Secret Courts: Where did they come from?
Since section 6 of the Justice and Security Act 2013 came into force, the application of closed material procedures in otherwise routine civil cases is becoming steadily institutionalized (see within the last few months McGartland v Secretary of State for the Home Department  EWCA Civ 686 (personal injury claim), R(Sarkandi & ors) v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 687 (sanctions against Iranian shipping); Kiani v Secretary of State for the Home Department  EWCA 778 (Employment Tribunal). This article is an analysis of how the law got to be how it is.
To begin with, a word on terminology. “Secret Courts” is used as a convenient shorthand for the use of 2 forensic procedures, provided for by statute. These are, first, the power to withhold from one party in the case material which is deployed by the other party as part of its case against the party from whom the material is withheld; and, second, the power to exclude a party from the proceedings, leaving that party’s interests to be represented by an advocate who is not responsible to the excluded party and whose ability to communicate with the excluded party is restricted.
Although the phrase “secret courts” could be said to be pejorative, it is nevertheless accurate. At least part of the proceedings are held in secret. The statutory and regulatory provisions establishing the various forms of secret courts are intended to ensure that certain documents and evidence are kept secret from a party to the proceedings (and the public); “kept secret” in the sense that that party is to be kept in ignorance, permanently, of the content of the documents and the full import of the evidence. The reason for this is because the documents and evidence to be withheld are, or contain, “secrets” - disclosure of which would not be in the public interest.
The first reference in legislation to the person appointed to represent the interests of a party as “The special advocate” is Rule 8 of The Pathogens Access Appeal Commission (Procedure) Rules 2002 (2002 No. 1845). The phrase “closed material” first appears in legislation in 2003, in The Special Immigration Appeals Commission (Procedure) Rules 2003 (2003 No 1034). Both the phrase “special advocate” and “closed material” will be used below, anachronistically, to denote concepts which first entered English legal discourse in 1996, via the European Court of Human Rights.
Chahal v The United Kingdom
In 1996, a Grand Chamber of the European Court of Human Rights heard the case of Chahal v UK (1996) EHRR 413. Mr Chahal was an alleged Sikh terrorist, who had been detained for 6 years in Bedford Prison, pending deportation on national security grounds. Among other things, Mr Chahal complained that he had not had the opportunity to have the lawfulness of his detention decided by a national court. The judicial review procedure then applied to national security cases, it was argued, was inadequate. The Grand Chamber agreed.
The case had a number of non-governmental organisations intervening. Four of the interveners (Amnesty International, Liberty, the Centre for Advice on Individual Rights in Europe and the Joint Council for the Welfare of Immigrants) drew the courts attention to the procedure believed to operate in similar cases in Canada (“believed to”, because the Canadian procedures may have been misunderstood). However, at paragraph 144 of the judgment of the Grand Chamber, the Canadian procedure, as it was then believed to operate, was described:
“a Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarising, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the State's case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant.”
The Grand Chamber was clearly impressed by the supposed Canadian model, describing it as “a more effective form of judicial control.......in cases of this type” (paragraph 131). Without going so far as to prescribe the Canadian model, the Grand Chamber said that the Canadian example (as it had been described):
“.......illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice.”
Judge Jambrek of Slovenia, in a separate concurring opinion, went slightly further:
”The Court may indeed be satisfied, in a future similar case, that some sensitive information may be produced in the domestic court, or even during the Strasbourg proceedings, which was and will not be revealed - at least not in its entirety, and in an unmodified form - to the suspect or to the detainee. It will then remain the task of the Court to reconcile the demands of the adversarial principle with the need to protect confidentiality of information derived from secret sources pertaining to national security.”
The Special Immigration Appeals Commission
As Lord Woolf, CJ pointed out in R (Roberts) v Parole Board  UKHL 45;  2 AC 738, the observation by the European Court of Human Rights “was no more than a suggestion”. However, it was a suggestion taken up with some alacrity.
