1 Crown Office Row’s Peter Skelton appeared for The Security Services in this case. He is not the author of this post.
On Wednesday last week, the Supreme Court handed out two apparently contradictory judgments on what seemed to be the same issue – see our reports here and here. Had they taken leave of their senses? In one case, the court appeared to say, there was no illegality or human rights-incompatibility with a procedure that dispensed with the requirement that all the material must be shown to both parties in every case. In the other, it ruled that such a “closed procedure” was such an insult to “fundamental” common law principles of open justice and fairness that no court, however lofty, would have the jurisdiction to order it without statutory authority.
The key to this apparent inconsistency lies in the principles at the heart of these cases, which pull in opposite directions: the principle of fair and open justice, or, in Article 6 terms, “equality of arms,” versus the principle that gives weight to the interests of national security.
In Tariq v Home Office the Court considered the permissibility and compatibility with European Union law and the European Convention of a closed material procedure authorised by certain statutory provisions. The issues in that case centred on the lawfulness and effect of those provisions and their compatibility with, amongst others, Article 6 of the Convention, whereas in Al Rawi v Home Office the Court was concerned with the position at common law. This superficially small distinction made the world of difference to the outcome of both cases. Continue reading →
While the press (and the rest of us) were preoccupied by the debate on equal marriage and the public dissection of the Huhne marriage, the Justice and Security Bill completed its next stage of passage through the Parliamentary process. Largely unwatched, a slim majority of Conservative members supported by Ian Paisley Jr., reversed each change made to the Bill by the House of Lords restoring the Government’s original vision: a brave new world where secret pleadings, hearings and judgments become the norm when a Minister claims national security may be harmed in civil litigation.
The Bill will return to the Commons for its crucial final stages on Monday. In anticipation of the debate, the Joint Committee on Human Rights (JCHR) has published a third damning critique of the Government’s proposals. The cross-party Committee was unimpressed by the Government rewrite of the Lords amendments. Most of Westminster was busy in Eastleigh and few political commentators flinched.
Angus McCullough QC is a barrister at 1 Crown Office Row with experience of acting as a Special Advocate in closed proceedings since 2002.
The Government has still not implemented the review of Closed Procedures that Parliament had dictated should take place when passing the Justice and Security Act 2013. A review is required to cover the first five years after the Act came into force, and should have been completed “as soon as reasonably practicable” thereafter. That period expired in June 2018, and there are still no signs of a reviewer being appointed.
Readers familiar with closed procedures and their background may wish to skip the first half of this post.
‘Secret Justice’ is a deliberate oxymoron, used by some legal commentators as a term for Closed Material Procedures (CMPs). Justice, of course should generally be open and transparent, not secret. The principle of open justice dates back centuries, and the law reports are full of reiterations of its importance. Here’s one example, this from Lord Woolf in R v Legal Aid Board, ex p Kaim Todner  QB 966:
The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve.
An equally fundamental principle of fairness in legal proceedings is that a party should know the evidence and case against them. This has even been given a Latin epithet (audi alteram partem). But you don’t need to be a scholar of either classics or law to appreciate that being aware of the material that the other side is putting before the court, and having the opportunity to challenge and answer it, is a cardinal feature of fair legal proceedings. The personification of Justice (see picture) is blindfolded, to represent her impartiality; but litigants are expected to have an unimpaired view of the proceedings.
Ex-Guantanamo Bay prisoner Binyam Mohamed failed this weekend to prevent the Daily Mail reporting that he had been granted permanent residency in Britain. The case highlights a growing trend for the courts to enforce open justice in two significant ways, both which rely heavily on protections guaranteed under human rights law.
Interestingly, two crucial aspects of open justice have been reinforced as a result of a case involving Mohamed himself. In fact, the open justice aspects of Mohamed’s case against the security services will probably emerge as amongst the most important legal rulings arising from the ‘war on terror’ era. Unfortunately for him, this may have had the unintended consequence of destroying any chances of maintaining his privacy.
