Secret justice may become more secret

Special advocates ‘surprised and alarmed’ by planned new restrictions

Government plans to discourage claimants from choosing lawyers to represent their interests in closed hearings appear to be “regressive and unprincipled”, a group of 33 security-cleared lawyers have said. The lawyers, known as special advocates, made their comments in written submissions to a review being conducted by Sir Duncan Ouseley, a retired High Court judge.

Special advocates are appointed by the law officers to take part in civil proceedings that are held without press or public present to avoid disclosing material that might damage national security.

The claimants themselves are also excluded from these hearings. So are their lawyers, referred to as “open representatives”.

Image by Tim Green, Halifax Town Hall, 2008

Under the Justice and Security Act 2013, special advocates are appointed to represent the interests of excluded claimants. But these lawyers are “not responsible to” the excluded parties and once they have been given what’s called closed material they must not speak to claimants or their open representatives. The special advocates just have to do the best they can.

In their initial submissions to Ouseley, the special advocates said the government’s failures to honour commitments made at the time the 2013 act was debated have “combined to increase the unfairness of closed material procedures, significantly beyond the unfairness that is inherent to such procedures”.

We don’t know exactly what the government told Ouseley in July because it has chosen not to publish its submissions. But the special advocates were shown them in confidence and have been given permission to publish their own response.

This says, in part:

We are surprised and alarmed at the suggestion that open representatives should not request specific special advocates, and that the practice of them doing so should be “discouraged”.

This proposal, at least in part, appears to be based on the view that special advocates, once appointed, are “accountable to the attorney general”. That is not correct. Indeed, it would be extraordinary if we were required to account to the attorney general, as the law officer (and principal legal adviser) for the government, in the exercise of our functions in proceedings to which the government is generally a party.

This is particularly so once it is appreciated that on occasion the attorney general personally may be appearing for the government in a case involving closed proceedings — as has happened in the past — or as a party to the proceedings…

As a matter of principle, it is hard to understand why an excluded party should not exercise a choice in the special advocates to be appointed to represent their interests. Fairness and transparency are surely promoted by giving excluded parties a choice of special advocate from an approved panel. Such a choice was not available in earlier days of closed material procedure and was introduced by the government in adopting a recommendation from the House of Commons constitutional affairs committee in 2005.

The proposal to provide a choice of special advocate had been part of a range of “improvements” to the system that had been canvassed by the government in its evidence to the committee, following suggestions by special advocates to the committee. The present proposal seems not only regressive and unprincipled, but also to have been advanced without an appreciation of this history.

The special advocates also accused the government of being misleading in its submissions to Ouseley by claiming that ministers had “been able to defend numerous private law claims” as a result of the Justice and Security Act. In their original submission during the summer, the special advocates said they knew of no cases that the government had successfully defended:

Most notably, in the large-scale civil claims for damages the government has not used the closed material procedures to fight the case to trial, but the claims have been settled (almost invariably on confidential terms — and only after the case has been substantially prolonged by the procedures that the closed material procedure entails)…

The stated objective that the Justice and Security Act would enable [the government] to fight cases that it would otherwise have to settle therefore does not appear to have been borne out in relation to private law damages claims which were advanced as the primary requirement for closed material procedures in civil proceedings.

On behalf of his colleagues, Angus McCullough QC, a special advocate for nearly 20 years, has tried on several occasions over the past six months to persuade the government to publish its submissions. “It has not been suggested that there is any sensitivity attached to anything within HMG’s response,” he said, “and it is not clear why it is not being put into the public domain.”

Comment

There is something very murky about this review. By law, it “must be completed as soon as reasonably practicable after the end of the period to which the review relates”. That period ran from June 2013, when the Justice and Security Act came into force, to its fifth anniversary in June 2018. As I argued in 2020, it must follow that the reviewer should have started work in 2018. But Ouseley was not appointed until February 2021. A delay of some three years surely verges on the unlawful, but no explanation or apology was given.

Public confidence in the secret state relies, ironically, on openness. Is this all down to serial incompetence? Or does the government have something to hide?