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Closed MaterialNicholas Phillips

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Vol. 36 No. 8 · 17 April 2014

Closed Material

Nicholas Phillips on the problems posed by the use of secret evidence

It is my habit​ every morning to cycle to Hampstead Heath and to swim in a bathing pond there. My return route takes me up Downshire Hill, a broad street lined with the homes of the very rich. One house always used to puzzle me. It was very poorly maintained and swathed in invasive ivy. Then, one day in 2006, there was something about it in my local newspaper. The owner was an 86-year-old man called Allan Chappelow, a recluse who had rarely left the house in his later years. He had been found dead under a metre high pile of papers in a room filled with rotting furniture. A suspect was apprehended: a Chinese exile called Wang Yam. He was charged with murder. The Old Bailey jury was told he had battered Chappelow to death ‘like a seal pup on an ice floe, with more blood than Sweeney Todd’. Very unusually, a large part of his trial was held in camera, because apparently Wang Yam had some link with the security services, which he wished to rely on by way of defence. He was convicted of murder and an appeal dismissed. He then applied to the European Court of Human Rights, claiming that holding part of his trial in secret had infringed his right to a fair trial under Article 6 of the European Convention on Human Rights. We are still waiting for the result of his application.

There are practices in our jurisdiction far more radical than holding a hearing in private, for example when one party, almost inevitably the state, puts before the court evidence that is not merely concealed from the public, but from the other party. This is known as ‘closed material’.

The story starts with the case of Karamjit Singh Chahal, a Sikh separatist who in 1990 sought asylum in England on the ground that his life would be threatened if he was returned to India. His claim to asylum was refused and an order for his deportation made on the basis that his continued presence was not conducive to the public good for reasons of national security. An order was also made for his detention pending deportation. In making this order the secretary of state took into account the recommendations of an advisory panel chaired by a member of the Court of Appeal. Chahal was not permitted to know what material was considered by this panel or what advice it gave to the secretary of state. His challenge to the deportation order in judicial review proceedings failed on the ground that, because the court could not review the evidence on which the secretary of state had taken his decision, it could not be shown to be unlawful.

Chahal applied to Strasbourg, which directed a stay of his deportation and then delivered a judgment which did not please the British government. First, it held that Chahal could not be deported because he would face a real risk of torture or inhuman treatment if he was returned to India. It did not matter that he might pose a serious threat to the security of the United Kingdom if allowed to remain. Second, he could not be detained in the UK by executive act: his detention had to be according to law. Third, and critically for present purposes, the court held that Article 13 of the convention had been infringed. This states that ‘Everyone whose rights and freedoms … are violated shall have an effective remedy.’

Judicial review had not provided Chahal with an effective remedy because he had not been informed of the evidence that had led to the home secretary’s decision. As to this, Strasbourg commended a procedure used in Canada to deal with confidential material, which Amnesty International and other interveners had outlined. The court summarised it:

a Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarising, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the state’s case.

I believe this oversimplified the position in Canada, where there has been a considerable volume of litigation in relation to closed material. Be that as it may, the Strasbourg court’s comment provided the inspiration for legislation in this country, and, in 1997 the Special Immigration Appeals Commission or SIAC was created to hear appeals in immigration or deportation cases where evidence is involved whose disclosure would be a threat to national security. The act permits such evidence, referred to as ‘closed material’, to be placed before SIAC in the absence of the appellant or his counsel. The act also makes provision for the appointment of a special advocate, a barrister with security clearance, whose role is to represent the appellant’s interests. He can do so by making submissions to SIAC at hearings from which the appellant is excluded, by cross-examining witnesses at such hearings and by making written submissions to SIAC. But once the special advocate has seen the closed material he is no longer permitted to communicate with the appellant. Thus he is unable to take instructions from the appellant in relation to the case against him.

Parliament also applied this closed material procedure in a number of areas where sensitive evidence was likely to be important, such as the anti-terrorist legislation passed in response to 9/11. The Terrorism, Crime and Security Act of 2001 conferred on the secretary of state the power to detain without trial an alien he suspected of being a terrorist but was unable to deport because the suspect would risk torture or inhuman treatment on being repatriated. In 2004, however, this legislation was declared to infringe the Convention on Human Rights by the House of Lords in what I rate as its most impressive decision in my lifetime, a case titled simply A v. Home Secretary. Some of the suspects who had been detained under it subsequently took their cases to Strasbourg to seek compensation.

