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to the statutory Review of closed proceedings being conducted by Sir Duncan Ouseley — but HMG’s submission remains unpublished.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.
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.
Liberty v Government Communications Headquarters ( IPT/13/77/H); Privacy International v FCO and others (IPT/13/92/CH); American Civil Liberties Union v Government Communications Headquarters (IPT/13/168-173/H); Amnesty International Ltd v The Security Service and others (IPT/13/194/CH); Bytes for All v FCO (IPT/13/204/CH), The Investigatory Powers Tribunal  UKIPTrib 13_77-, 5 December 2014 – read judgment
Robert Seabrook QC is on the panel of the IPT and David Manknell of 1 Crown Office acted as Counsel to the Tribunal in this case. They have nothing to do with the writing of this post.
This is a fascinating case, not just on the facts or merits but because it is generated by two of the major catalysts of public law litigation: the government’s duty to look after the security of its citizens, and the rapid outpacing of surveillance law by communications technology. Anyone who has seen The Imitation Game, a film loosely based on the biography of Alan Turing, will appreciate the conflicting currents at the core of this case: the rights of an individual to know, and foresee, what the limits of his freedom are, and the necessity to conceal from the enemy how much we know about their methods. Except the Turing film takes place in official wartime, whereas now the state of being at “war” has taken on a wholly different character. Continue reading →
R (on the application of Lord Carlile of Berriew QC and others) (Appellants) v Secretary of State for the Home Department (Respondent)  UKSC 60 – read judgment
The exclusion of a dissident Iranian from the UK, on grounds that her presence would have a damaging impact on our interests in relation to Iran, has been upheld by the Supreme Court. (My post on the Court of Appeal’s ruling is here).
At the heart of the case lies the question of institutional competence of the executive to determine the balance between the relative significance of national security and freedom of speech. The exclusion order was imposed and maintained because the Home Office is is concerned with the actual consequences of Mrs Rajavi’s admission, not with the democratic credentials of those responsible for bringing them about. The decision-maker is not required by the Convention or anything else to ignore or downplay real risks to national security where they originate from people acting for motives which are contrary to the values of this country.
The following summary of the facts is partly based on the Court’s press release. References in square brackets are to the paragraphs in the judgment. Continue reading →
The Foreign Secretary in February 2013 issued a certificate of Public Interest Immunity (PII), on the grounds of national security and/or international relations, to prevent the disclosure of a representative sample of Government documents relating to the 2006 poisoning. In May 2013 the Coroner for the Litvinenko Inquest (Sir Robert Owen) partially rejected that certificate and ordered the disclosure of gists of material relating to some of the key issues surrounding the death(read ruling). In this judgement, a panel of three judges of the High Court unanimously quashed that ruling.
This coming Wednesday sees the end of the first stage of the Justice and Security Bill’s passage into law. The Bill which would introduce Closed Material Procedures (CMP) – where one side of a case is excluded with his legal team and represented by a security cleared special advocate in cases involving national security – has become widely known as the Secret Courts Bill. Its progress has been closely scrutinised in this blog over the past six months.
As it completes Third Reading and passes to the House of Commons, we reflect on last week’s Lords amendments to the Bill. While there are still issues ripe for discussion at Third Reading, it is broadly accepted that the key Lords votes have passed.
XX v Secretary of State for the Home Department  EWCA Civ 742 – Read judgment
The Court of Appeal recently issued its judgment in XX v Secretary of State for the Home Department  EWCA Civ 742, an appeal from a decision of the Special Immigration Appeals Commission (“SIAC”) upholding the Secretary of State’s decision to deport an Ethiopian national on grounds of national security.
XX, who had indefinite leave to remain, had been assessed to have attended terrorist training camps and to have regularly associated with terrorists in the UK. SIAC was satisfied on the facts that XX posed a threat to the national security of the UK and determined that the deportation would not breach Articles 3, 5 and 6 of the European Convention on Human Rights. XX appealed on the ground that in finding no incompatibility with the Convention, SIAC had erred in law.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.