The Justice and Security Green Paper - Human Rights Joint Committee Contents


6  The impact on media freedom and democratic accountability

The missing issue in the Green Paper

193.  As we indicated in Chapter 1, the proposals in the Green Paper have significant implications for the freedom of the media to report matters of public interest and concern. Yet this important right does not feature in the Green Paper. It is not mentioned in the "Key Principles" outlined in the Executive Summary, which the Government says have guided the development of the proposals, nor is there any systematic assessment of the impact of the proposals on this fundamental democratic right.

194.  A number of the submissions we received in response to our call for evidence have emphasised that the proposals in the Green Paper engage the principle of open justice, which concerns the basic proposition that trials should, as a general rule, be conducted in public and judgments should also be given in public. Responses to the Government's own consultation have also raised similar concerns. The Guardian News and Media Ltd., for example, says in its response to the Green Paper that the proposals amount to "an unnecessary and unjustifiable restriction on the media's role as a public watchdog". The starting point, according to Dr Lawrence McNamara, is that the media are "the eyes and ears of the public".[104]

195.  We have also received submissions specifically concerning the impact of the Green Paper proposals on the media from Dr. Lawrence McNamara and Index on Censorship. A number of other submissions also include comment on this aspect, including those from Justice, Liberty, Amnesty International, Redress and Big Brother Watch. We took oral evidence on this question from an investigative reporter, a legal journalist, a media lawyer and an academic lawyer with relevant expertise.

The principle of open justice

196.  The status of the open justice principle as both a foundational common law principle and an important human rights obligation is not in doubt. In Al Rawi, for example, Lord Dyson said:

There are certain features of a common law trial which are fundamental to our system of justice (both criminal and civil). First, subject to certain established and limited exceptions, trials should be conducted and judgments given in public. The importance of the open justice principle has been emphasised many times [...] The open justice principle is not a mere procedural rule. It is a fundamental common law principle. In Scott v Scott [1913] AC 417, Lord Shaw of Dunfermline (p 476) criticised the decision of the lower court to hold a hearing in camera as "constituting a violation of that publicity in the administration of justice which is one of the surest guarantees of our liberties, and an attack upon the very foundations of public and private security." Lord Haldane LC (p 438) said that any judge faced with a demand to depart from the general rule must treat the question "as one of principle, and as turning, not on convenience, but on necessity".

197.  The importance of the role played by the media in exposing to scrutiny matters of public interest and concern, and making publicly available to a wide audience the information necessary to hold governments to account, is also an acknowledged feature of the principle of open justice and, correspondingly of the case-law of the European Court of Human Rights under Article 10 of the ECHR, the right to freedom of expression. That right has been regarded by the Strasbourg Court as being of particular importance to the healthy functioning of democratic accountability, and has been interpreted broadly to give effect to both the right of the media to impart information and the right of the public to receive it. It has also been the subject of ringing judicial endorsement in recent years. The importance of open justice as a fundamental principle was the subject of Lord Neuberger's 2011 Judicial Studies Board lecture, Open Justice Unbound?, in which he explicitly linked the importance of open justice to the rule of law:[105]

Public scrutiny of the courts is an essential means by which we ensure that judges do justice according to law, and thereby secure public confidence in the courts and the law".

198.  Many of our witnesses invoked what is rapidly becoming the classic statement of the interrelationship between freedom of expression, democratic accountability and the rule of law in the judgment of the Court of Appeal in the Binyam Mohamed litigation, in which the Lord Chief Justice distilled a number of principles from the relevant legal authorities. The significance of the statement warrants its quotation at length:

37. Quite apart from Mr Mohamed's personal interest in seeing the full and complete reasoning of the court, there was considerable discussion about the principle of open justice generally, and as it might affect the media. This developed along familiar lines. From time to time judges of the highest distinction have identified the reasons which underpin this principle, naturally enough, in the overall context of the possible application of the principle to the individual case. For present purposes I derive the following principles from the authorities.

38. Justice must be done between the parties. The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law. For that reason, every judge sitting in judgment is on trial. So it should be, and any exceptions to the principle must be closely limited. In reality very few citizens can scrutinise the judicial process: that scrutiny is performed by the media, whether newspapers or television, acting on behalf of the body of citizens. Without the commitment of an independent media the operation of the principle of open justice would be irremediably diminished.

