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The Civil Procedure Rules at 20$
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Andrew Higgins

Print publication date: 2020

Print ISBN-13: 9780198863182

Published to Oxford Scholarship Online: October 2020

DOI: 10.1093/oso/9780198863182.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 28 October 2021

National Security, Closed Material Procedures, and Fair Trials

National Security, Closed Material Procedures, and Fair Trials

Chapter:
(p.81) 7 National Security, Closed Material Procedures, and Fair Trials
Source:
The Civil Procedure Rules at 20
Author(s):

Martin Chamberlain

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198863182.003.0007

This chapter examines the arguments advanced against the extension of closed material procedures (CMPs) prior to the passage of the Justice and Security Act 2013. In the light of experience since the coming into force of that Act, it asks whether and to what extent the arguments against CMPs have been shown to be correct; whether and when CMPs are necessary; and whether and when they are capable of providing the ‘substantial measure of procedural justice’ their proponents promised. Any assessment of the degree to which CMPs give rise to procedural unfairness must be attentive to two factors: first, the degree to which the excluded party will be disadvantaged by being represented by a special advocate, rather than their own lawyer; and secondly, what is the alternative to a CMP. This leads to a mixed picture where CMPs can cause considerable unfairness in some cases, but in others it may be the only the way to effectively challenge a decision by way of judicial review.

Keywords:   civil procedure, national security, closed material procedures, procedural fairness, natural justice, disclosure, open justice

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