Supreme Court sends mixed messages on closed trials

The cases involve the ­controversial use by the Government of secret or closed material proceedings to defend civil claims, in which evidence is concealed from the party concerned because of national security worries and disclosed only to a special advocate appointed by the Attorney General.

In closed proceedings neither the claimant nor their adviser can ­participate once the proceedings are in closed session. The advocate tasked with representing the claimant is prohibited from ­communicating with the claimant about the closed material and is not allowed to take instructions about it. Unsurprisingly, this has raised questions about the right to a fair trial under Article 6 of the European Convention on Human Rights.

At present closed proceedings are ­permissible, albeit highly criticised, in the context of control orders under the Prevention of Terrorism Act 2005 and cases heard by the Special Immigration Appeals Commission. Their use in ­ordinary civil claims and Employment ­Tribunal proceedings has not been ­scrutinised by the highest court until now.

Al Rawi involved a civil claim for ­damages brought by Binyam Mohammed among others, against the ­Government
for its alleged complicity in their alleged detention, rendition and ­mistreatment in various locations ­including Guantanamo Bay. The ­Government sought to rely on secret ­evidence in its defence, in closed ­proceedings.

Tariq concerned an Employment ­Tribunal claim in which an immigration officer was suspended and his security clearance withdrawn because of his ­association with relatives who were ­arrested for planning to mount terrorist attacks. Again, the Government wished to defend the race and religious ­discrimination claim by ­relying on secret evidence in closed proceedings.

In Al Rawi the Supreme Court held that a court does not have a common law power to order closed proceedings in ­ordinary civil claims including judicial review as an alternative to the more ­conventional Public Interest Immunity Certificates. Such a procedure is ­inconsistent with the fundamental ­common law right to natural justice, and only permissible by statute.

Lord Dyson, giving the lead judgment, said: “The right to be confronted by one’s accuser is such a fundamental element of the claimant’s right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament can do that.”

Which is precisely what the Government now intends to do. It is preparing a green paper that is expected to ­incorporate the use of closed proceedings in ordinary civil claims. Even if legislation is enacted that extends the scope of closed proceedings in ordinary civil claims, it will still have to withstand scrutiny under the Human Rights Act and be compatible with the right to a fair hearing.

In Tariq the court approved of the use of closed proceedings in Employment ­Tribunal proceedings since the regulations permit it. The court also held that a closed procedure in such proceedings was ­compatible with Article 6, and the system contained sufficient safeguards in the form of special advocates.

Had Tariq succeeded, the Government would have been obliged to rethink the system of closed proceedings in ­Employment Tribunal cases, and would have had to make some uncomfortable decisions on disclosure and whether to defend such claims. The Supreme Court clearly felt that the consequences would have been unpalatable.

Tariq Sadiq, barrister and special advocate, Devereux Chambers