The Special Advocate – Not Waving but Drowning

30 October 2023 by Angus McCullough KC

The unfairness of secret hearings is being aggravated by sustained neglect of the special advocate system.  In this piece I explain why I have regretfully concluded that I cannot accept any new appointments as a special advocate until the Government provides proper support for that system.

25 June 2023 was the tenth anniversary of section 6 of the Justice and Security Act 2013 (the JSA) coming into force.  It was an anniversary that, as far as I know, passed unremarked.  Nevertheless it was a remarkable anniversary – though not a cause for celebration.  This is because it marked 5 years since the date that Parliament had required a review of the controversial procedures under the Act, involving secret closed hearings – and yet the Government’s response to the recommendations from that review was still awaited.  Even now, no Government response has been forthcoming, nearly a year after the long-delayed report was published, despite the urgency attached to some of the recommendations.

What are these secret procedures?

2. These procedures are generally referred to as CMPs – Closed Material Proceedings.  They involve a party being deprived of sight of material relied upon against them by the State, but with that material being considered by the judge or tribunal determining the case.
3. Sometimes this ‘closed’ material may be all of the relevant evidence being put forward against a party.  It means that cases may be – and sometimes are – determined without that party having any idea why they have lost the case, following a hearing in which they have been excluded from the crucial stage.
4. The key element of CMPs that is designed to reduce the intrinsic unfairness of them is the ‘special advocate’.  Special advocates are security-cleared lawyers appointed to represent the interests of the excluded party in relation to the secret material, including in the closed part of the hearing.  The special advocate does see the secret material.  But – and this is a big ‘but’ – they cannot communicate with the person whose interests they are to represent, other than through the Government party or the Court.
5. An experienced Special Advocate, then Martin Chamberlain QC, now a High Court Judge, described the difficulties of the role:

“If the state alleges that my client met a terrorist at a particular time, I cannot ask him whether he was there and if so, why.  So I will never know if he had an alibi or an innocent explanation for the meeting; and nor will the court. The task of the special advocate was described by the late Lord Bingham, the internationally respected Lord Chief Justice and senior Law Lord, as like ‘taking blind shots at a hidden target’.”

6. In the same piece, Chamberlain went on to note:

“The predicament of a man in a similar position was explained by another writer in this way: ‘The written records of the court and in particular the document recording the accusation were not available to the accused, so it was not known in general or at least not exactly what the first plea had to be directed against, so really it could only be fortuitous if it contained anything of significance for the case.’ The writer was the early 20th-century Czech author Franz Kafka. He was describing Josef K’s fictional ordeal in The Trial, but he could as well have been describing a closed material procedure in Britain in the 21st century. There are people in Britain today who, like Josef K, have no idea why they have lost their case.”

7. Chamberlain was writing in the Daily Mail in March 2012, following the publication of the Green Paper that led to the JSA, the Act by which CMPs were made available in all civil proceedings.  A very brief summary of this legislative history is set out below.
8. The difficulties described by reference to Kafka are hard-wired into CMPs, whether under the JSA or in other statutory regimes.  What is not hard-wired is the avoidable additional unfairness that comes from a failure to support CMPs, and in particular the special advocates that are the linchpins within this system.

Background to the JSA

9. Closed material procedures (CMPs) were introduced for some immigration cases in 1997, by the Special Immigration Appeals Commission Act 1997.
10. Until 2013, the use of CMPs was restricted to some narrow situations covered by specific statutes.  As well as immigration cases, these most notably included control order proceedings against terrorist suspects.
11. The Justice and Security Act 2013 (JSA) was presaged by a Green Paper setting out proposals to extend CMPs so that they should be available in all civil proceedings.  These proposals were highly controversial, given the incursions into basic principles of fairness and open justice that they involved.  The Bill which followed did not have an easy passage through Parliament.
12. Among the responses to the Green Paper consultation was one subscribed to by almost all of the practising Special Advocates at that time.  That response highlighted not only the unfairness inherent in closed procedures, but also identified a series of practical issues that avoidably heightened the unfairness of the system.
13. In the face of these concerns, the Government proposed a series of ‘improvements’ to the system to help address the practical problems in the operation of CMPs under the Bill when enacted.  These measures included further training for special advocates, better support, a review of the communication restrictions, and a closed judgment database accessible to SAs.
14. Another reassurance proffered by the Government during the contested passage of the Bill was a review to consider the operation of CMPs under the Act after 5 years.   This was introduced by way of amendment and was in due course enacted as section 13 of the JSA, by which Parliament required the review to be “completed as soon as reasonably practicable” after the 5^th anniversary of relevant part of the Act coming into force.  That anniversary was on 24 June 2018.

