Secret Justice and The Rule of Law
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By Maham Malik
Introduction
The threat of terrorism looms large over the modern world. But the turbulent progress of history reveals that this accompanies an equally pernicious threat to the rule of law. And yet the curtailment of human rights in the U.K following September 11 did not manifest itself with clarity. Instead, the usual hammer-blows dealt to rights were obscured by a constitutional era which boasted of rights compliance, but in practise secured their distortion and recalibration. The government successfully erected a smokescreen behind which judges were left to iron out the details, invoking the rule of law in form but routinely evading its substance. As a result of this subtle process, a grey hole is now nestled carefully within national security adjudication. This paper will explore the recalibration strategy of fair trial rights in Closed Material Procedure (CMP) by critically examining judicial reasoning and its neglect of rule of law principles. It will demonstrate how loosely reasoned judgements not only watered down and normalised a distorted conception of fair trial rights, but facilitated a creep into civil law, culminating in the Justice & Security Act 2013 which authorises use of CMP in all civil cases where disclosure would threaten national security subject to limited judicial safeguards. It will thus demonstrate how only a resurgence of judicial vigilance can curb the dangers exposed. The analysis proceeds in three stages. First, the theoretical underpinnings of the rule of law’s connection to procedural fairness will be examined. Second, the judicial reasoning of key control order cases will be analysed against the theoretical backdrop in order to expose its shortcomings. Finally, the dilution of fair trial standards in civil cases will be linked to patterns of judicial reasoning examined above, revealing unwitting judicial complicity in a growth of CMP and weakened rights protection.
What is Closed Material Procedure?
Closed material procedure allows the government to withhold sensitive evidence in cases where such disclosure would be averse to national security. Whilst a special advocate (SA)is appointed on behalf of the parties from whom material is withheld, their role is strictly limited. Though the SA can review the material in closed, communication with the client is prohibited upon ek to do so as it will be seen that, for example, Parliamentary sovereignty is concomitant with disclosure. Thus, despite having a dual function of disclosure and representation, in practise their efficacy even with a threshold of mandatory disclosure remains fairly weak. Before the issue was litigated, CMPs operated so as to place people under counter-terrorism measures on the flimsiest of allegations, such as facilitating international travel of terrorists, or being complicit in fraudulent fundraising for terrorist networks. When contrasted with specific allegations, relating to particular incidents pointing to dates, places and times, the generality of the latter clearly bewildered fair trial standards. For instance, the classic example of a specific allegation would be that the defendant had attended terrorist training, referencing a time frame and rough location. If something concrete is divulged in the allegation, then the defendant is capable of refuting that allegation by providing alternative accounts, inferences or alibis. Without anything to grasp on to in this manner, even the SA can do little to test the closed evidence or construct a viable case. Whilst Strasbourg intervention attempted to temper this unfairness, the boundaries between general and specific or refutable and ineffable allegations remained blurry. Disclosure under CMP became a malleable concept, which this dissertation proposes reflected a neglect of substantive rule of law principles. The constitutional implications of national security and secret justice wed the discourse to the rule of law, but if that standard is to mean anything it must be grounded by a coherent theoretical underpinning
