A further legal legislative controversy may be headed the government’s way once LASPO has finished it’s likely ping-pong between Lords and Commons.
The Justice and Security Green Paper published last year proposed introducing Special Advocates and Controlled Material Procedures (CMP) across all civil proceedings, including inquests.
The proposal in the Green Paper is to apply CMPs to “any civil proceedings in which sensitive material is relevant”. The CMP would apply on the decision of a Minister. The Minister’s decision would be challengeable only by way of judicial review. The government’s Independent Reviewer of Terrorism Legislation, David Anderson QC, has recently stated that he supports the measures: “it does not seem to me that the level of injustice inherent in the use of a CMP (closed material procedure) in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought”.
The argument the government rely on is the need to resolve a small number of cases which involve information which cannot, it is argued, be put before an open court for “public interest” reasons. Public interest is defined widely. The proposal has arisen as a consequence of the Binyam Mohammed case where the government argued that the security relationship between the UK and the USA was jeopardised by the decision of the Court of Appeal to require the trial of his claim against the UK government for complicity in his ill-treatment and unlawful detention by the US authorities to be held in public, and the High Court decision to require disclosure of documents to Mr Mohammed.
The measures are likely to be highly controversial amongst the legal community. Of the 69 Special Advocates currently acting in Special Immigration Appeal Commission (SIAC) and TPIMs (formerly control order) cases, 57 put their name to highly critical response to the Green Paper with the others having been consulted and not disagreed with their response. The SAs say in their response: “The introduction of such a sweeping power could be justified only by the most compelling of reasons. No such reason has been identified in the Green Paper and, in our view, none exists.”
It is notable that media as diverse as the Guardian and the Daily Mail have been campaigning against the proposals. The government’s response is expected to be a Bill included the Queen’s Speech in May.
Joanna practices across matrimonial and family law,property, housing and employment law matters. She is a member of the Council and Board of Liberty, the organisation which campaigns for human rights and civil liberties.