As a special
favour to yourself – a reward for a virtuous life – read the article by Lord
Phillips on the way courts accommodate the need that some evidence be kept
secret: Nicholas Phillips, “Closed Material” London Review of Books, Vol 36, No 8, 17 April 2014 (currently
available here
but don’t rely on this link surviving in perpetuity).
As the editor
notes, “Nicholas Phillips retired in 2012 after three years as the first
president of the UK Supreme Court. ‘Closed Material’ is a version of last
year’s Blackstone Lecture, delivered at Pembroke College, Oxford.”
Many of the
cases he mentions have been noted here: Chalal,
Secretary of State for the Home
Department v AF [2009] UKHL 28, and Secretary
of State for the Home Department v MB [2008] 1 AC 440 here
on 11 June 2009, AF again briefly here
on 12 June 2009; A & Ors v. Secretary
of State for the Home Department [2004] UKHL 56 here
on 17 December 2004 (a case which Lord Phillips rates “as [the House of Lords’]
most impressive decision in my lifetime”) and which moved me to quote, with
rather spooky prescience, Montaigne; W
(Algeria) & Anor v Secretary of State for the Home Department [2012]
UKSC 8, here
on 20 March 2012; Al Rawi v The Security
Service [2011] UKSC 34, here
on 14 July 2011; Roberts v Parole Board
[2005] UKHL 45, here
on 11 July 2005.
The case law
led to the Justice
and Security Act 2013 [UK], and Lord Phillips describes its passage through
both Houses of Parliament from his perspective, focusing on disputes as to the
criteria which should apply to any decision to permit the use of the closed material
procedure (see now, ss 6(5) and 8(1)(c); it seems that efforts to impose more
restrictive conditions on the use of the closed material procedure were
unsuccessful). The enacted requirement is (broadly, and with qualifications) that
“it is in the interests of the fair and effective administration of justice in
the proceedings to make a declaration” that a closed material application may
be made, and an application must be granted if the court “considers that the
disclosure of the material would be damaging to the interests of national
security”.
Lord Phillips
concludes,
“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.”