39. There is however a distinct aspect of the principle which goes beyond proper scrutiny of the processes of the courts and the judiciary. The principle has a wider resonance, which reflects the distinctive contribution made by the open administration of justice to what President Roosevelt described in 1941 as the "[…] first freedom, freedom of speech and expression". In litigation, particularly litigation between the executive and any of its manifestations and the citizen, the principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression. Ultimately it supports the rule of law itself. Where the court is satisfied that the executive has misconducted itself, or acted so as to facilitate misconduct by others, all these strands, democratic accountability, freedom of expression, and the rule of law are closely engaged.

40. Expressed in this way, the principle of open justice encompasses the entitlement of the media to impart and the public to receive information in accordance with article 10 of the European Convention of Human Rights. Each element of the media must be free to decide for itself what to report. One element would report those matters which reflect its distinctive social or political stance, and a different section of the media will report on different matters, reflecting a different, distinctive position. This may very well happen with this judgment, reflecting the diversity of the media, and symbolising its independence. In short, the public interest may support continuing redaction, or it may not. If it does not, each element of the media will decide for itself what, if anything, to publish. In the context of two further features of the evidence I should add that the investigative role of the media exists independently of the principle of open justice, and that the right of the media to enlist the assistance of legislation like the Freedom of Information Act to acquire access to information is similarly distinct. Neither diminishes the principle of open justice.

41. Although expressed in wide and general terms—and perhaps inevitably so expressed—in my judgment the principles of freedom of expression, democratic accountability and the rule of law are integral to the principle of open justice and they are beyond question. They do not enable the media to require parties to litigation to continue it if they do not wish to do so in order for the media to have a better story, or permit the media to study material which has been made subject to non-disclosure on well established PII principles, or to report proceedings where, in the interests of justice, by operation of law, such reporting is prohibited. It is, of course, elementary that the courts do not function in order to provide the media with copy, or to provide ammunition for the media, or for that matter private individuals, to berate the government or the opposition of the day, or for that matter to berate or laud anyone else. They function to enable justice to be done between parties. However where litigation has taken place and judgment given, any disapplication of the principle of open justice must be rigidly contained, and even within the small number of permissible exceptions, it should be rare indeed for the court to order that any part of the reasoning in the judgment which has led it to its conclusion should be redacted. As a matter of principle it is an order to be made only in extreme circumstances.

42. The open justice principle (by which I include the ordinary right of all the parties to litigation to know the reasons for the decision of the court) is undiminished either by the possible exercise by the Intelligence and Security Committee of its responsibilities to inquire into possible wrongdoing by the intelligence services or by the responsibility of the Attorney General to authorise criminal proceedings against any member of the services who may have committed a criminal offence. These are distinct elements of our arrangements which serve to ensure that the rule of law is observed, but they do not impinge on the principles of open justice.

The effect on investigative journalism

199.  We took evidence from an investigative journalist about the difficulties the proposals in the Green Paper are likely to cause him in his reporting on matters of public interest and concern. Ian Cobain, an investigative reporter on The Guardian who has been responsible for a lot of award-winning investigative journalism in recent years concerning matters such as complicity in torture and extraordinary rendition, told us that material disclosed in legal proceedings has been "vitally important" as a source of information for journalists.[106] He said that journalists such as him were "heavily reliant on documents that have been disclosed in court", which were often crucial either to corroborate allegations of wrongdoing which had been heard elsewhere, or to contradict assurances or denials.

200.  Two cases in particular, Al Rawi and Binyam Mohamed, had resulted in the disclosure of evidence and documentation which had enabled journalists to build up a true picture of the Government's involvement in certain actions since 9/11. In Al Rawi, for example, Mr. Cobain told us that Government ministers gave assurances that any suggestion of British involvement in rendition was a conspiracy theory, and it was only through the court proceedings that the documentation was disclosed showing that a decision had in fact been taken by the Government that British nationals detained in Afghanistan could be sent to Guantanamo.

201.  According to Mr. Cobain, the proposals in the Green Paper will prevent the sort of investigative reporting he has done on complicity in torture and rendition from happening again.[107] Once allegations of wrongdoing against the Government disappear into a closed court, he said, the media will not be able to see how the allegations are tested in open court, and they may not even find out at the end of the process if the relevant part of the case is in a closed judgment.[108] In the Binyam Mohamed case, for example, had the proceedings been closed the media would not have been able to find out what the truth of the matter was about the Security Service's awareness of the treatment Mr. Mohamed had received before he was interrogated by UK officials. Mr. Cobain's message was plain and simple: "we would not learn these matters if the proposals were adopted."[109]

