The leaked news that the Secret Barrister, who recently published the critically acclaimed The law and how it’s broken, has been appointed as a Special Tribunal Judge has come as a surprise to his or her many fans.
The Special Tribunal is a little-publicised court that sits in private at undisclosed locations, including, according to some unconfirmed rumours, the Cold War nuclear bunker inside Box railway tunnel in Wiltshire.
Created by the anodyne sounding Court Publicity (Amendment No. 2) Regulations 2015 under the Civil Contingencies Act 2004, a Special Tribunal can be convened, according to Paragraph 1 of Schedule 4, whenever the Minister of Justice certifies that a secret court hearing is necessary:
“in the interests of national security, maintaining public confidence in the justice system or when for any other reason the Minister believes a closed hearing would be expedient in the interests of justice.”
One of the reasons the Tribunal is not better known is that even revealing that a Special Tribunal Certificate has been issued is punishable by 5 years imprisonment, which has proved something of a disincentive to editors.
Once the Minister grants the appropriate certificate, the original court ceases to have any jurisdiction over the relevant case, and the Special Tribunal takes over. According to the Special Tribunal Consolidated Rules of Procedure and Practice Directions (STRP) 27AA.3 (aa) to (bj) (available online only by using a TOR browser), the Tribunal must be chaired by a Special Tribunal Judge, of whom the Secret Barrister is the only one publicly identified, and that only because nobody knows who he or she actually is.
Rights of audience before the tribunal are given only to super-security cleared advocates, and they are easily lost. The Senior Special Tribunal Judge recently downgraded the security clearance of the Terror Watchdog himself, Max Hill QC, after his appearance last year in a reality TV show earned him the contemptuous nickname “Maximum Blabbermouth” from Tribunal staff.
Potentially, the Tribunal can exercise jurisdiction over a huge range of issues from crime, to employment (especially Special Intelligence Service employment), D notices, and even, if normally reliable reports are correct, to a recent ecclesiastical law challenge (originally brought in the Diocese of London Consistory Court) to the right of Meghan Markle to marry Prince Harry (the challenge was unsuccessful, although the unnamed litigant in person who brought the case was praised by the Tribunal judge for the “occasionally polite manner in which he has attempted to advance a difficult case”).
Rather like the Crown Court, the Special Tribunal has a wide range of “special measures” potentially available, with the unusual feature that they are available not to help nervous witnesses but to prevent the Judge being “identified by the litigants, witnesses, advocates, court staff, members of the public and any or all thereof.” Amongst the possible measures are screens to prevent the judge being seen, soundproofed boxes to prevent them being heard, security-cleared actors to voice the judge’s rulings and, in extreme cases – and only after a “ground rules hearing” – specially trained “judicial intermediaries” who can explain in plain language what a judge is actually trying to say when their rulings seem prima facie incomprehensible or absurd.
It is also the only court in the country in which judges, of either sex, are permitted to wear veils while the court is sitting. Members of the court are also benchers of their Inns and can occasionally be seen dining in Hall wearing full body burkas and niqaabs. Grays Inn, however, operates an “eyes visible” rule.
Wigs are not worn in the Special Tribunal but advocates are required to wear blindfolds: silk ones are available from Ede and Ravenscroft for £329.99, although junior counsel’s plain white cotton hood is considerably cheaper at just £249.99. There was something of a rumpus at the end of last year when a former Terror Watchdog, Lord Carlile, was accused of peeping whilst representing the Government. The accusation was hotly denied and never conclusively established, but Carlile, like Max Hill, lost his coveted “super-security” clearance.
The reasons for the Secret Barrister’s appointment are – as one would expect with anything related to the Special Tribunal – cloaked in mystery. One senior civil servant, who said “you may call me Mr Green,” suggested that the Minister believed it was “better to have the bastard inside the tent p*ssing out than outside the tent p*ssing in.” Another theory is that the Secret Barrister’s reputation for clear and comprehensible writing about the law was a crucial point in his favour, as the Ministry was becoming concerned about the spiralling cost of judicial intermediaries. Certainly his or her well-proven ability to remain anonymous despite the best efforts of most of the practising bar will mean the Secret Barrister will have had little difficulty demonstrating one of the “key core person skills” necessary for the job “an aptitude for discretion and a demonstrable ability to pass unrecognised in social situations.”