“Secret Justice”: An Oxymoron and the Overdue Review

28 January 2020 by Angus McCullough KC

Angus McCullough QC is a barrister at 1 Crown Office Row with experience of acting as a Special Advocate in closed proceedings since 2002.

The Government has still not implemented the review of Closed Procedures that Parliament had dictated should take place when passing the Justice and Security Act 2013.  A review is required to cover the first five years after the Act came into force, and should have been completed “as soon as reasonably practicable” thereafter.  That period expired in June 2018, and there are still no signs of a reviewer being appointed.

Readers familiar with closed procedures and their background may wish to skip the first half of this post.

‘Secret Justice’ is a deliberate oxymoron, used by some legal commentators as a term for Closed Material Procedures (CMPs).  Justice, of course should generally be open and transparent, not secret.   The principle of open justice dates back centuries, and the law reports are full of reiterations of its importance.  Here’s one example, this from Lord Woolf in R v Legal Aid Board, ex p Kaim Todner  [1999] QB 966:

The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases.  This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve.

An equally fundamental principle of fairness in legal proceedings is that a party should know the evidence and case against them.  This has even been given a Latin epithet (audi alteram partem).  But you don’t need to be a scholar of either classics or law to appreciate that being aware of the material that the other side is putting before the court, and having the opportunity to challenge and answer it, is a cardinal feature of fair legal proceedings.  The personification of Justice (see picture) is blindfolded, to represent her impartiality; but litigants are expected to have an unimpaired view of the proceedings.

CMPs represent a departure from both of these principles.  At least part of the proceedings takes place at a hearing from which one party is excluded and is held in secret.  And at that ‘closed’ hearing, the Court hears evidence produced by the other party of which the absent party is unaware.

In order to reduce the unfairness that is inherent in this, CMPs make provision for a ‘special advocate’ to represent the interests of the excluded party.  This special advocate is made privy to the secret material and is appointed to represent the interests of the person from whom it is being withheld.  The special advocate works under significant constraints, most notably a prohibition on speaking to the person whose interests he or she is representing, or their legal team.

As may be imagined, CMPs are controversial.  They seek to address a problem that arises when there is relevant evidence that is genuinely sensitive (on national security grounds – and in some regimes other public interests) and so cannot be disclosed.  Such material had traditionally been dealt with using public interest immunity (PII) procedures, but if the claim for PII was upheld then the sensitive material would be excluded from consideration in the case.  The justification advanced for CMPs is that they enable cases to be tried that would otherwise be un-triable and so would be destined to fail; or not fairly triable without the excluded evidence.  On this basis, it is argued that compromised justice is better than no justice at all. 

Parliament passed the legislation that set up the first CMP in the Special Immigration Appeals Commission Act 1997. That Act created the Special Immigration Appeals Commission, SIAC, to hear immigration appeals such as challenges to deportation, where the Government wanted withhold information from the appellant on the basis that its disclosure would cause harm to the public interest.  The appeal of Abu Qatada, the infamous extremist preacher, is one of the best-known cases that has been through SIAC – and repeatedly covered on this blog. 

Over the years, Parliament provided for CMPs to be made available in a range of other tribunals, including employment tribunals.  Then, in 2011, the Coalition Government published the Justice and Security Green Paper.  This included a proposal for CMPs to be permitted in any civil litigation, if certain criteria were met where sensitive evidence (on national security grounds) would otherwise be required to be disclosed.  This proposal led to concern and vigorous debate in Parliament, the press, and across the wider public.

Among the many responses to the consultation was one from the Special Advocates.  The Special Advocates (including me) highlighted inherent difficulties with CMPs from our experience in practice and questioned whether any sufficient justification had been established by the Government for their extension to be available in the full range of civil proceedings.  Deep-seated concerns about the Bill were voiced during the Bill’s passage, and led to substantial amendment.  One amendment was the provision that now appears as section 13 in the Act as it was eventually passed.  This may be seen as a measure to provide reassurance that the controversial measures to be enacted would be properly reviewed and evaluated.  The Government asserted that there was a compelling need for CMPs in civil claims, but how could that assertion be evaluated?  As we shall see below, an important answer to that question is that Parliament has required that there should be a review of CMPs under the Justice and Security Act 2013 after 5 years.

Since the Act came into force in June 2013 it has been deployed by the Government to obtain CMPs in a wide variety of cases.  These include civil claims in which UK officials are alleged to have been involved in serious misconduct (such as the claim brought by Mr Belhaj and his wife) as well as challenges to government decisions (such as the UK’s licensing of arms sales to Saudi Arabia).   These examples are among a total of 54 applications for CMPs under the Justice and Security Act up to 24 June 2018, according to the MoJ’s statistics.  These applications have almost all been brought by the Government or police bodies.