Special advocates and closed material were introduced into the United Kingdom by The Special Immigration Appeals Commission Act 1997 and rules made under it. As originally drafted, section 5 of the 1997 Act, under which the Lord Chancellor could make rules prescribing the practice and procedure to be followed in the SIAC, stated at sub-section 5(3) that such rules:
“.......may, in particular—
(a) make provision enabling proceedings before the Commission to take place without the appellant being given full particulars of the reasons for the decision which is the subject of the appeal,
(b) make provision enabling the Commission to hold proceedings in the absence of any person, including the appellant and any legal representative appointed by him,
(c) make provision about the functions in proceedings before the Commission of persons appointed under section 6 below, and
(d) make provision enabling the Commission to give the appellant a summary of any evidence taken in his absence.”
The person “appointed under section 6 below” was to be, under sub-section 6(1):
“ .......a person to represent the interests of an appellant in any proceedings before the Special Immigration Appeals Commission from which the appellant and any legal representative of his are excluded.
They were to be appointed by a government law officer (the Attorney General, or the Lord Advocate (for proceedings in Scotland) or the Attorney General for Northern Ireland), with appropriate rights of audience for the relevant jurisdiction. Under sub-section 6(4), this person:
“shall not be responsible to the person whose interests he is appointed to represent.”
If a comparison is made between sections 5 and 6 of The Special Immigration Appeals Commission Act 1997 and paragraph 144 of the Chahal judgment, it is apparent that sections 5 and 6 of the 1997 Act are an enactment of the description of the Canadian model set out in paragraph 144 of the judgment of the Grand Chamber.
Tinnelly & Sons Ltd & ors and McElduff & ors v The United Kingdom
1998 saw a further incremental extension of secret court procedures. At this stage, secret courts were still seen as a liberalising measure. Applicants to the European Court of Human Rights argued for the use of secret courts; the United Kingdom government opposed such proposals. The context was Fair Employment legislation in Northern Ireland.
On 10th July 1998, the European Court of Human Rights gives judgment in the case of Tinnelly & Sons Ltd & ors and McElduff & ors v The United Kingdom (1998) 27 EHRR 249. The applicants complained about the Fair Employment legislation and argued that the procedures would be improved by the adoption of special advocates (paragraph 52 of the judgment). Lawyers for the United Kingdom government argued against this, on the basis that public confidence in the administration of justice had to be maintained and the independence of the judiciary upheld in dealing with secret data on terrorist activity (paragraph 68). In finding that the applicants’ rights under Article 6(1) of the Convention had been breached, the Court observed that in other contexts it had been found possible to modify judicial procedures in such a way as to safeguard national security concerns about the nature and sources of intelligence information and yet accord the individual a substantial degree of procedural justice (paragraph 78).
Following the government’s defeat in Tinnelly, section 91 of the Northern Ireland Act 1998 established a Tribunal to hear appeals in respect of certificates certifying that allegedly discriminatory acts were justified for reasons of national security or public safety. Under sub-section 91, the rule making power for this Tribunal was to include provision for a closed material procedures and special advocates.
The Expansion of Provisions for Secret Courts
Northern Ireland was also the context for the next piece of legislation to provide for secret courts. Schedule 2 of the Terrorism Act 2000 listed a number of proscribed organisations. As originally enacted, all of these proscribed organisations were Irish. Under section 4 of the 2000 Act, each of these organisations could apply to be deproscribed, with a right of appeal to the Proscribed Organisations Appeal Commission. Under the rule making powers contained in Schedule 3 of the Act, provision was made in such appeals for closed material procedures (paragraph (4) and special advocates (paragraph (7).
In 2000, section 8 of the Race Relations Amendment Act 2000 inserted a new section 67A(2) of the Race Relations Act 1976. This provided for special advocates and secret county courts for race discrimination claims. To similar effect was section 66B of the Sex Discrimination Act 1975 (inserted by section 87 of the Equality Act 2006) and section 59A of the Disability Discrimination Act 1995 (inserted by section 89 of the Equality Act 2006) (all now replaced by section 117 of the Equality Act 2010).
The Anti-Terrorism Crime and Security Act 2001 famously made it an offence to cause a nuclear explosion without authorisation, except in the course of an armed conflict. Under the less well-known sections relating to pathogens and toxins, the Secretary of State was given power to exclude persons from premises where pathogens and toxins were kept. Persons aggrieved by such denial of access could appeal to the Pathogens Access Appeals Commission, established by section 70 of the 2001 Act. Paragraph 5 of Schedule 6 to the Act provides for exclusion of an applicant and summaries of evidence; paragraph 6 of the same Schedule and Rule 8 of The Pathogens Access Appeals Commission (Procedure) Rules 2002 provide for “The special advocate”.
