Judicial Control over the Use of Closed Material Procedures

This paper identifies the key challenges posed by the innate secrecy of closed material procedures (CMPs), highlighting the concomitant importance of judicial control over their use. Judicial independence is of fundamental importance in any democracy of which judicial decision-making powers are an essential element, even in the national security context. In the UK, the Justice and Security Act 2013 extended the availability of CMPs to all civil proceedings. The Act appears to preserve judicial decision-making power at the initial stage of ordering the use of a CMP, however it does not adequately address concerns regarding the way such power is structured. This paper advances an alternative framework, which delineates the steps of the decision-making process and assigns varying degrees of deference in accordance with the appropriate limits of judicial and executive power. This approach seeks to reconcile underlying competing interests and offer a more rigorous approach to proceedings.