Legal Techniques and Secrecy

​Co-hosted with the Oxford Refugee and Migration Law Discussion Group

In the past two decades, a small but growing number of British lawyers working against the government in cases concerning national security matters have had to adapt to working in ‘closed material procedures’ (CMPs). These are special proceedings in which the government in permitted to rely on material that cannot, for reasons connected to national security, be disclosed in open court or to the person who seeks to challenge the government’s actions or decisions. Acting in their interests is a security-cleared lawyer – a Special Advocate – who is appointed to interrogate the material in closed sessions; however, once the Special Advocate has seen the secret evidence, no communication with the ‘open’ legal team, or their client, concerning its content is permitted. This means the Special Advocate cannot take instructions and can thus do very little to effectively cross-examine the evidence.

The introduction of closed material procedures to British law occurred in 1997 following the case of Chahal v UK in the European Court of Human Rights, a deportation and detention case. Since then the use of CMPs has spread laterally throughout the legal system so that they are now theoretically available in any sort of procedure except a criminal trial. Some developments have been led by government but others have emerged under more contingent conditions. CMPs have been heavily criticised from a number of perspectives, for obvious reasons connected to the principle of fair hearings, and for what they suggest about the UK’s particular approach to counter-terrorism after 2001, exceptional measures adopted by western governments more generally, the political position of foreign nationals and, in particular, Muslims in the UK, and the ideological problems and limitations inherent in the sort of positivist, technocratic concept of human rights subsumed to national sovereignty that has developed in Europe. Many lawyers working on the side of those affected by government decisions do not believe they are working in a fair and just system.

This lengthy abstract is provided as background because in this presentation I do not intend to much develop the above themes. Instead, I hope to outline, and open for criticism, a possible theoretical apparatus for studying the technicalities of this system, working towards a study of the roles that lawyers play in enacting and sustaining the existence and efficacy of CMPs – despite believing that they are unfair. There are obvious problems with attempting to study official secrets. However, the secret material is perhaps not the most interesting aspect of these procedures. After all, in close sessions, government representatives, Special Advocates, and judges presumably continue to occupy their formal familiar roles. The technical deviation that requires adaptation from normal lawyering is on the ‘open’ side, where the information asymmetry takes effect. The task is to investigate how one goes about lawyering while not (fully) knowing what one is doing.