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At some point in the challenge to the ban on Palestine Action beginning on Wednesday, the co-founder of the direct action group will be asked to leave courtroom five at the Royal Courts of Justice, as will her legal team and most others present. Then the case will continue without them.
When Huda Ammori returns to the room, the special advocate – a security-cleared barrister – who represented her interests in her absence will not be allowed to tell her or her legal team what evidence was presented against Palestine Action. If Ammori asks what allegations were made directly against her, the special advocate must not tell her, even though that means she will have no chance to rebut them.
Such is the nature of the secret courts system, known as the closed material procedure (CMP), within which the legal challenge to the ban will be partly heard.
Critics of the system, which can be triggered on an application by a secretary of state, include those who have worked within its strictures.
Angus McCullough KC, a special advocate for more than 20 years, said: “CMPs are inherently and unavoidably unfair. The justification for them is that they are the ‘least unfair’ way of dealing with cases in which there is relevant material that genuinely cannot be disclosed to the party affected by it because of its sensitivity and potential to cause harm to the wider public interest, for example, national security, if disclosed.”
Last year McCullough, who represented Shamima Begum in CMP, said “a substantial majority” of special advocates – 25 of an undisclosed total, including 16 KCs – were not accepting any new appointments because of “defects in the system”, which he described as being “in meltdown”.
Explaining why they took such action, he said: “Even accepting that inherent unfairness, what cannot be justifiable is the additional unfairness caused by failures to support the system properly over many years.”
His complaints included a long delay in the commissioning, delivery of and government response to a review of CMPs. Additionally, the Ministry of Justice did not accept all of the recommendations.
Before CMPs were extended by statute in the Justice and Security Act 2013 (they were previously limited to immigration and deportation hearings), many judges criticised them in rulings.
Lord Steyn, whose daughter is one of three judges in the Ammori case, said: “Taken as a whole, the procedure completely lacks the essential characteristics of a fair hearing … [and] involves a phantom hearing only.”
Lord Kerr said: “Evidence which has been insulated from challenge may positively mislead … the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies … a central place in the concept of a fair trial.”
Even the discussion about whether closed proceedings are necessary inevitably takes place in secret, and at the end of the case there will be “open” and “closed” judgments, with the latter restricted in the same way as the proceedings.
Critics say judges bear a heavy responsibility to limit the frequency and extent of CMPs while confronted with lawyers pleading national security.
In the Palestine Action case, material that the home secretary initially wanted to be in “closed” has been released into “open”, some of it after the lady chief justice, Sue Carr, hearing an appeal against the decision to grant permission for the legal challenge, told the government’s legal team: “We don’t really understand why it has to be in closed.”
Their very nature means little is known about closed proceedings. But if MI5 has been consulted on a matter, it will only be revealed in CMP, whatever their conclusion – favourable or not to the non-state party. Closed proceedings are also used to protect security services sources within organisations.
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While there may be a smoking gun behind closed doors, it could equally be just a case of protecting MI5 operations. Given MI5 was found to have given false evidence in another case earlier this year, there is an argument it should face greater scrutiny.
Reasons given for expanding the secret courts in 2013 included preventing intelligence provided by US sources and other allies being exposed in British courts. It was argued that it would allow more intelligence-related cases to come to court in future, whereas previously the government was forced to settle and pay out compensation in cases such as those of Guantánamo Bay detainees because it could not disclose evidence in court.
An independent commission of legal experts, former government ministers and an ex-MI6 director said in a report published this month that use of CMPs had “expanded considerably” but should be used “only where strictly necessary”. It added: “Judges should have greater discretion to balance the risks of disclosure against the potential unfairness caused by secrecy, supported by a strong presumption that an irreducible core of information should be shared with the affected party.”
Barry McCaffrey and Trevor Birney, two investigative journalists who won a landmark judgment that they had been unlawfully spied on by the Police Service of Northern Ireland and the Metropolitan police, said: “We believe CMP hearings, or indeed the use of any secret court hearings, particularly in civil cases, is a dangerous attack on human rights protections. It is often claimed that secret courts are only used to protect national intelligence but in our case and so many others it was used to hide deliberate wrongdoing by the state.”
Before a last-minute change, Ammori’s case was expected to be heard by Mr Justice Chamberlain, who granted permission for it to proceed and was himself a – sceptical – special advocate before becoming a judge. In 2012, he wrote: “If the state alleges that my client met a terrorist at a particular time, I cannot ask him whether he was there and if so, why. So I will never know if he had an alibi or an innocent explanation for the meeting, and nor will the court.”
Referencing Franz Kafka’s fictional protagonist in The Trial, he said: “There are people in Britain today who, like Josef K, have no idea why they have lost their case.”
