Courts Lack the Power to Order Closed Proceedings in Civil Cases: the UK Supreme Court’s Decision in Al-Rawi

The Security Service then turned to the Supreme Court - where the case was settled before oral argument.  The UK nevertheless asked to push on despite the settlement, citing the significance of the legal issue and the need for clarity.  The Supreme Court accepted the Security Services’ proposal, heard argument over the course of two days, and ultimately dismissed the appeal.

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A Judgment After Settlement That’s an intriguing outcome for a case that, at the time of decision, no longer embodied a dispute about the Government’s alleged complicity in detainee abuse.  In the United States, courts cannot issue advisory opinions on points of law; the exercise of federal court jurisdiction therefore requires a live controversy, and its absence typically means dismissal.  There are exceptions to this.  For example, the U.S. Supreme Court sometimes asks amici to defend challenged judgments when a party refuses to do so – though this practice has been criticized.   Al Rawi thus poses the question of whether, and how much, the U.K. Supreme Court’s course of action should raise an eyebrow.  For its part, the majority recognized that settlement would typically preclude further litigation, but said that it was appropriate to hear and decide the case because the question presented was of “general public importance.” Closed Procedures and the Limits of Common-Law Power The essence of the lead opinion, by Lord Dyson, is that only Parliament, not the courts, can impose a closed material procedure on an unwilling litigant.  (The Court did not decide whether parties could agree to resort to a closed procedure.) As a general matter, Dyson said, courts cannot make common law rules that run counter to statutes or other rules of court.  And though courts may innovate in areas where Parliament has not acted, their power to do so is limited.  An innocuous procedural change may implicate the substantive rights of a party; for that and other reasons, a court “cannot exercise its power to regulate its own procedures in such a way as will deny parties their fundamental common law right to participate in the proceedings in accordance with the common law principles of natural justice and open justice.”  Citing a prior decision by the House of Lords, Dyson wrote:

The right to be confronted by one’s accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament can do that. The closed material procedure excludes a party from the closed part of the trial. He cannot see the witnesses who speak in that part of the trial; nor can he see closed documents; he cannot hear or read the closed evidence or the submissions made in the closed hearing; and finally he cannot see the judge delivering the closed judgment nor can he read it.

No mitigating steps, such as the use of “special advocates” (akin to cleared counsel procedures in the U.S.) would cure these and other defects, in Dyson’s view.  It was therefore not enough for the Government to argue that the court had the authority to order a closed procedure, in limited cases when the interests of justice required: given the procedure’s inherent flaws, it was hard to see how depriving a litigant of his fundamental rights could be “in the interests of justice.”  (Dyson recognized that parties’ fundamental rights previously had been circumscribed, in wardship and intellectual property cases.  But, Dyson said, these exceptional rules crafted in these sorts of situations “cannot be relied on to justify creating a rule of general application in ordinary civil litigation.”) The lead opinion then explained its disagreement with the dissenting Justices.  Lords Mance and Clarke, along with Lady Hale, would have allowed closed procedures in certain circumstances – though the three agreed with the majority that the common law does not empower courts to replace PII with a closed session.  The lead dissent said that a closed procedure could follow a PII hearing that found disclosure at odds with the public interest.  Plaintiffs might well endorse this approach, reasoning that some litigation of the case might be lesser of two evils, the greater being doutright dismissal.  Lord Dyson rejected the dissenters’ approach for several reasons, including the closed procedure’s incompatibility with fundamental principles (as contrasted with PII’s compatibility); the likelihood that closure would lopsidedly favor the party possessing the secret material; and the difficulty courts would experience in deciding whether to supplement a PII hearing with further closed litigation. Finally, Dyson distinguished several cases relied upon by the Security Services, and said that evident conflicts between the closed procedure and the ordinary rules for civil procedure supported, but did not alone require, the appeal’s dismissal. He concluded by once more hammering home his key point: “a closed material procedure should only be introduced in ordinary civil litigation [] if Parliament sees fit to do so.”