European Human Rights Law and the Normalisation of the ‘Closed Material Procedure’: Limit or Source?
| DOI | http://doi.org/10.1111/1468-2230.12155 |
| Date | 01 November 2015 |
| Published date | 01 November 2015 |
European Human Rights Law and the Normalisation of
the ‘Closed Material Procedure’: Limit or Source?
Eva Nanopoulos*
Once a legal abnormality that was criticised on human rights grounds, the closed material
procedure (CMP) has now become the main mechanism for dealing with allegedly sensitive
security information in the UK. This article considers the role of European human rights law in
that process. It argues that the CMP can be conceptualised as the product of human rights law,
which has developed so as to legalise and normalise its use, and that this process is symptomatic
of a deeper inter-relationship between human rights law and the preservation of states’ security
interests, which renders the former inherently unsuitable for dealing with security phenomena.
INTRODUCTION
The relationship between human rights and security has always attracted con-
siderable scholarly attention, particularly in the post-9/11 era.1This article
considers that relationship in the particular context of the closed material pro-
cedure (CMP), which enables the executive to produce before the courts
evidence that has not been disclosed to the other (non-governmental) party.
More specifically, it investigates the role played by European human rights law
in what can be described as a normalisation of the mechanism in the UK where
the CMP’s expansion has been such that it can no longer be characterised as an
exceptional process but rather as the predominant mechanism for dealing with
allegedly sensitive security information.
The approach put forward in this article draws from a number of paradoxes.
Whilst the CMP has been repeatedly criticised on human rights grounds, recent
rulings have confirmed that the procedure is not incompatible with fair trial
rights.2As such, there is a discrepancy between the discourse and the law, the
theory and the practice: human rights law does not appear to match what even
proponents – let alone sceptics – of human rights consider to be acceptable
standards of justice or fairness, which the right to a fair trial seeks to uphold.
*College Lecturer at King’s College, Cambridge and Affiliated Lecturer at the Faculty of Law,
University of Cambridge. My thanks are due to Marie-Bénédicte Dembour and Francesco Messineo,
as well as the two anonymous referees for very helpful comments on earlier drafts. Thanks are also due
to the organisers of the ‘State in situ? Rethinking the Trial’ stream of the 2015 Critical Legal Studies
Conferences at the University of Sussex, where an early version of the paper was presented. Any errors
remain my own.
1 See for example, C. Gearty, Liberty and Security (Cambridge: Polity Press, 2013); B. J. Goold and
L. Lazarus (eds), Security and Human Rights (Oxford and Portland: Hart, 2007); I. Cameron,
National Security and the European Convention on Human Rights (The Hague: Kluwer Law Inter-
national, 2000).
2AvUK (2009) 49 EHRR 29 and Case C-300/11 ZZ vSecretary of State for the Home Department
judgment of 4 June 2013, nyr.
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© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(6) MLR 913–944
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Remarkably the contradiction is present even within accounts of the law itself:
thus a recent report commissioned by the European Parliament warned that the
UK practice of CMPs threatens European fundamental rights and rule of law
standards,3even though its compatibility with EU law has been explicitly
endorsed and the situation in the EU is not particularly more promising than in
the UK.
In fact, human rights law may not only have failed to meet expectations but may
actually lie at the very root of the problem. Particularly following 9/11, there is a
temptation to view arrangements such as the CMP as responses to the terrorist
emergency that gradually become normalised. And in respect of human rights,
such phenomena are seen as the product of some kind of shift in the balance
between human rights and security created by, and sustained in the aftermath of,
the emergency.4This view is somewhat reductive in this context. The general
pro-security climate post-9/11 undoubtedly facilitated the institutionalisation of
the CMP. But counter-terrorism was not itself the trigger or justification for the
introduction of the CMP, nor the main driver behind its growth. By the same
token, nor is it convincing to see the CMP as a response to a broader and sudden
securitisation of the state or the international community, requiring new types of
arrangements previously not contemplated by the human rights discourse. On the
contrary, secrecy has always been part of the operation of the security and
intelligence services5and international cooperation between them.6
One difference in modern times, however, is that such practices are increasingly
difficult to conceal. Technological advances have undoubtedly played a crucial
role by facilitating the discovery of information and its dissemination to the wider
public. The magnitude of the Manning or Snowden leaks, for example, would
hardly have been conceivable before the digital age. But the human rights project
has also had its own share of inconvenient consequences for the state. In the
particular context of the adjudicatory process, it rendered security and other
practices more vulnerable to being exposed as a result of individuals being granted
legal rights that seemingly require the actions of the state to be scrutinised in open
court. In that sense, 9/11 magnified the problem as increased – and controversial7
3 D. Bigo, S. Carrera, N. Hernanz and A. Scherrer, ‘National Security and Secret Evidence in
Legislation and before the Courts: Exploring the Challenges’ December 2014 (the LIBE report)
http://www.europarl.europa.eu/RegData/etudes/STUD/2014/509991/
IPOL_STU%282014%29509991_EN.pdf (last accessed 10 July 2015).
