in the Foreword to the Response, the Bill does not ensure that the decision to trigger a CMP “can only be taken where evidence a [CMP] is needed on national security grounds is found to be persuasive by a judge”.

2.4 Instead, the Bill requires the judge to accede to the Government’s application for a CMP if there is any material disclosure of which would damage national security, even if the judge considers that the case could and should be fairly tried under existing public interest immunity (PII) rules and there is no need for a CMP.

2.5 The Bill would remove the availability of the Norwich Pharmacal jurisdiction not just in cases where disclosure is sought of information obtained in confidence from the intelligence service of another state, but also in a much wider category of cases. No sufficient justification has been advanced for such a broad exclusion of the Norwich Pharmacal jurisdiction and, in our view, none exists.

The full response can be found here (PDF) or embedded using Scribd underneath the links below.

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