Sunday, 4 March 2012

Closed Material Procedures....a necessary evil

I have blogged about this subject before - see here.  I have now read lots of material from others on this subject including from the Special Advocates and Liberty.  But nobody seems to be setting out an alternative to CMPs.  Close Material Procedures (CMPs) are not good.  They are contrary to justice and unfair.  They are however, necessary.  If we do not have CMPs in civil cases then there will be 2 outcomes worse than CMPs:
1) HMG applying to strike out meritorious claims as being too sensitive to try or 2) HMG settling unmeritorious cases.  In 1) the wronged citizen goes uncompensated and in 2) the taxpayer pays out when nothing wrong has happened. Neither are tolerable.

 PII is not the answer - that is a shield to keep sensitive evidence out of proceedings - it has nothing to do with permitting the admission of sensitive evidence to assist the claimant or HMG. In other countries lawyers are subject to security vetting and are permitted to see sensitive evidence; but must undertake on pain of jail not to show the evidence to anybody else, including their own client.  Whilst CMPs do undoubtedly create the very difficult situation of one party being represented by 2 sets of lawyers, 1 set with whom they cannot communicate but who has seen the classified evidence and 1 set with whom they can communicate but who cannot see the evidence;  but this must be preferable to being represented by lawyers who have seen the evidence and can communicate with their client on all topics save for the classified evidence.  If some Special Advocates feel frustrated at being unable to seek instructions; imagine how frustrated they would be if they were also that person's only lawyer.

CMPs at least permit all the evidence to be aired before the Court and Tribunal, no matter how sensitive, meaning that the result is far more reliable and just than if the evidence had been withheld - true justice may not have been seen to have been done, and result may have been different if the Claimant's own lawyers had seen the evidence rather than the Special Advocates - but at least there was an attempt at justice; rather than an abdication of it by use of PII or stike outs.

 I agree that there must be vigilance to ensure that CMPs are not used where there is an alternative (gisting etc) and where there is no any actual national security case (as highlighted here)....and I also think that Courts and Tribunals must decide when and where to impose CMPs (they must not be imposed by Ministers unilaterally as can currently happen in Tribunal cases) - although the Court/Tribunal must show some respect to HMG on national security matters.

CMPs are unpleasant, frustrating and I wish there was something else - but in the absence of anything else, we cannot continue to tolerate the regime of PII (which keeps evidence out of proceedings); strike outs of meritorious claims (which keeps good claims out of Court) and unjust settlements (which puts the taxpayer out of pocket for no reason)......if any of the critics of CMPs can come up with a viable alternative....let them tell us.......

1 comment:

  1. You have put entirely far arguments here. BUT ...

    The fear is that CMP will not be limited to genuine "national security" cases but would be extended to many other types of case where there might be some government interest. I think this concern is reasonably well-founded given the already considerable number of areas in which special advocates are used. (Over 14 such areas exist).

    It is also objectionable that the Minister decides and not the judge.

    Art 2 Inquests also raise considerable concern for families who would, under CMP, be excluded from parts - maybe lengthy parts - of the inquest.

    For me, the better part of the Green Paper related to improved oversight of the security services. We need to see any eventual small print but perhaps we should welcome that.