Judges v politicians: courting disaster

Last week, the UK government published its Justice and Security Bill. The bill followed the publication last month of the Justice and Security Green Paper. That paper faced significant criticism for proposing extensions to the power of courts to hear evidence in certain cases behind closed doors. The justice secretary, Ken Clarke, said the plans in the paper had been ‘refined and improved’ in the bill. In reality, the only ‘refinement’ was the withdrawal of plans to hold private inquests in cases where proceedings would involve disclosure of sensitive intelligence information.

This is hardly a significant retreat. The majority of the draconian powers in the green paper made it into the bill. ‘Closed material procedures’, a special category of legal proceedings in which sensitive evidence can be heard in private, will be extended to civil cases against the government and judicial reviews. These will include cases in which claimants are seeking damages from the government or attempting to challenge the legality of a decision made by a public body. Currently, where the government is a party to these proceedings it can apply to have sensitive documents excluded from evidence entirely, meaning that neither party may rely on it. Under the new proceedings, it will be able to rely on the same evidence behind closed doors. The other party may be represented by a security-vetted barrister called a special advocate, who will be prevented from feeding back the sensitive details of the evidence outside the courtroom. Of course, this makes the representation provided by a special advocate in these closed material procedures nominal. The barrister cannot present his or her client’s case because the client will know nothing of the hidden evidence and cannot offer instructions to the barrister based upon it.

Of course, the extension of these powers is concerning. But it is important to note that UK courts are not currently the forum for ‘open justice’ that they purport to be. Closed material procedures are not new. They were introduced in 1997 by New Labour and have been used regularly to determine cases involving terror suspects and immigration cases involving intelligence material. Nor is hearing evidence in secret particularly novel. In criminal proceedings, the prosecution routinely applies to have material excluded under ‘public interest immunity’, in which key material that could assist the defence case can be excluded from examination if it in the ‘public interest’ to do so. There are also statutory bars on considering certain evidence, such as the prohibition under the draconian Regulation of Investigatory Powers Act 2001 from asking any questions regarding surveillance methodology. These provisions mean that defendants are completely prevented from establishing how they came to be under surveillance and whether it was done lawfully. While the powers in the Justice and Security Bill are undoubtedly draconian, similar procedures for secret justice have been in place for years.

While we should recognise that these powers are an affront to ancient principles of open justice, what is also telling in the discussion around the bill is the argument made by civil-liberties groups that these reforms limit our power to ‘hold the government to account’. This is undoubtedly true, but only because those same groups have helped to foster a climate in which ‘holding the government to account’ is considered a legal process, rather than a political one.

The greater and greater recourse to judges to settle our disputes with politicians has coincided with a decline in traditional democratic means of holding the government to account. The growth of human-rights law since the introduction of the Human Rights Act into English law in 1998, the development of judicial review in which judges can override the decisions of public bodies and elected ministers, along with the enormous number of cases proceeding to the European Court of Human Rights, show that those left aggrieved by decisions made by public bodies are more likely to file a claim form than take to the streets or to campaign for reform. Today, we plainly feel more comfortable taking on the government as individuals, in a court of law, asserting our individual rights, than we do forming traditional political networks to take our concerns to the public at large.

This is a product of the growth of human rights and related legal doctrines, which have redefined ‘holding the government to account’ as a legal, rather than a political process. Such a legal process is, by its nature, vulnerable to illiberal changes in the law.

Of course, those who become the subject of illegal decisions, such as those illegally rendered to Libya by the UK government, should be properly compensated if their case is made out. But this process of individual compensation, through identifying an illegal element of the decision-making process, is not properly described as ‘holding the government to account’. It is simply allocating blame. The decisions of our elected politicians should not be judged by the High Court, but by us, the electorate, on the strength of their arguments and ideas. This judgement should take place on the streets and in the ballot box. The greater reliance on the courts to interrogate government decisions does not assist this process. If anything, it holds it back.

The new restrictions on our ability to challenge the government through the courts should make us sceptical of using the law to respond to political questions. Suing the government is no substitute for democratic accountability. We should seek to reinvigorate alternative means of challenging the decisions of the government, in order that the process of ‘holding the government to account’ cannot be undermined at the whim of the executive.

Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.