Wagner is one of 14 authors who contributed to a new working publication entitled ‘Justice Wide Open’, produced by the Centre for Law, Justice and Journalism (CLJJ), City University London, following an event on February 29 2012. The individual chapters can be accessed electronically.
In this case NHS England argued it lacked the power to commission (and be responsible for paying for) preventative HIV drugs. It said this was solely the responsibility of local authorities and, in so doing, disavowed any responsibility for preventative medicine.
The High Court rejected this. It undertook a purposive interpretation of the legislation and found that NHS England had broad and wide-ranging powers of commissioning, and could commission preventative HIV drugs. NHS England is appealing.
The interest in this case extends beyond Mr Justice Green’s interpretation of the particular provisions. The judge was ready to find that the provisions were to be interpreted purposively, and was then very ready to look to the overall objectives and duties of the NHS as expressed in other parts of the relevant legislation, and in the NHS Constitution and Mandate.
Updated x 2 – full details of review below | The much-heralded Ministry of Justice budget cuts will be announced shortly as part of the government spending review. Previously, it had been reported that the department’s budget would be cut by around 20%, or £2bn (see our post). However, over the weekend the Observer reported that the cut would be much larger, running to £3bn – around 30% of the total budget – which represents a 50% increase on the original figure.
The justice minister Ken Clarke is believed to have had to take an extra hit “after the defence secretary, Liam Fox, and Michael Gove at education won more generous agreements than previously expected“.
In a famous advert from the 80s, Maureen Lipman picked up the phone to caution her distraught grandson that he could never be a failure if he had an “ology”. It was perhaps in memory of that fine advice that the Lord Chancellor appeared before the House of Commons Justice Select Committee on Wednesday morning. For the first time, the language of ideology was openly placed at the heart of the Government’s approach to the reform of legal aid.
Most of the legal profession is familiar with the controversy of the Government’s latest raft of suggestions for reform of legal aid, in the Transforming Legal Aidconsultation paper. JUSTICE and many others have raised substantial concerns about the Government’s approach. The changes proposed to the provision of criminal legal aid will drastically limit the ability of people accused of crimes by the State to access quality legal advice that they can trust. This will increase the likelihood of miscarriages of justice and may make the criminal justice system as a whole more expensive, and less fair, as more people attempt to represent themselves.
On 25 January 2012 Justice Edwin Cameron, Justice of the Constitutional Court of South Africa, delivered an emotive and thoughtful talk entitled “What you can do with rights”. The Law Commission’s annual Lord Scarman Lecture covered apartheid, AIDS denialism, LGBT rights and delved into the essence of moral humanity. It was a lecture delivered with skill and fluency, with only the slight dissatisfaction being the vagueness of Justice Cameron’s conclusion: that legal rights allow people to achieve some progress, but they don’t solve every problem.
Justice Cameron has occupied a seat on the highest judicial bench of South Africa for three years. He was made a judge by President Nelson Mandela in 1994, when his country was emerging from the systemic violence that the apartheid system had wrought on human rights. This position gives him authority, but it is his personal experience that lent the lecture gravitas. The Justice was diagnosed as HIV positive at a time when the true scale of the epidemic was being realised, and publicly fought for access to the anti-retroviral drugs that saved his life at a time when the scale of his government’s folly in denying them to millions was becoming equally clear.
Updated | On 5 November 2010 judgment was handed down in JIH v News Group Newspapers ( EWHC 2818 (QB)) – Read judgment.
Update, 18 November 2010: The case has returned to the High Court after the Daily Telegraph reported a key detail relating to JIH’s identity. This was contrary – said JIH – to the court order. Mr Justice Tugendhat refused the application by JIH that his/her identity not be disclosed. However, he did sound a warning that “editors and publishers have regard to the “duties and responsibilities” referred to in Art 10(2) itself. These duties and responsibilities include a requirement that they comply with orders of the court, and that they take all necessary steps to ensure that journalists understand this necessity.” If they ignore that warning, warned the judge, they may be found in contempt of court.
