Ingrid Burke, RAPSI

Russia’s recent efforts to promote judicial transparency seem to be a bit off trend. In fact, at the moment secret tribunals are all the rage. The UK and US are both presently grappling with efforts to expand secrecy within their respective judiciaries. Initiatives within both justice systems to slink toward secrecy have been met with ire by political leaders, advocacy groups, and concerned citizens alike.

Russian officials have taken a variety of steps in recent years to strengthen the nation’s judiciary through initiatives aimed at enhancing transparency. Chairman of Russia’s Supreme Commercial Court Anton Ivanov, for instance, has spearheaded a campaign in recent months aimed at opening up commercial proceedings to the public. Among other things, this included a ban on any restrictions on social media coverage of proceedings. Furthermore, the Supreme Commercial Court will begin publishing copies of claims online for public review early this year, and has encouraged other courts to do the same.

Meanwhile, high-profile moves in the opposite direction have been dominating the UK and US courts in recent months.

The UK: commercial law paradise, intelligence law dystopia

The UK has risen up as something of a leader in international dispute resolution. Speaking with RAPSI on this point not long ago, a UK Justice Ministry spokesperson proclaimed: “The world's business leaders come to the UK to settle their disputes so that they can protect their hard work, ensure payments are made, contracts are enforced - allowing their businesses to grow... UK courts provide an internationally recognised guarantee of impartiality, independence and enforceability."

The country has proved fertile grounds for large-scale Russian disputes in recent years; particularly those between oligarchs squabbling over business deals that occurred in the aftermath of the Soviet Union’s collapse. This latter point comes much to the dismay of Chairman of Russia’s International Commercial Arbitration Court Alexei Kostin, who recently lamented the tendency of wealthy and powerful Russians toward flocking to London, especially in cases of Russian disputes that do not have any international or foreign components. 

Meanwhile, Saudi Arabia is also interested in the British venue. Just last October, Financial Times reported that the Arab state planned to lobby the UK for its very own London-based arbitration tribunal in order to handle disputes arising out of the large-scale business disputes the country so commonly deals in.

As far as arbitration proceedings are concerned, secrecy is imperative. The preservation of trade secrets and the withholding of sensitive business information from prying ears are two of the major perks of arbitration as compared with litigation in court.

When this sort of secrecy spills into the court system, however, it threatens to do so at the cost of justice itself.

UK legislators are currently considering a bill that – among other things – would significantly broaden the field of “secret justice” in the UK.Specifically, the Justice and Security Bill would provide for the expansion of secret justice into the civil realm by way of the expansion of Closed Material Procedures (CMP) to civil proceedings. CMPs in the civil proceeding context would enable a court adjudicating a given case to hear and see all evidence, no matter the clearance level. Naturally, sensitive information could not be made available to all parties to each case based on the potentially disastrous national security consequences.

The Justice and Security Bill found its origins in a Green Paper presented in October 2011 by then-Justice Secretary Kenneth Clarke.  In his foreword, Clarke explained that the heightened requirements in the fields of intelligence and security since 9/11 have courted heightened judicial scrutiny. As such cases are necessarily anchored in classified and secret information, Clark cited the difficulty in extrapolating a workable court case amidst the redactions: “cases either collapse, or are settled without a judge reaching any conclusion on the facts before them.”

Toward this end, the Green Paper proposed: “introducing legislation to make [CMPs] more widely available in civil proceedings for use in rare instances in which sensitive material is relevant to the case.”

Once fleshed out and placed into the bill’s text, this point turned into the proposal that in certain broad instances courts would be compelled to declare CMPs upon a request filed by the Secretary of State.

As far as the independence of the judiciary is concerned, the bill has come a long way since its introduction.

A number of amendments have been proposed since the bill’s introduction, including one that would leave ultimate CMP discretion in the hands of the relevant court. While the Secretary of State may still submit a CMP application for a given case, regardless of whether s/he is a party to the case, the decision will remain with the court.

Still, the proposed expansion of secret justice into the civil realm has been met with impassioned criticism.

Parliamentary opposition

On the heels of these recent amendments, Conservative MP Andrew Tyrie co-authored a damning report alongside Anthony Peto QC taking aim at the scope of the proposed amendments arguing, in relevant part, that the introduction of CMPs would “enable the Government to present its evidence in secret session in the absence of the other party, his or her lawyers, the press and the public.”

