The government has finally responded to concerns about the UK’s controversial ‘secret justice’ system – nearly six years after a statutory review was first scheduled to begin.
A response from the Ministry of Justice to the 2022 Ouseley report on closed material procedure (CMP) was published yesterday, ahead of the dissolution of parliament. The response comes after a group of 25 practising special advocates (SAs), including 16 KCs, told the attorney general last month that they would not accept any new appointments while current defects with the system remain unaddressed.
One area of controversy is resourcing for special advocates, encompassing staffing levels and training. Special advocates are the security-cleared lawyers appointed to represent the interests of those excluded from viewing material rated national security-sensitive.
Under the Justice and Security Act 2013, a review of the CMP was required to commence ‘as soon as practicable’ after June 2018. The review was not commissioned until February 2021, under former High Court judge Sir Duncan Ouseley. The judge completed the review in December 2021 and made 20 recommendations.
The MoJ said this week it will be taking forward seven of Ouseley’s recommendations. On resourcing, the MoJ will work with the Special Advocates’ Support Office (SASO) to ‘understand what would be required, in terms of resourcing, to deliver an increased training offer to SAs, to ensure that regular training is available to both new and existing SAs.
‘We will continue to engage with GLD [Government Legal Department] and SASO to ensure that the system has sufficient resilience.’
The government also pledged to create an accessible, searchable, closed judgment summaries database, and a secure electronic full closed judgments database. The response adds: ‘It is important to note, however, that this is not a straightforward task and will take some time to establish. There are a number of security considerations that will need to be taken in to account when dealing with material of such a sensitive nature.’
Experienced special advocate Angus McCullough KC, of 1 Crown Office Row, has been highly critical of the government’s inertia in a series of blogposts. McCullough has been instructed as the special advocate in some of the most high-profile cases of recent years, including Shamima Begum’s appeal against deprivation of British citizenship.
Explaining his decision not to accept new appointments, he wrote last October: ‘The structural unfairness of that system is one thing, but it is quite another for that unfairness to be heightened by a failure to provide proper resourcing and support for special advocates. That aggravated unfairness of CMPs is a price paid by the excluded parties, even though they may be unaware of it. The system depends on special advocates being able to discharge our role effectively.’
UPDATE: In a new blogpost on Thursday, McCullough described the MoJ’s response as ‘profoundly disappointing’. He added: ‘After so long, some important recommendations in the Ouseley review have now been rejected. Also, the terms in which some of the key recommendations have been accepted are non-committal in relation to both timing and concrete steps to be taken, including in relation to matters which Sir Duncan described as requiring urgent attention.
‘Individual special advocates will come to their own decisions as to whether they are now prepared to accept new appointments. My own position has been, and remains, that returning to the role is dependent on implementation of Ouseley. These issues need to be addressed by concrete measures rather than open-ended declarations of intent. There can now be no progress until after the General Election. The incoming Government, whatever its stripe, must address this as a priority, both as to implementation and re-visiting the recommendations that have currently been rejected.’