This post by Mark Thomson first appeared on the media law blog Inforrm, and is reproduced with permission and thanks
Tomorrow, Liberal Democrats will debate the Justice and Security Bill and will vote on saying no to the Government’s controversial secret courts proposals. Played in the press as a good opportunity to put clear blue water between the coalition partners, the motion will give a party members a chance to speak out on a Bill which many see as an anathema to the traditional liberal commitment to open, fair and equal access to justice.
The Bill would – for the first time – introduce the controversial “closed material procedure” (CMP) into our ordinary civil justice system. In CMP, one party to proceedings and their legal representatives are excluded from a hearing and from seeing any evidence, argument or judgment associated with closed material, leaving Special Advocates (security vetted lawyers) who they cannot discuss the case with to represent their interests as best as possible. These exceptional procedures have been criticised by both commentators and courts since their inception as a flawed and unfair mechanism which endangers the rule of law and open justice (JUSTICE and others have dissected the Bill on this blog and elsewhere, highlighting its serious long-term political and legal implications).
This coming Wednesday sees the end of the first stage of the Justice and Security Bill’s passage into law. The Bill which would introduce Closed Material Procedures (CMP) – where one side of a case is excluded with his legal team and represented by a security cleared special advocate in cases involving national security – has become widely known as the Secret Courts Bill. Its progress has been closely scrutinised in this blog over the past six months.
As it completes Third Reading and passes to the House of Commons, we reflect on last week’s Lords amendments to the Bill. While there are still issues ripe for discussion at Third Reading, it is broadly accepted that the key Lords votes have passed.
Griffiths v Secretary of State for Justice (Equality and Human Rights Commission intervening)  EHWC 4077 (Admin) – read judgment.
Oliver Sanders of 1 Crown Office Row represented the Defendant in this case and Adam Wagner also acted for the Defendant prior to the substantive hearing. They are not the writers of this post.
Two female prisoners nearing the date on which they would be considered for release on licence, brought conjoined challenges against the Secretary of State for Justice in respect of the provision of ‘approved premises.’ The Claimants challenged the alleged continuing failure to make adequate provision for approved premises to accommodate women prisoners like them released on licence.
Mr Justice Cranston rejected the argument that the limited number of approved premises for women treated female prisoners released on licence into such premises less favourably than comparable men. He held that despite the likelihood of a greater geographic separation from their homes and families, the Secretary of State had not discriminated directly or indirectly against female prisoners. However, the Secretary of State had failed to fulfil his duty under the Equality Act 2010 to consider the impact of the limited provision of approved premises of women.
XX v Secretary of State for the Home Department  EWCA Civ 742 – Read judgment
The Court of Appeal recently issued its judgment in XX v Secretary of State for the Home Department  EWCA Civ 742, an appeal from a decision of the Special Immigration Appeals Commission (“SIAC”) upholding the Secretary of State’s decision to deport an Ethiopian national on grounds of national security.
XX, who had indefinite leave to remain, had been assessed to have attended terrorist training camps and to have regularly associated with terrorists in the UK. SIAC was satisfied on the facts that XX posed a threat to the national security of the UK and determined that the deportation would not breach Articles 3, 5 and 6 of the European Convention on Human Rights. XX appealed on the ground that in finding no incompatibility with the Convention, SIAC had erred in law.
One of the country’s most senior judges, Lord Neuberger, has given a stirring speech on the challenges of open justice in the 21st century. His ideas are progressive and practical, and amount to a manifesto for building a more open justice system, fit for the internet age.
The annual Judicial Studies Board lecture has in recent years been used by the senior judiciary to criticise the European Court of Human Rights (see Lord Judge’s and Lord Hoffmann’s 2010 and 2009 speeches), so Neuberger’s Open Justice Unbound represents a refreshing change of pace. Continue reading →
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