In Tyrie’s view, without additional safeguards the law will fail to protect against the dangers of an unwieldy system of secret justice. Such additional safeguards would include the relegation of CMPs to last-resort status. They should be treated as an option only after the possible use of Public Interest Immunity (PII) has been exhausted.

PII is a set of judicial principles that allows UK judges to recognize that the disclosure of certain evidence to all parties in a given case may be damaging to national security or international relations.

Notably, the Green Paper addressed the PII, finding it insignificant to address the complexities posed by sensitive cases in the civil realm, stating: “The existing concept of [PII] enables sensitive material to be excluded from such cases but excluding key material means that the case cannot always be contested fairly for both sides. If too much material is excluded from court the Government may have little choice but to settle cases without a chance to defend itself.”

In his report, Tyrie urges the necessity of balancing the interests of justice against those of national security in rendering decisions about the disclosure of information, in cases where CMPs have been approved. And in such cases, information withheld from a given party should be presented to that party in a summarized form, so that they aren’t left completely in the dark.

Criticism from the legal community

The Law Society, independent professional body, mildly commended the amendments as “a small step in the right direction,” but expressed doubt that they would suffice in combatting the potential hazards posed by the expansion of secret justice.

Lucy Scott-Moncrieff, president of the independent professional body, explained that, “Closed material procedures undermine an essential principle of justice, which is that all parties are entitled to see and challenge all of the evidence relied upon before the court, and to combat that evidence by calling evidence of their own.”

Both Tyrie and the Law Society argued as well that the current legislation is unsubstantiated by adequate justification.

According to Tyrie’s report, “Government has, so far, been unable to put together an adequate justification for this legislation and, until it does so, it should be withdrawn.”

According to the Law Society: “the government has failed to make a national security case for extending CMPs to ordinary civil litigation.”

The bill remains under active consideration.

The US: transparency and efficiency face off in a policy tug-of-war

Across the Atlantic, the US has been struggling in its own right to reconcile the policy goals of efficiency and transparency. Zealous advocates on both sides of the spectrum are coming out in droves to submit amicus briefs and advance their two cents on the matter in the lead-up to a major federal appeal concerning the right of Delaware’s Chancery Court to hold closed-door arbitration proceedings.

In 2009, the state of Delaware passed a resolution vesting the Courts of Chancery with the power to arbitrate business disputes on a request basis. The resolution stipulated that, “Arbitration proceedings shall be considered confidential and not of public record until such time, if any, as the proceedings are the subject of an appeal."

The Delaware Coalition for Open Government (DELCOG), an advocacy group championing government transparency, filed a federal claim challenging the resolution as repugnant to the right of Americans, as guaranteed by the First Amendment of the Constitution, to access judicial proceedings.

This past August, a federal court in Delaware held that the closed-door arbitration proceedings in the Chancery Court violated First Amendment access rights. Establishing that, “the judiciary as a whole is strengthened by the public knowledge that its courthouses are open and judicial officers are not adjudicating in secret,” the court ordered Delaware to immediately cease all such proceedings.

Among those who have come out in support of Chancery Arbitration proceedings in recent months are the US Chamber of Commerce – the world’s largest business federation, which represents the interests of over three million businesses – and the Business Roundеtable, an association of CEOs from leading US companies. An amicus brief submitted jointly by the two associations lays out the policy benefits that stand to be gained through these proceedings as follows: “Arbitration offers businesses an essential alternative to litigation.  The required time and expense have increasingly rendered litigation impractical.  Businesses need a venue where they can settle their disagreements fairly and efficiently.  Arbitration by Court of Chancery judges is particularly promising.  It bears all the virtues of traditional arbitration, including flexibility, informality, and cost effectiveness. And it has the added advantage of allowing companies to have their disputes resolved by experienced adjudicators with expertise in business law.”

On the other side of the spectrum, advocacy group the Reporters Committee for Freedom of the Press and 12 major media agencies joined forces to strengthen the ranks of team DELCOG. Their joint amicus brief argues: “A state may not skirt its constitutional obligations simply by renaming a proceeding. Delaware’s framework is unique in that it provides for sitting Chancery Court judges to secretly and confidentially arbitrate claims that they could otherwise hear in an open court proceeding where all constitutional presumptions of access would apply.  Allowing a court that plays… an essential role in resolving disputes in corporate America to act under a veil of secrecy would run counter to important, well-established public interests.”

Interested parties have converged as this case may prove precedential for other states throughout the US.