Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In

Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In - Human Rights Joint Committee Contents

4 Secret evidence

Secret evidence and control orders

54. In our recent report on the annual renewal of the control orders regime, we concluded that the use of secret evidence and special advocates in the control order regime, as that regime is currently designed in law and operated in practice, could not be made to operate in a way which is compatible with the requirements of basic fairness inherent in both the common law and Article 6 ECHR.[35] We reached that conclusion in light of the decision of the Grand Chamber of the European Court of Human Rights in A v UK, that the UK violated the right to have the lawfulness of detention decided by a proper court, and the unanimous decision of the House of Lords in AF, that "a trial procedure can never be considered fair if a party to it is kept in ignorance of the case against them".

The growth in the use of secret evidence

55. As JUSTICE has pointed out in its report, Secret Evidence,[36] the use of secret evidence in UK courts has grown dramatically in the past ten years. It can now be used in a wide range of cases including deportation hearings, control order proceedings, parole board cases, asset-freezing applications, employment tribunals, and even claims for damages. We note that in Binyam Mohamed's and others' claim for compensation the High Court has held that special advocates and secret evidence may be used for the first time in a civil action for damages.[37] In July 2009 the Counter-Terrorism Minister, the Rt Hon David Hanson MP, took part in an on-line debate in The Guardian On-Line about secret evidence.[38] Responding to two commentators who argued that the use of secret evidence in a growing number of contexts is increasingly resulting in unfair trials and undermining the UK's tradition of open justice, he wrote:

If you believe some commentators, you might think the government had discarded our age-old freedoms and set up a process of secret courts that operated outside our legal traditions and risked our fundamental civil liberties. The reality is far from this assertion.

56. He went on to assert that secret evidence is necessary in order to protect the public from terrorism, but, apart from a reference to the fact that the system "takes account of judgments from the European Court of Human Rights", he did not address the implications of the Strasbourg and House of Lords judgments for the widespread and growing use of secret evidence. In view of his robust defence of the use of secret evidence, we asked the Minister in oral evidence how those unanimous judgments could be explained if the Government had not put civil liberties at risk.[39]

57. The Minister responded purely in terms of how the Government had responded to those judgments in relation to control orders, that is, by reviewing the cases of the individuals currently subject to control orders and deciding whether or not to disclose further material or to drop the orders. He did not mention the use of secret evidence or special advocates in other contexts, other than to assert that he believed that the Government had considered the implications of the judgment of the European Court of Human Rights in A v UK for all other contexts in which special advocates and secret evidence are used.[40] He agreed to provide a note to confirm this. Because we were not at all confident that the Government had carried out a thoroughgoing review of the implications of the A v UK judgment for the widespread use of secret evidence, we wrote following the evidence session, asking for a comprehensive schedule of the different contexts in which secret evidence and special advocates are used, and, in relation to each, an explanation of the changes, if any, the Government has decided are necessary in the light of the Strasbourg and House of Lords judgments.[41]

58. The Government replied that it was difficult to provide a comprehensive list of all the contexts in which closed material (as it prefers to call secret evidence) and special advocates are used, because in addition to the contexts in which the use of special advocates is provided for by legislation, the courts have an inherent jurisdiction to request that the relevant law officer consider appointing special advocates if they should become necessary in a particular case where there is no such express provision.[42] However, the Government provided a list of 21 different contexts in which it was "aware" that special advocates have been or may be used. In subsequent written answers to questions asked by our Chair, the Solicitor General confirmed that special advocates had been used in 14 of the 21 contexts identified in the Government's response to our inquiry.[43] However, in a further written answer she declined to say in how many cases in each of these contexts special advocates were used, on the basis that this information is not recorded centrally and could only be obtained at disproportionate cost.[44]

The implications of recent court judgments

59. Significantly, however, the Government "does not consider that there is automatic read across of the judgment [in AF] to all other proceedings involving the use of closed material and special advocates."[45] Although it was considering whether changes to the Parole Board's procedures are needed to comply with the principle that fairness requires a minimum amount of disclosure, in relation to all other contexts the Government takes the view that "it will generally be for the courts to consider the applicability of the principle to such proceedings."[46]

