Saturday, 9 August 2014


The Star Chamber was an English court of law that sat at the Royal Palace of Westminster from the late 15th century until 1641.   Court sessions were held in secret, with no indictments, and no witnesses.  Evidence was presented in writing.  

The court was set up to ensure the fair enforcement of laws against the English upper class, those so powerful that ordinary courts could never convict them of their crimes.   a court of equity, which could impose punishment for actions which were deemed to be morally reprehensible but were not in violation of the letter of the law. This gave the Star Chamber great flexibility, as it could punish defendants for any action which the court felt should be unlawful, even when in fact it was technically lawful.   Common role of dealing with riots and sedition   by the time of King Charles I, it had become synonymous with misuse and abuse of power by the King and his circle. King James I and his son Charles used the court to examine cases of sedition, which meant that the court could be used to suppress opposition to royal policies. It came to be used to try nobles too powerful to be brought to trial in the lower court.  The Star Chamber quickly gained a notoriety

In 1641, the Long Parliament, led by John Pym and inflamed by the severe treatment of religious dissenters and other abuses abolished the Star Chamber with the Habeas Corpus Act 1640.   After its abolition it became a maxim in the Anglo jurisdictions that legislatures and courts should be open to the public; the very term “Star Chamber” became a negative attached to any court or legislature that was not open. 

One of the defining characteristic of the new unfreedom is that more and more legal processes and legislative activities take place behind closed doors.   In the last couple of decades secret courts have reappeared in the U.K., the U.S. and Canada.  With the passage of the Justice and Security Act "secret courts" (euphemistically called Closed Material Procedures) were introduced into ordinary civil cases in Britain for the first time since the Star Chambers.  Despite vehement opposition, the Act gained Royal Assent on 25th April 2013. It has not yet come into force because the rules of court provided for under the Act have not yet been passed and so, as yet, are not being used. It is only a matter of time, however, before secret courts will be used in civil cases across the United Kingdom.

This legislation allows any civil case in any of the High Court, Court of Appeal, Court of Session or the Supreme Court to be made subject to the Closed Material Procedures if sensitive information is required to be disclosed during it course.  Sensitive material means material the disclosure of which would be damaging to national security.  The result will be a legal proceeding where one party is not able to take part in either a part or the whole of a trial. Furthermore their lawyer cannot be present; neither the party nor their lawyer can see the evidence the government is relying upon (and which is said to be national security sensitive information); they cannot know the government's case or the evidence upon which it is based and consequently cannot challenge this evidence or the government's case.  Finally they cannot know the reasons for the judge's decision based on that evidence.  The civilian will be told whether they have won or lost, but not the facts nor all the reasons upon which the result is based.

The trigger for Closed Material Procedures is national security.  National security, however, can have a very wide ambit.  National security usually means more than just defending the state from the aggressions of other states.  It can concern a wide range of facets including those affecting the non military or economic security of the nation and the values espoused by the national society. In order to possess national security, a nation needs to possess economic security, energy security, environmental security, etc.  Accordingly security can theoretically be at risk not only from threats from another nation-state but also from violent non-state actors, multinational corporations, drug cartels, non-governmental organisations and even natural disasters.

The Investigatory Powers Tribunal (IPT) is a secret tribunal that has been operating in its present form in the U.K. since 2000.   It has exclusive jurisdiction over challenges to the clandestine surveillance programme being carried out by the government.  An application must be made to this secret tribunal to challenge a secret surveillance activity and to request an explanation as to why the government is spying on a British citizen or citizens.

United States has its own secret court, the Foreign Intelligence Surveillance Court (FISC, also called the FISA Court).  It is a federal court which was established and authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against suspected foreign intelligence agents inside the United States by federal law enforcement agencies.  This court is also a "secret court" – its hearings are closed to the public. Usually only government attorneys are permitted to appear before it.  It sits ex parte - in other words, in the absence of anyone but the judge and the government present at the hearings. This, combined with the minimal number of requests that are rejected by the court - the Court's approval rate of application is over 99% - has led experts to characterize it as a rubber stamp.

Canada too has a secret court.  Sessions take place in a secret bunker in Ottawa.  Judges are designated by the Chief Justice of the Federal Court of Canada under the Canadian Security Intelligence Service Act and are empowered to issue secret warrants and to authorize various spy activities including the installation of wiretaps and bugs.  Unlike the Foreign Intelligence Surveillance Court judges can and very occasionally do retain amicus curiae or  "friends of the court" to make submissions in opposition to government requests.

There are other courts and tribunals in Canada which meet in secrecy or partially in secrecy.  Even the Supreme Court of Canada can and does meet in secrecy when dealing with alleged security matters. Portions of the inquiry into the torture of Canadian citizen Maher Arar (2004-06) were conducted in secret by Ontario Associate Chief Justice Dennis O'Connor, while former Supreme Court Judge Frank Iacobucci presided over a completely secret inquiry into Canada's role in the torture of Canadians, Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin.  Even the Competition Tribunal is engaging in judicial secreacy.  It dismissed a complaint from major Canadian retailers about the way credit card companies charge them for processing transactions but said “The reasons are confidential. A public version of the decision [will be released] as soon as possible after a determination as to what information must remain confidential has been made."  

Canadian immigration tribunals can accept and increasingly are accepting secret information that cannot be contested by refugee claimants. Under Section 86 of Canada’s Orwellian Immigration and Refugee Protection Act, the Immigration Minister may, using the exact same procedures of the security certificate, apply to introduce secret allegations.

Canada and the U.S. are contemplating entering into trade agreements which will have as their defining characteristics secret tribunals which neatly override laws passed by elected legislatures. Under Canada’s Foreign Investment Promotion and Protection Agreement (FIPA) foreign companies can bring proceedings in secret tribunals outside of Canada’s court system.  Municipal, provincial, and federal governments could be prevented from enacting strict environmental and health regulations lest they be sued by oversea investors who can claim that the rules have changed and are adversely affecting their investments.  Decisions favouring investors will often be made by three personal tribunals (with members often drawn from international law firms) safeguarded from any annoying public scrutiny.

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