The Nature and Context of the Closed Material Procedure: An Analysis by Dr Hayley Hooper

This discussion will focus on Dr Hooper's observations on closed material procedures. Dr Roderick Bagshaw will respond to the talk, following which audience members will be given an opportunity to respond.

Abstract:

The Closed Material Procedure (CMP) is a mechanism for using ‘closed’ or ‘secret evidence’ in civil proceedings which engage with questions of national security.  CMPs are routinely criticised by academics, legal professionals, and civil society organisations as representing an inherent ‘…unfairness…and…a serious incursion into common law principles of open justice (public hearings) and natural justice (i.e. knowing the case put against you).’ (McCulloch and Chamberlain, 2013). This paper reflects critically upon the extent to which the CMP, described by Sir David Keene as an ‘elaborate and unusual procedural structure’, is actually out of step with other areas of the English legal system. It demonstrates that the apparently hallowed principles of civil procedure which the CMP is derided for departing from are not as sacrosanct as critics appear to assume. It sets out the history and development of the CMP in the context in which it operates, and examines the relative status of the principles of open justice and equality of arms at both common law and in the jurisprudence of the European Convention on Human Rights. Other proceedings which compromise open justice and equality of arms in two other contexts are then considered and contrasted with the CMP: the Investigatory Powers Tribunal and the Court of Protection. Finally, applications for CMPs themselves will be considered in a wider context. This will be done by examining the case law in which CMPs have been requested by one, both, or some of the parties, but that request has been denied.

About the Speakers

Dr Hayley J. Hooper is a Fellow and Lecturer in Law at Homerton College, Cambridge. She is a D.Phil graduate from Balliol College, Oxford, and her research interests are in constitutional and administrative law.

Dr Roderick Bagshaw is Tutor and Fellow in Law at Magdalen College and an Associate Professor in the Faculty of Law. He teaches undergraduate courses in Administrative Law and Tort Law, and on the postgraduate BCL Evidence and Private Law and Fundamental Rights courses. He is the co-author of a textbook on tort law and is one of the editors of Phipson on Evidence.