JUSTICE considers that the operation of closed material procedures (CMP) is inherently damaging to our system of justice. Their introduction by Part 2 of the Justice and Security Act 2013 (“the JSA”) into civil proceedings is unfair, unnecessary and unjustified. That one party will present his case unchallenged to the judge in the absence of the other party and his lawyers is inconsistent with the common law tradition of civil justice where proceedings are open, adversarial and equal.
In a briefing to inform Parliament’s consideration of changes to the Civil Procedure Rules which are crucial to allow for the introduction of CMP, JUSTICE focuses on what the Rules will not do. They will not make CMP any more palatable. In fact, by modeling these Rules largely on those designed for existing secret procedures, including those used in the Special Immigration Appeals Commission (SIAC), it is likely that these measures will compound the inadequacy of the Special Advocate system and the inherent unfairness of these extraordinary procedures for the party excluded from their case.
Speculation over which cases the Government will ask to be heard under CMP is rife. The Explanatory Memorandum explains that there are currently 20 live cases which Ministers are considering for CMP. These Rules of Court, hastily thrown together by officials and with little consultation, would set aside the overriding objective of our courts to do justice in favour of absolute secrecy in any case where national security is raised by Ministers. They would do nothing to improve the capacity of the Special Advocate to represent the interests of the excluded party. They take no steps at all to address the impact on other procedural steps within the wider Civil Procedure Rules which may be adversely affected by the introduction of CMP (such as the rules on settlement in Part 36).
The Rules appear to confirm that the true function of Part 2 of the Act 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.
Read JUSTICE’s briefing.