IN Kafka's The Trial the main character is executed without ever knowing of what he has been accused. In English law, the right to a fair trial is a well-established constitutional right. Amongst the fundamental principles of the civil process, it is established, first, that proceedings should be held in public; and second, that each party must disclose their evidence to their opponents. However, there are two processes by which evidence may be withheld. Public interest immunity (“PII”) enables the court to consider whether evidence should be withheld, on the ground that the public interest in withholding the evidence outweighs the public interest in the administration of justice. PII is a common law process, which derives from Crown privilege. Closed material procedure (“CMP”) allows a litigant to submit evidence, without disclosing the material to the other party. Parliament has legislated to authorise the use of CMP in certain contexts e.g. employment cases and cases relating to allegations of involvement in terrorism. In some cases a special advocate may be appointed to represent the interests of the party that is kept in the dark. The special advocate will have access to the material but will not be able to discuss it with his or her client. Thus, PII differs from CMP, because under PII undisclosed evidence cannot be adduced during the proceedings, whereas under CMP a party can rely upon evidence that has not been disclosed to the other side.

Two recent Supreme Court decisions concerned the use of these processes. Unlike the proceedings in The Trial, life was not at stake, yet even in civil claims use of these processes should raise significant concerns, particularly as these cases typically involve those who are most vulnerable.

In Al Rawi v The Security Service [2011] UKSC 34, [2011] 3 W.L.R. 388 the claimants alleged that the defendants had caused or contributed to their detention in Guantanamo Bay. The defendants wished to adduce sensitive evidence, and requested that the court use a CMP in these proceedings. The questions for the Supreme Court concerned the courts' jurisdiction to use CMP in the absence of statutory authority. Silber J. had held that the courts could order CMP, but, the Court of Appeal overturned this and the Supreme Court dismissed the appeal. The Justices unanimously agreed that only Parliament could replace PII with CMP. Lord Phillips restricted his analysis to this issue. The other justices considered the broader question whether the common law could ever permit CMP to be used in civil claims. Lord Dyson (with whom Lords Hope, Brown and Kerr agreed), giving the leading judgment, held that the courts could not regulate procedure so as to deny the right to a fair trial, because only Parliament could abrogate the right. Lord Rodger, who had passed away before the judgment was given, had indicated that he would have dismissed the appeal. Lord Mance, Lady Hale and Lord Clarke dissented on the question of the scope of the common law to authorise CMP in civil claims. They argued that the courts' jurisdiction could not be restricted to the point that access to justice would be denied. They were concerned that the evidential restriction imposed by PII will sometimes mean that the case will have to be struck out. Lord Mance and Lady Hale suggested that in that scenario, the courts could, if the claimant consents, use CMP to avoid denying access to the courts. Their concern was legitimate, but it is difficult to see how a system based on consent could work. The whole point of CMP is that the claimant is not informed of the evidence. Thus if the claimant consents to a CMP to avoid having his or her case struck out, that “consent” could not be said to be freely given, or informed. It is highly questionable whether the use of special advocates could mitigate this problem.

The majority were right to conclude that only Parliament could consider abrogating the right to a fair trial, but it is questionable whether such steps are necessary. Lord Dyson surveyed the cases and concluded that such cases “are a rarity” and do not justify a “fundamental change” (at [50]). This has not, however, prevented the Government proposing legislation in HM Government Justice and Security Green Paper (Cm 8194). We should be cautious. Both PII and CMP have the capacity to be extremely unjust. The Government's attempt to use PII in the Matrix Churchill trial to suppress evidence of the unlawful export of arms to Iraq is a striking indication of the potential for abuse. One could mistakenly assume that CMP is fairer than PII because under CMP the judges will have heard all of the evidence during the substantive proceedings. However, as Lord Kerr commented, “evidence must be capable of withstanding challenge” and “[e]vidence which has been insulated from challenge may positively mislead” (at [93]). Moreover, as Lord Dyson noted, using a CMP would mean that “allegations of … torture … would be heard in proceedings from which the claimants were excluded, with secret defences they could not see, secret evidence they could not challenge, and secret judgments withheld from them and from the public” (at [83]). Thus to use CMP in proceedings in which individuals claim that the State has been complicit in their torture would place the most vulnerable in a Kafkaesque position, and would strike a significant blow to the credibility of the British justice system.