60. We asked the special advocates who recently gave evidence to us in relation to control orders whether in their view the decision in AF has implications for the use of secret evidence and the role of special advocates in other types of cases. They clearly thought it did have such implications.[47] The Government argued that it did not apply to bail hearings before the Special Immigration Appeals Commission, but that argument was rejected by the court.[48] The Government also argues that the case does not apply to deportation proceedings in SIAC, on the grounds that, as it has previously argued successfully, Article 6 does not apply to such proceedings.[49] The Government has also, so far, lost the argument that AF does not apply to so-called "light touch control orders".[50] Whether the principle in AF applies in the context of employment tribunal proceedings is currently being litigated.

61. In AF, the Government sought to argue that it is not unfair to keep secret even the gist of the allegations against someone. It is now clear that the Government has lost that argument. The question is, how wide is the basis of the Court's decision. In our view, the terms in which the Government's argument was rejected are not specific to the control order regime, but may well be relevant to other contexts in which special advocates are used. Many of these uses of secret evidence are controversial. When the special advocates gave evidence to us in 2007 they expressed their concern about the extension of special advocates into other areas for which they are manifestly unsuitable.[51] In their view, special advocates provided a safeguard where they were adding some protection against otherwise purely arbitrary decision-making, but they should not be used to reduce standards of fairness where the common law, or statute, or human rights law, or Article 6 say that it is a minimum requirement that you must know the case against you.

62. The Government's response to the A and AF judgments suggest that it considers itself free to press on with the use of secret evidence and special advocates in the other contexts in which they are used, without pausing to take stock of the wider implications of these significant rulings. Although the Government says that it is considering whether changes to the Parole Board's procedures are needed, we have not seen any evidence to suggest that the Government has in fact considered the implications of the judgment of the European Court of Human Rights in A v UK for all the other contexts in which special advocates and secret evidence are used. We recommend that the Government urgently conduct a comprehensive review of the use of secret evidence and special advocates, in all contexts in which they are used, in light of the judgments of the European Court of Human Rights and the House of Lords, to ascertain how often they are used and whether their use is compatible with the minimum requirements of the right to a fair hearing as interpreted in those judgments, and to report to Parliament on the outcome of that review.

Keeping law accessible

63. The special advocates also drew to our attention another difficulty which has arisen as a result of the growing use of secret evidence: the extent to which law reporting is being impeded by closed hearings, closed arguments and closed judgments.[52] Our Chair, in a written question, asked the Minister whether the restrictions on the law reporting of control order judgements enable counsel and courts to follow precedent effectively. The Minister replied that "where sensitive intelligence material is used in control order proceedings, a closed judgment will normally be handed down by the court. These judgments cannot be made publicly available for public interest reasons. An accompanying open judgment will usually contain the court's findings on legal arguments of principle and is publicly available.[53] There are working practices which allow for judges and the special advocates appointed to act in the interests of the controlled person to access closed judgments in other cases where appropriate."

64. We are not satisfied that the Minister's answer meets the special advocates' concerns about the difficulty of distilling the relevant principles from closed judgments, or about the necessary accessibility of the law. We recommend that the Government include arrangements for law reporting in the review of the use of secret evidence that we have recommended above.

35 Report on 2010 Control Orders Renewal, above n. 3, at paras 47-98. Back

36 Secret Evidence, JUSTICE, June 2009 Back

37 Al Rawi and others v The Security Service and others [2009] EWHC 2959.Judgment is pending from the Court of Appeal. Back

38 "The case for secret evidence", Guardian Online, Thursday 16 July 2009. Back

39 Q72, Ev 10 Back

40 Q85, Ev 12 Back

41 Letter to David Hanson, 17 December 2009, published in Report on 2010 Control Orders Renewal, abov n. 3, at p. 48. Back

42 Letter from David Hanson, 13 January 2010, above n. 10. Back

43 HC Deb, 22 Feb 2010 cols 245W and382W Back

44 HC Deb, 3 Mar 2010, col. 1191W Back

45 Letter from David Hanson, 13 January 2010, above n. 10. Back

46 Ibid. Back