Tuesday, 1 May 2012

Closed Material Procedures...squaring the circle

Looks like Mitting J is making my point for me- as set out in my post here- he wants to explore in a two day permission hearing whether he can impose CMPs on a judicial review challenging the lawfulness of information supplied by our intelligence agencies to their US counterparts -

according to the Telegraph:

Mr Justice Mitting has raised the prospect that a case being brought against the Foreign Office by the son of a drone strike victim could only be heard behind closed doors, because of the national security implications.
As I said in my earlier post - there are some cases which can only be heard using CMPs - and in their absence all that can be done is settlement or strike out - as the solicitor for the Claimant realises (as qouted by the Telegraph)

If the hearing decides that the case cannot be heard in public, it would be struck out but Mr Stein said he would appeal against any such ruling.

I also note that Tim Otty QC (who has acted as the open advocate for the claimant in many of these cases) has published an article on this subject in which he says many good and laudable things; but fails to come up with an answer to the conumdrum of how national security claims are to be fairly considered by a Court....he seems to be barking up the wrong tree - claiming that PII does not damage national security:

There is no evidence that the existing PII system jeopardises national security. Either the Court rules in the Government’s favour on a PII application, in which case, by definition, no material is released. Or, if it rules against it, and the view of the Government remains that national security would be jeopardised then it is open to the Government to take a range of steps: either to concede the relevant point so as to render the disclosure irrelevant, or to concede the claim so as to bring an end to the proceedings. Again, on both bases, no material would be released.

But that rather makes the point - without CMPs and with only PII, then HMG has open to it a very attractive set of options: concede the evidential point or settle -  Otty does not appear capable of seeing that such a situation is as much a denial of justice to one side (the State - the taxpayer) as it is for claims to be struck out in the manner proposed by Mitting J above.

The circle needs to be squared - and CMPs are, despite their ugly unattractive qualities, the square.

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