1 Crown Office Row’s Robert Wastell is acting for the Treasury in this case – he has had no part in writing this post.
Extraordinary developments in the Supreme Court today as the court, for the first time in its history, conducted a secret hearing during which one of the parties, an Iranian Bank, was not allowed to take part. Full background to the case, Bank Mellat (Appellant) v HM Treasury (Respondent) is here.
If I could just repeat that for effect: the Government, which is being sued, gets to stay in court whilst the person doing the suing – and their lawyers – have to leave. The judges then hear security sensitive evidence which is potentially central to the case. Whilst one side is absent. No wonder Lord Neuberger, who as Master of the Rolls robustly blocked an attempt to introduce closed material procedures in civil trials via the back door (see his judgment in Al Rawi e.g. at para 30), sounds so pained in his statement. Curiously, this final hard-hitting paragraph was sent by the Court to its public email list but was left off the statement published on the Court’s website:
No doubt in due course when we have completed the closed hearing and Mr Brindle [for Bank Mellat] has made his closing submissions, and we in due course consider the matter and give our judgment, we will have quite a few things to say about this unhappy procedure
Is this another deleted Neuberger paragraph? Was it because he referred to secret hearings as an “unhappy procedure” in the midst of a crucial Parliamentary debate over expanding their scope? Anyway, notwithstanding the missing paragraph, the statements of the court speaks for themselves, and I have reposted it in full below for that reason. Legal blogger Obiter J and UK Supreme Court Blog has also provided some early analysis. The UKSCB editors say
There is much to take away from so short a statement, not least the ominous threat at its conclusion, but a particular point of interest is the seemingly irreconcilable tension between the Court’s decision only to consider the judgment if necessary and the arguably trite statement that the Court will not be able to assess the judgment’s relevance without first reviewing it. The need to read the statement before deciding whether it needs to be read is not just an incidental vice of the closed material procedure; it is an inevitable fallacy.
Meanwhile, in another secret court… the Government is still trying to push its plans to expand significantly the ability for courts to hold secret hearings where the government gets to stay but the other party, including their lawyer, has to leave. Some very interesting developments there as it appears the Lords will employ the full extent of their constitutional powers dubbed “ping pong with grenades”. I assume I am not the only one who is struggling to understand how exactly events will proceed, but it does appear that the Bill may (thankfully – see below) run out of time and have to be scrapped. For more background, see Angela Patrick’s excellent recent post.
A final thought before handing over to Lord Neuberger. With the regular threats made to human rights law, in addition to the current attempts to further load the dice for the Government in civil trials, do our judiciary feel an extra responsibility to ensure that individual rights are robustly defended? In other words, might politicians who attack the rule of law for short (or even long) term political gain be having the opposite effect that they intended, namely increasingly the likelihood of Government departments receiving adverse rulings in court? I have no proof for this. Just a thought. Anyway, on to Lord Neuberger, minus one paragraph:
Lord Neuberger, President of the Supreme Court, made the following statement in open court this afternoon [21 March 2013]:
“Yesterday morning, having heard full argument on the issue the previous day, we decided, for reasons to be given later – and, it should be added, by a majority of six to three – that we had power to consider the closed judgment of Mr Justice Mitting (“the closed judgment”) in this case. This would involve part of this hearing being conducted in private without Bank Mellat or its representatives being present. We also indicated that, on the basis of the arguments we had so far heard, we were not persuaded that it was necessary to take such a course.
“The substantive appeal concerns the validity of an order made by the Treasury in 2009, which significantly and detrimentally affected the Bank’s business. We have also heard the whole of the Bank’s argument and certain interested parties and in response from the Treasury on the substantive appeal. The Treasury now applies for us to look at, and hear brief submissions on, the closed judgment of Mr Justice Mitting on the basis that we cannot be wholly confident of disposing of the bank’s appeal justly without considering the closed judgment. We are very dubious indeed whether this will turn out to be the case and we are also sceptical whether as full an open gist of the judgment has been provided as should have been possible. However, an incidental vice of the closed material procedure is that unless and until an appellate court sees the judgment it often cannot be sure its contents will be irrelevant or that its contents have been fully gisted.
“The closed judgment is, we have been told, much briefer than the main open judgment of Mitting J, but it may just conceivably contain relevant material for the purpose of disposing of this appeal. It is closed because it contains material which he decided should not be made public on the grounds of public interest and national security. We have reluctantly decided that we cannot consider the closed judgment without having a closed hearing, as otherwise the contents of the closed judgment would be revealed to the public, including Bank Mellat and its representatives.
“It must be emphasised that this is a decision which is reached with great reluctance by all members of the court; indeed it is a majority decision. No judge can face with equanimity the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented at the hearing and not even knowing what is said either at the hearing or in a judgment in so far as it discusses what was said or produced by way of evidence at the closed hearing. Nonetheless, as Parliament has decided that, in certain circumstances, such a procedure is necessary and permissible in a trial before a Judge, we have concluded that, on an appeal from a decision in a case where a Judge has considered closed material and given a closed judgment, it may be necessary for this court to go into closed session in order to dispose of the appeal justly.
“We emphasise that (i) this is course which is to be taken only where the court is satisfied that it is absolutely necessary to dispose of the appeal justly, (ii) the party who is excluded, in this case Bank Mellat should be given as much information as possible about the content of the evidence and arguments presented at any closed hearing and the contents of any closed judgment, (iii) the interests of that party should be protected as far as possible by the full involvement of special advocates at the closed hearing, and (iv) when we give our judgment, we will try to avoid placing any reliance on the closed material, and, in so far as it is necessary to do so, to keep any reliance to a minimum and give as much detail about that material to Bank Mellat and the public as we properly can.”
19 March 2013
The substantive appeal in this case relates to whether directions made by the Treasury under Schedule 7 of the Counter-Terrorism Act 2008 were in breach of, inter alia, the rules of natural justice, and/or Article 6 ECHR, and/or the procedural obligation in A1P1 ECHR.
There has been considerable interest in a preliminary matter, covered by oral submissions to the Court today, on whether a ‘closed judgment’ from the lower courts could in principle be considered by the Supreme Court, and if so, whether the Justices in this instance wish to do so.
The following message has been sent to the parties in this appeal this evening:
“For reasons, to be given later, the Court has decided that it has jurisdiction to consider the closed judgment of Mitting J, which it would only do if, during the conduct of the substantive appeal in open court, it was persuaded that it was necessary to do for the purpose of fairly disposing of the appeal. On the basis of the submissions it has so far received, the Court is not convinced that it is so necessary.
“In anticipation of such a possibility, counsel for the respondent are requested to send to the special advocates [who act for the appellant] by 10.00 am tomorrow, Wednesday 20th March 2013, a written statement, setting out those parts of the closed judgment on which reliance may be placed, and summarising the nature of such reliance.”
The Court has also asked that the special advocates attend the remainder of the hearing.
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