Closed Courts and Open Justice

‘The government was planning to restrict the right to open justice and nobody seemed to care—until the Daily Mail weighed in’

Just before London closed for Christmas, a small group of lawyers, campaigners and journalists met to share their frustrations. The government was planning to restrict the right to open justice and nobody seemed to care.

Dinah Rose QC had delivered a call to arms at the Reform Club a month earlier, complaining that a government green paper on justice and security would undermine a fundamental constitutional right. “The green paper envisages that civil actions may be tried in circumstances in which one party does not know the other’s case; is not permitted to see their evidence or cross-examine their witnesses; and in which the judgment that follows may be wholly or partly secret,” she said in her Atkin lecture.

And yet, as she pointed out, the plans had been greeted largely with indifference. The Labour Party had said it would support the coalition’s plans. “It troubles me,” Rose concluded, “that the government can propose in this way, without any controversy and little fear of contradiction, to legislate for a secret process so alien to our judicial system.”

She was right. A column I wrote in November for the Guardian‘s online law section attracted little attention. The Conservative backbencher David Davis — the only MP to brave the pre-Christmas meeting — believed there was little he could do. An article in the Mail on Sunday by Rose’s brother David, an award-winning journalist, attracted little attention in January.

More promising was the inquiry by parliament’s joint committee on human rights, which summoned a range of witnesses to give evidence, including me. I don’t wish to be unkind about its members but it is probably fair to say that not all of them could be characterised as the most high-powered or hard-hitting members of the Lords or Commons. Fortunately, they are blessed with an extremely effective legal adviser, Murray Hunt, who suggests questions for them to ask and will have a hand in drafting what I am sure will be a highly critical report.

But nothing seemed to dent the government’s confidence, not even an attack on its proposals — which I reported elsewhere, with equally little effect — by the very lawyers on whom ministers rely to support the existing system of closed courts. They are called special advocates. Their job is to represent the interests of an individual in proceedings from which that person has been excluded on grounds of national security. The special advocate is not allowed to tell the individual what “closed material” has been adduced in evidence against him by the government. It follows that the advocate is not able to take meaningful instructions from the person at risk, such as “I was somewhere else at that time.” It’s a very unsatisfactory compromise. The special advocates most involved say that these procedures “remain fundamentally unfair”. 

But it’s these procedures that the green paper seeks to extend to all civil claims, not just those involving national security. Closed material procedures would be available whenever a minister had certified that “certain relevant sensitive material would cause damage to the public interest”. That term was left deliberately vague in the green paper but appears to extend to commercially sensitive information in which the government has no direct interest.

Extending closed material procedures in the way the government proposed was “insupportable”, the special advocates said in their response to the green paper. It was one thing to argue that the inherent unfairness should be tolerated in deportation cases, they argued. It was quite another for ministers to extend that lack of transparency to any civil proceedings, including those in which the government itself was a defendant.

There was still no sign that ministers were remotely concerned. But then, at the end of February, the Daily Mail weighed in. These “deeply disturbing proposals, slipped out with little public comment”, had left a “cornerstone of civil liberty . . . in grave jeopardy”. David Davis was given space the next day to argue that these “fundamental failures of justice” were what you’d expect from Syria, Iran or North Korea. By the end of the week, the Mail had even caught up with the special advocates’ concerns.

Ken Clarke, the Justice Secretary, had put his name to the green paper, even though it had clearly come from the security and intelligence services. Now Clarke was forced into print, with a bylined article telling Mail readers that the proposals would apply only to a “tiny number of civil cases where public safety could otherwise be put at risk”. Later that day, he told parliament he was “most unsettled” by the special advocates’ comments and “very startled by their strong reaction”. As well he might be. He should never have published the green paper in the first place.

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