Al Rawi, Tariq, and the Future of Closed Material Procedures and Special Advocates
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00916.x |
| Date | 01 July 2012 |
| Author | John Ip |
| Published date | 01 July 2012 |
CASES
Al Rawi,Tariq, and the Future of Closed Material
Procedures and Special Advocates
John Ip*
This note considers the impact of the Supreme Court’s decisions in Al Rawi v The Security Service
and Home Office vTariq on the use of closed material procedures and special advocates. The
government’s subsequent Justice and Security Green Paper is also discussed.
INTRODUCTION
It has been common in post-9/11 legal scholarship to speak of the tension
between liberty and security. But it makes equal sense to speak of the tension
between due process and security.1This is because preventive counterterrorism
measures are typically imposed on the basis of sensitive information that gov-
ernments are unwilling to divulge.Therefore, challenges by persons affected by
these measures often involve the use of undisclosed material and closed proceed-
ings to which the affected individuals have no access. It is axiomatic that such
practices cut against ordinary notions of due process and fairness.
One notable manifestation of this due process versus security dynamic in the
United Kingdom is the use of special advocates as part of a closed material
procedure (CMP).A CMP denotes a procedure where a party (in practice, the
government) relies on‘closed material’ that is not disclosed to the affected person.
Instead, disclosure of the closed material is made to a special advocate, an
independent security-cleared lawyer who argues for greater disclosure to the
affected person and represents the affected person’s interests in the closed pro-
ceedings from which that person is excluded.2The special advocate, then,
functions as a mechanism for mitigating the prejudice of a CMP and the
attendant non-disclosure of information.
Recent litigation concerning the use of closed material and special advocates
has centred on the effectiveness of special advocates in ensuring fair ness in the
context of proceedings concerning detention and control orders.3In January
2011, CMPs and special advocates were again the focus of high-level judicial
*Faculty of Law, University of Auckland,New Zealand. My thanks to An Hertogen andAdam Tomkins
for comments on earlier drafts. Any errors remain my own.
1 A. Tomkins,‘National Security and the Due Process of Law’ (2011) 64 CLP 1, 1.
2 See Murungaru vSecretary of State for the Home Department [2008] EWCA Civ 1015 at [16];
C. Walker, Terrorism and the Law (Oxford:OUP, 2011) 267.
3 See Secretary of State for the Home Department vMB [2007] UKHL 46 (MB); AvUnited Kingdom
(2009) 49 EHRR 29;Secretar y of State for the Home Department vAF (No 3) [2009] UKHL 28 (AF).
See generally A. Kavanagh,‘SpecialAdvocates, Control Orders and the Right to a FairTrial’(2010)
73 MLR 836.
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© 2012The Authors.The Modern Law Review © 2012 The Modern Law Review Limited. (2012) 75(4) MLR 606–654
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
attention as the Supreme Court heard the cases of Al Rawi vThe Security Service4
(Al Rawi) and Home Office vTa r i q 5(Ta r i q ). The former arose out of a claim for
damages against the government, while the latter concerned a claim of employ-
ment discrimination arising out of the revocation of security clearance. In both
cases, the government sought to employ a CMP and rely upon information that
would be disclosed to special advocates rather than to the other party to the
litigation.
The Court issued both judgments in July 2011.In Al Rawi, the Court held that
it was not open to a court as a matter of common law to adopt a CMP in ordinary
civil litigation. In Tar i q , the Court rejected a challenge to a statutorily authorised
CMP, and also held that the ‘AF principle’, which states that affected persons
should receive the‘g ist’ of the case against them, was inapplicable to proceedings
before the EmploymentTribunal.6Al Rawi and Ta r i q are described and explored
in greater detail below. Following that, the implications of the two decisions for
the continued use of CMPs and special advocates will be considered.
AL RAWI
The issue in this case was whether a court had the power to order a CMP for all
or part of a trial of a civil claim for damages, and if so,under what circumstances
it would be appropriate to exercise that power.7The civil claim for damages
related to the detention of the six claimants by foreign authorities at various
locations that included Guantánamo Bay Naval Base in Cuba.Their pleaded
causes of action, arising out of their detention and alleged mistreatment during
detention, included conspiracy to injure, torture, breach of the Human Rights
Act 1998, as well as a number of tortious claims. These claims were brought
against the appellants–agroupthat included the Security Service, the Secret
Intelligence Service, the Foreign and Commonwealth Office,and Home Office
– on the theory that they had been complicit in the detention and alleged
mistreatment of the claimants.8
The appellants admitted in an ‘open defence’ that the claimants had been
transferred and detained, but they disputed the alleged mistreatment of the
claimants and denied all liability for the claimants’ detention and alleged mistreat-
ment.The ‘open defence’ also alluded to other material in the possession of the
appellants,which the appellants wished the cour t to consider, butwhich could not
be included on the grounds that disclosure of that material would be contrary to
the public interest.The appellants’‘open defence’ thus made it clear that there was
additional relevant material contained elsewhere in a ‘closed defence’.9
The appellants contended that the case should proceed with a CMP. This
entailed a bifurcation of the various stages of the trial process, including the
4Al Rawi vThe Security Service [2011] UKSC 34.
5Home Office vTa r i q [2011] UKSC 35.
6 See AF n 3 above.See also the discussion at nn 118–152 below.
7Al Rawi n 4 above at [1].
8Al Rawi vThe Security Service [2010] EWCA Civ 482 at [5].
9ibid at [6].
John Ip
© 2012 TheAuthors. The Modern Law Review © 2012The Modern Law Review Limited. 607
(2012) 75(4) MLR 606–654
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