Secret Justice – The Insiders’ View

27 June 2021 by Angus McCullough QC

A collective submission made by special advocates (security-cleared barristers who appear in secret proceedings) has been cleared for publication.  This document is a response to the review being performed by Sir Duncan Ouseley, looking into the operation of closed material procedures (CMPs) under the Justice and Security Act 2013.  It gives an unprecedented insight into the workings and challenges of these procedures, which enable the State to rely on secret material not shown to the other side in court proceedings.

I have acted as a special advocate since 2002, and am one of the 33 special advocates who have subscribed to the submission. Together, we have experience of every case in which the procedures under the 2013 Act have been invoked, across the UK. I believe that the submission is an important contribution to the public understanding of CMPs, which are generally shielded from any scrutiny.  The conduct of the Review itself is not only a safeguard which Parliament had imposed in the face of controversy and concerns at the time the proposals that led to the Act were being debated.  It is also a prime opportunity for open discussion and debate in relation to these procedures.  Sir Duncan Ouseley is a retired High Court Judge with extensive experience of CMPs so is eminently well placed to be undertaking this task.

In January 2020 I posted a piece on this blog, entitled “Secret Justice”:  An Oxymoron and the Overdue Review.  This sets out the background to these secret procedures, which I will not repeat here.  In that piece I raised concern at the continuing failure by the Government to implement the review that Parliament had required to be performed “as soon as reasonably practicable” five years after the relevant procedures under the Justice and Security Act 2013 (JSA) came into force.  That 5 year anniversary had come and gone in June 2018, and in January 2020 there was still no sign of the Government complying with the law in section 13 of the JSA.  It was to be another year before the review was finally announced in February 2021.  On 7 April 2021 the ‘Call for Evidence’ was issued on behalf of the reviewer, just short of three years after the end of the period that was to be reviewed.

The Government’s unlawful delay in commissioning the review remains unexplained.  It was not for want of reminders, as a series of Parliamentary Questions were asked in both Houses, in the run-up to the 5 year anniversary in 2018 and in the following years, enquiring as to the timing and arrangements for the review.  Others outside Parliament (including Joshua Rozenberg in the Law Gazette in September 2020) had been enquiring as to when the statutorily required review would be announced.  Over these years, the official responses were essentially the same:  “discussions are ongoing and an announcement will be made in due course”.

The delay in implementing the review places the reviewer in a difficult position in a number of respects.  It must be much harder to review the operation of proceedings – as well as for those seeking to contribute to the review — now going back 8 years, rather than promptly at the end of the 5 year period.  Also what, if any, account is to be taken of experience in the 3 years that have now passed since the period under review? 

The special advocates’ submission is linked at the bottom of this piece (with separate annexed case list).  It had been hoped that this would have been cleared for publication in good time before the deadline for evidence for the review, which is now Wednesday, 30 June 2021.  Although the request for clearance was made by the special advocates’ Support Office on 8 June, it was only confirmed on Thursday, 24 June 2021.  As set out in the submission, the Special Advocates are also concerned that objections have been raised to us contributing to public discussion of these procedures more widely.  These objections are hard to understand, given the long history of special advocates giving evidence in public, including to parliamentary committees, in relation to the operation of these procedures.  We are the only non-government representatives with first-hand experience of closed proceedings, aside from the judges themselves.

The Government asserts its commitment to operating closed procedures as fairly as possible.  Sir Duncan’s review, whilst inexplicably delayed in being set up by the Government, is an important opportunity to assess how CMPs may be operated more effectively, and with no more than the unfairness that is inherent in proceedings involving secret evidence.  The special advocates have indicated that we are keen to assist in that process, and in ensuring that it should be as open as possible.