In Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34; [2012] 1 AC 531 the claimants (respondents in the Supreme Court) were bringing civil claims for damages against the defendants (appellants in the Supreme Court) alleging complicity by the defendants in their mistreatment by foreign powers (including detention at Guantanamo Bay). The defendants as part of their defence wished to place before the court “security sensitive material” – presumably the evidence of intelligence agents, or similar, denying the complicity – which for security reasons could not be disclosed to the claimants. Thus the defendants submitted that the court hold a “closed material procedure”. They envisaged that the evidence would be placed before the courts in closed session, i.e. a session from which the claimants and their representatives (and the public) were excluded. In the closed session the claimants would be represented by “special advocates” appointed by the court who would have access to the evidence but would not be able to take instructions from the claimants. Such procedures are controversial since they threaten the fundamental principles of open justice and natural justice. On the other hand, the national interest would doubtless be impaired, in some cases, if intelligence agents gave evidence and their methods and secrets were exposed in open court.

Statute makes express provision for such “closed material procedure” to be adopted by judicial bodies in several cases (for instance, the Terrorism Prevention and Investigation Measures Act 2011, Schedule 4, or the Counter-Terrorism Act 2008, Part 6); but there was no specific statutory provision applicable to civil actions for damages.  Thus the question arose whether the court had power at common law (or under its inherent jurisdiction) to craft such a procedure.  Lord Dyson, giving the lead judgment in which Lords Hope, Brown and Kerr concurred, was clear. He said:

“Closed material procedures and the use of special advocates continue to be controversial. In my view, it is not for the courts to extend such a controversial procedure beyond the boundaries which Parliament has chosen to draw for its use thus far. It is controversial precisely because it involves an invasion of the fundamental common law principles to which I have referred [viz, open justice and natural justice particularly the right to know the case to be answered]. I would echo what Lord Phillips said in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010]2 AC 269. ‘How [the] conflict [between full disclosure of the allegations against a party and other aspects of the public interest] is to be resolved is a matter for Parliament and for government, subject to the law laid down by Parliament’.”

That one might have thought was that. In the absence of clear Parliamentary warrant there could be no “closed material procedure” or its concomitant “special advocate”.  But what then is to be made of Bank Mellat v Her Majesty’s Treasury (No. 1) [2013] UKSC 38? Here the Supreme Court, in the absence of an express statutory warrant, held that it had the power to order a “closed material procedure” and indeed went on to hold such a procedure!

What had happened here was that the Treasury had made the Financial Restrictions (Iran) Order 2009 which in effect closed down the UK operations of Bank Mellat, an Iranian Bank, and its subsidiary. The Order was made under section 62 and Schedule 7 of the Counter-Terrorism Act 2008 which provides that amongst many other things if “the Treasury reasonably believes” that “the development or production of nuclear …. weapons in [a] country … poses a significant risk to the national interests of the United Kingdom”  it might give directions which had the effect mentioned. The directions had to be (and were) approved by affirmative resolution of Parliament within 28 days.

This decision could be challenged and was challenged by Bank Mellat by way of a statutory form of judicial review provided for in section 63 of the 2008 Act. The 2008 Act, in Part 6, provided for a “closed material procedure” in such proceedings. And the Treasury “took the view” (which was accepted by Mitting J at first instance) “that some of the evidence relied on by the Treasury to justify the 2009 Order was of such sensitivity that it could not be shown to the Bank or its representatives”; consequently that evidence was dealt before Mitting J by a closed material procedure (and there was a short closed judgment). On appeal to the Court of Appeal that material was dealt in a short closed session.  But now the matter had come before the Supreme Court. Part 6, and in particular section 73 of the 2008 Act, made provision for “closed material procedures” to be adopted in the High Court, the Court of Appeal and the Court of Session. But no mention was made of the Supreme Court. Where was the Parliamentary warrant for “closed material procedures” before the Supreme Court?

Lord Neuberger (with Lady Hale, Lord Clarke, Lord Sumption, and Lord Carnwath concurring), however, held that the Supreme Court had the power to conduct a “closed material procedure”. (Lord Dyson agreed with this outcome.) But here is the interesting part: the Supreme Court (or at any rate the majority) was not, in its view, disregarding or departing from Al-Rawi.  The statutory warrant to hold a “closed material procedure” was found or implied from section 40(2) and 40(5) of the Constitutional Reform Act 2005. Section 40(2) provides that “An appeal lies to the [Supreme] Court from any order or judgment of the Court of Appeal in England and Wales in civil proceedings” (emphasis added) and section 40(5) provides that “The [Supreme] Court has power to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under any enactment.” Thus the majority reasoned: since “section 40(2) provides that an appeal lies to the Supreme Court against ‘any’ judgment of the Court of Appeal… that must extend to a judgment which is wholly or partially closed…[and] in order for an appeal against a wholly or partially closed judgment to be effective, the hearing would have to involve… a closed material procedure;.. such a conclusion is reinforced by the power accorded to the Court by section 40(5) to ‘determine any question necessary … for the purposes of doing justice’, as justice will not be able to be done in some such cases if the appellate court cannot consider the closed material” (Lord Neuberger, para 37). This is a powerful argument. How could the Supreme Court do justice in a case where there had been a “closed material procedure” in the Court of Appeal or at first instance, without looking at that material itself? And, ignoring the closed material, or revealing it before the Supreme Court, were not attractive alternatives.

