Secret Justice Review: The Special Advocates respond to the Government’s submission

14 December 2021 by Angus McCullough KC

The Special Advocates have responded to the Government’s submission to the statutory Review of closed proceedings being conducted by Sir Duncan Ouseley — but HMG’s submission remains unpublished.

The delayed statutory review into closed proceedings under the Justice and Security Act 2013 (JSA) is reaching its conclusion.  According to the Government’s website, it is estimated that the report “should be laid before Parliament early in 2022”.

A very brief recap:

• Closed material procedures (CMPs) enable the Government to rely on secret evidence in legal proceedings, without showing that evidence to the other party.  To reduce the unfairness inherent in that, a special advocate is appointed to review the secret material and represent the interests of the party excluded from access to it, including in hearings held in secret.
• The JSA came into force in June 2013.  Controversially, it included provisions making secret procedures (CMPs) available across the full range of civil proceedings.
• One of the safeguards required by Parliament during the Bill’s bumpy passage was a review of the operation of CMPs under the Act after it had been in force for 5 years.
• The 5 year anniversary came and went in June 2018, with no sign of the review being commissioned.  This was highlighted in my post on this blog on 28 January 2020:  “Secret Justice”:  An Oxymoron and the Overdue Review.
• Another year (with further enquiries as to the position from various quarters in the meantime – summarised here) was to pass before the Government announced that a Reviewer had been appointed:  Sir Duncan Ouseley, a retired High Court Judge and former President of the Special Immigration Appeals Commission (SIAC – the body responsible for hearing CMPs in statutory immigration appeals), so with wide experience of CMPs from his judicial career.  The call for evidence took place earlier this year, closing just over 3 years beyond the date that the review should have taken place.
• The Special Advocates (of whom I am one) made a detailed submission to the Reviewer based on our collective experience of CMPs under the JSA.  This was published on this blog here:  Secret Justice – The Insiders’ View.   We highlighted some serious concerns that we had encountered with the practical operation of CMPs under the JSA.  We also drew attention to commitments that the Government had made when the Bill was passing, to improve the effectiveness of the system, which had not been honoured.
• We have seen no response from the Government to the detailed critique that we set out in our paper, and we do not know whether any attempt at a comprehensive reply by HMG has been submitted to the Reviewer.

What of the Government’s submission to the Review?  In publishing our paper for the Review, in the interests of openness and promoting public debate, the SAs had expressed the hope that HMG’s response (and that of any other Government bodies or agencies) would do likewise:

In a corresponding spirit of transparency, it is hoped that any submissions to this review on behalf of Government bodies or agencies will be published in full, and so made available for wider review and comment.  [para 5 of SAs’ submission of 8.6.21]

That has not been done.  What did happen was that on 29 July 2021 the SAs were sent the Government’s Response by the Reviewer (not HMG) and told that this response was shared in confidence, and was not for onward transmission.

Having reviewed the HMG submission, the Special Advocates were concerned at some of the suggestions made.  These included a proposal that open representatives should not have a role in choosing their client’s special advocate, as being a practice that “should be discouraged”.   We formulated a response to the HMG document (on this and other points) and this was submitted to the Reviewer on 30 September 2021.  Some of the points made by HMG seemed to be more appropriately responded to by those acting as open representatives, rather than the SAs.  In our response we reiterated our request for HMG to clear its own response for publication. 

We repeat the invitation to the Government to make its submission public, there being no apparent sensitivity to its contents on any public interest grounds.

The Special Advocates’ full response is linked here:

That request for publication of HMG’s submission (first made in June 2021, as noted above) was followed up with the Government by the Special Advocates’ Support Office in October, and in November, and again earlier this month.  Whilst the Government has now confirmed that there is no objection to the SAs publishing our response of 30 September 2021, the Special Advocates’ Support Office has been told that we may not publish HMG’s document while instructions continue to be taken on this proposal.  It has not been suggested that there is any sensitivity attached to anything within HMG’s response, and it is not clear why it is not being put into the public domain.

If and when HMG indicate that their submission may be published, I will post it on this site, together with any other submissions that individuals or bodies contributing to the Review wish to be made public, and assembled in one place. For now, here are the links to submissions to the Review from:

University of York and Bingham Centre for the Rule of Law:  Submission drafted by Dr Lawrence McNamara

“The submission puts forward 14 substantive recommendations for reform to the current framework and procedures to ensure increased compliance with Rule of Law standards, particularly, natural justice, open justice and equality of arms. The recommendations include a call for improved transparency in the recording and reporting of cases where CMPs are used; a prohibition on destroying CMP related judgements; the development of a system for periodic review to determine whether the judgements can (either fully or in part) be made open if publication would not pose a risk to national security.”

JUSTICE

JUSTICE highlights key areas of concerns and makes recommendations that seek to address these:

I repeat what I said in conclusion to my last post on this topic:

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.

For now, the Special Advocates’ proposal for HMG’s submission to the Reviewer – and any other submissions from Government bodies – to be made open, remains unanswered.