Al-Nashif v Bulgaria
On 30th June 2002, the European Court of Human Rights gave judgment in the case of Al-Nashif v Bulgaria (2002) 36 EHRR 655. The Court gave its first indication that secret courts were not a panacea.
Mr Al-Nashif was complaining about the attempts by the Bulgarians to deport him on national security grounds. The Court referred back to Chahal:
“95. In the Chahal case, the Court found that even if confidential material concerning national security was used the authorities were not free from effective judicial control of detentions. The Court attached significance to the information that in other countries there were techniques which could be employed which both accommodated legitimate security concerns about the nature and sources of intelligence information and yet accorded the individual a substantial measure of procedural justice.
96. In later cases (see for example Jasper v. the United Kingdom, no. 27052/95, unpublished) the Court noted that following the Chahal judgment and the judgment in the case of Tinnelly v. the United Kingdom (10 July 1998, Reports 1998-IV) the United Kingdom had introduced legislation making provision for the appointment of a “special counsel” in certain cases involving national security (Special Immigration Appeals Commission Act 1997, and the Northern Ireland Act 1998).
97. Without expressing in the present context an opinion on the conformity of the above system with the Convention, the Court notes that, as in the case of Chahal cited above, there are means which can be employed which both accommodate legitimate national security concerns and yet accord the individual a substantial measure of procedural justice.”
Secret Employment Tribunals and Secret Planning Enquiries
The indication that secret courts might not necessarily comply with the Convention did not stand in the way of further expansion. In 2004, amendments to section 10 of the Employment Tribunals Act 1996, together with schedule 1, paragraph 54 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (2004 No 1861) provided for secret employment tribunals in the interest of national security. Paragraph 8 of the Employment Tribunals (National Security) Rules of Procedure provided for special advocates.
Moreover, in the world of green belt and regional planning guidance, section 80 of the Planning and Compulsory Purchase Act 2004 amended section 321 of the Town and Country Planning Act 1990 to provide for secret planing inquiries, to be addressed by special advocates.
2005: R (Roberts) v Parole Board)
All the various secret courts so far listed are creations of statute. In 2005, the House of Lords had to consider an analogous procedure not established by statute, in R (Roberts) v Parole Board)  UKHL 45;  2 AC 738 HL.
Under the Parole Board Rules 1997 and 2004, reports to the Parole Board could be withheld from the prisoner on certain specified grounds. Documents withheld could be served on the prisoner’s legal representative, provided that the information was not then passed directly or indirectly to the prisoner or anyone else without the authority of the chairman of the panel of the Parole Board. There was no provision for a special advocate.
Nevertheless, when considering whether to release on licence an armed robber and murderer called Harry Roberts, the Parole Board devised its own procedure, involving a special advocate. The question that came before the House of Lords was whether this was within the Parole Board’s powers and compatible with Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. By a majority, the House of Lords held that the Parole Board had the power to introduce a procedure involving a special advocate and that this was not necessarily a breach of Article 5.
The first consideration of secret court procedures by the House of Lords is also the occasion of the first reference to Kafka, as recorded in the dissenting speech of Lord Steyn at paragraph 95:
“My noble and learned friend, Lord Carswell, commented that a prisoner against whom unfounded allegations have been made is in a Kafkaesque situation. That was an apposite reference to The Trial (1925), the masterpiece of Franz Kafka. A passage in The Trial has a striking resonance for the present case. Joseph K was informed
“the legal records of the case, and above all the actual charge-sheets, were inaccessible to the accused and his counsel, consequently one did not know in general, or at least did not know with any precision, what charges to meet in the first plea; accordingly it could be only by pure chance that it contained really relevant matter … In such circumstances the defence was naturally in a very ticklish and difficult position. Yet that, too, was intentional. For the defence was not actually countenanced by the law, but only tolerated, and there were differences of opinion even on that point, whether the law could be interpreted to admit such tolerance at all. Strictly speaking, therefore, none of the advocates was recognised by the court, all who appeared before the court as advocates being in reality merely in the position of hole-and-corner advocates.”