Parliament’s response to this rebuff was to pass the Prevention of Terrorism Act 2005. This entitled the home secretary, instead of detaining a terrorist suspect without trial, to impose on him a control order that greatly restricted his liberty. The act permitted this when the home secretary had reasonable grounds for thinking the suspect was carrying out terrorist activities and considered a control order necessary to protect the public. The decision was to be reviewed by the court under special rules designed to protect sensitive information.

Those rules made provision for the use of the closed material procedure. Terrorist suspects who were subjected to control orders lost no time in challenging them on the grounds, inter alia, that the closed material procedure infringed their right to a fair trial under Article 6 of the European Convention. As Master of the Rolls I presided over the 2006 appeal of one such gentleman, referred to as MB (Secretary of State for the Home Department v. MB). In his case the justification for the control order was based exclusively on closed material to which he had had no access. Despite this, we held, on the basis of an earlier decision of the Court of Appeal, which was binding on us, that the procedure provided sufficient safeguards for the suspect to satisfy the fair trial requirements of Article 6.

MB appealed to the House of Lords, together with another suspect, AF, who had also been subjected to a control order founded solely on closed material. Lord Hoffmann considered that the closed material procedure had received the blessing of the Strasbourg court and therefore satisfied the requirements of Article 6. The other four law lords who sat on the appeal were agreed only that the compatibility of the closed material procedure with the Article 6 right to a fair trial depended on the facts of the particular case. Lord Bingham believed it essential that the suspect should have enough knowledge about the case against him to make it possible to challenge or rebut it effectively, and the others agreed that this was generally the position. Lady Hale and Lord Brown, however, appeared to accept, at least on one reading of their judgments, that if the closed material was so cogent that it appeared incapable of rebuttal, Article 6 could be satisfied even if the suspect had no knowledge of the nature of that material.

The question of what exactly the House of Lords decided in MB divided the Court of Appeal in another case involving control orders heard in 2008, AF and Others v. Home Secretary. The majority, Sir Anthony Clarke, Master of the Rolls, and Lord Justice Waller, held that

there is no principle that the hearing will be unfair in the absence of open disclosure to the controlee of an irreducible minimum of allegation or evidence. Alternatively, if there is, the irreducible minimum can, depending on the circumstances, be met by disclosure of as little information as was provided to AF, which was very little indeed.

Lord Justice Sedley did not agree. He did not accept that there could ever be a case where the evidence was so compelling that there was no point in giving the controlee the chance to rebut it. He said:

It is in my respectful view seductively easy to conclude that there can be no answer to a case of which you have only heard one side. There can be few practising lawyers who have not had the experience of resuming their seat in a state of hubristic satisfaction, having called a respectable witness to give apparently cast-iron evidence, only to see it reduced to wreckage by ten minutes of well-informed cross-examination.

The confusion the House of Lords had generated led the Court of Appeal, very unusually, itself to give permission to appeal. By this time I had been appointed the senior law lord in succession to Lord Bingham. We decided the case was so important that we would sit nine strong to hear it, rather than the usual five. About a week before the appeal was to be heard, the Grand Chamber at Strasbourg gave judgment in the case of A, the terrorist suspect who had succeeded so dramatically in persuading the House of Lords to destroy the government’s anti-terrorism legislation.

The Grand Chamber dealt expressly with the question of whether it could be compatible with fair process to base a decision on evidence that was not disclosed to the suspect and found that ‘where … the open material consisted purely of general assertions and [the] decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of [fair process] were not satisfied.’

Unanimously we held that we were bound to apply the Grand Chamber’s decision. Lord Rodger did so in Latin: ‘“Argentoratum locutum, iudicium finitum,” Strasbourg has spoken, the case is closed.’ I summarised the position as follows: ‘The Grand Chamber has now made clear that non-disclosure cannot go so far as to deny a party knowledge of the essence of the case against him, at least where he is at risk of consequences as severe as those normally imposed under a control order.’ That final proviso was significant. Where a severe invasion of a party’s rights is in issue, the demands of a fair trial require that he be given enough of the gist of the case against him to enable him to provide an answer where he has one. The word ‘gisting’ was coined to describe this exercise. Another significant aspect of the Grand Chamber’s judgment was that it accepted that the closed material procedure could legitimately be used in respect of evidence that would be damaging to national security if disclosed, provided it did not constitute the sole or decisive evidence against the party who was denied sight of it.

A number of cases have since come to the Supreme Court raising the propriety of using the closed material procedure in various circumstances not involving the deprivation of liberty of the party challenging the procedure. I presided over the 2009 appeal of three aliens who were seeking to resist deportation on the ground that they faced a real risk of torture or inhuman treatment if they were sent home, two to Algeria and one to Jordan: RB & U (Algeria); O (Jordan). SIAC admitted closed material, on the strength of which it ruled that there was no such risk. The deportees challenged SIAC’s decisions, arguing that the admission of closed material had vitiated the fairness of the proceedings. We rejected that challenge.

I held that, when considering the safety of a deportee, there might well be sensitive material in the form of confidential exchanges between ministers or diplomats whose disclosure would prejudice international relations and it was unlikely that the deportee would be in a position to challenge such evidence. I added:

It is true that, if the deportee will be at real risk of a violation of his human rights on return to his own country, this is likely to be because of facts that are personal to him. The difference is that he will normally be aware of those facts and indeed he will be relying on them to establish the risk that he faces on his return. His situation is not that of an individual who is unaware of the case that is made against him.

Subsequent events suggest that I was a little over-sanguine in suggesting that deportees would not be in a position to challenge the effect of confidential diplomatic exchanges. In March 2012 we heard appeals from a number of Algerians who were resisting being sent back to Algeria on the ground that they would be tortured or suffer inhuman treatment at the hands of the authorities (W and Others v. Home Secretary). The Algerian authorities had given undertakings to the UK that, if the Algerians were deported, they would be humanely treated. But the deportees had a source of information in Algeria whose evidence, so they alleged, would show that these undertakings could not be relied on. That source, however, feared for his life if the Algerian authorities discovered that he had blown the whistle on them. He was prepared for his evidence to go before SIAC only if SIAC made a pre-emptive and irrevocable order prohibiting the secretary of state from disclosing the evidence to anyone. Theresa May challenged the power of SIAC to make such an order. She said that the nature of the evidence might be such that she would be honour-bound to pass it on to others in the interests of security and that she must, at very least, be permitted to apply to SIAC to lift the embargo on her doing so. The trouble with that submission was that if there were a possibility that the embargo would be lifted the evidence would never be disclosed in the first place. The home secretary’s plea succeeded in the Court of Appeal, but we reversed their decision. We held that SIAC had jurisdiction to make such an order and that we could envisage circumstances in which it would be just to do so. Strictly, this case was not about closed material, because the material would be disclosed to both parties, but since it would not be disclosed to anyone else it falls into the category of secret justice.

The Supreme Court, sitting nine strong once more, heard a pair of cases about closed material one immediately after the other in 2011. I shall take the second case first. This was an appeal by a Mr Tariq. His complaint was that he had lost his job for reasons that had not been fully disclosed to him, because they had been placed before the employment tribunal under the closed material procedure. His job as an immigration officer required security clearance. His security clearance had been withdrawn. He brought a claim alleging that he had been the victim of racial discrimination. The Home Office successfully applied for the use of the closed material procedure under the relevant rules, but the employment appeal tribunal ruled that Article 6 of the Human Rights Convention required that Tariq be given the gist of the case contained in the materials. The Court of Appeal upheld that ruling. Tariq appealed against the order for the closed material procedure. The Home Office appealed against the order that it had to disclose to him the gist of the case against him.

Tariq relied on the jurisprudence both of the Strasbourg court, which is the creature of the Council of Europe, and of the Luxembourg court, which is the creature of the European Union. Broadly speaking, the Luxembourg court applies Strasbourg law where human rights are in play. Tariq’s case was that he was entitled to effective legal protection of his right not to be subjected to discrimination and that the closed material procedure was incompatible with this, in that it denied him a fair trial. We rejected this argument. We held that in the context of security clearance, if the use of closed material was necessary to protect national security, the closed material procedure satisfied the requirements of a fair trial. Perhaps more significantly, we went on to allow the home secretary’s cross-appeal. We held that there was no absolute requirement to give to Mr Tariq the gist of the case against him in sufficient detail to instruct lawyers in relation to it.

