Secret courts – the thin end of the wedge?

Oliver Gross

Oliver Gross

It is not every day that we take a case to the Supreme Court  (which replaced the House of Lords as an appeal court in 2009), but it does happen from time to time – we have a case there now .

What the client can expect is a thorough and public analysis of their case by nine of the finest judicial minds in the country. Public access to courts and the right of each party to be represented are cornerstones of the judicial system and of our constitution.  Until now.

Earlier this week, the Supreme Court decided by a majority vote that it can hear cases in secret, and it has now done so.  It is fair to say that the circumstances are exceptional, and relate to a review of a judgement by the High Court which included material said to be sensitive on grounds of national security.  The problem is that this type of argument is the same as that employed by regimes to justify torture and other serious human rights abuses.

In this case the Government had shut down the UK operations of an Iranian bank, Bank Mellat, on the basis that its activities contributed to Iran’s nuclear programme.  The bank applied to the High Court, and then to the Court of Appeal which upheld the government’s decision.  The bank appealed to the Supreme Court on the basis that it had been denied a fair hearing.   The full High Court judgement was so sensitive to national security that it could not be published in full, and only an edited version was issued to the bank.

To consider the bank’s appeal the Supreme Court first had to consider the full judgement, and agreed that because of that sensitivity a hearing could be held in secret.  So secret that it was held behind locked doors in a soundproof room, and even the bank’s legal team was not allowed in, so that the bank was not represented. That was a first.

For more details on the story itself see here

Coming on the heels of the House of Commons’ decision to pass the Justice and Security Bill, which increases the range of secret court hearings and exempts the security services from certain liabilities, you have to ask if the liberal consensus of the last fifty years and the rule of law by an independent judiciary, has been undermined by the paranoia of the “war on terror”?  As 20th Century history attests, initial reforms that undermine civil liberties can be the thin end of a very thick wedge.

If you have any issues that you think may need court action, then contact our Dispute Resolution Team.

Oliver Gross
Commercial Dispute Resolution Department
0113 227 9236

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