Secrets Courts: What will your legacy be?

My general malaise at the government's campaign to undermine justice and the rule of law only deepened this week as I read through the JCHR's Second Reading of the Justice and Security Bill following the failure of any of the meaningful ammendments sponsored by Lord David Pannick QC. It struck me that I still hadn't written to my MP about the Bill and thought it was time I did:

Dear Mr Fitzpatrick MP,

I write to you in the hope that you will use your power to oppose the extension of secret justice that will result from the passing of Part 2 of the Justice and Security Bill and its creation of Closed Material Procedures (CMPs). As I am sure you are aware, the common law of England and Wales is founded up the principles of the Rule of Law and the Separation of Powers. "Justice must not only be done, it must be seen to be done." Furthermore, it is the charge of the judiciary to uphold the law as it is for Parliament to set it down. Accordingly, justice requires that citizens can seek vindication of their rights, not least their right to bring agents of the State to account for their actions - a right upon which any claim to democracy necessarily depends. The Bill provides neither justice nor security. It is an anathema to any such notions.

As the Bill continues its passage through Parliament, civil liberties campaigners, lawyers and concerned citizens have joined together in opposing the creation of Closed Material Procedures because it is clear to us that the consequences of the Bill's passing will do irrevocable damage to our democracy and system of justice. Indeed, it is in this image that successive governments have purported to justify military intervention abroad, at the cost of millions of innocent lives , whilst simultaneously eroding the foundations of that system at home. As the Joint Committee on Human Rights have consistently noted, the case for CMPs has simply not made out. That view is supported by the Special Advocates that seek to bring what fairness they can to the system of CMPs already in operation, typically (but by no means exclusively), for immigration cases in the Special Immigration Appeals Commission (SIAC). The government rely on a meagre number of cases in support of its proposals. These include cases such as Al-Rawi, where the Home Secretary agreed to pay the claimant a substantial sum in damages rather than disclose evidence against him that was considered to impinge upon our national security interests. This, Ken Clarke has said, is not in the interests of justice. It should not be the case that either the government must disclose sensitive information or abandon proceedings. This is despite the fact that other legal alternatives (such as Public Interest Immunity) were not even considered before the proceedings were conceded.

Paradoxically, what is apparently in the interests of justice, according to the the Minister without Portfolio, is a system in which the judge is precluded from considering the wider "public interest in open justice". The individual is not able to communicate with their legal representatives in the usual way and rely on a Special Advocate, legally obliged not to disclose the substance of sensitive evidence against them, to make submissions on their behalf with the barest of instructions. And lest we forget, these are proceedings that will not just be closed to the public, the public will not even be aware that they are happening. There will be a prohibition on reporting their very existence. There will be no equality of arms, the parties to litigation will not be on an even footing. The Secretary of State will be able to pursue an application for CMPs, whether or not they are a party to proceedings, where there is the potential that senstive information will be disclosed whereas the other party will only be able to do so where they themselves would be required to make asuch a disclosure. They cannot seek one in order to at least have a judge evaluate material held by the Secretary of State. Third- parties will only be able to seek CMPs on similarly narrow grounds, again constraints not suffered by the Secretary of State. This is but the barest summary of some of the fundamental problems with the Bill. Part 2 should be abandoned. Even the amendments agreed last year and recently put forward by Lord David Pannick QC, one of the most eminent practitioners in the country, have been rejected by the government.

The campaign against the Bill is unrelenting. This week alone, the JCHR, in its second reading of the Bill, was withering in its critical analysis of the government's purported justification for its continued pursuit of this legislation, highlighting the points that I have set out. (http://www.publications.parliament.uk/pa/jt201213/jtselect/jtrights/128/12806.htm). It has been condemned by numerous NGOs, of which JUSTICE (http://www.justice.org.uk/news.php/93/justice-and-others-condemn-governments-rewrite-of-the-secret-courts-bill) and Liberty (http://www.liberty-human-rights.org.uk/media/press/2013/secret-courts-threat-graver-than-ever-after-government-o.php) are but two of the most widely known. Whilst a coalition of 700 legal professionals, including Ian MacDonald QC, who resigned as a Special Advocate in protest at these proposals, and of whom I am proud to be a member, has also called for the Bill to be scrapped (http://www.dailymail.co.uk/news/article-2285603/Scrap-dangerous-unnecessary-secret-justice-hundreds-lawyers-QC-urge-Government.html and http://www.telegraph.co.uk/news/uknews/law-and-order/9899041/Secret-courts-condemned-by-700-legal-experts.html )

