Why secret hearings should only be a last resort for issues of State

Seeking the best solution when dealing with the problem of reconciling fairness and security, writes David Pannick, QC

Next Monday, the House of Lords begins the committee stage of the Justice and Security Bill. The Government’s proposals raise important and difficult issues about ensuring fair trials of civil claims when national security considerations arise.

The Bill would create a “closed material procedure” (CMP) for the hearing of evidence, the disclosure of which would be damaging to the interests of national security.

The judge would hear such evidence in the absence of all the parties to the case, and their lawyers, other than the Secretary of State. This would not cover criminal prosecutions, but would apply in civil litigation, such as claims against the State for damages for alleged assault or false imprisonment.

Such a procedure would offend against two vital principles of our legal system: the principle of open justice (evidence must be given in public) and the principle of natural justice (that each of the disputing parties must have the opportunity to respond to the evidence on which the other relies). So there is a heavy onus on the Government to justify such a change in the law.

The Government’s argument is that at present it cannot defend claims for damages when the evidence on which it wishes to rely involves national security considerations. Because such material cannot be disclosed, it has no choice but to settle and pay damages in unmeritorious cases, or to seek to persuade the court that the case cannot fairly be tried and so should be dismissed.

Surely it is preferable, argues the Government, to introduce a CMP for the hearing of such national security material, rather than to have no hearing of the case at all.

The Government’s argument wrongly assumes that a CMP is fairer than no hearing. But for a court to decide a case by reliance on evidence that one side has not had a chance to challenge may well amount to a fundamentally unfair hearing.

As Lord Kerr, of Tonaghmore, said in the Supreme Court in the case of al-Rawi last year: “To be truly valuable, evidence must be capable of withstanding challenge ... Evidence which has been insulated from challenge may positively mislead.”

In any event, the Government needs to establish — it has not yet done so — that there is, in practice, a mischief here that needs to be remedied.

The courts have long experience of protecting the confidentiality of information, the publication of which would damage the public interest. The law on public interest immunity — PII — has been developed for that purpose.

Under PII, the judge protects a fair hearing by ordering, where this would not endanger national security, that the gist of the evidence be disclosed, or that the evidence be redacted to conceal sensitive facts, or that a witness gives evidence anonymously.

The highest the Government can put its case is that there are or may be exceptional cases where PII cannot produce a satisfactory solution and so a CMP is needed.

But then there is a fundamental objection to the contents of the Bill. Under clause 6, the judge will be obliged to order a CMP for the hearing of evidence, the disclosure of which would damage national security. The Bill requires the judge to ignore PII, and the possibility of another solution to the problem.

Moreover, the judge must order a CMP even if the judge regards the material as being of very limited significance in the proceedings.

The judge also has no power to conclude that the damage to the public interest by disclosure of the material would be minimal, and the damage to the fairness of the proceedings if a CMP were adopted would be substantial.

The judge has no power to consider whether, in the circumstances of the case, fairness is better promoted by a public hearing (with no reliance to be placed on the national security material because it cannot be disclosed) than by a CMP.

Under existing PII rules, judges have never ordered the disclosure of material damaging to national security. If there is a need for closed procedures in order to prevent claimants from obtaining compensation they do not deserve, this should be a last resort, only to be used when a judge decides that this is the best solution on the facts of the individual case to the difficult problem of reconciling fairness and security.

Otherwise we would be ignoring the warning from Justice Albie Sachs of the South African Constitutional Court in 2006: when we abandon basic legal principles to address the problems posed by terrorism, there is a real danger that “the dagger aimed at the enemy in the end is plunged inwards, perforating the very character of your own society and rupturing precisely what it is supposed to defend”.

The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords

The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords.