Essay: Closed Material Procedures (CMP)

The principle of natural justice takes into account of procedural fairness and it ensures that the decision maker reaches a fair decision. It maintains procedural fairness in order to protect the right of individuals and also to promote public confidence. The idea of fairness expressed in the divergent strands of natural justice have to be seen as pliable and as not needing the courts to lay down over firm regulations, so that where it was discussed that a tribunal member can be temporarily not present for part of the hearing, there was no contravention of the rules of natural justice. The related case here is R v Institute of Chartered Accountants of England and Wales. There are a few common law rules that is related to the natural justice such as the hearing rule, the bias rule and the evidence rule. The hearing rule states that a person should be given a sufficient opportunity to present their case where some particular rights and interest could be unfavorably affected by the decision maker. The authority who decides, should give a chance in preparing and presenting the evidence, and they also need to reply to disputes presenting by the opposite side. This would ensure that the rights are respected. The second rule affirms that the decision makers must be neutral in the course of action while making a decision. They must be unbiased and should make conclusions without favoring one party over another. The last rule is the evidence rule, here it states that an administrative decision should be based on an evidence material or logical proof. The decision makers are not supposed to make decisions based on a mere suspicion. The natural justice consist of two important principles known as the ‘Nemo judex in causa sua’, where it means that nobody can judge on their own legal proceeding or else there will not be a fair justice. The second principle is ‘Audi alteram partem’; this simply means that nobody should be the judge in a case where he or she has an interest in.
OPEN JUSTICE
The open justice principle states that proceedings are ought to be open to the public that includes viewing of contents and also public viewing of trials. In England, the concept of open justice was declared in powerful terms by the House of Lords in the Scott v Scott. In the case of R v Legal Aid, Lord Justice Woolf stated that, “The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deter inappropriate behavior on the part of the court. It also maintains the public’s confidence in the administration of justice” In Terry v Persons Unknown , Lord Justice Tugendhat stated that “Open Justice is one of the oldest principles of the English law, going back before Magna Carta”. The entire perspective on open justice appears to be lost under the European Court on Human Rights. Whilst, Article 6 of the ECHR demands that civil actions or trials are held in public, the court had often explained it to realty mean that no violation of the public hearing need will be proclaimed if someone neglects to demand open justice where a court is customarily closed.
CLOSED MATERIAL PROCEDURES (CMP)
Ex parte litigations have been used to sentence defendants and over the years, it has expanded significantly through the acts of parliament and court judgments in the United Kingdom. The litigation is known as the Closed Material Procedures (CMP) also known as the secret courts. It is used when the government presents any information to the court, where the revelation of which would be “contrary to the public interest” or “damaging to the interests of national security” The United Kingdom have proactively submitted bills like the Justice and Security Act 2013, The Counter Terrorism Act (2008), The Prevention of Terrorism Act (2005), The Special Immigration Appeal Commission Act (1997) and the Terrorism Prevention and Investigation Measures Act (2011) that have triggered heated debate and quite an intense controversy . The particular procedures that consist in the bill have established that the closed material procedures in particular can only be used for civil cases. The actual vice of the closed material procedures and different terrorism regimes then apply to, is where they deal with terrorism as a civil issue by allowing harsh orders without any protections of the criminal process.
In the United Kingdom, the use of closed material procedures begun with the immigration proceedings as the government wanted to expel or imprison an individual on the ground of national security. The Counter Terrorism Act 2008 was passed by the parliament where a sanction was given for the use to closed material procedures in which cases that associated with funding of the terrorist organizations. Closed material procedures were allowed by the statute where some of the appellate courts could use it but the Supreme Court was not mentioned. However in 2013, the Supreme Court discovered that it has a complete authority under the 2008 act to utilize the closed material procedure in inspecting evidence that was given out to a lower court in a closed material procedure. In the case of Bank Mellat v Her Majesty’s Treasury, a treasury order was approved by the parliament to shut down Bank Mellat’s UK operations. This is because of them being potentially involved with funding Iraq’s nuclear program. The court is said to have read the closed judgment from an earlier closed material procedure and the argument on it was heard in a closed session of its own.
Closed Material Procedures that is used in the United Kingdom proceedings are not allowed to be disclosed in Strasbourg. The related case here would be Wang Yam v Attorney General , where it states the United Kingdom government need to decide on whether to differ an order stopping the publication of material heard in private in an unlawful killing related trial where the wrongdoer goes to the European Court of Human Rights to appeal .Judges who rely on the closed material procedure in a close judgment have been instructed to “say in the open judgment as much as can properly be said about the closed material which he has relied on”. This would lessen the need of using a closed hearing for an appeal if the information which was presented in the closed material procedure was not central to the judgment. Judges have been urged not to use the close material procedures in the first place unless it is necessary. In the case of Al Rawi , the Supreme Court and the Court of Appeal gave confirmation that the court does not have the power at common law to conduct a close material procedure in a civil claim. Lord Dyson who gave the lead judgment stated that, “Closed Material Procedures and the use of special advocates continue to be controversial. In my view, it is not for the courts to extend such a controversial procedure beyond the boundaries which parliament has chosen to draw for its use thus far”. The rationale for coming up with such a ruling was that the Lordships had the believe on the procedure to be opposing to the principles of natural and open justice. Lord Hope concluded by arguing that, “a line must be drawn between procedural choices which are regulatory only and procedural choices that affect the very substance of the notion of a fair trial”.
JUSTICE AND SECURITY ACT 2013
The Justice and Security Act is said to have eroded the fundamentals of open justice in the United Kingdom. This act was brought into the United Kingdom in April and July in the year of 2013. This act enables the closed material procedure to be used in civil proceedings in the United Kingdom. The Justice and Security Act 2013 include a provision under section 6 for a party in a civil trial. For example, when there is a need to claim for damages, application for a proclamation from the presiding judge that a closed material procedure attaches to the litigation. Only a special advocate or a judge can assess a disclosure request for sensitive materials held by a party to the proceeding and which are deemed damaging to the interest of national security because they are the only one who can convey the gist of certain material to the other party to the proceeding who is not allowed to challenge as assessment that the court had made regarding the sensitive material.
In the UK, The Justice and Security Act is highly controversial, this can been seen among the human rights group and lawyers too. Speaking about the Justice and Security Act can come about to have a considerable worldwide resonance. The United Kingdom is said to have been a net exporter of the counter terrorism law and also national security. The interest in the Justice and Security Act is severe in many countries around the globe besides the United Kingdom. In Israel and Europe, if it can be proofed that the legislation works efficiently, it seems unavoidable that it will be copied. In the Justice and Security Act, the measures which are contained are far from the only tools obtainable to the tribunals and the courts in the United Kingdom in handling the national security litigations. For novelty and controversy of the act to be understood, it should be seen in the light if the UK’s earlier rules on this area. Three rules that have been set out such as the common law rules of public interest immunity which was previously known as the Crown Privilege. Then there is the statutory revolution of closed material procedure and special advocates. The third rule will be on the Investigatory Powers Tribunal, it is a body whose strategies have been mainly overlooked in the political and parliamentary clash in relation to the Justice and Security Act. These rules have been described briefly, before revolving to the case law which have given rise to the Justice and Security Act.
PUBLIC INTEREST IMMUNITY
Public Interest Immunity is certainly familiar when it refers to the term “public interest” that could be used in the courts . It is fundamentally a rule of evidence by which a party to proceedings argues that certain documents that it has in its ownership is not supposed to be revealed to the other party because it will be deleterious to the public interest to do so. In all such cases, it is based on the courts discretion on deciding how to balance public interest arguments in opposing to revelation against the public interest in open justice. While striking the balance, the courts will definitely have consideration for the context to the case and they may be unwilling to predict an argument that the interest of national security tend to prevent against disclosure. This doesn’t mean that such disclosure will not be directed as the court may still draw to a close that disclosure is necessary for the interest of open justice. If that is the case, the government will either need to reveal the information or if they wished to keep it as secret, acknowledge the case in question.
The case law on the public interest immunity had been reviewed by the House of Lords in the case of R v Chief Constable of the West Midlands Police, ex parte Wiley . The arguments that arises in the public interest immunity arises frequently in the criminal law where the prosecution may wish not to reveal a particular information to the defendant. For example, the information may lead the defendant to point out a police informant.
In between the common law principles on open justice there is a major overlap and it can be seen in Article 6 of the ECHR . They key case here is the case of R v H [2004] UKHL 3 , where the House of Lords held that a particular consideration should be given by a trial judge to the details in question, being mindful of the nature of the public interest claimed and assuring that any withdrawal from full revelation is no more than is required in the circumstances of the case. Modification of some procedures by the trial court is need to ensure that the necessary scrutiny is given to claim, for example by inviting submission from a special counsel for the defendant where the prosecution makes a request for public interest immunity in the absence of the defendant. The House of Lords was of the view that claims for public interest immunity can correspond to Article 6 of the ECHR if such inspection and so on is attained.
TOWARDS JUSTICE AND SECURITY BILL (THE AL RAWI’S CASE)
The UK currently has three ways to manage civil legal proceedings regarding the sensitive matter on national security. It consist of the common law of public interest immunity, the statutory innovation of closed material procedure, and the exceptional strategy of the IPT. Furthermore, we can proceed on to see the rationale as to why the Government in 2011-13 contemplated that further legislation in this area was mandatory. The main case here would be the case of Al Rawi , a detriment action in the law or tort. The case had been brought by six claimants who had been taken into custody, inter alia at Guantamo Bay. They sought compensation at the English courts from the Security Service, the Attorney General, the Foreign and Common Wealth Office, the Secret Intelligence Service and the Home Office on the basis that each of these organizations or agencies of the UK government had given their contribution towards the claimant’s imprisonment, rendition and purported mistreatment. The claims have been brought under the trespass to person, false imprisonment, misfeasance in public office negligence connivance to injure and breach of the Human Rights Act 1998.
THE JUSTICE AND SECURITY GREEN PAPER
David Cameron, the Prime Minister told the House of Common in July 2010 that there were major problems on the manner how the court deals with intelligence details. Precisely, he stated that the security service is not allowed to reveal anything that is confidential in order to defend themselves in court with credence that those information will be safeguarded. The Justice and Security Green Paper (CM 8194, Oct 2011) has made extensive proposals for the changes under the closed material proceedings that will be made mainly available for civil proceedings. This will see the courts closed, where claimants are being denied access to the necessary material and given restricted explanation of the nature of that material. Security cleared ‘special advocates’, who usually do not have much contact with the claimants, would strive to represent their interest throughout closed hearings. If there is any tactful material that had been confronted in any part of the judgment it will also be kept as secret. This can be seen as disadvantages to the plaintiff and the public would not learn much about cases of conceivably significant public interest.
CRITICISMS OF THE JUSTICE SECURITY ACT 2013
Ferocious criticism of the Green Paper has resulted in several concessions in the following Justice and Security Bill. The idea to extend CMP inquests were discarded due to a clamorous campaign by NGOs such as Justice and Inquest. The Green Paper set out that ministers should be in charge to determine when it is appropriate to use the CMP but the Bill returns control for sanctioning requests to a judge. The government stated that these changes established part of a “refine and improved” bill and hoped it will conciliate detractors of the new system. In The Guardian, Richard Norton-Taylor stated the changes as a “smokescreen” because the proposals being dropped didn’t have a likelihood of being agreed in parliament, “an easy ploy, if it was not a deliberate one from the beginning”.
Since the establishment of CMP was denounced for subverting principles of open justice and the rule of law, by allowing a party to depend on proof that was kept secret from another is inappropriate with an opposing legal system and this will cause a perfunctory decision making . In July 2011, Lord Kerr stated that in the Supreme Court, the judgment in the case of Al Rawi that “there is a constitutional, common law right to be informed of the case was made against you in civil litigation”. The bill would allow members of the security and intelligence services to work in the knowledge that there will not be public scrutiny of their work and that would possibly cause a culture of impunity to develop. The development of the Justice and Security Bill is particularly troubling because it can lead to a clear decline in the role of judiciary when deciding on how the evidence should be heard. Judges will be responsible for allowing CMP but the words in the Bill would reduce their input to that of rubber stamping. The Clause 6 specifies that a court “must” accept a minister’s application for a CMP if a revelation “would be damaging to the interest of national security”.
The new procedure is said to be inherently biased because the CMP can on be applied by the government. This right will not be provided to non-state litigants, a judge will not have any ability to initiate CMP themselves or come up with their own suggestions on how evidence should be heard. The result of this will lead to the government enjoying a total jurisdiction over how sensitive the evidence is managed in civil cases. Under the CMP, they are allowed to decide between chances to speak evidence in closed court in front of the judge, they can request the judge to exclude evidence under PII, or they can call for a particular case to be struck out on national security grounds.
CONCLUSION
In conclusion, there are many judges and scholars who had condemn CMP of damaging open justice and natural justice, they did not take into account one situation where the secret material is in favor of the individual. To decide when CMP can be applied, occasionally it is necessary to look at the subject matter as in the secret material to know whether withholding it would really influence the interest of the individual. In the closed material procedure, the court and special litigants can see the evidence despite being withheld. The courts are able to depend on those evidence to decide potentially in favor of the individual. Journalists, campaigners and legal profession need to come up with a system by which any request for a CMP is registered with as much details about the case as is lawfully obtainable. For example, information’s on a particular claim, details about the parties, or a case summary. The media is encouraged to report this kind of cases more often. Those who are anxious about the CMP being used need to cooperate and work with each other in opposition to the expansion of secret courts.