Secret Justice: the system for closed proceedings is in melt-down
8 May 2024
A substantial majority of Special Advocates has felt driven to decline to accept new appointments to the role. This is a result of the Government’s continuing failure to provide proper support for the controversial system for secret evidence and closed proceedings, avoidably heightening the unfairness that is inherent in such cases. Special Advocates are the security-cleared lawyers appointed to represent the interests of those excluded from closed proceedings and they are central to the functioning of the system.
On 15 April 2024 a group of 25 practising Special Advocates, including 16 King’s Counsel, informed the Attorney General (who is also the Advocate General in Northern Ireland) that they had each formed the view that they could not, in good professional conscience, accept any new appointments as Special Advocates whilst current defects in the system remain unaddressed. This group consists of most practising Special Advocates in England and Wales, and Northern Ireland. They highlight the Government’s failure to provide the necessary support for the system to function effectively, including the continuing lack of any response to the recommendations of the Ouseley review published in November 2022 – let alone implementation of those recommendations.
The Ouseley review
I have set out the background to the Ouseley review in an article on this blog in October 2023: The Special Advocate – Not Waving but Drowning
This was a review that had been required by Parliament in the Justice and Security Act 2013. It was introduced by an amendment made by the Government during the Bill’s bumpy passage, by way of reassurance to those concerned about the inroads that the legislation would make into basic standards of fairness in civil proceedings. Section 13 provided that this review was to be “completed as soon as practicable” after the 5th anniversary of the Act coming into force. That anniversary was in June 2018.
Despite sustained pressing, including through parliamentary questions, the review was not commissioned by the Government for over 2½ years, until February 2021. Once appointed, Sir Duncan Ouseley completed his review promptly, within a year. In June 2021 all practising Special Advocates collectively made a detailed submission to the review, setting out serious flaws in the system, many long-standing, as linked in my post Secret Justice – the Insiders’ View. But then there was a delay of nearly a further year before it was published by the Government in November 2022. The report makes 20 recommendations, some of which were expressed to be urgent. One of the key recommendations relating to resources for Special Advocates was that:
“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. [underlining added. GLD is the Government Legal Department, and SASO is the Special Advocates’ Support Office]
The lack of support and facilities for Special Advocates in cases in Northern Ireland is particularly acute, as reflected by the findings and specific recommendations in Sir Duncan’s report. Since the Ouseley report was published, there has been no engagement with Special Advocates by the Government as to what is required or how any of the recommendations may most effectively be implemented.
There was also criticism by Sir Duncan of the length of time that the Government was taking to produce the annual reports required by section 12 of the Justice and Security Act. These annual reports were another safeguard to enable the use of secret court procedures to be monitored. Yet since publication of the review the delays in producing annual reports have only increased. The last annual report to be published related to the period to June 2022, and appeared on 11 January 2024, which at over 18 months broke a new record for delay. Conspicuously, the format recommended by Ouseley, to ensure that these annual reports were more informative and better met their intended purpose, has not adopted. The annual report for the period to June 2023 is already well beyond the 6 months’ delay that Sir Duncan considered “might be at the far limits” of what the Act requires.
And HMG’s response?
So where is the Government’s response? By a written Parliamentary Answer last September, Lord Bellamy (Minister of State at the Ministry of Justice) stated that “the Government aims to publish its response to Sir Duncan’s report by early 2024.” As the response is still awaited, now beyond “early 2024”, the latest official position of the Government is that it will be produced is “in due course”. When will implementation of recommendations that have been accepted take place? Also “in due course”. I understand, however, that significant work has been done, and this is said to be considered to be urgent, despite the ongoing lack of a response 1½ years after the report was published and the preceding years of delay.
Patience exhausted …
The stance adopted by my Special Advocate colleagues mirrors a decision I made in October 2023 which I explained in in the blog post referred to above. (Contrary to some misleading press reporting at the time, I was not ‘quitting’ any existing Special Advocate appointments on this basis.)
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.
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. …
… 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.
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.
Based on personal meetings with them, I believe that both the current Lord Chancellor (the Rt Hon Alex Chalk KC MP) and the Attorney General (the Rt Hon Victoria Prentis KC MP) recognise the urgency and importance of the issues that require to be addressed. It is, however, deeply concerning that there has been a failure by Government to have achieved any effective action after so long, such that so many dedicated and respected colleagues have felt compelled, with similar reluctance to mine, to come to the same position that I had reached last autumn. It is a hard decision, as we know that Special Advocates are the only effective safeguard in the system to protect the interests of the non-State parties involved in these secret proceedings, where normal standards of fairness are already so compromised. It is vital that there should be access to skilled and experienced Special Advocates. The reality is that the system for closed proceedings cannot function without them. But we cannot be expected to be complicit in operating a system that has serious flaws that have been clearly identified and remain unaddressed. These flaws have been confirmed by Sir Duncan Ouseley – and to a large extent reflect concerns that had been articulated by Special Advocates for many years before his report. These issues avoidably aggravate the unavoidable unfairness of closed proceedings. They must now be addressed, not just by a response to Ouseley, but by prompt implementation of his recommendations to provide Special Advocates with the resources required to discharge our role effectively.
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