JUSTICE has responded to the Government’s statutory review of closed material procedure (CMP) under the Justice and Security Act 2013 (the JSA). CMP allows the state in litigation to disclose material which is sensitive to national security in closed procedures to the judge and a Special Advocate appointed to represent the other party’s interests, without having to disclose the material to the other party, the other party’s legal counsel or the public. The statutory review considers the functioning and impact of the CMP regime under the JSA.
In our response we highlight the inherently unfair nature of CMP and their inconsistency with the common law tradition of civil justice where proceedings are open, adversarial and equal. It is these principles that will be further compromised if the JSA is operating ineffectively or unfairly.
In formulating our response, we convened a roundtable of lawyers with a range of experience in representing claimants in proceedings with CMP. Whilst it was recognised that in limited circumstances the operation of CMP can allow cases to be brought that would not otherwise be, several serious concerns as to the operation of CMP under the JSA were raised. In our response we highlight the following key areas of concerns and make recommendations that seek to address these:
- The Government’s approach towards CMP can be excessively adversarial, seeking to withhold as much information in closed as possible. This not only causes delays, but risks CMP becoming commonplace and having an unjustifiable impact on open and fair justice.
- The courts in their approach towards CMP appear to be too ready to accept Government claims for withholding information, which foregoes the necessary exacting scrutiny required to protect litigants’ rights to an open and fair trial.
- The unfairness on litigants caused by CMP is exacerbated by several procedural concerns, including delays, a lack of a closed judgment library which undermines the system of precedent, and costs risks for claimants and appellants who do not have sight of the closed material.