As a result​ of these judgments the use of the closed material procedure is now established in the UK in respect of public law claims that involve evidence whose disclosure might damage national security. The Strasbourg court has given qualified approval to this, subject at least in some circumstances to an obligation to disclose the gist of the case against the party denied access to the closed material in sufficient detail to enable him to meet that case. The English court has approved the use of closed material in some circumstances without requiring gisting, but the Strasbourg court may well have more to say on this. The important thing to note is that these have all been public law cases. The exponential growth of judicial review in my lifetime in the law has seen the courts entertaining challenges to government actions involving national security where, in the past, they would have held that the issue was not justiciable. One can therefore understand the government’s insistence that a closed material procedure will sometimes be necessary.

The appeal in a very different kind of case was heard at the same time as Tariq. Al Rawi and Others v. The Security Service and Others was an appeal by the Security Service (MI5) and other organs of the state who were defendants in civil claims for damages brought by Mr Al Rawi and others. The claimants alleged that the security services had been complicit in their ill-treatment by foreign authorities, notably the US, at various locations including Guantánamo Bay. The claims were for false imprisonment, trespass to the person, conspiracy to injure, torture and breach of the Human Rights Act. They were precursors of a number of claims by individuals who claimed that the British authorities had been party to their unlawful rendition to countries where they were subjected to torture.

These claims inevitably involved investigation of the co-operation between the security services of the UK and those of other friendly countries. Plainly, much of the relevant evidence would be subject to a claim for public interest immunity. (It is a rule of our civil procedure that each party must disclose to the other all the relevant documents that he possesses. Where the state contends that disclosure of some of the documents would be contrary to the public interest it can claim public interest immunity. If the claim succeeds, the documents in question will not be disclosed or put in evidence at the trial.) The documents involved were voluminous and the exacting exercise of mounting a claim for PII, which calls for personal consideration of the documents by a minister, was said to be capable of taking up to three years. In addition, the security services would want to rely on some of the sensitive documents in defending the claims. They had what seems to have appeared to them to be an inspired idea. Why not, instead of going through the laborious process of scrutinising the documents in order to put forward a claim for PII, apply the closed material procedure?

This would mean that, instead of excluding relevant documents from consideration by the trial judge, which would be the consequence of a successful claim for PII, his judgment could be based on the entirety of the relevant evidence, although the closed material would only be seen by one side. And so the security services applied for the closed material procedure to be adopted. The claimants challenged the jurisdiction of the court to make such an order. This led to an order for the trial of the issue of whether a court could order that a closed material procedure be adopted in a civil claim for damages. The trial judge ruled that it could. The Court of Appeal reversed his ruling, holding that the courts had no common law power to adopt a procedure that was so flagrantly at odds with the fundamental requirements of a fair trial. At this point the security services settled the claims against them, without admission of liability.

The security services were anxious, however, to resolve the issue of whether it could ever be legitimate to use the closed material procedure in respect of a civil claim for damages. The Supreme Court agreed to entertain the state’s appeal against the Court of Appeal’s decision that it could not. On reflection I am not sure that we were wise to do so. We were unable to agree. Four members of the court, Lords Dyson, Hope, Kerr and Brown, were of the view that there were no circumstances in which the court could properly introduce the closed material procedure into civil litigation. They held that only Parliament could take such a radical step. Lady Hale, Lord Mance and Lord Clarke rejected the security services’ contention that the procedure could be introduced in place of the normal disclosure procedure, but held that one could not exclude a common law power to introduce the procedure where the alternative would be to exclude evidence altogether under public interest immunity. I said that it was not right to consider this hypothetical situation unless and until it actually arose in practice. Lord Rodger died before writing a judgment, but had indicated that he agreed with the majority.

‘The right to be informed of the case made against you,’ Lord Kerr wrote,

is not merely a feature of the adversarial system of trial, it is an elementary and essential prerequisite of fairness … the key nature of this right and its utter indispensability to the fairness of proceedings must occupy centre stage in the debate as to whether it may be compromised … To be truly valuable, evidence must be capable of withstanding challenge.

I go further. Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial.

Lord Hope agreed:

Choices as to how the conduct of the court’s business may be simplified, made less expensive or made easier to understand are one thing. Choices that cut across absolutely fundamental principles, such as the right to a fair trial, the right to be confronted by one’s accusers and the right to know the reasons for the outcome are entirely different. The court has for centuries held the line as the guardian of these fundamental principles.

Our judgment in the Al Rawi case was delivered on 13 July 2011. The government’s response was immediate. In October 2011 it published a green paper on justice and security that included proposals to introduce the closed material procedure not merely into civil proceedings but also into inquests. The proposal was that the procedure would apply whenever the secretary of state decided that sensitive material would cause damage ‘to the public interest’ if openly disclosed. This caused something of a furore.

