Secret Justice – The Insiders’ View

27 June 2021 by

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.


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Aarhus Abortion Abu Qatada Abuse Access to justice administrative court adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Appeals Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders charities Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Protection covid crime Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany gmc Google Grenfell Health healthcare high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Judaism judicial review jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring murder music Muslim nationality national security NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal Parole patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law Regulatory Proceedings rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Standing statelessness Statutory Interpretation stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh united nations unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WomenInLaw YearInReview Zimbabwe
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