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One of the most striking appointments to Sir Keir Starmer’s administration has been that of Richard Hermer KC to the office of Attorney General. In that capacity, as the Government’s senior Law Officer, Hermer will attend Cabinet. He is a hugely respected senior barrister, who has never been a member of Parliament having spent his professional life in independent practice with a formidable and distinguished legal career. He is extremely well placed to give the Government independent legal advice of the highest quality, as one would hope for from the AG.
Hermer’s appointment has been widely applauded, giving tangible reassurance of the new Prime Minister’s genuine commitment to the rule of law. These plaudits include the following generous tribute from Lord Wolfson KC, a Conservative peer and former Justice Minster (as well as an eminent and respected barrister himself).
Hermer’s experience at the Bar includes many cases involving closed material procedures – CMPs, the controversial system of “secret justice” about which I have written extensively on this blog, from my perspective a Special Advocate operating within that system. For readers with the stomach for it, the dismal story of their neglect can be charted through these articles.
The new AG therefore knows at first hand the importance, challenges, and frustrations of cases that are subject to CMPs. As Attorney General he is now responsible for the recruitment and formal appointment of Special Advocates, whilst the Secretary of State for Justice has the duty to provide an effective system in which we operate, to minimise the unfairness that is inherent in CMPs.
Together with other Special Advocates I had some positive – but ultimately unproductive – engagement with Hermer’s immediate predecessor as Attorney, Victoria Prentis, and her colleague as Lord Chancellor, Alex Chalk. It was disappointing that between them they failed to implement any concrete steps to address the long-standing issues around CMPs, including since the Ouseley review was published in November 2022. This has driven me, and many other Special Advocate colleagues, to decline to take any new appointments – a hard decision which we have each come to with reluctance.
On 1 July 2024 (a few days before the General Election) almost every individual on the current list of Special Advocates, including in Northern Ireland, wrote to the Attorney General to express our disappointment at the Government’s response to the Ouseley review, published on the last day before the dissolution of Parliament, in continuing failure to address these issues, including proper support for Special Advocates (most urgently in Northern Ireland) and a closed judgment database. The Government did not consult the Special Advocates in formulating its response, despite repeated encouragement to do so. They rejected 4 out of 20 recommendations from the Ouseley report, including a significant one in relation to the attendance of Special Advocates at mediation and other ADR procedures, without which Ouseley indicated there was “potential for unfairness”. The Government’s rejection is on a basis that seems wrong and unjustifiable. Our recent letter to the AG concluded:
“All those of us who had felt driven to decline new appointments remain of that position and will keep that under review. Those of us who had not reached the point of refusing new appointments are also keeping our positions under close review in the light of further developments, including action or inaction by you and the Lord Chancellor (or your successors in Government) following the General Election. Only one of us signing this letter is not planning to keep their position under review, while fully sharing the concerns of all of us that are set out above.“
Our letter should be on the new Attorney’s desk. Facing the new Government are many larger-scale and more intractable problems with the justice system than CMPs. The proper support for these procedures. and the Special Advocates that are components essential to their functioning, should be one of the easiest issues, in both practical and financial terms, for the incoming regime to address without further delay.
I enthusiastically join in the warm congratulations to Hermer and his colleague in Cabinet, Secretary of State for Justice Shabana Mahmood MP, on their appointments. I hope that they will re-visit their predecessors’ (long-delayed) response to the (long-delayed) Ouseley review to ensure that effective action is now taken urgently. I stand ready with other Special Advocates to help them to achieve that.
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.
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.
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.
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.
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.
Angus McCullough QC is a barrister at 1 Crown Office Row with experience of acting as a Special Advocate in closed proceedings since 2002.
The Government has still not implemented the review of Closed Procedures that Parliament had dictated should take place when passing the Justice and Security Act 2013. A review is required to cover the first five years after the Act came into force, and should have been completed “as soon as reasonably practicable” thereafter. That period expired in June 2018, and there are still no signs of a reviewer being appointed.
Readers familiar with closed procedures and their background may wish to skip the first half of this post.
‘Secret Justice’ is a deliberate oxymoron, used by some legal commentators as a term for Closed Material Procedures (CMPs). Justice, of course should generally be open and transparent, not secret. The principle of open justice dates back centuries, and the law reports are full of reiterations of its importance. Here’s one example, this from Lord Woolf in R v Legal Aid Board, ex p Kaim Todner [1999] QB 966:
The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve.
An equally fundamental principle of fairness in legal proceedings is that a party should know the evidence and case against them. This has even been given a Latin epithet (audi alteram partem). But you don’t need to be a scholar of either classics or law to appreciate that being aware of the material that the other side is putting before the court, and having the opportunity to challenge and answer it, is a cardinal feature of fair legal proceedings. The personification of Justice (see picture) is blindfolded, to represent her impartiality; but litigants are expected to have an unimpaired view of the proceedings.