Secretary of State for the Home Department v MB
In 2005, sections 2 and 10 of the Prevention of Terrorism Act 2005, together with the Schedule to the Act, introduced the secret courts procedure to Control Order proceedings. A new Part 76 was inserted into the Civil Procedure Rules by statutory instrument (2005 No. 656).
The lawfulness of the statutory procedures under the Prevention of Terrorism Act 2005 and CPR Part 76 was considered by the House of Lords in Secretary of State for the Home Department v MB  UKHL 46;  AC 440. In the case of MB, Mr Justice Sullivan had on 12th April 2006 made a declaration that section 3 of the Prevention of Terrorism Act 2005 (ie supervision by the court of non-derogating control orders) was incompatible with article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ie the right to a fair trial). The declaration of incompatibility was set aside by the Court of Appeal and this was upheld by the House of Lords.
However, this was not an endorsement of the use of special advocates and closed material procedures, nor a finding that such procedures were compatible with the right to a fair trial. Rather, a declaration of incompatibility was “inappropriate” (Baroness Hale at paragraph 70), “a measure of last resort” (Lord Carswell at paragraph 84) and the use of special advocates and closed material procedures would not necessarily be unfair (Lord Bingham at paragraph 44). A declaration of incompatibility was inappropriate because the relevant provisions could be “read down” under section 3 of the Human Rights Act 1998 so as to take effect only in a manner consistent with fairness.
However, the reading down required is drastic. Baroness Hale put it this way (at paragraph 72):
“paragraph 4(3)(d) of the Schedule to the 2005 Act [permission for material not to be disclosed] should be read and given effect “except where to do so would be incompatible with the right of the controlled person to a fair trial”.
Lord Carswell said (paragraph 84):
“It seems to me possible to imply into them [the provisions of the 2005 Act and CPR Pt 76], and in particular into paragraph 4(2)(a) and 4(3)(d) of the Schedule to the 2005 Act, a qualification that the powers conferred do not extend to withholding particulars of reasons or evidence where to do so would deprive a controlee of a fair trial.”
Lord Brown agreed with both Baroness Hale and Lord Carswell on this point (paragraph 92). The secret court procedure was not unfair per se, provided the statutory powers to hold secret courts were operated in a way that was not unfair.
This was not to be the last word on the subject.
Meanwhile, in 2008, section 68 of the Counter Terrorism Act 2008 introduced the secret courts procedure to Financial Restriction Proceedings.
2009: A & ors v The United Kingdom
In its judgment in the case of A & ors v The United Kingdom (3455/05), 19th February 2009, the Grand Chamber of the European Court of Human Rights re-visited the issue of the lawfulness of the closed material and special advocate procedure. The Grand Chamber considered the complaints in the context of Article 5(4) (no unlawful detention) rather than Article 6(1) (right to a fair trial), but the standard of procedural fairness required was said to be the same. Although the Grand Chamber accepted that it can sometimes be necessary to withhold certain evidence from the defence on public interest grounds (paragraph 206), it remained essential that as much information about the allegations and evidence against each applicant was disclosed as was possible without compromising national security or the safety of others. Where full disclosure was not possible, a detainee still had to have the possibility to challenge the allegations against him (paragraph 218); this a detainee could not do unless provided with sufficient information about the allegations to enable effective instructions to be given to the special advocate; this was not satisfied by open material consisting purely of general assertions (paragraph 220).
Where (as in the case of 5 applicants in A & ors v The United Kingdom), the open material was sufficiently detailed to permit challenge, there was no violation of Article 5(4) (paragraph 222). Where (as in the case of 4 other applicants) the open material showed no causal link to terrorism (paragraph 223) or was of a general nature (alleged membership of extremist Islamic group) and the evidence relied on by the court (in this case the Special Immigration Appeals Commission) was in the closed material, the Grand Chamber held the applicants were in no position to challenge the allegations against them and their rights under Article 5(4) had been violated (paragraphs 223 and 224).
