Coffee House

Secret courts are already here

25 March 2013

Imagine this. Barclay’s Bank is banned from operating in Iran for ‘security’ reasons. The bank challenges the government’s decision in the Iranian courts, and the case reaches the Supreme Court. Half way through the hearing, the lead judge announces that the bank’s lawyers must leave the courtroom so that it can consider what the government says is crucial evidence. The government lawyers, however, get to stay and argue their case in the secret hearing.

Unfair? Clearly. Surprising? Not so much. Iran is hardly a bastion of the rule of law. But what if I told you that this exact scenario, involving an Iranian bank and the British Government, happened last week in our own Supreme Court in Westminster?

On Thursday, for the first time in its history the Supreme Court held a secret hearing during which only the Government lawyers, who were one side of the case, could stay in the court room, whilst Bank Mellat, who were suing the Treasury in precisely the scenario described above, were forced to leave.

Claim your gift

Lord Neuberger, the Court’s president, made clear in his published statement that all nine judges reached their decision ‘with great reluctance’. Curiously, an earlier version of his statement sent out by the court’s press office included an extra final paragraph, in which Lord Neuberger (who has had issues with missing paragraphs before) warned that the judges would ‘have quite a few things to say about this unhappy procedure’ later on.

Unhappy indeed. Lord Neuberger has in the past strongly rejected attempts to expand ‘Closed Material Procedures’ — that is secret hearings which are currently restricted to immigration, deportation, terrorism and financial restrictions cases —  to civil trials. He said ‘a litigant’s right to know the case against him and to know the reasons why he has lost or won is fundamental to the notion of a fair trial’. Which sounds almost too obvious. That right, he said, is an ‘irreducible minimum requirement of an ordinary civil trial’.

It may be that Lord Neuberger’s ‘unhappy’ statement disappeared for political  reasons (just a guess). That is because the Government is now in the final stages of making that irreducible minimum of fairness, well, reducible.

Thanks to the Justice & Security Bill, secret hearings are coming soon to a civil trial near you. The Government will be able to press the national security switch and — according to the current plan — judges will be forced to boot out litigants whilst the Government gets to argue its own case unchallenged. The Special Advocates, a group of security cleared lawyers who act in secret hearings, are fundamentally opposed to the Bill, despite the fact that it would lead to more work for them.

The next vote on the Bill is tomorrow, when it will enter ‘ping pong’  mode in the House of Lords. All indications are that the right to attend your own trial is about to be seriously curtailed. And not in Iran, but right here, right now.

Adam Wagner is a barrister at 1 Crown Office Row practising in human rights and medical law. He is the founding editor of the UK Human Rights Blog and is on Twitter as @adamwagner1.

Give the perfect gift this Christmas. Buy a subscription for a friend for just £75 and you’ll receive a free gift too. Buy now.

Show comments
  • Martin ‘Marty’ McGartland

    Secret Courts in the UK. The Martin McGartland case and the MI5 – Home Office Cover-up. The Home Office and MI5 will use Secret Court hearing to Lie, Cover-up, and to smear former British Agent Martin McGartland. The Power, and Control of the Corrupt Home Office and MI5 :

  • Roger Hudson

    I know the public and press are banned from ‘Family Courts’, but are both sides present and see all the evidence?

  • James

    Mmm. Sounds exactly like the Orwellian titled “family” courts. Wave goodbye to the west kiddies. Oh I forgot, they stole you years ago.

  • Hexhamgeezer

    ’a litigant’s right to know the case against him and to know the reasons why he has lost or won is fundamental to the notion of a fair trial’.

    Is it not the case that the litigant will know only too well why they have lost the case, merely that his/her lawyer doesn’t?

  • andagain

    the right to attend your own trial is about to be seriously curtailed


  • Smithersjones2013

    Cameron’s Conservatives are the ‘progressives’ of authoritarianism around the globe. No doubt many despots and dictators will model their systems of corrupt government on the British model!

    Strangling press freedom , secret courts and snoopers charter’s. William Joyce would be proud!

  • DWWolds

    Yet another “human Rights” barrister. The harm such people have done is incalcuable.

  • salieri

    “…whilst the Government gets to argue its own case unchallenged”. Is that really true? If so, what is the Special Advocate actually supposed to be for, under this Bill? Your own link on the current plan describes the closed material procedure thus: “when one party and his legal team is [sic] excluded from part of a case, hearing or judgment and replaced by a security cleared Special Advocate.” The words quoted above suggest the opposite.

    Surely the unhappy scenario played out before the Supreme Court exemplifies why the Bill does create Special Advocates. As I read it, their sole purpose is to protect the litigant’s interests when his own lawyers lack intelligence clearance. The article may not like it but by failing to mention it gives the rather misleading impression that this scenario is more likely to happen if the Bill is enacted, when the reverse is the case. The human rights lawyers’ preferred outcome would, it seems, be for the government to settle every case dependent on intelligence material, as at present, and continue to throw away huge sums of taxpayers’ money because it is effectively unable to contest these claims – some of which are disgraceful and commenced cynically for this very reason. No surprise there, really.

    It’s also tiresome to keep seeing the phrase “secret courts”. There’s nothing secret about the court, as opposed to part of the material before it. A convenient tag for journalists, perhaps, but conveniently tendentious from Counsel. (Apologies if the title was added by a blog editor instead.)

    • Seraphina Chew

      My current understanding is that the courts must provide a ‘gist’ (as per AF (No.3)) of the case to the claimant, but the Justice and Security Bill threatens to both increase the frequency with which this is used and the scope of undisclosed proceedings for the claimant. Natural justice requires a person to know the case against him/her so as to be able to respond to it, and increased use of CMPs undermines this principle even further.

      Further, it is questionable that the government has been ‘forced to settle’ in many cases: I would refer you to this excellent piece by Angela Patrick

    • HookesLaw

      The Spectator giving opportunity to special pleading by a lawyer.
      Lets face it who would trust a lawyer?

      You make good points as ever the truth lost in a mass of misrepresentation by our wonderful ‘free press’.

      • Adam Wagner

        I’m not sure how this is special pleading. The changes will lead to less work for lawyers – but good ad hominem attack.

    • Adam Wagner

      The Special Advocates do not get to take in instructions from their clients. They are not lawyers representing a side in any ordinary sense – just because they are called “advocates” does not mean they are what you would consider to be a lawyer instructed by a client. For that reason, as a group, they think the current system is fundamentally unfair and therefore oppose its expansion.

      This is what they say:

      “The use of SAs may attenuate the procedural unfairness entailed by
      CMPs to a limited extent, but even with the involvement of SAs, CMPs remain
      fundamentally unfair.”

      “The reason why these criticisms have been made is that CMPs represent a departure both from the principle of natural justice and from the principle of open justice. They may leave a litigant having little clear idea of the case deployed against him, and ultimately they may prevent some litigants from knowing why they have won or lost.

      Furthermore, and crucially, because the SA appointed on his behalf is unable to take instructions in relation to that case, they may leave the SA with little realistic
      opportunity of responding effectively to that case. They also systematically exclude public, press and Parliamentary scrutiny of parts of our justice system.”

      • salieri

        So what are SAs actually for?

  • Barakzai

    So it’s essentially a ‘human rights’ issue, is it? Perhaps Mr Wagner’s best bet is to enlist the aid of Hugh Grant & co, a helpful peer or two, and Mr. Miliband’s benison (and his office).

    • Vrai Telemachus

      You are right of course
      Grant should be ashamed at the damage he and his chums have inflicted on our legal system
      However if Secret courts hasten the demise of Qatada, the sooner the better

Can't find your Web ID? Click here