It is worth recalling that Al-Rawi was one of a number of citizens accusing the government of complicity in renditions to foreign agencies, in this case our "allies" at the CIA. This, despite the threat and infliction of torture and other ill-treatment, again, contrary to the common law and in flagrant disregard for our international obligations. That being so, perhaps, the Bill is really about protecting the State from embarrassment. In the words of Liberty:

"The proposals will not only overturn centuries of common law fair trial protections for those seeking to challenge the actions of the State, but also undermine the vital constitutional principle that no one is above the law, including the Government."

The Bill must be seen in the wider context of an executive committed to reducing access to justice, whether by cutting welfare, obliterating legal aid or scaling-back judicial review. The prospect of a government conducting its business shielded from scrutiny and accountability is the very contradiction of justice and will provide only the security one enjoys in ignorance. If you entered the House with any commitment to serving the public and leaving behind a legacy of which you can be proud, you must vote against this Bill.

Yours sincerely,

Michael Etienne

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You can find out more about Liberty's campaign to write to your MP here - it's not too late
Reprieve's briefing to MPs here
An article by AdamWagner (UK Human Rights Blog/ 1 Crown Office Row) charting recent developments and highlighting some useful resources here
You can find you local MP by going to the Parliament website here

The War on Judicial Review

Breaking News: the UK is at war. Not with Iraq or Afghanistan or even Al-Qaeda, not this time anyway. Like those wars though, according to the Prime Minister speaking at the CBI today on Monday, it is a war being fought on several fronts: “we’re having an al- out war on dumbing down” led by the noble troops of the Free Schools and Academies regiment, we are “ in the economic equivalent of war – and we need the same spirit”, particularly if we are going to take on the behemoth of unnecessary EU regulations and too many “completely useless” judicial review applications. Whilst the triumphalism may well have enthused members of the CBI like most cheerleading, it was light on detail and heavy on over-simplification. More than that, the potential implications of what was said could simply being laying the foundations for the latest assault on the rule of law on the altar of austerity, following the reforms of legal aid and proposals for secret trials.

The speech (which you can read in full here ) covers so many different topics I could be here all night but since this is a legal blog, I will confine myself to judicial review.

It’s fair to say that for the second week in a row, David Cameron is “utterly fed up.” This week’s irritation?:

“Consultations, impact assessments, audits, reviews, stakeholder management, securing professional buy-in, complying with EU procurement rules, assessing sector feedback this is not how we became one of the most powerful, prosperous nations on earth.

The Minister stands on a platform like this and announces a plan then that plan goes through a three month consultation period; there are impact assessments along the way; and probably some judicial reviews to clog things up further.”

How can we solve this?

“Here’s how:

Cutting back on judicial reviews.

Reducing government consultations.

Streamlining European legislation.

Stopping the gold-plating of legislation at home.

And quite simply: getting our roads and railways built more quickly.”

Starting with judicial review, and with no sense of irony, the apparent problem is that it has become “a massive growth industry in Britain today”. Now, you might think that a new growth industry is exactly what we need but of course litigation costs money and doesn’t have the “right” kind of economic value. The PM then asserted that the number of JR applications has tripled in a decade” to something approaching 12,000 applications per year since 1998.  For reasons I will come back to this, is probably about right and it should come as little surprise. As Mr Cameron was prepared to concede that “some are well-founded – as we saw with the West Coast mainline decision”. That’s the same decision that had it been taken properly in the first place, would have saved the taxpayer £40 million pounds . Even so:

“Let’s face it: so many are completely pointless. Last year, an application was around 5 times more likely to be refused than granted. We urgently needed to get a grip on this.“

The obvious question is, what is a “completely pointless” application? If this means that the application never had any real prospect of success then the application will not even get off the ground and permission will be refused, all within a relatively short period of time – problem solved.  What Mr Cameron did not fully lay out is the two stage-process of a JR application.

