1. History of Closed Material Procedure in England and Wales
The origin of CMP lies in the Special Immigration Appeals Commission (‘SIAC’) Tribunals and in Control Orders, which are civil (rather than criminal) measures restricting the activities of suspected terrorists, for example through house arrest and curfews. In 2009, the Grand Chamber of the European Court of Human Rights in A and Others v United Kingdom, while emphasising the importance of access to evidence for a fair trial in SIAC Tribunals, held that the elements of the right to a fair trial would be met in SIAC Tribunals, provided sufficient evidence was disclosed in order to enable the party to give effective instructions to the special advocate. This sanctioning of CMP was taken a step further in Tariq v The Home Office where the UK Supreme Court held that the right to a fair trial does not require minimum disclosure of evidence where that disclosure would be harmful to national security.
Over time the English courts had begun to apply CMP generally, despite there being no legislative basis for doing so. This practice came before the Supreme Court in Al Rawi v The Security Services, where a plurality of the Lords held that it was unacceptable because of the damage CMP did to the right to a fair trial. Importantly however, it was emphasised that Parliament, because of the principle of parliamentary sovereignty, could choose to legislate for CMP in general civil trials. That legislation can make CMP fair is a dangerous interpretation of that reasoning. The Justice and Security Green paper seems to make this leap however by asserting:
Protections to ensure procedural fairness and fair trials in the justice system have evolved gradually over the centuries. The rules of natural justice have developed over time, one of which is the right to know the opposing case. What this means will vary depending on the circumstances.
As Dinah Rose QC eloquently argued in the Atkin Memorial Lecture however, that is simply untrue; until now, in the civil context the right to know the opposition case has never been less than absolute.
2. Background to the Justice and Security Bill
The motivation for the introduction of the Bill arose in the aftermath of the Al Rawi case and the Supreme Court’s refusal to allow CMP to be imposed without a legislative basis. As the UK Government were unwilling to run the risk that sensitive evidence would be disclosed, they settled the Al Rawi case for several million pounds. This had led Kenneth Clarke, the minister responsible for the Bill’s enactment to argue that the “UK justice system [is] unable to pass judgment on these vital matters.” That is a tenuous interpretation of the problem that these cases pose. It is not that the courts are incapable of dealing with the issues involved, but rather that the Government does not want to play by the rules and disclose evidence that would be harmful to national security. It seems that the Bill is designed to give the Government best of both worlds; to avoid both the cost of settlement and the undesirability of disclosure.
Although Al Rawi forms the background for the Bill’s introduction, it is actually the reverse factual situation that is being put forward as the rationale behind the Bill. In Al Rawi the government sought to defend a claim on the basis of closed material, whereas the paradigm presented for the Bill is of a claimant whose case is struck out for failing to establish a reasonable claim because Public Interest Immunity (‘PII’) applies to the evidence she needs to substantiate her case. Surely, proponents of the Bill argue, CMP would allow those cases to go to court, thus increasing access to justice. The implication being that CMP is consistent with the right to a fair trial because the alternative is an even greater denial of the right of access to court. There are two reasons to doubt the persuasiveness of such an argument, which will be presented in the next two sections. First, even if we are to accept that the use of CMP would be justifiable in such a hypothetical factual scenario, the Bill goes much further than necessary. Secondly, there is an expressive harm of degrading the right to a fair trial to a minimalist and purely instrumental role.
3. CMP under the Bill
Under the Bill there is a somewhat cumbersome two-step process for imposing CMP. First, there is the ‘section 6 declaration’ that the proceedings are the kind of proceedings in which an application for CMP would be suitable. The second is the actual application to impose CMP under section 7. Minister Clarke argued that CMP respects the right to a fair trial because “we have gone out of our way to make sure that it is the judge, in two separate stages, who has to decide whether to order that evidence should be heard in a closed court.” The ridiculousness of that statement is shown by the fact that, under the original wording, the Bill gave the judge no discretion at either of the two stages and so, whether the judge was involved in one, two or a hundred stages, it would add no extra protection. The original test was simply, if the evidence “would be damaging to the interests of national security” the judge must make the section 6 declaration and then must also grant the section 7 application on the same standard. This is far broader than the test for applying PII, which involves a judicial balancing of three competing interests; i) the harm to the public interest of disclosure, ii) the competing public interest in the administration of justice and iii) the individual party’s interest in having all relevant evidence before the court.