The long wait for the 5 year review

15. In the years after the JSA came into force, those acting as special advocates were concerned that the promised improvements were not forthcoming.  The Government was repeatedly pressed, but failed to follow through on the undertakings made at the time it was getting the Act through Parliament.
16. The 5 year review seemed a good opportunity to take stock and bring these sustained failings to light.  Again, the Government was repeatedly reminded by special advocates and others that the review should be commissioned.  A succession of questions were asked in Parliament both before and after the 5 year anniversary.
17. In January 2020 I wrote a piece:  “Secret Justice”:  An Oxymoron and the Overdue Review, charting the ongoing failure to commission the review.  It was to be over a year later that the review was finally announced in February 2021 with the appointment as reviewer of Sir Duncan Ouseley, a retired High Court Judge who has long experience of these secret hearings.
18. The special advocates (every still-practising special advocate who had been appointed in a case under the JSA) made a collective submission to the Ouseley review in June 2021:  see link from Secret Justice – The Insiders’ View.    This submission sets out a detailed critique of the operation of CMPs from the perspective of the only non-Government lawyers involved in the closed procedures.  The following is taken from the summary of that submission, which charted the Government’s failures in relation to CMPs and the impact of these:

“The Government repeatedly asserts its commitment to CMPs, and ensuring that they are properly resourced, and operated as fairly as possible. Such assertions were made at the time of the Green Paper and Bill that led to the JSA, and have been repeated since. It is, however, our routine experience since the JSA 2013 came into force that those assertions are not matched by reality in some serious respects. 

– The Government has failed to honour commitments made at the time the JSA was being debated. These failures have all combined to increase the unfairness of CMPs, significantly beyond the unfairness that is inherent to such procedures. 

– The Government has also failed to comply with Parliament’s requirements for monitoring and review of the operation of CMPs, which in turn has delayed and deflected legitimate public scrutiny and debate in relation to their operation.”

19. The Government made a submission to the review which it has declined to publish, despite repeated requests.  However, the Special Advocates’ response to the Government’s submission has been cleared for publication and can be found here.
20. Sir Duncan completed his report in December 2021, but it was not published until November 2022, about 4½ years after the fifth anniversary.  None of that delay was his fault as he had completed his work in less than a year.  He made 20 recommendations in relation to steps to improve the operation of CMPs.   None of these appears controversial in principle.  Some of them are expressed to be urgent.  In particular, in relation to ‘Resources for SAs’ recommendation 16 states (with underling added):

“The Attorney General, for England and Wales, and the Advocate General in Northern Ireland, with GLD and Northern Ireland Office, and SASO should resolve urgently what is required, and the Ministry of Justice should take responsibility for seeing that what is necessary is provided, with budgetary provision accordingly.  The chief topics are set out above.”

21. The Government has provided no explanation for either (a) the delay of over 2½ years in commissioning the review; or (b) the delay of the best part of a further year in publishing the Ouseley report after its completion.
22. It is hard to resist the inference from this, taken together with the failings to implement the improvements that it had promised when the JSA was being debated, that there is no real commitment to the effective operation of CMPs.  That inference seems all the more irresistible in light of the inaction since publication of the Ouseley report, as set out below.

The Government’s response?

23. Since the Ouseley report was published, now almost a year ago, the Government has been pressed for a response.  As noted above, it is unclear how any of the 20 recommendations could be controversial in principle.  And as also noted above some of the recommendations were flagged as requiring urgent action.  As yet, the Government has given no public indication of its response, let alone a commitment to implementing anything from the Ouseley report.
24. So when might a response be expected?  Eventually, in an answer to a Parliamentary question from Lord Anderson of Ipswich, on 26 September 2023, the Government Minister Lord Bellamy stated:

“The Government is carefully considering the recommendations made by Sir Duncan Ouseley in his Independent Report on the Operation of Closed Material Procedures under the Justice and Security Act 2013 and is working to establish how any recommendations that we take forward could be sustainably and effectively implemented. Subject to this detailed ongoing work, the Government aims to publish its response to Sir Duncan’s report by early 2024.”