Tariq v Home Office [2011] UKSC 35, [2011] 3 W.L.R. 322 raised a different question. Tariq had been suspended from his employment as an immigration officer following suspicions that his brother and cousin were involved in terrorism. Tariq challenged this in the Employment Tribunal. The Employment Tribunals Act 1996 expressly confers upon the Secretary of State the power to make regulations authorising the use of CMP, and the Secretary of State did so via the Employment Tribunals (Constitutional and Rule of Procedure) Regulations 2004 (SI 2004/1861). The Employment Tribunal used a CMP in Tariq's case, and the question on appeal was whether the legislation was compatible with the right to a fair trial under Article 6 ECHR. The Employment Appeal Tribunal and the Court of Appeal rejected Tariq's claim that the legislation was incompatible, but held that Article 6 required the Home Office to provide Tariq with the gist of the allegation; this was referred to as “gisting”.

The Supreme Court unanimously held that the legislation was compatible with Article 6. Seven of the justices also found that Article 6 does not mandate “gisting” in all cases without exception; Lord Rodger had indicated that he would have agreed with the majority. The majority distinguished between cases where fundamental rights such as liberty were at stake, in which case “gisting” was required, and other cases such as Tariq, where “gisting” was not required. Underlying their decision were concerns that if “gisting” were mandatory, but it was not possible to disclose the gist of an allegation due to the risk to national security, the Government would be forced to settle. Lord Brown expressed deep concern about the implications for the Government's reputation and the cost to the taxpayer if the Government was forced to settle claims, and Lord Hope had little sympathy for Tariq, noting that he sought employment that required a security check.

Lord Kerr was alone in dissenting on the question of “gisting”. Unlike the majority, he saw no distinction between different types of cases. In his view, “[a] fair trial in any context demands that certain indispensable features are present” (at [134]). He doubted whether Strasbourg jurisprudence conclusively determined that Article 6 did not require “gisting”. However, even if this were the case, he held that the common law right to a fair trial would require “gisting”, and that this could only be abrogated by clear and unambiguous statutory language.

Indeed, what is most striking about Tariq is the lack of discussion of the common law right. Lord Dyson in Al Rawi shed some light on this issue. He commented that whilst the Court concluded in Tariq that the use of a CMP was compatible with Article 6, “the lawfulness of a [CMP] under article 6 and under the common law are distinct questions” (at [68]). Drawing on Lord Bingham's dictum in R. (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 A.C. 323 at [20], he asserted that it is “open to our courts to provide greater protection through the common law than that which is guaranteed by the Convention” (at [68]), thereby justifying the decision in Al Rawi. However, what about the decision in Tariq? It appears from Lord Dyson's analysis that it was not envisaged that Article 6 restricted the common law. Thus one might conclude that the majority in Tariq must have thought that one of the following situations applied: (a) the common law right to a fair trial does not require “gisting” and the judges could not develop the common law contrary to statute; (b) the common law requires “gisting”, but the right to a fair trial is not protected by the rule of law and Parliament had overridden this with legislation; or (c) the common law requires “gisting”, and the right to a fair trial forms part of the rule of law, but Parliament had enacted legislation that conferred on the executive the power to put in place measures that were contrary to this, and Parliament is free to enact such legislation. It would have been useful to have discussion of these issues in Tariq.

Procedural fundamental rights are at the heart of the constitutional relationship between the organs of the state and the rights of individuals. In Al Rawi these issues were central to the analysis. But the decision in Tariq that Article 6 offered no protection in this case, and the reluctance of the majority to discuss the role of the common law leaves our rights vulnerable.