The test for imposing CMP should be even narrower than for PII. To have a justifiable role it must be a last resort. The new draft of the Bill is not even as limited as PII because it only weighs the two competing public interests and gives no consideration to the harm to the individual litigant. The Bill also now allows either party to apply for CMP; originally, only the Government could make the applications, which has obvious equality of arms implications. These two changes were adopted by the Government after amendments were passed in the House of Lords.
However, this is still far from the most palatable or ‘least worst’ version of CMP. First, there is no guarantee that there will be a minimum disclosure of evidence to the litigant; under section 7 the court must only consider whether to require that the gist of the evidence be provided. Second, there is no ongoing review of whether CMP ought to remain in place, as occurs with PII. Both of these changes were suggested in the House of Commons. Third, a suggested amendment that the Bill be expressly narrowed to situations where the alternative is striking out was not adopted. Fourth, the Bill now grants the government a kind of safety net. While conceding that either party has the right to apply for CMP, the Government introduced new provisions that envisage disclosure being refused even if the CMP application is refused. Sections 7(2) and (3) state that if the ‘relevant person’ (in this context the government) does not get permission to withhold information, but withholds it anyway, the only consequence is that neither party can rely on that evidence. As far as I can tell, this allows the Government to usurp the usual PII assessment because it could only apply in the absence of both a CMP declaration and a PII certificate.
4. The Remnants of the Right to a Fair Trial
Despite the obvious and manifest unfairness of CMP, the case law up to Tariq has endorsed the practice as compatible with the ECHR Article 6 right to a fair trial. Similarly, the Bill has been presented by its proponents as a means of furthering the administration of justice, rather than restricting it. I fear that this will culminate in a serious expressive harm if the Bill becomes law. Essentially, it would mean that a ‘fair trial’ in a general civil case would not necessarily require the right to be heard adequately, the right to know the opposition’s case, the right to bring and rebut evidence and the right to know the reasons for the outcome. Such a ‘fair trial’ starts to look like an unfamiliar version of fairness.
The danger is that it becomes familiar. There are two slippery slope concerns that could follow from this expressive harm; the first is a systemic deterioration in the right to a fair trial generally and the second is an expansion in the application of the Bill itself. We have already seen CMP expand from its originally restrictive roots; if we endorse it as fair in the civil context, we should ask what part of the legal system it will creep into next.
The second slippery slope concern is that CMP would be applied under the Bill more frequently than initially expected. Under the Bill, CMP is presented as a procedure applicable to deadlocked cases where there is a choice between striking out and harming national security (though the text does not limit CMP to such cases). Currently, under PII the courts are forced to be creative in dealing with non-disclosure (for example through anonymization and selective redaction) because of the urge to provide justice in the face of denying litigants effective access to court. CMP however, gives a third, easier, option; there is no violation of natural justice because the procedure is fair in the circumstances, the judge has avoided striking out as well as avoiding harmful disclosure. The logical result is less pressure to reach flexible conclusions, with a consequential increase in frequency of use of CMP.
Conclusion: The Way Forward
It seems inevitable that the Bill will be enacted, considering the fact that the main opposition party has agreed to support it. If that is the case, the most important thing is to drop the pretence that CMP is ‘fair’. It may be that in certain rare cases, national security is more important that the right to a fair trial and so only a stunted form of access to justice can be provided. Undeniably, lawyers and human rights advocates would be uncomfortable with such a conclusion but perhaps, if the right to a fair trial and protection of national security are really incompatible, a procedure such as CMP is something that a majoritarian democracy can decide to enact. It would be far less damaging in the long-term, although particularly uncomfortable in the present, for proponents of the Bill to admit that they do not believe there is a right to a fair trial in this context. At least that way the right to a fair trial would remain undiminished.