Sound of tumbleweed greets secret civil trials proposals
14 February 2012
65 responses to the Justice and Security Green Paper consultation, which proposes introducing “Closed Material Procedures” – secret trials – into civil courts, have been published on the official consultation website. According to the site there are potentially 25 more to come.
Whilst it is a good thing that the responses have been published at all, the low number of responses is a little depressing. In a country of over 60 million people, and given the proposals could amount to a significant erosion of open justice, 90 responses seems a little thin. Granted, many of the responses are from organisations or groups of individuals, such as the 57 Special Advocates who have called the proposals a “departure from the foundational principle of natural justice“. But the low number surely represents the fact that as yet the proposals have failed to capture the public imagination.
The media and in particular The Guardian has been attempting to raise public interest, having realised that more secret justice means less media oversight of potentially interesting trials. But the real reason for the collective shoulder shrug is probably the lack of attention from Parliament. As yet, the three main political parties have kept quiet. Only one Member of Parliament, John Hemming MP, famed for his questionable campaign against super-injunctions, has responded and his effort is one of the more curious: I’ll just say it seems a little unfinished.
Things may change once the Green Paper becomes a bill and has to make its way through Parliament. The Lords, and notably Lord Pannick, have been effective of late in challenging otherwise esoteric legal proposals. But it may be that senior politicians are unwilling to speak out on an issue which is both difficult to explain and politically fraught.
The proposals are shrouded in legalisms and 1984-esque euphemism: “special” advocates (barristers who see secret evidence but cannot reveal most of its content to their client), “closed material procedures” (secret trials), “gisting” (only revealing to a defendant the gist of the case against them) “public interest immunity” (keeping sensitive evidence out of court) – see my post which attempts to explain the terminology. Even the title of the consultation – “Justice and Security” – is somewhat loaded. Incidentally, the human rights campaign group Liberty has just launched its own de-mystification campaign against the proposals: For Their Eyes Only: shining a light on plans for secret justice
As to the political danger, without their Party behind them, which MP will risk being seen as speaking out against proposals whose stated aim is to make the job of the intelligence services easier, and prevent “terrorists” such as the current bȇte-noire Abu Qatada (who has never been charged with terrorism offences) suing the government for compensation?
Of the other responses which I have not already covered in my summary post – More secret trials? No thanks – of interest are:
- the Intelligence and Security Committee: unsurprisingly supportive, save for expressing alarm over hints that its budget may be reviewed;
- Coroner’s Society of England and Wales: The Society supports the proposal for Closed Material Procedures in inquests: although to date there have been “very few occasions” when an inquest has been required to consider sensitive material, in the future “there will be more cases and the incidence where there are security issues may well be more frequent than heretofore“. It should be noted, however, that the latter assumption may be self-fulfilling, with the threshold for CMPs being lowered as a result of the procedures being available, which has been one of the consistent criticisms of the proposals.
- The Criminal Bar Association is against the proposals, which are “not only offensive to the principles of adversarial justice but also are very much against the notions of fair play as the public would understand them“.
- Interception of Communications Commissioner: This appears to be an executive summary rather than the Commissioner’s full response, but as with the Intelligence and Security Committee, there is an element of the Commissioner protecting his own turf: he sees “no compelling reason to change the nature of the role or the boundaries.“
- Lord Carlile of Berriew CBE QC: As will surprise nobody who listened to his testimony to the Joint Committee on Human Rights (the transcript is here), the former independent terrorism reviewer, unlike his successor David Anderson QC whose response was more nuanced, is broadly supportive of the proposals. He believes “a system can be devised in which there is justice and accountability, without there necessarily being total transparency“.
- The Intelligence Services Commissioner‘s response has a mysteriously broken link.
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- More secret trials? No thanks
- Extension of secret hearings would be “fundamentally unfair”, say Special Advocates
- Should more trials be held in secret? Part 2: A Special Advocate’s comment
- Should more trials be held in secret?
