Courts Lack the Power to Order Closed Proceedings in Civil Cases: the UK Supreme Court’s Decision in Al-Rawi
On Wednesday, the UK Supreme Court handed down its decision in Al-Rawi v. Security Service, which arose from the British Government’s alleged role in detention and abuse at, among other places, Guantanamo.
The case presented the question of whether a court has the power, in a civil case, to order a closed material procedure – in which the Government may present, and the court may consider, secret evidence that is shared with a special attorney for the other party, but not with the party him- or herself. By five votes to three, the Supreme Court held that the UK courts lacked such authority, in part because of the closed procedure’s incompatibility with fundamental principles, including a party’s right to examine evidence and to be present during key proceedings. Only Parliament, the lead opinion said, could create exceptions to those rules. Three justices disagreed, and found sufficient authority for courts to impose closed procedures under certain conditions. (A ninth justice had indicated agreement with the majority view, but died before the case was decided.)
The decision thus invites the British Parliament to act, and implies a strong desire on the majority’s part to distance itself from procedures that – though arguably warranted by national security concerns – stand to undercut basic due process.
Al-Rawi parallels well-known detainee treatment litigation in the United States. The named plaintiff, along with Binyam Mohammed and others, had together sued the MI5 and MI6. They claimed that the agencies had been complicit in their detention, rendition, and torture by foreign intelligence services, at various places including Guantanamo. During litigation, the UK Government accepted that the plaintiffs had been detained and subjected to rendition. But the defense disputed their mistreatment and any UK role in it. Regarding these latter claims, the UK’s lawyers informed the trial judge that they wanted him to consider a significant body of secret evidence, and proposed a closed procedure as the proper way to do so.
For the Security Services, closed proceedings represented a superior alternative to the courts’ public interest immunity (“PII”) process. This common-law mechanism often regulates the use of national security information in UK litigation (and sounds many of the same notes as the United States’ State Secrets privilege and Classified Information Procedures Act – both of which are likely familiar to Lawfare readers.) In short, the UK government can claim that disclosure of otherwise discoverable material is contrary to the public interest. Upon such a claim, the court may review the sought items on an ex parte basis, and then ask whether the public interest in withholding the material (in this case, that of preserving the secrecy of national security information) outweighs the public interest in the administration of justice. If the court concludes that, on balance, the latter prevails, then the material must be disclosed – often according to safeguards crafted by the court. But if the material it is not handed over, then the party resisting disclosure may be forced to concede the issue to which the material relates. The picture is starker when the balance favors the public interest in secrecy. In that event, a court may order that the case proceed without the use of the sought material. But if the evidence is essential, the court also may dismiss the plaintiff’s claim altogether, as “untriable.”
According to the Government, Al-Rawi’s case implicated a vast trove of secret information: as many as 140,000 classified documents. Performing the usual PII exercise as to them, the Security Service said, would be a complex endeavor and occupy as much as three years. The Government therefore proposed the closed procedure as a speedier, less cumbersome substitute.
The trial judge accepted that approach, but allowed the Plaintiffs to take their case to the Court of Appeals – which concluded that courts could not order a closed proceedings in the absence of statutory authority.
The Security Service then turned to the Supreme Court – where the case was settled before oral argument. The UK nevertheless asked to push on despite the settlement, citing the significance of the legal issue and the need for clarity. The Supreme Court accepted the Security Services’ proposal, heard argument over the course of two days, and ultimately dismissed the appeal.
A Judgment After Settlement
That’s an intriguing outcome for a case that, at the time of decision, no longer embodied a dispute about the Government’s alleged complicity in detainee abuse. In the United States, courts cannot issue advisory opinions on points of law; the exercise of federal court jurisdiction therefore requires a live controversy, and its absence typically means dismissal. There are exceptions to this. For example, the U.S. Supreme Court sometimes asks amici to defend challenged judgments when a party refuses to do so – though this practice has been criticized. Al Rawi thus poses the question of whether, and how much, the U.K. Supreme Court’s course of action should raise an eyebrow. For its part, the majority recognized that settlement would typically preclude further litigation, but said that it was appropriate to hear and decide the case because the question presented was of “general public importance.”
Closed Procedures and the Limits of Common-Law Power
The essence of the lead opinion, by Lord Dyson, is that only Parliament, not the courts, can impose a closed material procedure on an unwilling litigant. (The Court did not decide whether parties could agree to resort to a closed procedure.)
As a general matter, Dyson said, courts cannot make common law rules that run counter to statutes or other rules of court. And though courts may innovate in areas where Parliament has not acted, their power to do so is limited. An innocuous procedural change may implicate the substantive rights of a party; for that and other reasons, a court “cannot exercise its power to regulate its own procedures in such a way as will deny parties their fundamental common law right to participate in the proceedings in accordance with the common law principles of natural justice and open justice.” Citing a prior decision by the House of Lords, Dyson wrote:
The right to be confronted by one’s accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament can do that. The closed material procedure excludes a party from the closed part of the trial. He cannot see the witnesses who speak in that part of the trial; nor can he see closed documents; he cannot hear or read the closed evidence or the submissions made in the closed hearing; and finally he cannot see the judge delivering the closed judgment nor can he read it.
No mitigating steps, such as the use of “special advocates” (akin to cleared counsel procedures in the U.S.) would cure these and other defects, in Dyson’s view. It was therefore not enough for the Government to argue that the court had the authority to order a closed procedure, in limited cases when the interests of justice required: given the procedure’s inherent flaws, it was hard to see how depriving a litigant of his fundamental rights could be “in the interests of justice.” (Dyson recognized that parties’ fundamental rights previously had been circumscribed, in wardship and intellectual property cases. But, Dyson said, these exceptional rules crafted in these sorts of situations “cannot be relied on to justify creating a rule of general application in ordinary civil litigation.”)
The lead opinion then explained its disagreement with the dissenting Justices. Lords Mance and Clarke, along with Lady Hale, would have allowed closed procedures in certain circumstances – though the three agreed with the majority that the common law does not empower courts to replace PII with a closed session. The lead dissent said that a closed procedure could follow a PII hearing that found disclosure at odds with the public interest. Plaintiffs might well endorse this approach, reasoning that some litigation of the case might be lesser of two evils, the greater being doutright dismissal. Lord Dyson rejected the dissenters’ approach for several reasons, including the closed procedure’s incompatibility with fundamental principles (as contrasted with PII’s compatibility); the likelihood that closure would lopsidedly favor the party possessing the secret material; and the difficulty courts would experience in deciding whether to supplement a PII hearing with further closed litigation.
Finally, Dyson distinguished several cases relied upon by the Security Services, and said that evident conflicts between the closed procedure and the ordinary rules for civil procedure supported, but did not alone require, the appeal’s dismissal.
He concluded by once more hammering home his key point: “a closed material procedure should only be introduced in ordinary civil litigation  if Parliament sees fit to do so.”