Section 13 requires the Secretary of State to appoint a person to review the operation of CMPs under the Act for the first five years after it came into force.  The review must be laid before Parliament, subject to any redactions required by national security.  Here are the main terms:

(1)  The Secretary of State must appoint a person to review the operation of sections 6 to 11 (the “reviewer”).

(2)  The reviewer must carry out a review of the operation of sections 6 to 11 in respect of the period of five years beginning with the day on which section 6 comes into force.

(3)  The review must be completed as soon as reasonably practicable after the end of the period to which the review relates.

(4)  As soon as reasonably practicable after completing a review under this section, the reviewer must send to the Secretary of State a report on its outcome.

…

The first backbencher to raise a formal query in relation to the review to be performed was Kenneth Clarke MP, who as Secretary of State for Justice at the time had published the Green Paper, and then (despite having been replaced by Chris Grayling MP by then) overseen the Bill’s passage through Parliament, so may be taken to have a particular interest in compliance with the Act’s provisions.  On 23 April 2018 the Justice Minister (Lucy Frazer MP) gave the following written answer to Mr Clarke’s question:

In accordance with s.13(1) and (2) of the Justice and Security Act 2013 (“the Act”), the review of the operation of sections 6-11 of the Act should cover the period from 25 June 2013 to 24 June 2018.

On 13 November 2017, the previous Secretary of State for Justice, the Rt Hon David Lidington CBE MP, wrote to his counterparts at the time in the departments that use the Closed Material Procedure (CMP) under the Act, to draw attention to the 5-year review and to discuss arrangements for the review. Discussions between officials are ongoing and an announcement will be made in due course.

This was picked up by Jim Cunningham MP, who asked about the appointment of the reviewer and when the review was scheduled to begin.  The response of the Minister, Lucy Frazer MP, was given on 14 June 2018:

As I indicated in my answer of 23 April 2018 to Question 135211, the review should cover the period from 25 June 2013 to 24 June 2018. It will therefore need to take into account the 5^th annual report to Parliament on the use of closed material procedure under the Justice and Security Act 2013, which the Government aims to submit in the Autumn. A reviewer has not been appointed yet. Discussions between officials are ongoing and an announcement will be made in due course

Whilst the need for the review to take account of the last year of the five year period is obvious, that could not be a sensible reason for delay in appointing the reviewer.  In any event, that 5^th annual report was submitted in December 2018.  These annual reports are required by section 12 of the Act, and simply list the CMPs in the relevant year, with numbers of applications and revocations broken down.

Next up was Alistair Carmichael MP, nearly a year later.  He asked two questions in relation to the review; how the terms of reference for the reviewer would be determined and when the review would be announced.  The Minister (Lucy Frazer again) responded on 11 April 2019 to both questions in the same simple terms, as follows:

A reviewer has not been appointed yet. Discussions between officials are ongoing and an announcement will be made in due course.

Mr Carmichael returned to the question this month, asking whether a reviewer had been appointed.  The answer this time was provided by the Minister, Chris Philp MP, on 20 January 2020:

Further to the answer provided by Minister of State Lucy Frazer MP QC to the Honourable Member’s questions in April of last year on the Justice and Security Act 2013, I can advise discussions are ongoing and an announcement will be made in due course

So there we are.  Still no reviewer appointed, let alone a review produced in relation to the operation of CMPs under the Justice and Security Act 2013.  This is despite the fact that the requirement for a review was inserted to meet concerns about the operation of the Act, and that the period to be reviewed ended in June 2018, with the review to be published “as soon as practicable” thereafter.

As explained above, the subject matter of the review is legal proceedings that constitute an exceptional departure from conventional standards of fairness and open justice, and are largely insulated from public scrutiny, so underlining the importance of the review and the public interest in it.  In every ministerial response to a parliamentary question, from April 2018 to January 2020 the same form of words appears:  “discussions are ongoing and an announcement will be made in due course”, but with no indication as to when this announcement will be made.

The series of apparently formulaic and uninformative ministerial answers to questions from Parliamentarians seeking to establish when the Government is proposing to comply with an obligation imposed on it by Parliament is not uplifting.  Nor, perhaps, does it give much reassurance as to the effectiveness of the Executive’s accountability to Parliament in an area of legitimate public concern and debate.