The Justice and Security Act has further eroded the principle of open justice in the UK. It is symptomatic of a disturbing trend towards a state of exception.
The Justice and Security Act (JSA) was passed into UK law in April and July 2013. Its main purpose was to provide ‘closed material procedures’ (CMP) in relation to certain civil proceedings.
The act originated in a consultative or green paper introduced by the then justice secretary, Kenneth Clarke, in 2011. This was an over-the-top affair, proposing to make secret procedures available in all types of civil proceedings—not just those cases involving national security and even when the government itself was involved. It further proposed that the government should have the power to decide for itself whether to invoke the secret procedure, with only very limited review by the court.
According to the barrister Tom Hickman, the consequent bill was ‘strikingly lop-sided’ in failing to establish a reasonable balance between the public interest and security concerns. The bill ‘enabled the Government to apply for CMP when it suited the Government to do so’, he wrote. The courts ‘would have had no power to refuse a Government request for CMP in any case involving national security sensitive material’ and ‘neither the courts nor other parties in the case would have had the power to invoke CMP in cases in which it would have been contrary to the Government’s interests for the court to look at the material’.
Hickman argued that this position was, ‘so extravagant and indefensible ... that the Government must have expected to give way on most if not all of these issues and may have included such provisions ... to draw fire from other issues of more concern’. And while the House of Lords duly removed these provisions, during the passage of the bill through Parliament, the intentions of the government were pretty clear. A dangerously reactionary and repressive piece of legislation was to be introduced, ironically, under cover of improving oversight of the security and intelligence services.
Hitherto, the courts could grant an order, a Public Interest Immunity (PII) certificate, allowing one litigant in a case to refrain from disclosing evidence to the others where this would be deemed damaging to the public interest—an exception to the normal rule that all parties are obliged to disclose any relevant evidence. In making a decision about issuing such an order, the court must balance the public interest and the open administration of justice with concerns regarding security which might be compromised by the disclosure of sensitive materials. This principle, the ‘Wiley balance’, guards against the possibility that security concerns will always override the need for disclosure. CMP works like PII but, crucially, without the safeguard of the Wiley balance. In refusing to treat CMP as a last resort, if a fair determination could not be arrived at by other means such as PII, the government was clearly very keen to prioritise the former over the latter.
CMP is already in use in Special Immigration Appeals Commission (SIAC) proceedings, under the Terrorism Prevention and Investigation Measures (TPIM) Act 2011. In these contexts, although the court has to agree with the government that some harm would be done to the public interest on the disclosure of evidence, it can apply no balance-of-interest test to rule in favour of disclosure. Without the Wiley balance, Hickman argues,
whole swathes of information are not disclosable in these contexts even where the impact on national security would be relatively slight or remote but the interests of justice in disclosure are overwhelming. The result is that the majority of the evidence in a case, and often if not usually the entirety of the Government’s factual case, remains undisclosed … in TPIM cases.
It is this system that is now to be applied under the JSA. The court will have the discretion to declare whether CMP can be used in proceedings and initially it can decide whether CMP would further the ‘fair and effective’ administration of justice. But having done so the court loses its power to order disclosure of sensitive material even where the interests of natural justice or openness would so commend.
The Law Society of England and Wales, representing solicitors, argued that the JSA infringed open justice and jeopardised the right to a fair trial based on equality of arms as an essential element of the rule of law. In the same vein, the barrister Michael Fordham commented: ‘Secret trials undermine the principles of open justice and natural justice on which the rule of law is built.’ The spread of secrecy allows ‘the state authorities to become self-immunised from proper public scrutiny’, he contended, even warning that judges might refuse to preside over such secret courts. Liberal Democrat MPs from the ruling Conservative-Liberal coalition supported the bill through Parliament, despite overwhelming contrary votes at two party conferences. A former Westminster candidate, Jo Shaw, the human-rights lawyers Dinah Rose and Phillipe Sands and the copyright reformer Cory Doctorow all resigned from the party in protest. The Lib Dems are reportedly having second thoughts.
The problem has been best summed up by Martin Chamberlain, a barrister who has worked as a ‘special advocate’ (see below) in secret courts since 2003. Chamberlain described the system as worthy of Franz Kafka, likening the use of CMPs to Joseph K’s ordeal in The Trial: ‘As a special advocate, you are able to see and hear both the “open” and “closed” evidence. But often, the Government witness will refuse to answer particular questions in open court, and the issue will have to be pursued by the special advocate in closed hearing. But, after seeing the closed material, I am prohibited from speaking to my client. So I will never know if he had an alibi or innocent explanation and nor will the court.’
‘State of emergency’
The JSA is part of a package of increasingly repressive and anti-democratic legislation going back to the Anti-terrorism, Crime and Security Act 2001. Introducing detention without trial for ‘terrorist’ suspects, this required the government to derogate from article 5 of the European Convention on Human Rights on the grounds that there was a ‘state of emergency threatening the life of the nation’—one interpretation of the ‘war on terror’. Secret court procedures were introduced to deal with appeals by detainees held under the act. Fearing disclosure of material in such appeals which might compromise the activities of the intelligence services, the government permitted the exclusion of the detainees and their legal representatives from the proceedings and their replacement by security-vetted ‘special advocates’. The SIAC was set up to oversee this process.
In 2004 the Law Lords ruled against these powers of detention and the act was eventually replaced by The Prevention of Terrorism Act 2005. The ten detainees then held in Belmarsh prison were released but immediately subjected to ‘control orders’—a technological prison without bars—under the new act. This provision continued in modified form under the Terrorism Prevention and Investigation Measures Act 2011.
