1 Jun 2012 | Uncategorized
The Justice and Security Bill was introduced in the House of Lords this week. Should it become law then it will have a devastating effect on the extent to which the public can find out about matters of major importance. These include the activities of those suspected of threatening security and of the authorities who attempt to counter such threats.
Do not be misled by the Daily Mail’s claim that the Bill is a “climbdown” and a victory for their campaign against secret justice. To be sure, the Mail was a key player in the government’s decision to remove inquests from the proposals, but this Bill is not victory. The Justice Secretary Ken Clarke maintains it will not result in the “public finding out less about the truth in important cases”, but that seems unlikely.
Under the bill if information emerged in civil cases that could affect national security, then the government could ask the court to use closed material proceedings (CMPs). The opposing parties and their lawyers would then be excluded from crucial parts of the case; only the judge and government parties would remain, with a special advocate representing the interests of the claimant.
The media will have no access. There is no requirement that the public be notified a CMP will be sought, even though in criminal cases seven days’ notice is required for an application to close a court on national security grounds. The media would be totally excluded from hearings which consider whether CMPs should be used, without even a special advocate representing the public interest in open justice.
It is virtually certain CMPs will become the norm in this area because the proposed rule is that if the judge thinks that a disclosure of information would be damaging to national security, then she or he must order a CMP. The judiciary defer strongly to executive judgments about what will damage national security (and the government tends to set a low threshold for damage) and, once reaching the conclusion national security would be damaged, a judge will have no discretion on the order that follows.
In theory, the legislation would not permit the government to use CMPs to cover up embarrassment. In practice, however, the outcome is likely to be different. A key rationale behind the laws is that the government must protect relationships with other countries, and especially the United States. If embarrassment to the UK government can be claimed to affect those international relationships then, in a kind of legal alchemy, non-damaging embarrassment can be transformed into damage. The result will be secrecy.
We can expect these procedures to apply in many important cases. The Justice Secretary has indicated that it is intended to apply only to a narrow group of cases, such as actions for damages by former Guantanamo Bay detainees claiming British complicity in detention or torture. The Green Paper that preceded the Bill said 27 cases were in issue, though the government refused to say what they were.
In the Law, Terrorism and the Right to Know research programme at the University of Reading, we have tried to identify the cases likely to be affected. Our list is now at around 20 cases where claimants have been subjected to detention, torture, extraordinary rendition and the like. They stretch across the world, alleging British complicity in wrongdoings from Guantanamo Bay to Pakistan, Afghanistan, Kenya, Uganda, Libya, Egypt and Bangladesh, among others.
But the reach of the Justice and Security Bill is wider than even these cases. It will also include matters that occur solely within the UK. While inquests are no longer to be subject to CMPs, any civil actions which follow inquests could fall within its provisions if intelligence sources or methods could be disclosed. That could well include cases relating to deaths as a result of shootings by police.
If police make arrests in a counter-terrorism operation and are subsequently sued for assault or false imprisonment then CMPs would very likely be sought because the action may well involve disclosure of methods used by the security services.
There will inevitably be other categories of cases in which the laws will be applied. National security is a broad church.
One of the most disturbing provisions in the Bill is the absence of any weighing of competing public interests in the decision to order the use of CMPs. The Bill removes all consideration of competing interests in open justice. No matter how strong the public interest may be in the substantive issues or in process of justice being done in the public eye, a judge cannot take account of that.
Moreover, there will be no recording of how often CMPs are used. There will be no method or point of review to determine when closed judgments can be made open. This Bill proposes that these matters are closed forever.
There is every reason to see this Bill as laying the foundations for a secret state where the executive is able to use national security as a blanket to hide proceedings from the public eye, regardless of how great the public interest in open justice might be.
This Bill will make our governments less accountable. It will make secrecy the norm. Our parliament should oppose it fiercely.
Lawrence McNamara runs the ESRC-funded Law, Terrorism and the Right to Know research programme at the University of Reading. He tweets at @UniRdg_LTRK
Index on Censorship letter to Joint Committee on Human Rights
30 May 2012 | Leveson Inquiry
Twenty-first century politicians have been “obsessed” with newspapers, the Leveson Inquiry heard this afternoon.
“Politics is now a mass media-dominated activity”, justice secretary Ken Clarke said, arguing that the press was now far more powerful than parliament and that many were put off by politics due to the level of exposure.
Clarke singled out former prime minister Gordon Brown as having been “utterly obsessed” by his relations with the media, adding that it “didn’t do him any good at all”. He said Margaret Thatcher “never read a newspaper from one week to the next” and implored his colleagues to pay no attention to the papers if they were upset by their content.
During his calm and measured session at the Inquiry, Clarke said newspaper editors and proprietors “can drive a weak government like a flock of sheep before them” when lobbying on certain topics, and he slammed the idea of currying favour with the press as a “waste of time”.
The politics of the last 15 years had been “dominated” by competition for support from the Sun newspaper, he added. “I don’t think the Sun ever had a significant effect on any election in my lifetime, though it was obviously thought by some to be important.”
He said he held the “more jaundiced view” that the paper and its proprietor, Rupert Murdoch, were “good at changing sides when it’s obvious the horse they’re riding is about to collapse”.
He described New Labour as having introduced a level of “control-freakery”, adding that he knew of one journalist who was barred from the Treasury and told she would not be let in again because of stories she had written.
