Use of secret evidence in civil cases could render some claims untriable
The use of secret evidence in civil cases could render some claims untriable, the independent reviewer of terrorism legislation, David Anderson QC, has said.
Giving evidence to the Joint Committee on Human Rights on the Justice and Security Green Paper last week, Anderson spoke about the impact on civil justice of closed material procedure (CMP), under which sensitive evidence can be excluded. The Green Paper proposes introducing legislation to make CMPs more widely available in civil proceedings.
Where highly sensitive material is so central to a case that it is untriable without that evidence, the claim is either struck out or the parties are forced to settle. Neither of these outcomes is desirable, Anderson said. For example, in Al Rawi v Security Service [2011] UKSC 34, in which former Guantanamo detainees sought compensation, the government settled the case after being refused permission to keep evidence secret.
Anderson recommended that strict conditions be applied where CMP is allowed, and that it must be the court not the government that makes the decision in order to maintain impartiality.
The Committee is hearing evidence from a range of other experts, including Dinah Rose QC, Lord Carlile and Angus McCullough QC.
