It's time to be open about ‘open justice’
The Justice and Security Bill has caused a furore, but there are already too many legal rulings made behind closed doors.
Last Monday, the House of Commons passed the Justice and Security Bill. The bill has caused significant controversy since its publication last year, with many civil-liberties campaign groups calling the bill ‘dangerous and unnecessary’.
Most of the furore has focused on the bill’s extension of ‘closed material procedures’ (CMPs) to civil cases. The bill will allow parties to present evidence to civil courts behind closed doors, without the opposing party being present, where it is in the interests of justice to do so and where holding the hearing in public would necessitate the disclosure of sensitive material to the public. In reality, the power to hold CMPs will only be utilised by the government, most commonly in cases involving the intelligence services.
The discussion in parliament that preceded the vote seemed to assume that the bill was a small hiccup in an otherwise completely open and public justice system. The Labour front bench took the lead in standing up for public justice by tabling amendments to the bill, which would have compelled judges to consider the ‘open administration of justice’ when ruling on whether to allow a CMP. These amendments were defeated with a significant government majority. The Tory chair of the Treasury Select Committee, Andrew Tyrie, was just one Tory rebel who spoke about the ‘values’ of open justice in the UK, seeing the bill as a ‘radical’ reworking of our justice system.
But hang on a second. The bill is certainly draconian, but it is not an isolated instance of the courts having the power to close the doors on the public. The power for courts to hear evidence in private, without the other side being there, exists throughout our justice system. It is employed in almost every complex criminal case involving undercover police officers, in a procedure whereby the prosecution apply for an exemption to their ordinary duties of disclosure under what is known as ‘public interest immunity’. Proceedings in the upper immigration tribunals involving the deportation of terror suspects are often undertaken in private, with the suspect represented by a ‘special advocate’, a lawyer briefed to represent their client’s interests without them actually being there. For all the outrage caused by the bill, there has been little wider discussion of the principle of public justice and how it has been eroded throughout our court system in recent years.
Nowhere is this discussion needed more than in the family courts. Here, parents can have their children taken away from them without even being notified that a hearing is taking place. These hearings effectively amount to one public body asking another public body, in private, for permission to break up a family. Why don’t these hearings enrage our ‘values’ of open justice? Why don’t these hearings cause hours of debate in the Commons and outrage among civil-liberties campaigners?
The sad fact is that our court system is private and insular where it matters most. The kinds of case to which CMPs are now being extended are maybe, under our current system, the only kinds of case where you may actually want some aspects of the evidence heard in private. It would be a bit weird if the name and location of every spy working everywhere was open to the public simply because someone has sued the government. Public-interest immunity exists in the civil courts to protect this information currently, without the provisions of the new bill, but some cases have proved to be untriable because so much of the material qualifies for such protection. These cases have allowed proponents of the bill to argue that the CMPs will actually allow for cases to proceed which may otherwise have been unworkable.
I am as suspicious and disdainful of Her Majesty’s Secret Service and its dodgy practices as anyone, but if anything, these cases show us that the courts are hardly an ideal forum in which to challenge the workings of the security services. It is certainly no surprise that the state’s forum for justice, the civil court, is being cut off from the public now that more and more people are resorting to litigation to resolve their disputes with the authorities.
The bill is undoubtedly draconian. But it is not anomalous. Our justice system is often closed to the public in exactly the circumstances where we should be demanding public accountability. It is an outrage that cases involving parents’ custody over their children, or the determination of an individual’s right to remain in the country, should be held in private. The fact that our MPs and civil-liberties campaigners rally so vocally against this particular bill, whilst remaining silent on the use of private justice in the immigration and family courts, shows their inconsistent application of the principles of open justice.
If open justice means anything at all, it means the right for public to know how the courts are determining fundamentally social questions, like who should be allowed to live among us and whether a child should or should not be taken into care. If the government and civil-liberties campaigners were serious about the principles of open justice, they would be turning their attentions to the working of the family and immigration courts, rather than posturing over our right to sue the nation’s spooks.
Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.