But the dissenting judges (Lord Hope, Lord Kerr and Lord Reed) took a different view. Naturally much was made of Lord Hoffmann’s canonical words in R v Home Secretary, ex parte Simms [2000] 2 AC 115 at 131: “…the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.” Whatever else might be the case there had been no careful consideration by Parliament in enacting the 2005 Act whether the right to open justice should be overridden (in 2008!).

And Lord Kerr (paras. 124-5) explained why he was not persuaded by the claims of the pragmatic considerations of the majority. He said:

“Pragmatic considerations can – and, where appropriate, should – play their part in influencing the correct interpretation to be placed on a particular statutory provision. But pragmatism has its limits in this context and we do well to recognise them. As a driver for the interpretation of section 40(5) for which the respondent contends, pragmatism might seem, at first blush, to have much to commend it. After all, this is an appeal from courts where closed material procedures took place. How, it is asked, can justice be done to an appeal if the court hearing the appeal does not have equal access to a closed material procedure as was available to the courts whose decision is under challenge? And if one proceeds on the premise that the court will be more fully informed and better placed to make a more reliable decision, why should the Supreme Court not give a purposive interpretation to section 40(5)?

The answer to this deceptively attractive presentation is that this was never the purpose of section 40(5). It was not even a possible, theoretical purpose at the time that it was enacted. It was never considered that it would be put to this use. The plain fact is that Parliament introduced a closed material procedure for the High Court, the Court of Session and the Court of Appeal and did not introduce such a procedure for the Supreme Court. This court has said in Al-Rawi that it does not have the inherent power to introduce a closed material procedure. Only Parliament could do that. Parliament has not done that. And to attempt to graft on to a statutory provision a purpose which Parliament plainly never had in order to achieve what is considered to be a satisfactory pragmatic outcome is as objectionable as expanding the concept of inherent power beyond its proper limits.”

“Closed material procedure” and “Special Advocates” will never be popular with lawyers bred, as they should be, with natural justice in their bones. So the courts, and particularly the Supreme Court, will be rightly sceptical of such devices. But Parliament has ordained that such procedures are lawful in certain circumstances. The inevitable tensions and discontinuities between what Parliament has ordained and the instincts of the courts are difficult to resolve. In this fallen world there will never be an easy resolution to this clash between pragmatism and principle. The clash between the protection of fundamental rights and the protection of national security (as well as loyalty to Parliament’s will) will always be acute.  Bank Mellat shows that the pragmatists are, on this issue, in the ascendency. But the issue is still contested and we have not heard the last of it.

In one respect the tension is resolved. Part 2 of the Justice and Security Act 2013 enacted in response to Al-Rawi provides for closed material procedures in civil proceedings; and section 6(11) provides that “relevant civil proceedings” means “any proceedings (other than proceedings in a criminal cause or matter) before (a) the High Court,  (b) the Court of Appeal, (c) the Court of Session, or (d) the Supreme Court” (emphasis added).  Alas, in enacting the Terrorism Prevention and Investigation Measures Act 2011, Schedule 4 (dealing with closed material procedures for TPIM) Parliament was presumably not mindful of Al-Rawi and refers only to the High Court,  the Court of Appeal and  the Court of Session! Presumably in TPIM cases the power to hold closed material procedures will be vouchsafed by section 40(2) & (5) of the 2005 Act.

Bank Mellat prompts a final reflection based on something that is not mentioned in any of the judgments. In R v The Lord Chancellor, ex parte Witham [1998] QB 575 Laws LJ suggested that common law constitutional rights – he had in mind the right of access to the courts but the right to open justice would serve as well –  could only be removed by express words in legislation.  He said: “I find great difficulty in conceiving a form of words capable of making it plain beyond doubt to the statute’s reader that the provision in question prevents him from going to court (for that is what would be required), save in a case where that is expressly stated. The class of cases where it could be done by necessary implication is, I venture to think, a class with no members”. But the bold approach by the majority in Bank Mellat suggests that limitations on constitutional rights may established by necessary implications from the relevant statute.

Christopher Forsyth is Professor of Public Law and Private International Law at the University of Cambridge.

Suggested citation:  C. Forsyth, ‘Principle or Pragmatism: Closed Material Procedure in the Supreme Court’  UK Const. L. Blog (29th July 2013) (available at http://ukconstitutionallaw.org)