Friday, 6 January 2012

National Security and Civil Claims

Lots of people are suing HMG alleging loss and damage at the hands of operatives who usually operate in conditions of total secrecy.  HMG can only defend itself from such allegations by relying on evidence which cannot see the light of day.  Public interest immunity is not the answer as that is a shield against permitting inspection of otherwise relevant evidence; it is not a means of permitting HMG to use classified evidence to protect itself (and all the tax payers who have to foot the damages bill).  Following the Supreme Court judgment in Al Rawi, C(losed) M(aterial) P(rocedures) cannot be used in civil damages cases.  CMPs are used in certain immigration and control order (now TPIM) cases to disclose secret evidence to Special Advocates (SAs) who represent HMG's opponents alongside their own representatives but without being able to take instructions once they have seen the sensitive material.    The main role of the SA is to persuade the Court and HMG to disclose as much as possible of the sensitive material to HMG's opponent, usually by way of redaction and gisting.  The SA can also test and challenge the closed material, but without the opponent's instructions or input.  Such procedures have been held to be article 6 compliant ( A v United Kingdom (2009) 49 EHRR 29).  Without them HMG only has the blunt instruments of being unable to defend itself and settling claims which may have no merit (not fair on tax payers) or applying to strike out claims on the basis that they involve issues which are so secret they are effectively non-justicable (not fair on claimants with real claims)(see Carnduff v Rock [2001] EWCA Civ 680[2001] 1 WLR 1786).  Closed Material Procedures are not ideal, but it is hard to see what the alternative is if greater injustice is to be avoided.  One reform I would welcome is for SAs to be able to communicate with those who represent HMG's opponents, save for permitting them to disclose classified materials, the current total ban on communication seems a little too draconian (and indeed does not apply in Employment Tribunals).  In the US and in some proceedings in the UK, the opponent's legal teams have been appropriately vetted, permitted access to secret material and have then then promised not to disclose it to their own clients.  This puts them in an invidious position, but some think it better than having Special Advocates.  HMG is consulting about all of this and the Special Advocates themselves have also responded in critical terms.   The consultation closes today and we await the results....

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