Special Advocates and Closed Material Procedures

This short note sets out the Government’s proposals, initially set out in the Justice and Security Green Paper (Cm 8194, 2011) to extend the use of closed material procedures (CMPs) in civil court cases. It also provides some background material on the use of Special Advocates. CMPs (sometimes referred to by critics as secret trials) were first established to facilitate the hearing of national security deportation cases, but were extended into a number of other types of proceedings where sensitive issues arose. Typically, a CMP will represent a part of the overall case, the rest of which will be heard in open court.

The Justice and Security Green Paper was published in October 2011 and the Government consulted on a variety of proposals to extend the use of CMPs. The consultation closed in January 2012 and a list of responses is available on the Cabinet Office website.

The Government’s proposals were scrutinised by the Parliamentary Joint Committee on Human Rights (JCHR) which reported on 4 April 2012. The Committee was critical of the proposals. Details of its findings (and a link to its report) can be found in section 3 of this paper.

The Government has recently introduced legislation to make CMPs more widely available in civil proceedings. The Justice and Security Bill had its Second Reading in the House of Lords on 19th June. A Research Paper by the House of Lords Library sets out the differences between the Bill (and the draft Bill discussed in this paper). The House of Lords Constitution Committee has also produced a report on the Bill and it is being scrutinised by the JCHR.

The House of Commons Library will produce an additional paper on the Bill in time for its Second Reading in the House of Commons.