25. As a practising special advocate, both the terms of that well-padded but non-committal response, as well as the indicative timescale, are disappointing.  That is particularly so given (i) the history of delay surrounding the Ouseley review and the time that has passed since it was published;  (ii) the Government’s sustained failure over many years to honour commitments made in relation to CMPs at the time the JSA 2013 was passing through Parliament; (iii) the express urgency attached to at least some of Sir Duncan’s recommendations; and (iv) the significant difficulties which SAs are facing in seeking to discharge our role, most acutely in Northern Ireland.
26. Lord Anderson has commented on Twitter (X) on the Minister’s answer to his written question:

“Does anyone know of a longer delay in commissioning and responding to a report required by an Act of Parliament … ? This one should have been commissioned in 2018, published and responded to in 2019.

These are cases in which the government seeks to rely on secret intelligence, in closed proceedings, without disclosing it to the other party.  Given the potential for injustice, a five-year delay in learning the lessons of 2013-18 is a serious matter indeed.”

27. It is also hard to resist a jaundiced view of the prospects of the Government achieving its (caveated) target of a response “by early 2024”, given the history of repeatedly missing its indicative deadlines for the commissioning of the review itself.
28. Practising special advocates regularly share views and experiences of obstacles that we face, including in meetings convened by the Special Advocates’ Support Office.  One experienced junior special advocate recently expressed the impact of obstacles that we experience in this way:

“It is the nature of this particular beast that this is an important role with great and additional responsibility; it is a role that I know each of us takes incredibly seriously. It can be an isolating experience acting as SA and it is a role requiring tremendous fortitude and dedication. Morale has definitely weakened. We should be properly supported in performing our role, not thwarted.  I am certainly having to be more restrictive in the cases I am able to take on and even at my level, I don’t think that is a ‘good thing’ for a number of different and important reasons.”

29. I should make clear that none of these concerns reflects on the professionalism of those staffing the Special Advocates’ Support Office.  I would repeat what we said in the Acknowledgment in the special advocates’ submission to the Ouseley review:

“Whatever criticisms we have made of the adequacy of the support that SASO has been in a position to provide is no reflection on the individuals within SASO, who have consistently shown professionalism, dedication and fortitude in their work, as well as a willingness to go beyond the call of duty in their support. We consider ourselves fortunate to have them as our colleagues.”

A personal response

30. I have practised as a special advocate for over 20 years and believe that I am the longest-serving and most experienced special advocate still in the role.  It has been a privilege to have done this, including in some of the most complex and controversial cases of my career.   However, the role comes with heavy responsibilities and administrative inconvenience in handling sensitive material.  The work is also challenging and often stressful.  In passing, it may also be noted that the scale of pay rates for special advocates has not changed since being set in 2001, now 22 years ago.
31. Throughout my time as a special advocate I have been pressing for improvements in the operation of the system.  The structural unfairness of that system is one thing, but it is quite another for that unfairness to be heightened by a failure to provide proper resourcing and support for special advocates. That aggravated unfairness of CMPs is a price paid by the excluded parties, even though they may be unaware of it.  The system depends on special advocates being able to discharge our role effectively.
32. I have asked the Ministry of Justice for a meeting to be arranged for the Minister to discuss these issues with practising special advocates, but that request has not received a response. The failures by the Government to act on its oft-repeated assertions of commitment to the proper functioning of CMPs – including the ongoing failure to commit to implementation of the Ouseley recommendations –  have led me to conclude that I cannot take on any new appointments in these circumstances, where my ability to discharge the role is significantly compromised by the unaddressed defects in the system.  That has been a difficult decision, because I believe that open representatives and their clients should have access to experienced special advocates of their choosing.
33. It is therefore with real regret that I feel driven to decline new appointments unless or until there is effective action to address this avoidable unfairness and provide proper support to special advocates.  At a minimum, this requires prompt implementation of the Ouseley recommendations, including adequate resourcing of the special advocates in their role.

Not Waving but Drowning, Stevie Smith (1902-1971)

Angus McCullough KC is a barrister at 1 Crown Office Row