Justice and Security Bill: no balance, no public interest – Lawrence McNamara
30 January 2013
The government’s Justice and Security Bill has this week entered a new phase of debate in the House of Commons as it is considered in detail by a 19-member Public Bill Committee over the next month. The critics of this Bill – and there are many – argue that it will make “secret justice” a standard part of our legal process. The latest set of amendments proposed by the government were revealed yesterday and within them lies a crucial and unjustifiable secrecy provision. The significance of the amendments becomes apparent when one looks at how the Bill has progressed so far.
In its original form the Bill said that a court “must” use closed material proceedings if there would be a disclosure of information that would harm national security interests. It would not matter how small the damage, it would not matter whether there were other public interests in disclosure of the material, and the court had no discretion.
The Lords changed this provision. As well as turning “must” into “may” so that the court would have discretion, they inserted a balancing principle. If closed material proceedings were to be used then some further conditions must be satisfied. Notably, closed material proceedings could only be used if: (1) the degree of harm to national security interests would be likely to outweigh the public interest in “the fair and open administration of justice” and (2) a fair determination of the proceedings would not be possible by any other means.
The result was that the Bill, while still deeply flawed, had one of its worst deficiencies remedied.
Yesterday, the government’s amendments revealed its plans to substantially reverse those changes. With amendments 55 and 64 it proposes to throw out the above balancing process. It would be replaced with a provision that says closed material proceedings may be used if disclosure of information would be damaging to the interests of national security and “it is in the interests of the fair and effective administration of justice” to use closed material proceedings. This is very worrying change.
Of special note, there is no longer a consideration of the public interest in open justice. As the history of the bill’s progress shows, the government has explicitly set about removing that requirement. There is no need or requirement for balancing competing public interests. It does not matter, it seems, how small the damage to national security would be.
There are many other reasons to be worried by this Bill but the overt attempt to remove any consideration of open justice is extraordinary.
The members of the Committee, whatever their political stripes, should reject this amendment and retain the existing balancing, open justice and fairness requirements. Rejecting it would be entirely consistent with the government’s stated commitments to openness and transparency. In the Lords, Baroness Stowell assured the House that the government was making continued efforts “to ensure as much openness and transparency as possible.” If that really is the government’s commitment then it should withdraw this amendment. If it is not withdrawn, then it should be rejected.
Dr Lawrence McNamara is a Reader in Law and ESRC/AHRC Research Fellow at the University of Reading where he runs the Law, Terrorism and the Right to Know project. He gave evidence regarding media and open justice matters to the Joint Committee on Human Rights and has submitted written evidence to the Public Bill Committee regarding a range of matters related to transparency, accountability and openness. Email: l.mcnamara@reading.ac.uk Twitter @UniRdg_LTRK
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On my blog I also wondered about whether open justice is implicit in the government’s latest proposed amendment. However, I also wondered whether, if the legislation ever comes up for interpretation, the rule in Pepper v Hart might result in the Parliamentary proceedings being examined and they would make it abundantly clear that open justice was not in the minds of Ministers. Of course, the court has to ascertain the intention of Parliament and not the intention of the executive but, in this case, whether the two will be seen to be different is debatable.
The other very troubling change proposed by the government (amendment #55) is that of the change in the rules for applications for CMP. The Lords changes made the rules the same for any party (including the Secretary of State). The government amendment in the Commons attempts to narrow the availability of CMP for the civilian party. If, as Ken Clarke says, CMP are necessary for all the information to be put before the court to achieve a fair result, why should this not apply to any claim, not just one where the government wishes to avail itself of a secret hearing? This is a crucial test of good faith which the government is failing.
Thanks for the comments. To some extent I agree that there is room to accommodate open justice within the general idea of fairness, but not sufficient room that it can be omitted from the legislation.
Al Rawi helps explain why. Lord Dyson [at 14] identified open justice and natural justice separately and referred to the public interest in “a fair system of justice which, so far as possible, respects the essential elements of these principles”. However, at [26] & [27], he indicated that justice might be achieved by meeting natural justice requirement but disposing of open justice: “It is one thing to say that the open justice principle may be abrogated if justice cannot otherwise be achieved. … It is quite a different matter to say that the court may sanction a departure from the natural justice principle (including the right to be present at and participate in the whole or part of a trial).”
Continuing that separation, at [35], [39] and [41] the focus is clearly on whether there is fairness between the parties. The question of fairness is to be decided with reference to the rights of the litigants. Natural justice is, if you like, the first-level consideration and open justice is a second-level consideration.
While open proceedings are likely to assist a claimant in knowing the case against them, it may be that neither party will want proceedings to be open. It is quite conceivable that a claimant could prefer closed proceedings. If open justice is omitted from the legislation then it will be inadequately – if at all – considered. It would fail the public, lessen the accountability of the executive, and diminish public confidence in the judiciary that flows from open proceedings.
This is compounded by the use of “effective” administration of justice as the other factor in the government amendment. It may be more effective from a trial management view to lock proceedings off than to open them up. Moreover, the government amendments do not seek to use the public interest in openness as a balancing factor. A minimum threshold of fair and effective is set up, but nothing beyond that.
In all this, there is a principled objection to the removal of the open justice factors. It is a wholesale diminution of a fundamental principle and, in a Bill that sets about establishing a regime of closure, it should be included.
Unless open justice is expressly a factor, it will inevitably fall by the wayside.
I agree that the Lords amendment is preferable, but I am less concerned by the gvt’s proposal. This is because it seems to me to be relatively uncontroversial that the “fair administration of justice” embodies the principle of open justice in it and I would fully expect the case law to reflect that.
I would tend to agree with this
Let us hope that The Lords re-insert their version on next reading. That way, the government will have to either force their version through under the Parliament Act or accept the original Lords’ amendments. If the government relies upon the Parliament Act to get their version through, they may find themselves running up against the need to complete the Bill before the date of the next general election in 2015. In that case, it is highly probable that the Liberal Democrat MPs will refuse to support the government’s version.