The Government’s new secret evidence proposals: unfair, unjustified and unnecessary

A significant part of JUSTICE’s work over the coming months will focus on the response to the Government’s Green Paper on Justice and Security. In Al-Rawi, the Supreme Court held that it did not have the inherent jurisdiction to expand the use of secret evidence procedures in civil proceedings ([2011] UKSC 34). The Government had asked the Court to use this power to allow it to hear civil claims by former Guantanamo Bay detainees using the controversial closed material procedures – including special advocates – used in control order and deportation hearings before the Special Immigration Appeals Commission (SIAC).   The case lost and the claims settled, the Green Paper presents the Government’s controversial next step.     

What is being proposed?

The Government proposes a new wide discretion for the Secretary of State to trigger the use of secret evidence – closed material procedures (CMP) – in all civil proceedings in the UK, including inquests. This would replace the existing system of public interest immunity (PII) certificates in civil cases where the Government asks the court to protect sensitive material which would harm the public interest if disclosed in the ordinary way.

What are JUSTICE’s concerns?

JUSTICE has long criticised the expanding use of secret evidence, which is incompatible with the common law principles of open and natural justice and the right of confrontation.

The work of the security agencies saves lives and is vital to our national security. However, increasing allegations and evidence of involvement in human rights violations illustrate the need for the work of the agencies to be accountable and compliant with international standards in order to ensure public confidence in the work they undertake in our name.

The Green Paper proposals would promote secrecy, fundamentally undermine the fairness of any proceedings in which CMP came to be used and endanger the credibility of our system of civil justice.

Under current arrangements, the Secretary of State must petition the court with a PII certificate where she considers that certain otherwise admissible evidence should not be revealed and must provide evidence to support their case that state security risks outweigh the public interest in disclosure. The court will then decide whether or not the interest in open justice (represented in making admissible evidence available to the court) is outweighed by the national security concerns. The consequence of a finding that the evidence should remain secret is that neither party may use it in the trial (R (Wiley) v Chief Constable, West Midlands [1995] 1 AC 274).

CMP are radically different. As proposed, the Secretary of State would trigger the CMP, having decided that any release of any ‘sensitive’ material ‘is likely to cause damage to the public interest’. Sensitive material is not limited to information which may harm national security, but is undefined except by link to a public interest in non-disclosure. The assessment of the Minister would be subject to judicial review, on ordinary public law grounds. However, there would be no judicial assessment of the balance of the competing public interests in open justice and non-disclosure.

The immediate consequences for a claimant are that they may be:

(a) denied the right to attend the trial;

(b) denied knowledge of another party’s statement of case, including, possibly, the Government’s defence in a claim against it;

(c) denied knowledge of, and the opportunity to challenge evidence on which another party will rely;

(d) denied the opportunity to make submissions on another party’s case;

(e) denied the knowledge of material or evidence that may support his case or harm the case of another party;

(f) denied the right to receive a statement of the court’s reasons for its decision in his case; and

(g) denied an effective right to appeal since the court’s judgment may not be fully disclosed.

What about the special advocates?

The provision of a special advocate, instructed to act for the claimant’s interest in CMP cases, as in control order cases now, cannot redress the unfairness which will result from a hearing under CMP. Special advocates can’t take instructions from the claimant after the sensitive material has been disclosed to them and it is extremely difficult for them to challenge security services’ evidence on the relevance of material in practice. Existing special advocates have published their own critical response to these proposals.

Existing case law of the European Court of Human Rights and the domestic courts has established the principle that – in order to be compatible with the right to a fair hearing – the other party must be provided with as much information about the Government’s case to render the trial fair and compatible with Article 6 ECHR (seeAF (No 3) [2009] UKHL 28). This is often described as the requirement to provide them with the ‘gist’ of their case. The Government takes a restrictive approach to this important safeguard, and proposes legislation to limit the circumstances when enhanced disclosure must be available.

These proposals are flawed. Their implementation would have the effect of denying the claimant the essence of a fair trial in an adversarial system, namely the right to know the basis of the case against them and to challenge the evidence rebutting their claim. The Government claims that CMP is preferable to PII, because it will allow the Government to consider all the evidence in a case. Under PII, the Government argues it may have little choice between settlement of a claim or an application to have a claim struck out. This argument was rejected by the Supreme Court in Al Rawi by Lord Kerr: “To be truly valuable, evidence must be capable of withstanding challenge … Evidence which has been insulated from challenge may positively mislead” (see Al-Rawi, [93]) .  

At the heart of these proposals is the suggestion that the Secretary of State should have an extraordinary power to control evidence in a claim against the Government. This would fundamentally endanger the rule of law and the right to equality before the law.

Where do we go from here?

Parliament’s Joint Committee on Human Rights is currently considering the human rights implications of the proposals. The Government is currently considering responses to the Green Paper and legislation is expected later in the year. It is unclear when the Government hopes that these proposals will take effect.

Many of the cases which the Government cites in support of change involve allegations of UK complicity in torture or ill-treatment of people in the process of rendition. The latest of these cases is the widely publicised claim by a member of the Libyan transitional Government, Abdel Hakim Belhadj, against the Government and the former head of MI6.  Whether we – or he – hears anything more about the Government’s defence to his claim may depend on whether the Government’s new secret evidence proposals pass.