Secretary of State for the Home Department v AF (No 3)
In Secretary of State for the Home Department v AF (No 3)  3 WLR 74 HL, the House of Lords again considered essentially the same question as in Secretary of State for the Home Department v MB, ie the lawfulness of secret courts established by statute - in this case the lawfulness of the use of closed material procedures and special advocates in proceedings under section 3(10) of the Prevention of Terrorism Act 2005 (permission for or consideration of non-derogating control orders).
The House of Lords applied A & ors v The United Kingdom. This was so even though in A, the Grand Chamber had been dealing with applicants complaining of detention (and had considered that article 5(4) required the same fair trial rights and protections as article 6(1) requires for a criminal trial); whereas in AF (No 3) the House of Lords was considering a fair trial in control order proceedings, which (in domestic law at least) are civil proceedings. Lord Phillips thought Strasbourg would not draw any distinction between criminal and civil proceedings when dealing with “the minimum of disclosure necessary for a fair trial” (paragraph 59). He continued:
“I am satisfied that the essence of the Grand Chamber’s decision lies in para 220 and, in particular, in the last sentence of that paragraph. this establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of allegations. Where, however, the open material consists of general assertions and the case against the controlee is based solely or to a decisive degree on closed material the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be.”
Lord Hoffmann agreed A should be applied, even though he believed it to be wrong (paragraph 70). The late Lord Rodger commented, laconically: “Argentoratum locutum, iudicium finitum” (paragraph 98).
Somewhat without enthusiasm, the House of Lords in AF (No 3) held that the Prevention of Terrorism Act 2005 must be read down as set out in MB, preserving the circular position that secret court procedures will not be unfair if they are operated consistently with a fair trial. Whether this was a fair trial at common law or a fair trial for the purposes of the Convention was not explored in any detail. At the time, it may not have seemed an important question.
Al Rawi & ors v Security Service & ors
The case of Al Rawi & ors v Security Service & ors was civil claim for damages brought against various institutions of the United Kingdom government by 7 (later 6) former detainees at the United States detention facility at Guantanamo Bay on the island of Cuba. The defendants argued that closed material procedures, special advocates and secret pleadings (ie a defence, part of which is not shown to the claimant) could be adopted in a civil claim for damages. This was raised as a preliminary issue; in a judgment dated 18th November 2009, Mr Justice Silber said that such procedures could be adopted  EWHC 2959 (QB).
The Court of Appeal and the Supreme Court disagreed. Although the individual cases had all settled by the time they reached the Supreme Court, the Supreme Court gave a judgment which answered the (by then hypothetical) preliminary issue:  UKSC 34;  1 AC 531. In the opinion of the majority in the Supreme Court, the procedures proposed were (in the absence of any statutory authority) an impermissible departure from the common law requirements of open justice and a party’s right to know the case against him and the evidence on which it is based.
However, the absence of statutory authority was crucial to the Supreme Court’s decision. On the same day as giving judgment in Al Rawi, the Supreme Court gave a judgment in Tariq v Home Office  UKSC 35;  1 AC 452. In Tariq, it was held by a majority that the use of closed material and special advocates in proceedings in the employment tribunal was lawful and did not contravene article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (or EU law either).
The apparent contradiction is explained by Lord Dyson, JSC at paragraph 68 of the judgment in Al Rawi:
“It is.......open to our courts to provide greater protection through the common law than that which is guaranteed by the Convention.”
The Position So Far
So the position is clear. Secret courts are not permissible at common law (Al Rawi). Secret courts established by statute are permissible (Tariq), but the statute or regulation providing for closed material procedures and special advocates must be “read down” so that it is not incompatible with a fair trial (MB; AF (No 3)). If “fair trial” in that context means a fair trial at common law, then secret courts are not compatible with the common law (Al Rawi) and even statutory secret courts are impermissible. If “fair trial” in the MB and AF (No 3) test means “a fair trial for the purposes of the European Convention on Human Rights”, then, because the Convention gives a lesser standard of protection (Al Rawi), statutory secret courts are permissible. That will be the position whether the secret court is the Special Immigration Appeals Commission, the Fair Employment Tribunal, the Proscribed Organisations Appeal Commission, a secret county court, the Pathogens Access Appeals Commission, a secret employment tribunal, the High Court or a secret planning inquiry.