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The Supreme Court ruled in Bank Mellat v HM Treasury in March that it was prepared to consider secret material behind closed doors. Neither the Court nor its predecessor, the House of Lords, had done so before. Today’s judgment discloses the thinking behind that decision – but crucially concludes that the entire process was completely unnecessary, seriously undermining Government claims during the passage of the Justice and Security Bill that secret hearings would be sought only where necessary to ensure a case could proceed.

 

In defending the bank’s appeal against a financial restrictions order, the Government urged the Supreme Court to adopt a closed hearing for the first time in order to consider a closed judgment of the High Court. Liberty intervened – arguing the Court did not have the power to do so. The matter was considered so significant that nine of the Supreme Court’s justices, as opposed to the traditional five, heard the case.

 

In March they announced that they had found, by a 6-3 majority, that they did indeed have the power to consider secret evidence. They also decided to adopt a closed hearing in this case. However, today’s judgment reveals for the first time that the whole process was pointless – and could have made no difference whatsoever to the case’s outcome.

 

Corinna Ferguson, Legal Officer for Liberty, said: “Proud principles of open justice and the Rule of Law are the casualties as the secret justice disease infects the highest court in the land.

 

“Today’s chilling judgment brutally exposes the Government’s claims and lays bare its willingness to overstate the importance of secrecy to serve its own ends.

 

“Given recent revelations of spying and snooping it really does seem that it’s one rule for the State, another for everyone else – no scrutiny for them; no privacy for us.”

 

Lord Neuberger, despite giving the lead judgment for the majority, admitted: “In my opinion, there was no point in our seeing the closed judgment. There was nothing in it which could have affected our reasoning in relation to the substantive appeal, let alone which could have influenced the outcome of that appeal.”

 

Lord Hope, who dissented along with Lords Kerr and Reed, said: “I was of the opinion at the end of the hearing on the first day’s argument that it was not open to the Supreme Court to adopt a closed material procedure in this case, as it had not been expressly authorised by Parliament. I remain of that opinion. The effect of the decision of the majority, however, is that there is now no way back on this issue. The Rubicon has been crossed …

 

“… Secret justice at this level is really not justice at all.

 

“… the attitude which (the Treasury) have adopted in this appeal was a misuse of the procedure, because they invited the court to look at the closed judgment when there was nothing in it that could not have been gathered equally well from a careful scrutiny of the open judgment.”

 

Contact: Liberty Press Office on 020 7378 3656 or 07973 831128

 

NOTES TO EDITORS:

 

1. Lord Reed, in his dissenting judgment, added: “When closed material procedure was first introduced in 1997, in proceedings before the Special Immigration Appeals Commission, it was said to be an exceptional measure justified by national security concerns. Having gained a foothold in the legal system, the procedure has spread progressively, initially to other specialist tribunals, and then to the courts. It has been used even where issues of national security are not involved (as, for example, in R (Roberts) v Parole Board [2005] UKHL 45; [2005] 2 AC 738). Now that its use has been extended to proceedings before this court, it is of great importance, if a degradation of standards of justice at the highest level is to be avoided, that it should be resorted to only where it has been convincingly demonstrated to be genuinely necessary in the interests of justice.”

2. For a full copy of the Supreme Court’s judgment in Bank Mellat v HM Treasury, visit: http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2011_0040_Judgment.pdf

3. For more information on secret courts and the Justice and Security Bill, visit: http://www.liberty-human-rights.org.uk/campaigns/for-their-eyes-only/for-their-eyes-only.php