Closed material proceedings in civil cases would undermine foundations
The announcement in the Queen’s speech that the government intends to push through a bill for secret hearings was met with dismay by human rights organisations and lawyers.
Imposing closed material proceedings (CMPs) in civil cases would undermine the fundamental principle of the British adversarial system that parties are entitled to see all the evidence relied upon before the court. The proposals are also contrary to the principle of open justice.
The secretary of state would have the power to decide if a claim against government should be heard in secret, excluding the non-governmental party. A special advocate could raise issues for the excluded party, but would not be able to disclose the closed material to them or their lawyers or take instructions.
Judicial scrutiny of the secretary of state’s decision would be reduced to reviewing it on the basis of ‘irrationality’. No longer would the court balance the public interest in national security and that of open justice. Ministers argue that this is fairer than the public interest immunity (PII) process because it enables the judge (but not the excluded party) to see all the sensitive material.
But as Lord Kerr said in Al Rawi (1): ‘The central fallacy of the argument… lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead.’
The government suggests that CMPs are ‘familiar to practitioners’. But such proceedings are limited to cases such as deportation appeals and control order proceedings. Only some 39 special advocates have substantial experience and they have resoundingly opposed the extension of a system they describe as ‘inherently unfair’, adding: ‘The fact that they [CMPs] may meet minimum standards required by article 6 of the European Convention on Human Rights… does not and cannot make them objectively fair (2).’
If CMPs are implemented, many more practitioners will become aware of them. The wide definition of ‘sensitive information’ would put inquests of the kind involving the 7 July London bombing victims, Jean Charles de Menezes and Gareth Williams behind closed doors. Secret hearings would, according to the Association of Police Lawyers, be ‘likely to become extremely common in claims for false arrest/imprisonment and arising out of search warrants’ (3).
Ministers justify the changes on the basis of national security. But ‘national security’ is often used to hide material embarrassing to government. In Binyam Mohamed, the government sought to redact information which the High Court said ‘could never properly be described in a democracy as a "secret" or an "intelligence secret" or a "summary of classified intelligence"’. What the seven paragraphs revealed was ‘admissions of what officials of the US did to BM [Mohamed] during his detention in Pakistan’.
What is the real driver of this legislation? There is no evidence that there has been any damaging disclosure following a court’s rejection of a government claim to PII (a rare occurrence). It may be that the government seeks to extend the ‘control principle’ - that intelligence from a foreign security agency should not be disclosed - so that such material is beyond independent judicial scrutiny. If so, there is reason to fear that agencies such as the CIA may become the final arbiters on secret justice.
As pointed out in one response to the consultation, state agents may have expertise in the protection of the public, but they are not experts in the requirements of a fair trial. Nor do they appear to be interested in the principle of open justice.
Jan Clements is senior legal adviser, editorial legal services, at Guardian News & Media
1. Al Rawi v Security Services 2011 [3 WLR 388]
2. Special Advocates Response to Green Paper
3. Association of Police Lawyers Response to Green Paper