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
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”?
It was heartening to hear the Master of the Rolls, Lord Neuberger of Abbotsbury, discuss how best to achieve “public confidence in the justice system, transparency and engagement” last week.
His call for legal clarity and accessibility to UK courts should be welcomed and built upon by advocates of free expression.
‘Open Justice Unbound’, Lord Neuberger’s Judicial Studies Board Annual Lecture 2011, was – as the UK Supreme Court Blog put it – “a vision for open justice in the 21st century”.
For the time being, however, it’s a vision and there is still much that can be done to open up the UK’s courts online.
Lord Neuberger addressed pertinent digital points in his speech, which covered a range issues: the accessibility and format of judgments, super injunctions and accurate court reporting.
He welcomed “court tweeting”, as long as it does not interfere with the hearing, realistically adding: “I doubt however that we will see the development of tweeting from the bench”.
Lord Neuberger suggested that “a more active approach might usefully be taken by those of us who are concerned with the administration of justice to ensure that judgments are publicised and properly reported”.
“We should perhaps build on the Supreme Court’s practice of issuing short, easily accessible judgment summaries with judgments.”
Bloggers can particularly savour his comment that the judiciary “should foster the already developing community of active informed court reporting on the internet through blogs, and tweeting”.
“[W]e should support the responsible legal journalists; we should initiate, support, encourage and assist public legal education,” he continued.
“The great strength of our society is that it is built on the competing voices of free speech. Justice to be truly open must join its voice to the chorus; and must ensure that inaccurate or misleading reporting cannot gain traction.”
Making legal information accessible to the public, as well as professional specialists, is at the heart of open justice.
Unfortunately a lot of courts information is locked behind pricey paywalls, only available to firms and institutions that can afford the annual subscription fees.
Many lawyers say that the Bailii website, which makes many judgments available, is an indispensible resource, but this should not stop the courts from continually innovating and releasing more data.
The journalist and author Heather Brooke has drawn attention to some of the existing paid for courts services, questioning the costs associated with accessing transcriptions and documents, in her latest book, The Silent State.
At this point the worst thing that could happen would be for an opaque private contractor to step in and handle more courts data and services, bringing with them unnecessary consultancy costs and strain on the public purse.
Instead the Ministry of Justice should work with legal practitioners, experienced web developers and transparency / Freedom of Information specialists, to work out the cheapest and most efficient way of opening up courts information online, making more information free and available to all British citizens.
More accessible guidance and data will help achieve Lord Neuberger’s aims for more accurate and informed reporting:
“…debates must be based on fact not misconception, deliberate or otherwise. Persuasion should be based on truth rather than propaganda. It is one thing to disagree with a judgment, to disagree with a law and to campaign to change the law, but it is another thing to misstate what was said in a judgment, or to misstate the law.”
Lucy Series, a legal researcher at the University of Exeter, raised valuable questions about open justice and the Court of Protection on her blog recently; and drew attention to this bizarre state of affairs, quoting a post on Binary Law:
“There is still a restriction on the number of English cases from divisions of the High Court which can be added to the BAILII database, arising from the fact that the shorthand writers who transcribe judgments which have been given verbally (as opposed to those handed down on paper) own the copyright in the transcribed version of the judgment. This prevents the judgment being added to the BAILII database without the consent of the shorthand writer. BAILII, being a free website, has no funds with which to acquire a licence to copy and display these transcripts.”
This is just one of the many quirky inconsistencies in UK law that needs to be examined. Let’s hope increasing discussion by bloggers and lawyers, along with Lord Neuberger’s valuable comments, prompt the Ministry of Justice to more seriously address the question of digital open justice, looking to other national courts for inspiration.
If you have any research, examples from other countries, or additional thoughts to share please contact jt.townend [at] gmail.com.
Lord Neuberger’s speech can be read in full at this link.
Also see helpful commentary on the speech at these links:
UK Human Rights Blog
UK Supreme Court Blog
Judith Townend is a freelance journalist and PhD candidate based at City University London’s Centre for Law, Justice and Journalism. Her blog covering digital media law can be found at: http://meejalaw.com.