As Mark Neocleous has persuasively shown, states of emergency are by no means new in the UK: something close to the martial law declared during the first world war was repeatedly re-introduced in every decade subsequently. These exceptional powers became the norm and were routinely used against, for example, the organised working class. Emergency powers tend to become permanent in spite of politicians’ assurances to the contrary. They also have a tendency to spread—Neocleous noting that ‘emergency legislation in Northern Ireland (for example) has almost always become general legislation applicable to the whole of the UK’.
Such legislation is now routinely misused to target and intimidate journalists and others whose activities can be represented as equating to ‘terrorism’. The recent detention at Heathrow airport of David Miranda, partner of the investigative journalist Glenn Greenwald, under schedule 7 of the Terrorism Act 2001 was a far from isolated incident.
Andreas Speck has twice been detained by anti-terrorism police, presumably under schedule 7. In early 2008, Speck was detained at St Pancras returning from a holiday in Germany. He was questioned about military bases, Nato and other related issues: ‘I was then working at War Resisters International and involved in the preparation of an anti-Nato action in Brussels (organised publicly, with nonviolence guidelines).’ The second time was in 2011, returning from an anti-Nato meeting in Brussels. He was detained together with a fellow campaigner by Welsh anti-terrorist police at Holyhead.
In September 2013 a Yemeni anti-drone activist and local project co-ordinator for the legal charity Reprieve, Baraa Shiban, was detained at Gatwick airport, again under schedule 7, and questioned about his anti-drone work and his political attitudes. Cory Crider of Reprieve commented that ‘if there were any doubt that the UK was abusing its counter-terrorism powers to silence critics, this ends it’.
Drone opponents are seen as ‘threats’ and ‘adversaries’, according to Greenwald. From the other side of the Atlantic, he has written: ‘Due process for the US—the idea that people should not be deprived of life away from the battlefield without presenting evidence of guilt—is no longer a staple of the US political system but rather a malicious weapon of “propaganda”.’
The ghost of Carl Schmitt
This emphasis on sovereign power and states of emergency raises fears about the fate of liberal democracy. Recent revelations about mass surveillance by the US National Security Agency and GCHQ in the UK serve only to confirm this shift. Calls for greater executive power, unhampered by the constraints of legality, to counter the threat of ‘terrorism’ recall the German legal scholar Carl Schmitt.
Some regard Schmitt as one of the greatest legal minds of the last century. But he was also a fascist and rabid anti-Semite who joined the Nazi party in 1933 and became a prominent figure in the regime’s legal circles, until his fall from grace in 1936. Schmitt believed liberal democracy was ineffectual and ultimately unworkable, because liberal constitutions either prevaricated about or avoided altogether the concept of sovereignty, which he considered indispensable to legal order.
For Schmitt the legal norms legitimising acts of state in liberal constitutions are problematic for two reasons. First, they fail to provide sufficient guidance on matters of any kind without considerable deliberation, consultation and interpretation. In other words, the political process is too protracted and the outcomes too uncertain to work efficiently. What is needed for the law to be effective is a guiding authority (a sovereign power) to cut through all this—effectively by deciding, which is to say ruling, on the issue. Secondly, legal norms are incapable of dealing adequately with every eventuality and specifically an extreme emergency. Normal laws can’t cope in abnormal circumstances; they are likely to be overwhelmed and the crisis is unlikely to be averted. The law has to be suspended, precipitating a state of exception. Hence Schmitt’s maxim: ‘He is sovereign who decides on the state of exception.’
Driven by an overriding desire for certainty and stability, brought on by a pathological fear of their opposites, Schmitt betrayed the weakness at the heart of fascist posturing. Fear of change and of difference were condensed into the integrating principle of his political philosophy—fear of the enemy: ‘The specific political distinction ... is that between friend and enemy.’ A political group was defined against the enemy because this embodied what Schmitt called the utmost association and dissociation—the willingness to fight and die together as well as a willingness to kill others as members of a hostile group.
Embodied in the idea of the enemy, fear of instability leads to an overriding emphasis on internal and external security at the cost of privacy—even of the liberty that might be deemed to inhibit it. Fear of difference leads to an obsessive concern for social homogeneity, based on the notion of some mythical ‘blood and soil’ unity prior to any legal constitution.
Recently in Brussels, EU leaders raised concerns about US phone-tapping, suggesting that mass surveillance might imperil counter-terrorism efforts by undermining trust between the US and Europe. Yet in a post-summit press conference the UK prime minister, David Cameron, struck a rather different note—blaming the whistleblower Edward Snowden and ‘the newspapers helping him’ for ‘making it more difficult to keep our countries and our citizens safe’. He said that ‘it was a leader’s priority to try to keep their country safe and that meant not having some lah-di-dah, airy-fairy view about what all this means’.
This grotesquely one-sided view is entirely Schmittian in its emphasis and in line with the direction of travel represented by the secret courts of the JSA, because it utterly lacks any countervailing concern for liberty. But, as Neocleous asks, is even the conventional idea that a ‘balance’ between liberty and security should be struck an unexamined good? We need to ask hard questions about the meanings with which these terms and their relationship are invested and deployed.
 Tom Hickman, `Turning Out the Lights? The Justice and Security Act 2013’, UK Constitutional Law blog, June 11th 2013 (available at http://ukconstitutionallaw.org)
 Mark Neocleous, chapter 2 `Emergency? What Emergency?’, in Critique of Security (Edinburgh University Press, 2008)