Washed-up: Angus McCullough KC comments on the long-awaited HMG response to Ouseley on Closed Proceedings
30 May 2024
The Government’s response to the delayed Ouseley report was finally published on 29 May 2024, the last day before the dissolution of Parliament. In this piece a leading Special Advocate describes that response as underwhelming, especially after so long.
Yesterday, in the ‘wash-up’ period before the General Election, the Government published its response to the Ouseley report. This was a report that had been required by Parliament to “be completed as soon as reasonably practicable” from June 2018, the fifth anniversary of the relevant part of the Justice and Security Act 201 coming into force. Despite this legal requirement (a) the report was over 2.5 years delayed in being commissioned by the Government; (b) a year further delayed in being published in December 2022 after it was submitted to the Government by Sir Duncan at the end of 2021; and (c) it took a further 1.5 years, until now, to come up with a response. The upshot is that we are now nearly 6 years after the fifth anniversary review date, before sight of HMG’s response to the review.
My immediate reaction to the Government’s response, now that it is available, is one of profound disappointment. Together with many others I had been pressing for this statutorily-required review, and then the Government’s response to it (links here and here), for years. This has been motivated by a desire to address avoidable unfairness in the controversial regime for secret proceedings: the Special Advocates’ collective submission to the Ouseley review is linked here. After so long, some important recommendations in the Ouseley review have now been rejected. Also the terms in which some of the key recommendations have been accepted are non-committal in relation to both timing and concrete steps to be taken, including in relation to matters which Sir Duncan described as requiring urgent attention. I am also left with a strong feeling that if there had been engagement with Special Advocates in the process leading to the response – which we had repeatedly offered and proposed, but seems to have been consciously resisted – there would have been a better informed and more constructive outcome.
Individual Special Advocates will come to their own decisions as to whether they are now prepared to accept new appointments. My own position has been, and remains, that returning to the role is dependent on implementation of Ouseley. These issues need to be addressed by concrete measures rather than open-ended declarations of intent – of which we have had plenty before, including at the time the Justice and Security Act 2013 was passing through Parliament. There can now be no progress until after the General Election. The incoming Government, whatever its stripe, must address this as a priority, both as to implementation and re-visiting the recommendations that have currently been rejected.
Angus McCullough KC is a barrister at 1 Crown Office Row Chambers.
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