Secrecy: State Secrets Privilege: Litigation

The Evolving UK Approach to Litigating Cases Involving State Secrets

By Robert Chesney
Wednesday, November 16, 2011, 2:41 PM

The UK for some time has been wrestling with the problem of civil litigation that implicates states secrets.  Foreign Minister William Hague addressed the issue eloquently in this speech, which in relevant part takes up the possibility of using special advocates and other closed-door proceedings to overcome the problem.  Here is the key passage:

Our proposals are intended to ensure that the mainstream civil court system is equipped to hear national security cases where disclosure of material would be damaging to the public interest. Central to this is the proposed introduction of legislation to make the mechanism known as closed material procedures – already used elsewhere in the UK court system - available in the full range of civil proceedings. This system enables relevant but sensitive material in a case which damage national security if exposed to be considered privately by the judges and a special advocate, appointed to represent the other party’s interests. This would only be used in exceptional instances where it is critical to the case.

Some argue that this proposal runs counter to the principles of open justice.

The Government understands that open justice is a fundamental attribute of our democracy, and that it should only be departed from when it is strictly necessary to achieve the proper administration of justice.

Under our proposals, a closed material proceeding could well represent only a small part of a case, the rest of which would be heard in open court. And it is surely fairer to ensure that sensitive material can be considered in court under these arrangements, than that it is excluded altogether. Our proposals would ensure that the full case can be heard by the judge before reaching a decision. These changes would enable balanced judgments to be reached, the public to have confidence in independent judgement by the Court and the Agencies either to be held to account or to be exonerated.

They are not proposals we have made lightly or without careful thought. We have listened to the Supreme Court’s recent relevant judgments and consulted widely.

The ability of other countries to share Intelligence with us without fear we will have to disclose it here or overseas is absolutely vital to our national interest. This is managed under the Control Principle, a strict rule of intelligence sharing whereby any further use or disclosure of intelligence requires the agreement of the Agency that provided it in the first place. If we cannot uphold the control principle and others do not share information with us, the very real risk is that our security will be jeopardised.