On the topic of criminal justice legislation, Clarke pointed the finger at the popular press, emphasising that newspaper campaigns were often based on partial accounts of high-profile cases. “If the tone of newspapers had been different in the last 20 years, we’d have 30,000 fewer prisoners,” he said, though he stressed this was not a “scientific” estimation.
He and Lord Justice Leveson discussed at length the future of press regulation, with Clarke admitting he was “deeply suspicious” of government control in a new system. Yet he added he did not have confidence in letting the press regulate itself, stressing that a regulator should be independent of both the industry and the government.
“I always thought PCC was a joke,” Clarke quipped. “I had some friends on it who tried to convince me otherwise. Completely useless.”
“I do think 99 per cent of people in this country genuinely believe in a free press,” he added, suggesting journalists were becoming “almost as sensitive as politicians” who thought no-one loved them anymore.
The Inquiry continues tomorrow with evidence from culture secretary Jeremy Hunt.
Follow Index on Censorship’s coverage of the Leveson Inquiry on Twitter – @IndexLeveson
25 May 2012 | Leveson Inquiry
Next week is set to be one of the most gripping yet in the Leveson Inquiry into press standards.
Monday has been reserved for former prime minister Tony Blair, who will likely be questioned about his close relationship with media mogul Rupert Murdoch, whose tabloid the Sun famously switched its long-standing Conservative allegiance to back the Labour party ahead of the 1997 general election.
Business secretary Vince Cable is scheduled to appear on Wednesday. It is likely he will be quizzed about News Corp’s £8bn bid for the takeover of satellite broadcaster BSkyB, particularly his admission that he had “declared war” on the Murdoch-owned company, which led to his being stripped of responsibility for the bid.
But the highlight will surely come from Thursday’s sole witness, culture secretary Jeremy Hunt, who is fighting for his political life after the revelation of a November 2010 memo he sent to David Cameron in support of News Corp’s £8bn bid for control of the satellite broadcaster one month before he was handed the task of adjudicating the bid.
In the memo Hunt emphasised to Cameron that it would be “totally wrong to cave in” to the bid’s opponents, and that Cable’s decision to refer the bid to regulator Ofcom could leave the government “on the wrong side of media policy”.
The memo has further weakened Hunt’s grip on power, already in doubt after last month’s revelations that his department gave News Corp advance feedback of the government’s scrutiny of the BSkyB bid. Evidence shown to the Inquiry yesterday during News Corp lobbyist Frédéric Michel‘s appearance showed over than 1000 text messages had been sent between the corporation and Hunt’s department, along with 191 phone calls and 158 emails.
The Labour party has since upped the volume on its calls for Hunt to resign, arguing he was not the “impartial arbiter” he was required to be.
Hunt has maintained he acted properly and within the ministerial code, while David Cameron said today he does not regret handing the bid to Hunt, stressing he acted “impartially”.
Follow Index on Censorship’s coverage of the Leveson Inquiry on Twitter – @IndexLeveson
4 Apr 2012 | Uncategorized
Ken Clarke, the British Justice Secretary, has been forced to defend government plans to extend the scope of secret trials. The proposals would allow ministers, rather than judges, to order the hearing of sensitive civil cases to be conducted in secret. In a radio interview this morning, Clarke described the last government as “far too authoritarian” and said his views on civil liberties issues were in line with his Liberal Democrat coalition partners. Yet, Clarke’s interview was forced after the Joint Committee on Human Rights described his department’s plans as a “radical departure from long standing traditions of justice” and in light of the security situation the plans “simply aren’t justified”.
The Joint Committee heard damning evidence on the government’s proposals contained within the Justice Green Paper, including concerns on the impact on free expression and open justice from Index on Censorship.
After the committee’s findings, Deputy Prime Minister Nick Clegg made clear his reservations — stating no inquests should be held in secret. Rumours abound that the Ministry of Justice will be forced to back down due to the report and the intervention of the Deputy Prime Minister. Civil libertarians in the Conservative party are also increasingly disgruntled by illiberal policies such as the leaked “data snooping” proposals and attempts to curtail the Freedom of Information Act.
The Joint Committee’s report makes interesting reading. Echoing Index’s submission and the evidence of other human rights organisations, the Committee argued that the broadness of what could be made secret was not justifiable:
The emphasis in the Secretary of State’s Foreword to the Green Paper is almost exclusively on the security and intelligence agencies and national security… The proposals in the Green Paper, however, are not confined to contexts concerning intelligence information or other material concerning national security. Rather, they relate to the disclosure of any “sensitive material” the disclosure of which may harm the “public interest”.
Indeed, it found no justification for the changes the government pushed for in inquests, stating:
We do not consider that the Government has produced any evidence to demonstrate the need to introduce fundamental changes to the way in which inquests are conducted
Legal expert Joshua Rozenberg believes the Green Paper was an attempt by the UK government to rebuild trust between their security services and their US counterparts since the Binyam Mohamed case. Guantanamo detainee Mohamed successfully sued the UK government for his mistreatment whilst held by the US which led to the disclosure of intelligence implicating that government in torture.
Now that there is serious public disquiet from within the government will Clark re-assess these misconstrued proposals — or is international pressure from partners enough to undermine the UK’s “traditions of justice”?