The​ Justice and Security Bill, published on 28 May 2012, did not extend the use of closed material to inquests and narrowed the scope of the proposals to material whose disclosure would pose a threat to national security. The bill allowed the secretary of state to apply for the use of the closed material procedure in any civil proceedings. It made it mandatory for the court to permit the use of the procedure if it considered that disclosure of the material would be ‘damaging to the interests of national security’. It stipulated that if the court permitted the use of the closed material procedure, it would have to consider requiring the party using that procedure to provide the gist of the material, but that should not include material that would be damaging to national security.

Significantly, in contrast to the approach of a court considering an application for public interest immunity, no test of proportionality would apply: the court would not be permitted to weigh the risk of damage to national security against the desirability of open justice. Since the court would be unlikely to challenge the secretary of state’s submission that the disclosure of material would cause some damage to the interests of national security, in practice it would be the secretary of state and not the court that would decide whether the procedure should be used. This was, I believe, quite deliberate. In Binyam Mohamed v. Foreign Secretary it had been used to protect material that had been disclosed in confidence to the British intelligence services by the US intelligence services. That material had then come into the public domain in the US. The foreign secretary argued that it would nonetheless damage British-US relations if it was made public by the English court. The Court of Appeal overrode this objection and ordered that the part of the closed judgment that referred to this material be brought into the open. It is said that this event made the US services more diffident about what they disclosed to their English counterparts. In these circumstances one can understand the government wanting to wrest from the court the power to decide when the closed material procedure should be used.

The draft bill provoked almost as much controversy as the green paper. There were those who were opposed in principle to the introduction of a closed material procedure into civil justice, regardless of the justification advanced. A greater number challenged the justification for so extreme a measure. The government’s case was that the UK was being subjected to unmeritorious claims by aliens who might well be involved in terrorism and who were relying on the fact that the country would not be able to put into the public domain sensitive material vital to the defence of the claim. In these circumstances the UK was being forced to pay millions of pounds to settle unmeritorious claims – thereby potentially subsidising terrorism. Those who had the security clearance needed to become special advocates were sceptical about this assertion and asked to be shown examples of such cases. This request was refused and so the special advocates decided to oppose the introduction of the procedure into civil litigation on the basis that they did not believe their participation would provide an effective safeguard against injustice. Many, including the Joint Committee on Human Rights, held that the use of the procedure might be justified in rare cases, but it must be for judges and not the executive to decide when this was.

The bill was first introduced in the House of Lords, and I took part in some of the debate. I accepted, reluctantly, that there was a case for the use of the closed material procedure in civil litigation in exceptional cases, but suggested that it was essential that any legislation should be acceptable to Strasbourg: in other words, the decision had to be taken by judges, and only as a last resort. In spirited debate the government was heavily defeated and the bill amended so as to give the judge discretion as to whether to permit an application for the use of the procedure. Once he had allowed the application, the bill required the judge to accede to it if he felt disclosure of the material would be damaging to national security. An amendment to make gisting compulsory failed. It was left to the judge whether to order it and, if he did, he was obliged to see that there was no material disclosed which would be damaging to national security. In many cases this would obviously make gisting impossible.

The bill then proceeded to the House of Commons. There was strong opposition, both within the Commons and outside it, to the introduction of the closed material procedure into civil proceedings. In this climate the amendments made by the Lords were widely welcomed in the Commons, and the government indicated that it would allow most of them to stand. As the Bill reached the committee stage I was preparing to leave England for a month in New Zealand. The day before I was due to fly I was approached by Ken Clarke, the minister responsible for piloting the bill through the Commons. I was told he had tabled amendments which conferred on the judge total discretion as to whether or not to make an order for the closed material procedure. In the light of this I was invited to put my name to an open letter written by Lord Woolf supporting the bill on the basis that it now ensured we retained ‘our standards of general justice’. Clarke asked me to meet him to discuss this matter. I was relieved that my imminent departure meant that the meeting could not take place. Although I had given qualified support to the bill in the Lords, this was not without grave misgivings, and I was not anxious to join the ranks of those who were promoting this change in the law.

