Juxtaposing secret courts and the rule of law

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On the 25th April 2013 The Justice and Security Act 2013 introduced so-called “secret courts” (Closed Material Procedures) into ordinary civil cases in Britain for the first time.

Closed Material Procedures (or “CMPs”) mean that one party is not able to take part in either part or the whole of a trial. This party will almost always be a party who is bringing a claim against a government agency. In such a case the government and its lawyers will be present during the CMP, however, the other party and their lawyers:

  1. cannot be present;
  2. cannot see the evidence the government is relying upon;
  3. cannot know the government’s case on this evidence;
  4. cannot challenge this evidence or the government’s case; and
  5. cannot know the reasons for the judge’s decision on that evidence and therefore (at least a part of) their case.

The party not present during the CMP will be told whether they have won or lost, but not the full reasons why.

The Act applies to “relevant civil proceedings”, which means any civil proceedings in the High Court, Court of Appeal, Court of Session or the Supreme Court. This means that any civil case in any of these courts may be affected by this legislation if sensitive information is required to be disclosed in the course of the case. Sensitive material means material the disclosure of which would be damaging to national security.

It must be noted that closed hearings are not unprecedented. CMPs were already used in employment tribunals, special immigration appeals commission hearings and the investigatory powers tribunal, which handles complaints about the intelligence services. The Justice and Security Act has now extended them into the main civil courts.

How can secret courts sit alongside the right to a fair trial, one of the fundamental components to the rule of law? Many will say that Justice conducted behind closed doors is no justice at all.

The UK Supreme Court first sat in a CMP earlier this year in Bank Mellat v Her Majesty’s Treasury [2013] UKSC 39. Lord Neuberger stated before the CMP,

“No judge can face with equanimity the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented at the hearing and not even knowing what is said either at the hearing or in a judgment. Nonetheless, as Parliament has decided that, in certain circumstances, such a procedure is necessary and permissible.”

Upon delivering the court’s judgement, Lord Neuberger, said it had only held the secret session because of an outside possibility that the Treasury would have been treated unfairly if it had not. But he added, “There was no point in our seeing the closed judgment. There was nothing in it which could have affected our reasoning, let alone which could have influenced the outcome of that appeal. Appellate courts should be robust about acceding to applications to go into closed session or even to look at closed material.

Lord Hope went further and criticised the pressure put on the justices by the Treasury. He said, “The attitude which they have adopted in this appeal was a misuse of the procedure, because they invited the court to look at the closed judgment when there was nothing in it that could not have been gathered equally well from a careful scrutiny of the open judgment. This experience should serve as a warning that the State will need to be much more forthcoming if an invitation to this court to look at closed material were to be repeated in the future.”

The judgement was hailed as a victory to open justice and the rule of law, however, the fact the court sat in private at all leaves alarm bells ringing for many.

Corinna Ferguson, Legal Officer for Liberty, said “Proud principles of open justice and the rule of law are the casualties as the secret justice disease infects the highest court in the land. Today’s chilling judgment brutally exposes the Government’s claims and lays bare its willingness to overstate the importance of secrecy to serve its own ends. Given recent revelations of spying and snooping it really does seem that it’s one rule for the State, another for everyone else – no scrutiny for them; no privacy for us.”

Even though the UKSC has expressed caution, parliament, being a supreme law making body has now enacted legislation compelling courts to sit in secret as and when required. The concept of secret courts has been described by a former MI5 officer as “fatally dangerous to our democracy”.

As Martin Luther King Jr. famously stated “Injustice anywhere is a threat to justice everywhere.”

It is clear from the judgement handed down in Bank Mellat v Her Majesty’s Treasury [2013] UKSC 39 that the judiciary are not welcoming secret courts with open arms. Only a few days ago, Sir James Munby, one of the country’s most senior judges who oversees the Court of Protection, indicated the rules should be changed to make it more transparent. The president of the Family Division of the High Court said it should be treated in the same way as the family courts where media are allowed to attend proceedings. 

It would, therefore, seem that this whole issue could well see a battle between the legislature and the judiciary. As many will be keen to point out, Parliament is supreme; the judiciary must follow the will and intention of parliament. However, could the United Kingdom Supreme Court have a moment like the United States Supreme Court did in Marbury v. Madison, 5 U.S. 137 (1803), where they gave themselves the power to strike down legislation? As many leading judges have indicated over the last decade, including Lord Steyn, Lady Hale and Lord Hope, the rule of law should be regarded as higher than parliamentary supremacy. The use of CMP’s have clearly invoked numerous inconsistencies with the rule of law. If the rule of law is to be considered as the overriding doctrine then it is the duty of the courts to uphold it, over any piece of legislation introduced incompatible with it.

Dale Timson

LLB (Honours) Student & Aspiring Barrister

21/10/13

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