by Wells C. Bennett
On Wednesday, the UK Supreme Court handed down its decision in Al-Rawi v. Security Service, which arose from the British Government’s alleged role in detention and abuse at, among other places, Guantanamo.
The case presented the question of whether a court has the power, in a civil case, to order a closed material procedure – in which the Government may present, and the court may consider, secret evidence that is shared with a special attorney for the other party, but not with the party him- or herself. By five votes to three, the Supreme Court held that the UK courts lacked such authority, in part because of the closed procedure’s incompatibility with fundamental principles, including a party’s right to examine evidence and to be present during key proceedings. Only Parliament, the lead opinion said, could create exceptions to those rules. Three justices disagreed, and found sufficient authority for courts to impose closed procedures under certain conditions. (A ninth justice had indicated agreement with the majority view, but died before the case was decided.)
The decision thus invites the British Parliament to act, and implies a strong desire on the majority’s part to distance itself from procedures that – though arguably warranted by national security concerns – stand to undercut basic due process.