Full list of responses published on the Justice and Security consultation website:
1. Iain Thomas Wolkowski
2. Andy Smith
3. John Hemming MP
4. James Greenwood
5. Investigatory Powers Tribunal
6. Intelligence and Security Committee
7. Intelligence Services Commissioner
8. Reprieve
9. Special Advocates
10. Raymond Deans
11. Roshan Lal
12. John Hall
13. ADM Shine Technologies
14. Clive Walker – University of Leeds
15. Coroner’s Society of England and Wales
16. Constitutional and Administrative Law Bar Association
17. Hugh Bochel, Andrew Defty, Jane Kirkpatrick – University of Lincoln
18. Association of Police Lawyers
19. Newspaper Society
20. Inquest
21. Haldane Society of Socialist Lawyers
22. Criminal Bar Association
23. Public Interest Lawyers
24. Lawrence McNamara – University of Reading
25. JUSTICE
26. Bingham Centre for the Rule of Law
27. Law Reform Committee
28. Liberty
29. Discrimination Law Association
30. Interception of Communications Commissioner
31. Stephen P. Walker
32. Robert Bromley
33. Jenny Payne
34. Emma Carrington
35. G.A. Gerrard
36. Helen Wood
37. ACPO Crime Business Area
38. David Knopfler
39. Alice Richardson
40. Tim Wakeford
41. Paul Foreman
42. Edward F. Bates
43. Jim Keys
44. Paul Benjamin Troop
45. Ashley Gray
46. Ronald Barry Bishop
47. REDRESS
48. Matthew Long
49. John Kissane
50. David Pybus
51. Peter Gill – University of Liverpool
52. Police Action Lawyers
53. British Irish Rights Watch
54. Amnesty International UK
55. Employment Lawyers Association
56. Employment Tribunals
57. Guardian News & Media
58. Equality and Human Rights Commission
59. Northern Ireland Human Rights Commission
60. Lord Carlile of Berriew CBE QC
61. Northamptonshire Police Constabulary
62. Wiltshire Police Constabulary
63. The Senators of the College of Justice
64. Police Service Northern Ireland
65. Majid Akram
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The sad reality is that ‘public opinion’ and ‘public imagination’ are little more than expression used to describe the stance taken by editors of tabloid newspapers with a mass circulation which British Politicians usually and misleadingly state as giving expression to ‘public opinion’. If its not in the ‘Sun’ or the ‘Mirror’ or on the ‘Telly’ then, as far as the pubic are concerned, it does not exist and if it does not exist, then there is nothing worth worrying about. A lesson learned by Alastair Campbell and government ‘spin doctors’ a long time ago.
The tabloids are giving the government an easy ride at the moment. Probably because they are in the ‘Dock’ and subject to ‘dawn raids’ at News International.
Governments do not respond to ‘reason’ or ‘argument’ or even reasoned argument if there are no political consequences of failing to do so. They do, however, respond to pressure of a kind which only the media are capable of bringing to bear by saying beastly things about it!
As Obiter J notes above – don’t forget the proposals to reform the Intelligence and Security Committee – see also: http://www.parliament.uk/briefing-papers/SN06126
Not sure that your current definition of “gisting” is entirely fair…
Fair enough – have amended slightly
Regrettably, the public have neither understanding of the proposals nor interest in resisting something claimed to make them “safe.” I very much doubt that a Bill is going to face any massive challenge in the Commons. The challenge will be stronger in the Lords due to the number of lawyers there with understanding of civil litigation / procedure. Of cousre, the Lords is constitutionally the weaker chamber.
Even for those with understanding of civil process in the courts, the Green Paper was hard going though I attempted to summarise it in posts on my blog. It went into areas which are, to be frank, far from common in most civil litigation.
I am grateful to UK Human Rights blog for including my viewpoint in your earlier post. Unfortunately, I think my submission to government got lost somewhere in the ether. Not that I suppose it would have made much difference to their made-up minds. Essentially, I was in agreement with the special advocates. However, in a number of areas, the green paper had some merit. This seemed to me to be particularly so in relation to improving political oversight of the security services. I also felt that “gisting” might benefit from some statutory intervention given the state of the existing case law.
Hopefully, a campaign will build to resist the worst features of the proposals and, in particular, the idea of giving Ministers a trump card which they could choose to play in any civil litigation in which they or some public body has some interest.
Surely their proposals would collapse at the first attempt under either the HRA or the EU Charter of Fundamental Rights?