4 On the discourse of exceptionalism in the war of terror, see A. W. Neal Exceptionalism and the
Politics of Counter-Terrorism. Liberty, Security and the War on Terror (Abingdon: Routledge, 2011).
5 For an account of secrecy in the UK, see C. Moran, Classified: Secrecy and the State in Modern Britain
(Cambridge: CUP, 2013).
6 For example, whilst publicly available only since 2010, the United Kingdom – United States of
America Agreement (UKUSA) on cooperation in signal intelligence concluded between the
so-called ‘Five Eyes’ (the UK, the US, Australia, Canada and New Zealand) has been in place
since the second world war.
7 Among the latest discoveries, one finds mass surveillance and the uncovering of the use of
enhanced interrogation techniques (aka torture) by the CIA in a recent Senate report. On the
former, the Investigatory Powers Tribunal concluded that the UK Government Communications
Headquarters (GCHQ) acted unlawfully by using information gathered by the US National
Security Agency (NSA). See Liberty (The National Council of Civil Liberties) vSecretary of State for
Foreign and Commonwealth [2015] UKIPTrib 13_77-H.
Normalisation of Closed Material Procedure
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited.
914 (2015) 78(6) MLR 913–944
– counter-terrorism activities and measures impinging upon individual rights
resulted in more litigation before the court and more pressure on government
agencies to disclose their practices.
Against this background, this article argues that one possible way to concep-
tualise the CMP is as the product not of a particular historical conjuncture, but
of the encounter between human rights law and what is sometimes described as
the ‘deep’ or ‘secret’ state. Far from illustrating a recalibration of human rights
triggered by some kind of external factor, the CMP would therefore constitute
the specific human rights law solution to the state’s need to preserve its interests
in the modern human rights era.8This understanding of the relationship between
the CMP and human rights law not only explains the legalisation of the
procedure but also necessarily implies that, if the inter-relationship between
governmental interests and human rights is to operate without seriously threat-
ening the credibility of human rights law as a constraint on power, human rights
law will have to develop so as to normalise the CMP.
The argument adds to the numerous sceptical voices about human rights.9At
its core, it builds on the idea of an inherent tension – a ‘constitutive political
ambiguity’10 – between the state being both the source and subject of human
rights law. Indeed, to the extent that positive human rights entitlements –
whether resulting from a constitutional or legislative document or from the
state’s consent11 to be bound by international/European human rights law – are
themselves contingent upon the continuity of the state, there is necessarily a
breaking point where human rights law will seek to accommodate rather than
undermine particular state interests. But the analysis itself borrows from broader
themes of traditional human rights critiques.12 Indeed, whilst the tension is legally
illustrated by the numerous derogation, exception and restriction clauses typical
of international human rights instruments,13 the point here is broader in that it
8 By ‘human rights law era’ I simply mean an era where rights dominate the legal arena. I do not
intend to reflect or pass judgment on whether rights existed before their declaration as positive
legal entitlements. On the former phenomenon, see L. Henkin, The Age of Rights (Oxford: Hart,
2000). On the latter question see, among many, U. Baxi, ‘Reinventing Human Rights in an Era
of Hyper-Globalisation: a Few Wayside Remarks’ in C. Gearty and C. Douzinas (eds), The
Cambridge Companion to Human Rights Law (Cambridge: CUP, 2012).
9 See for example C. Douzinas, The End of Human Rights (Oxford: Hart Publishing, 2000). For a
comprehensive overview and analysis of the different ‘schools’ of human rights critiques see M-B.
Dembour, Who Believes in Human Rights. Reflections on the European Convention (Cambridge: CUP,
2006).
10 J. Wallach, ‘Human Rights as an Ethics of Power’ in R. A. Wilson (ed), Human Rights in the ‘War
on Terror’ (Cambridge: CUP, 2005) 108.
11 Consent is here understood broadly and could encompass both treaty commitments and norms of
customary international law.
12 See for example F. Megret, ‘Where Does the Critique of International Human Rights Stand? An
Exploration in 18 Vignettes’ in J. M. Beneyto and D. Kennedy (eds), New Approaches to
International Law: the European and the American Experiences (The Hague: Springer, 2012); D.
Kennedy, ‘International Human Rights: Part of the Problem?’ (2002) 15 Harvard Human Rights
Journal 117; M. Koskenniemi, ‘The Effects of Rights on Political Cultural’ in P. Alston, M.
Bustelo and J. Heenan, The EU and Human Rights (Oxford: OUP, 1999).
13 For a discussion of these issues in the context of the European Convention see M. Delmas-Marty
(ed), The European Convention for the Protection of Human Rights: International Protection Versus
National Restrictions (Dordrecht: Nijhoff, 1992).
Eva Nanopoulos
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. 915(2015) 78(6) MLR 913–944
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