The rules of secret justice in Britain

Angela Patrick 14 July 2013

To deploy 'Secret Justice' in the UK the government has to table the rules that will deliver its legislation. It is rushing them through the House of Commons and has announced they will be debated and decided... tomorrow

Just as MPs are looking forward to their long summer break the Government produced the draft amendments to the Civil Procedure Rules (CPR) which will bring Secret Justice into force across the UK, in terms of Part 2 of the Justice and Security Act 2013 (JSA).  Many consider the Act’s introduction of what they call closed material procedures (CMP) into civil proceedings unfair, unnecessary and unjustified. (This includes JUSTICE, whose Director of Human Rights Policy is the author of this post, taken with thanks from the UK Human Rights Blog.) The absence of serious debate about this breach of the fundamental principle of the rule of law and democratic accountability in the British media is almost - if not more - disturbing as the Act itself, and Our Kingdom is doing its best to compensate for this. Our previous and widely read contribution is Jo Shaw's Secret Courts: 8 nightmare scenarios now possible in Britain.
That one party will present their case unchallenged to the judge in the absence of the other party and their lawyers is inconsistent with the common law tradition of civil justice where proceedings are open, adversarial and equal.   The UK Human Rights blog has spent many pages dissecting the constitutional implications of the expansion of CMP in the JSA and its controversial passage through both Houses of Parliament.
Perhaps in a bid to avoid similar controversy, the draft Rules were dropped quietly into the libraries at the Houses of Parliament without fanfare.  Less than two weeks later and without significant change, the Rules were tabled.
According to the affirmative procedure, these changes to the CPR have taken effect, but must be formally approved by both Houses of Parliament within 40 days.  Those days don’t include the holidays. We could have waited until October for a well-prepared debate.   However, it appears that the Government is keen to crack on with closed hearings without the spectre of further inconvenient parliamentary interference.  The House of Commons will debate the Rules on Monday – less than a month after they were published in draft, with the Lords expected to follow before they rise for the summer at the end of July.
My organisation, JUSTICE, has raised three concerns about the Rules:

1. They do not improve the lot of the Special Advocate.  In short, the Special Advocates opposed the expansion of CMP.  In doing so, they pointed to a number of failings in the existing system and made suggestions for improving their effectiveness.  Nothing in these Rules would address these concerns; they largely replicate the existing rules and their weaknesses.
2. The impacts of CMP on civil litigation:  There is nothing in the Rules which attempts to address the wider impact of CMP on civil litigation.  For example, how will Part 36 apply in a case where a CMP has been triggered?  How can solicitors or counsel advise effectively?  The Rules fail to recognise that CMP will be operating in a completely different litigation environment.
3. The overriding objective?  As in other CPR provisions which apply to existing practice on CMP – in specific proceedings, including within SIAC (See Parts 76, 79, 80) – the overriding duty to act justly and proportionately and any other part of the CPR is modified.  Here, the modification applies in so far as the application of the CPR is inconsistent with a new duty on the Court to “ensure that information is not disclosed in a way which would be damaging to the interests of national security.”  This will apply to all applications under Part 2, including in respect of the application of the gateway test under Section 6, which opens the door to CMP.  Readers of the blog will be aware of the lengthy Parliamentary debate on Section 6, on which most of the discussion hinged.  The compromise text in Section 6(5) applies a two stage test – national security – and that CMP must be in the interests of the fair and effective administration of justice in the proceedings.  JUSTICE is concerned that the application of the apparently default duty of non-disclosure applied in the Rules appears inconsistent with the language agreed by Parliament.

Section 6(5) must remain crucial in the Court’s determination of how and when CMP will be used in civil proceedings.  This approach would be consistent with the guidance of Lord Neuberger in Bank Mellat (No 1). 

[A]ny judge, indeed anybody concerned about the dispensation of justice, must regard the prospect of a closed procedure, whenever it is mooted and however understandable the reasons proposed, with distaste and concern.  However, such distaste and concern do not dictate the outcome in a case where a statute provides for such a procedure; rather, they serve to emphasise the care with which the courts must consider the ambit and affect of the statute in question. [51] 

Although encouraged to sit in CMP in Bank Mellat (No 1), the Supreme Court expressed concern that nothing that the Justices had seen in closed session would have affected their judgment.  Recently, the public inquiry into the circumstances of the death of Azelle Rodney has concluded and reported with widespread criticism of the Metropolitan Police Service and individual officers.
Sir Christopher Holland makes clear that there was no need in the determination of his findings for the inquiry to sit in closed session. That case was for many years used as justification in arguments by Government for CMP to be available within inquests in order to allow for the hearing of intercept material.  These cases both illustrate that the enthusiasm of Government for CMP can be misplaced, with authorities too quick to resort to secrecy when the interests of justice can be served through other less intrusive means.  They illustrate the folly of adopting CMP as an ordinary tool of the civil justice system.  At the least, they show the need for the discretion of the court, such as remains within section 6(5) JSA, to be interpreted as widely as possible.
Unfortunately, the hastily prepared Part 82 CPR appears to confirm that the true function of Part 2 the JSA will be, in practice, to deter litigation against the Government in national security cases or to create a significant litigation advantage for Ministers in cases that proceed. Tomorrow, we are once again likely to see the manipulation of parliamentary used to expedite legislation without proper public understanding of its motives and consequences.
With thanks to the UK Human Rights Blog. Angela Patrick is Director of Human Rights Policy at JUSTICE.  Read more about JUSTICE and their work here.  To support JUSTICE’s work, become a member. Follow @JUSTICEhq on Twitter  for regular updates.