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
31 May 2012 | Leveson Inquiry
Culture secretary Jeremy Hunt today told the Leveson Inquiry that the closure of the News of the World in the midst of the phone-hacking scandal had made him re-evaluate parent company News Corp’s bid for BSkyB.
Mr Hunt admitted that he had previously been in favour of the Murdoch takeover, but claimed he had been able to put personal bias aside when handed the “quasi-judicial” role of adjudicating on the bid, saying: “When I took charge of bid, my job was to ensure our democracy was safe.”
Addressing the resignation of his special adviser Adam Smith, Hunt blamed the “inappropriately” intimate language used by Smith on the volume of communication was subjected to by Murdoch lobbyist Frédéric Michel. However, he insisted Smith was “repeating stuff News International would already have known was my thinking”.
When asked about his views on the future of press regulation, Hunt said he would not wish to endanger free expression, but suggested that a future regulator may need to include digital and on-demand platforms as well as traditional publishing.
Hunt had been battling to save his political career following the revelation of close contact between his department and News Corp during the time of the BSkyB bid, leading to Smith’s resignation and pressure from Labour that the culture secretary had not been the “impartial arbiter” he was required to be.
Yet shortly after his appearance at the Inquiry, Downing Street announced David Cameron was satisfied Hunt had acted “properly” throughout the bid, and that he would not order an investigation into whether Hunt breached the ministerial code.
The Inquiry continues on Monday 11 June.
UPDATE 01/06: Labour said this morning it will call a vote in the House of Commons over Hunt’s conduct.
Follow Index on Censorship’s coverage of the Leveson Inquiry on Twitter – @IndexLeveson
31 May 2012 | Leveson Inquiry
Jeremy Hunt texted George Osborne shortly before he was handed control of News Corp’s £8 billion bid for full control of BSkyB, telling the chancellor he was “seriously worried” the government would “screw up” the bid.
In evidence disclosed to the Leveson Inquiry this morning, it was also revealed that the embattled culture secretary texted James Murdoch on the same day, congratulating him for receiving approval from the European Commission on the company’s bid.
This text message was sent just hours before the BBC revealed that business secretary Vince Cable — at that point in charge of adjudicating the bid — had told undercover Telegraph reporters he had “declared war” on News Corp boss Rupert Murdoch, remarks that were seen as proof of bias. Cable was later stripped of his responsibility, which was passed over to Hunt and announced by Downing Street at around 6pm on 21 December 2010.
At 12:57pm on 21 December, Hunt texted James Murdoch: “Great and congrats on Brussels. Just Ofcom to go”, shortly after the European Commission’s approval of the bid.
At 2:30pm the BBC published Cable’s comments, which Hunt said were discussed in a phone call with James Murdoch at 4pm.
Eight minutes later Hunt texted Osborne, noting he was “seriously worried we are going to screw this up” regarding the bid. In a second message to the chancellor, he noted that Murdoch was accusing Cable of “acute bias” over the bid.
Osborne later texted Hunt: “I hope you like our solution”, shortly before Downing Street’s announcement that Hunt had been given charge for the bid.
Such revelatory messages place further pressure on Leveson to call the chancellor to give evidence before the Inquiry.
Elsewhere in an intense morning of evidence, Hunt defended his handling of the bid, saying he was .”sympathetic” to it rather than “supportive” of it”, and repeated his defence that he did not feel it presented a “major plurality” issue.
Hunt confirmed he received legal advice in November 2010 urging him that it would be “unwise” to intervene. Yet, explaining a memo he sent to David Cameron in the same month, in which he told the PM that it would be “totally wrong to cave in” to the bid’s opponents, Hunt said he had concerns about a situation “where we had a significant merger in my sector” that was encountering obstacles, adding that he sought to be “absolutely proper” in his approach.
“I had an absolute duty to be across the most important issue in that industry,” Hunt said.
He also defended as “appropriate” his 16 November phone call with James Murdoch, despite having received legal advice to avoid becoming involved in News Corp’s bid. Hunt told the Inquiry he “heard what was on his [Murdoch’s] mind.”
“I probably gave him a sympathetic hearing but I probably said I couldn’t get involved in that decision because I had taken legal advice that I couldn’t,” Hunt said.
A meeting between the two was cancelled the day before, following the legal advice, with Hunt explaining he did not see the telephone call as a replacement. “My interpretation of the advice was that I should not involve myself in a quasi-judicial process that’s being run by another secretary of state [Cable].”
Discussing the high level of contact revealed by the Inquiry last month between Hunt’s former adviser Adam Smith and News Corp lobbyist Fred Michel, Hunt said his department was not prepared for the “barrage” of messages from Michel.
“I doubt there’s a minister who worked more closely with a special adviser than I worked with Adam Smith,” Hunt said, explaining that Smith, who resigned in the wake of the revelations, was aware of his views but this did not mean he spoke for him.
He added that Smith was never given instructions on how to deal with News Corp. He repeatedly referred to the adviser as an “official point of contact” to answer questions on the bid process. He rejected counsel Robert Jay QC’s suggestion that the Michel-Smith contact — which included over 1,000 text messages over the course of the bid — was an “extra layer”.
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. David Cameron said last week he did not regret handing the bid to Hunt, stressing he acted “impartially”, but has said he will take action if evidence to the Inquiry suggests Hunt breached the code.
The Inquiry continues with further evidence from Hunt this afternoon.
Follow Index on Censorship’s coverage of the Leveson Inquiry on Twitter – @IndexLeveson
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