Angus McCullough QC is a barrister at One Crown Office Row. Read Part 1 about Anonymity orders in Personal Injury proceedings here.
In Part 1 we looked at the circumstances in which a court may be prepared to grant anonymity in personal injury proceedings, and the applicable principles. In Part 2 I consider practical issues in the drafting of these orders, and problems encountered in this.
In particular, I will suggest that the standard Court Form PF10, that is now frequently being adopted, is generally inappropriate for anonymity orders in personal injury proceedings.
Amendments to CPR r.39.2; new Guidance issued by the Master of the Rolls; and a recent High Court decision refusing anonymity to a claimant prompt this review of anonymity orders in personal injury proceedings.
You act for someone who is vulnerable as a result of a serious brain injury. Her claim has been settled, and as a result your client is due to receive a large award of compensation, of several million pounds. The Court’s approval of the settlement is required (under the Civil Procedure Rules r.21.10). There is a concern that if there is publicity about the award your vulnerable client will be targeted and exploited by unscrupulous individuals. However, principles of open justice, and rights under Article 10 (freedom of speech), are engaged and favour unrestricted reporting of court proceedings.
A flash-back to 1980: the first series of the TV sitcom, ‘Yes Minister’ and a discussion between a Permanent Secretary (Sir Humphrey Appleby) and his Minister (the Rt Hon Jim Hacker MP):
Sir Humphrey: Minister, Britain has had the same foreign policy objective for at least the last five hundred years: to create a disunited Europe. In that cause we have fought with the Dutch against the Spanish, with the Germans against the French, with the French and Italians against the Germans, and with the French against the Germans and Italians. Divide and rule, you see. Why should we change now, when it’s worked so well?
Hacker: That’s all ancient history, surely?
Sir Humphrey: Yes, and current policy. We had to break the whole thing up, so we had to get inside. We tried to break it up from the outside, but that wouldn’t work. Now that we’re inside we can make a complete pig’s breakfast of the whole thing — set the Germans against the French, the French against the Italians, the Italians against the Dutch… The Foreign Office is terribly pleased; it’s just like old times.
Hacker: But surely we’re all committed to the European ideal?
Sir Humphrey: [chuckles] Really, Minister.
Nearly 40 years later, as the Westminster Government seeks to extract the UK from the European project, chuckles are in short supply (in contrast to articles about Brexit). This piece considers the role of judicial review as the EU Withdrawal Bill is enacted, and after Brexit day has dawned – and the capacity of the Administrative Court to meet the increased demands that will predictably be made of it.
Our recent post highlights the Government’s consultation on the Justice and Security Green Paper. Having been involved as a Special Advocate in many hearings involving closed material, I am troubled about these proposals, as well as the lack of public debate that they have generated.
The main proposals in the Green Paper are based on the highly debatable assumption that existing closed material procedures (CMPs as per the acronym adopted) have been shown to operate fairly and effectively. CMPs, were first introduced in 1997 and have escalated in their application since then. At §2.3 of the Green Paper it is stated that:
The contexts in which CMPs are already used have proved that they are capable of delivering procedural fairness. The effectiveness of the Special Advocate system is central to this … .
This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts. Part 1 can be found here, part 2 here and part 3 here.
Today, in the final part of this series, I concentrate on recent cases involving Article 12, the right to marry and a couple of other notable cases. You can find previous posts on Article 12 here.
This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts.
This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts. Part 1 can be found here and part 2 here.
Today I concentrate on Article 6: the right to a fair trial (click here for previous posts on Article 6).
This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts. Part 1 can be found here.
Today I concentrate on Article 3: inhuman and degrading treatment (click here for previous posts on Article 3).
A range of cases – as ever, mostly arising in the context of immigration, extradition, and prisons – have been decided in the last year, but most are fact-specific, and few have given rise to particularly significant developments of principle.
This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts.
I aim to summarise the most important judicial review cases concerning Articles 2, 3, 5, 6 and 12 of the ECHR during the last year. I have also included two other cases of interest, although they cannot be categorised under any of these Articles. Today, Article 2: the right to life (click here for previous posts on the right to life).
The substantive Article 2 duty owed to mental patients
The CA have clarified the scope and application of Savage. The HL in Savage had left unclear – to say the least – whether its finding that an operational ‘Osman’ type duty applied to a compulsorily detained mental patient extended to a voluntary mental patient.
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A flash-back to 1980: the first series of the TV sitcom, ‘Yes Minister’ and a discussion between a Permanent Secretary (Sir Humphrey Appleby) and his Minister (the Rt Hon Jim Hacker MP):
This is an expanded version of a comment made on Adam Wagner’s post: 
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