Justice wide shut
1 March 2012
Yesterday I spoke at Justice Wide Open, an excellent conference organised by Judith Townend. I mounted my usual open justice hobby horses (to coin a topical phrase) on how to make the justice system more accessible to the public, including a moan about human rights reporting. Someone told me during the break that according to her research, when newspapers put a positive slant on a human rights story, they tend to use the code word “civil liberties”. And, as if to prove the point, on the very same morning the Daily Mail put its considerable weight behind a crucial but until now sub-public-radar “civil liberties” and open justice issue, the Justice and Security Green Paper.
As readers of this blog will be aware, the Government proposes in the Green Paper to introduce “closed material procedures” into civil proceedings. For an explanation of why this amounts to “a departure from the foundational principle of natural justice“, look no further than the Special Advocates’ response to the consultation and my co-editor Angus McCullough QC’s post, A Special Advocate’s comment. But although the proposals have been getting lawyers and The Guardian hot and bothered, the sound of tumbleweed has been the loudest response. Until now, that is.
Yesterday’s Daily Mail’s editorial This chilling threat to liberty and justice, railed against the “deeply disturbing proposals, slipped out with little public comment” by which “the Coalition plans a radical extension of the secret justice introduced by Labour to deal with foreign terrorist suspects“. And although the newspaper is “sickened by huge payouts made to terrorist suspects, to avoid sensitive security evidence being aired in open court”, the Government’s main justification for the changes, it pulls no punches on the proposals:
Secret charges, secret evidence, secret judgments. Isn’t this the sort of ‘justice’ associated with totalitarian regimes through the ages?
One of the remarkable aspects of the debate so far is how many lawyers have spoken out against the proposals – include the Special Advocates who will be called upon to make them work – in contrast to the almost universal silence from politicians. This is probably because of fear of being seen as soft on terrorism and supportive of the “hated” Human Rights Act. But, interestingly, the Mail also reports that “ministers privately describe Mr Clarke’s proposals as a ‘very green paper’ – suggesting that they may think again.”
Now that the newspaper which hosts the world’s most popular online newspaper site is campaigning against the Green Paper, it seems likely that more politicians will put their heads over the parapet. Indeed, today the Telegraph reported just that. Apparently, the Government is facing a revolt and “senior figures from all parties have condemned the move”.
At Justice Wide Open , the audience of academics, journalists and lawyers spoke passionately about problems within the court system which make trials hard to access, report or even find out about. I expect that the senior judiciary would be pretty shocked if they heard of some of the difficulties journalists and the public have accessing hearings. But most of the problems identified could be solved by clear thinking and a little money.
By contrast, if they are implemented the proposals in the Justice and Security Green Paper will create a new and, as many have argued, unjustified structural barrier to open justice, not just for those “participating” in closed hearings, but also, as the press are now beginning to realise, to the public and media too. In other words, justice wide shut.
The Mail “alongside other lovers of civil liberty” will now be “campaigning vigorously” for the Government to change its track on the issue. Civil liberties, human rights: you say potato, I say potato. Things are finally getting interesting, it’s just a shame that politicians have had to wait for the go-ahead from the Daily Mail to speak out.
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The Green Paper was particularly lacking in consideration of how cases with “security” implications are handled in other countries. As usual, government goes for the most draconian option aimed at increasing executive power.
Whilst not everything in the Green paper is to be condemned, the fact remains that there is a rotten core of Closed Material Procedure to be instigated whenever a Minister so decrees. It is this aspect which is particularly objectionable.
I have personally given the greater scrutiny of security services proposals a warm(ish) welcome. (There may be devil in the detail). This is not particularly a legal issue but the present oversight arrangements are not particularly robust and a true democracy ought to have strong oversight of these bodies and their activities.
This is not the main issue, but I think it is incorrect to think of the use of “civil liberties” as cover for running a positive story about Human Rights. Civil liberties are what Diana Rose QC calls “roast beef rights”; it’s the old fashioned notion of negative liberty. Human rights are part a more progressive notion, encompassing the ideas of positive liberty.
Public trials were part of the notion of civil liberties – they are not the result of Human Rights. Reporting on this green paper is not a human rights issue: this occurs in the human rights act, but England had public trials before the ECHR.
There is overlap, but that’s is not the same as it being a difference without a distinction.
In short, I don’t see any contradiction in the Mail being pro civil liberties but anti human rights. And they are therefore sensible to distinguish between the two in cases like this.
I’m not sure the distinction is as clear as that: civil liberties are negative liberties, human rights include positive liberty. Both notions are built upon the basic premise of equal worth for human beings. I would suggest the differences between the two are largely down to the concept of human rights forming later than civil liberties, influenced by different social and cultural beliefs.
The problem with reporting distinguishing the HRA and civil liberties is that the HRA and associated decisions are often characterised as ‘their rights’ taking precedence over ‘ours’. Civil liberties on the other hand are something like ‘our protection against the state’.
It is this dichotomy which I think the article suggests is false and if so, I agree. Human rights most certainly are protection from actions of the state; they build upon civil liberties in this sense and if so, there must be a contradiction in being anti-HRA and pro-civil liberties.
That fair and open trials are protected by the human rights machinery is clear. That public trials emerged before human rights might not be too relevant – many of the rights protected by the human rights movement were present before the movement but that doesn’t stop human rights from now being the most effective apparatus we have of protecting these long-held rights and freedoms.
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