Supreme Court president criticises secret hearing
- 19 June 2013
- From the section UK
The president of the Supreme Court has criticised the way in which it felt forced into holding a secret session that had "no point" to it.
Government lawyers asked judges to read secret material in a sensitive case against a major Iranian bank.
But Lord Neuberger said secrecy added nothing to the case and the court would resist pressure to hold secret sessions in the future.
The court overturned a ban on Bank Mellat operating in the UK.
The Treasury had effectively shut down the bank's UK arm because of Mellat's alleged links to Tehran's nuclear programme.
The bank said it had no such links and argued that it had been treated unfairly. It recently won a related and wider challenge in Europe.
The High Court and Court of Appeal backed the government's decision - but the Supreme Court overturned it.
A majority of the nine justices said the ban was arbitrary and irrational.
One of the critical issues in the case was whether the bank had received a fair hearing because the government had shown secret evidence to a High Court judge.
Ministers can ask judges to look at some evidence, known as "closed material", in secret on national security grounds.
When the case reached the Supreme Court, counsel for the government insisted that it should see the High Court's secret judgement relating to that material.
The judges eventually agreed, leading to the Supreme Court's first ever secret hearing.
They spent approximately 45 minutes in a locked session with two security-vetted lawyers.
The hearing was considered so sensitive that the judges had to leave one courtroom and set up in another which had stronger soundproofing.
A security guard stood outside to prevent anyone trying to enter.
Delivering the court's judgement in the case, Lord Neuberger, the UK's most senior judge, said it had only held the secret session because of an outside possibility that the Treasury would have been treated unfairly if it had not.
But he added: "There was no point in our seeing the closed judgment. There was nothing in it which could have affected our reasoning, let alone which could have influenced the outcome of that appeal.
"Appellate courts should be robust about acceding to applications to go into closed session or even to look at closed material.
Misuse of procedure
"Given that the issues will have already been debated and adjudicated upon, there must be very few appeals where any sort of closed material procedure is likely to be necessary."
Lord Hope went further and criticised the pressure put on the justices by the Treasury.
He said: "The attitude which they have adopted in this appeal was a misuse of the procedure, because they invited the court to look at the closed judgment when there was nothing in it that could not have been gathered equally well from a careful scrutiny of the open judgment.
"This experience should serve as a warning that the State will need to be much more forthcoming if an invitation to this court to look at closed material were to be repeated in the future."
Speaking for the bank, solicitor Sarosh Zaiwalla said: "Today's ruling is a victory for the rule of law as much as it is for Bank Mellat.
"The judgement will put enormous confidence in the independence of the British judiciary and sets an example that even controversial disputes can be resolved by applying the principle of rule of law through the British courts."