As with all litigation, what takes the most time is the substantive hearing but you won’t even get that far unless you get passed the permission stage. This is where the application will be considered based on the forms submitted by the applicant. The scope of JR is very narrow, an application must disclose grounds for questioning

“the lawfulness of–

(i) an enactment; or

(ii) a decision, action or failure to act in relation to the exercise of a public function.” CPR 54.1

In other words, judicial review is not simply a means of appealing a decision because you happen to disagree with it – it is not an appeal in the traditional sense.  It has to be shown that the impugned decision was unlawful because for example, it is irrational – in the sense that no sensible public authority could have come to it if it properly directed itself on the law and the facts or because the decision was not one that the decision-maker had the authority to make. In law speak, because the decision was ultra vires.

These are just two of the grounds on which JR might be sought because Mr Cameron is right, judicial review has grown in the sense that the expectations of a decision maker are more demanding than when classical administrative law was conceived. The implication that this is (yet again) the fault of money-grabbing lawyers is (yet again) false. Modern judicial review followed in the wake of the Second World War, as the influence of the State on people’s lives has grew and along with it the legal scrutiny of the State as a decision-maker. Through into the mix (and only by way of example), the accession to the European Union and the passing of the Human Rights Act 1998, particularly with the development of the “proportionality doctrine”, the expansion of our environmental obligations and the complexity of planning and immigration law all of which were decisions taken by Parliament, and we can start to understand how judicial review has evolved to its current form. What is clear is that the ultimately objective is to ensure that a decision is reached in accordance with the law.

But if we accept that the problem as stated, what do we do then?

“Reduce the time limit when people can bring cases.

Charge more for reviews – so people think twice about time-wasting.

And instead of giving hopeless cases up to four bites of the cherry to appeal a decision, we will halve that to two. “

The time-limit for brining judicial review is already very strict. Whilst the ordinary maximum time limit is three months, an application can and often will be rejected, regardless of its merits if it has not been brought “promptly”. In order words, just because an application is brought within three months does not mean it will be considered, if the court takes the view that it could and should have been brought sooner. What is the reason for this strict approach? It is because the courts are acutely aware of the need for certainty in public decision-making.

Regardless of whether or not the application succeeds, there is a fee in the region of £200 to pay for it to filed at the High Court (where all JR applications begin). For the international developer this is perhaps small beer but for the homeowner challenging a compulsory possession order, the immigration detainee challenging the legality of his or her detention or a family challenging the exclusion of a child from school, the cost of any form of litigation is already prohibitive. 

This highlights another issue that is not entirely clear – are the grumbles over JR about its availability in general or only those which “hold-up” profitable land development, private finance initiatives or takeover decisions and the like? Given the context of the speech, one might assume that the government’s ire is aimed at the latter type of decision. If so, then, one legal commentator has suggested that the number of these applications actually been declining in recent years and that the real increase is has been found in immigration and asylum cases. In any event, the idea of a government deliberately proposing to price citizens out of challenging the legality of State decisions should be a concern because it strikes at the very heart of the rule of law and government accountability.

“When this country was at war in the 40s, Whitehall underwent a revolution. Normal rules were circumvented. Convention was thrown out.“

True enough but precisely because the challenges of war are not comparable with those of peace-time. Moreover, the PM would do well to remember that that war was fought to defend the rule of law not to justify undermining it whenever times were tough. Dire though the economic outlook might be, the analogy of war is at best fundamentally misleading. 

The PM’s illusion to the West Coast Mainline debacle is a pertinent one. All too often, decisions are taken in haste, corners get cut and (costly) mistakes get made. Better decision-making will mean that the courts have no reason to intervene.

We all want to see the economy recover, we all want to “help people thrive” and “we all want to build an economy that is not just worth something but is worthwhile”. But those aims are achieved by standing steadfastly by a commitment to legality and the certainty that that provides. - an issue that the courts have at the forefront of their minds. I would have thought in such tumultuous times, we would grab that certainty with both hands.