Al Rawi v Security Service
The courts cannot, without legislation, adopt a closed material procedure in an ordinary civil claim, because it departs from the fundamental principles of open justice and natural justice.
Facts
Mr Al Rawi and other men who had been detained at Guantanamo Bay and elsewhere sued the Security Service and other government bodies for damages, claiming that the UK authorities had been complicit in their detention and mistreatment. The government wanted much of its evidence to be heard in a closed material procedure, in which the claimants and their lawyers would be excluded and their interests represented by special advocates who could not tell them about the closed material.
Legal principle
The Supreme Court held that the courts had no power, without statutory authority, to order a closed material procedure in an ordinary civil claim for damages. Lord Dyson said that the right to a fair trial is fundamental, and includes the principles that trials should be held in public and that each party should know the case against it and the evidence on which it is based. A closed material procedure would depart from these principles in a fundamental way, and any such change should be made by Parliament. Parliament later passed the Justice and Security Act 2013, which allows closed material procedures in civil cases in some circumstances.
Related cases on rule of law
- Burmah Oil Co Ltd v Lord Advocate [1965] AC 75
- Entick v Carrington (1765) 19 St Tr 1029
- Liversidge v Anderson [1942] AC 206
- M v Home Office [1994] 1 AC 377
- Malone v Metropolitan Police Commissioner [1979] Ch 344
- R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60, [2009] 1 AC 756
- R (Evans) v Attorney General [2015] UKSC 21, [2015] AC 1787
- R (UNISON) v Lord Chancellor [2017] UKSC 51, [2020] AC 869
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