In the event Lord Woolf’s letter proved contentious. Many did not consider that the Commons amendments went far enough, as became apparent when the bill returned to the Lords, just before I returned from New Zealand. The provisions dealing with the closed material procedure are quite complex, but the changes made by the amendments can easily be summarised. First, the court is given discretion as to whether to permit an application for its use. Second, the court can permit an application only when satisfied that it is ‘in the interests of the fair and effective administration of justice in the proceedings’ to do so. Third, the court may revoke its permission if at any time it considers that the use of closed material is no longer ‘in the interests of the fair and effective administration of justice’.

Amendments​ were moved when the bill returned to the Lords on the ground that the test of the ‘fair and effective administration of justice’ did not go far enough. Lord Beecham proposed that the use of closed material should be subject to a further condition, namely that ‘the court considers that a fair determination of the proceedings is not possible by any other means.’

The second relevant amendment was that of Lord Macdonald, the former director of public prosecutions, which proposed to prevent a judge from ordering the procedure unless satisfied that the damage the disclosure would do to national security would outweigh the public interest in the fair and open administration of justice. This amendment was more radical than Lord Beecham’s, indeed it was described in debate as a ‘wrecking amendment’ on the basis, presumably, that some judges might think that nothing could outweigh the fair and open administration of justice.

Some of those opposing Lord Macdonald’s amendment, including Lord Woolf, did so on the basis that it was unnecessary because the court would always have regard to the desire for openness when applying the test of the fair and effective administration of justice. They cited a statement made by Lord Neuberger, the president of the Supreme Court, in the recent case of Bank Mellat v. HM Treasury. ‘No judge can face with equanimity,’ Neuberger had said,

the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented at the hearing and not even knowing what is said either at the hearing or in a judgment in so far as it discusses what was said or produced by way of evidence at the closed hearing.

But Lord Neuberger made this statement while explaining that the Supreme Court would, if absolutely necessary, sit in closed session to consider closed material and a closed judgment based on it, in proceedings where Parliament had made provision for the closed material procedure.

Those who spoke in favour of the amendments included Lord Simon Brown, who had sat on the Al Rawi case in the Supreme Court. He concluded a carefully reasoned speech by claiming that

closed hearings are of course a price worth paying in a tiny handful of cases that cannot otherwise be fairly tried at all – cases where either the Crown or the taxpayer simply pays up – or where, in an equally unpalatable option, the claim must be struck out as not fairly triable at all, but those cases must be kept to an absolute minimum … on this highly sensitive issue – one which rightly exercises innumerable people up and down the land – these amendments would send out important salutary messages. They would demonstrate to the wider world that the House is truly alive to the critical importance of open justice as a guiding principle of our law.

The Lords divided on Lord Beecham’s amendment, and by the narrow majority of 174 to 158 it was defeated. In the light of that result Lord Macdonald did not move his amendment. Had I been there I would have voted with the minority.

As long as eight years ago, in Roberts v. Parole Board, the House of Lords, by a majority of three to two, approved the legitimacy of the closed material procedure when deciding whether a prisoner should be given parole. The majority considered that its use was justified in relation to evidence provided by a fellow prisoner concerning the applicant for parole. For obvious reasons this could not be disclosed to the applicant. Lord Bingham, who was in the minority opposing the use, cited two passages from judgments from 1963 and 1965 in Re K (infants). The first was that of Lord Justice Upjohn in the Court of Appeal:

It seems to be fundamental to any judicial inquiry that a person or other properly interested party must have the right to see all the information put before the judge, to comment on it, to challenge it and, if needs be, to combat it, and to try to establish by contrary evidence that it is wrong.

It cannot be withheld from him in whole or in part. If it is so withheld and yet the judge takes such information into account in reaching his conclusion without disclosure to those parties who are properly and naturally vitally concerned, the proceedings cannot be described as judicial.

In the House of Lords Lord Devlin said that the ‘ordinary principles of a judicial inquiry’

include the rules that all justice shall be done openly and that it shall be done only after a fair hearing; and also the rule that is in point here, namely that judgment is given only on evidence that is made known to all parties. Some of these principles are so fundamental that they must be observed by everyone who is acting judicially whether he is sitting in a court of law or not; and these are called the principles of natural justice. The rule in point here is undoubtedly one of those.

The closed material procedure is in stark conflict with these statements. It may be justified in exceptional cases where claimants are relying on the fact that the government cannot afford to permit into the public arena material that will damage national security in an attempt to extort money by specious claims. There is a danger that familiarity with the use of such a procedure will sedate those who use it against the abhorrence that the need to resort to such means should provoke. I would have been happier had the bill stated that it could be used only as a last resort. But the die is cast, the bill is passed.

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