The overall effect on the media

202.  The evidence of Dr. Lawrence McNamara, an academic lawyer who has carried out research into the effect of counter-terrorism laws on media freedom, was that making closed material procedures generally available in all civil proceedings would have a "significant detrimental impact on the ability of the press to access and report information" and would constitute a "major retreat from open justice traditions." He makes a similar point to Mr. Cobain about why courts are so important to the media: "information comes out in court; it is where detail comes out and where the parties cannot craft or spin the information."[110] His research shows that journalists regard courts as "vitally important avenues for information to be exposed." He was concerned about "the normalisation of justice occurring behind closed doors"[111] and about CMPs becoming routine because the parties may have an interest in agreeing to them taking place, which would prevent material coming into the public domain which might be important in holding the state to account.[112]

203.  Joshua Rozenberg, the well-known legal correspondent and broadcaster, pointed out another reason why court material and court proceedings have a great advantage for the media in terms of the ability to inform the public of what is going on: reports of them enjoy the protection of privilege, which means that journalists cannot be sued for libel if they publish a fair and accurate account of what is said in court.[113]

204.  A number of witnesses who gave evidence about the impact of the Green Paper on media freedom were particularly concerned about the potentially wide scope of application of the proposals for closed material procedures. Dr. McNamara for example, was concerned that "we will end up with whole categories of activities and scrutiny that will become less and less visible." Joshua Rozenberg, asked how the proposals in the Green Paper will affect his ability to report legal proceedings, said:[114]

We do not know because, we do not know how widely they will go if they go as far as the Government is proposing. As I see it, they would cover international relations, crime prevention, police informers' identities and perhaps even commercially sensitive information in which the Government has no direct interest. If all those were to be subject to these closed material proceedings, it would very much limit our ability to cover a wide range of cases [...] If that were inhibited to the extent envisaged in the Green Paper, I think that the public would be very much the poorer.

205.  The representatives of the media from whom we heard were also very clear that the current law on PII not only works reasonably well in practice as far as the media are concerned, but also adequately accommodates the right to freedom of expression when deciding whether certain material should not be disclosed. The main reason for this is that, under the current law of PII, there is a judicial balancing exercise in which the court, rather than the executive, balances the rights and interests in play, including the importance of the public's right to know the particular information in question. Jan Clements, a specialist media lawyer from Editorial Legal Services at The Guardian, pointed out that the courts already have considerable powers to manage difficult and sensitive cases in a way which enables the media to "at least get access to some of the key information."[115] She pointed to the careful judicial balancing of the various interests, including national security, in the Binyam Mohamed litigation.[116] Her fear was that, under the proposals in the Green Paper, the arguments that were played out in court in that case and considered very carefully would not take place: the whole thing would take place under a CMP and "the court would be deprived of the very important role of balancing those interests."

206.  Joshua Rozenberg similarly said that under the current law, "at least we have the feeling that the court has carried out a balancing exercise and perhaps has even heard from the press making an application on whether material of a certain sort ought to be covered by public interest immunity."[117] Under the proposals for CMPs, however, "[t]he fear is that we would not have any rights to make an application to the court before it went into closed session, not least because we would not know why it was going into closed session."

The effect on court reporting

207.  A number of concerns were expressed to us about the impact of the proposals in the Green Paper on court reporting in particular, and the implications of this for the legal certainty and the accessibility of legal precedents which, particularly in a common law legal system, is vital to the preservation of the rule of law.

208.  The inaccessibility of closed judgments is particularly problematic in this respect. As Joshua Rozenberg put it, "the problem with closed judgments is that we do not know what they contain."[118] The particular nature of a court judgment makes this especially problematic. It contains the court's reasons for determining an issue in litigation a particular way. Both the parties and the public have a strong interest in knowing what those reasons are, whether they relate to the facts or the law.

209.  There appears to have been little thinking so far about how to address the many problems to which closed judgments give rise. How can they be made accessible to those, such as special advocates, who are both entitled to access them and require to do so in order to perform their function of representing the interests of parties to litigation who are excluded from closed material procedures? If closed judgments have legal precedent value, as the special advocates told us they sometimes do, how can that content be extracted and made publicly accessible as the rule of law requires it to be? How long will judgments remain closed for? What should be the mechanism for closed judgments becoming open? We recommend that the Government brings forward proposals to deal with the important questions we raise which relate to closed judgments.

210.  It was also pointed out to us that the current trend, throughout the court system, is towards greater openness and transparency: in family courts, the Court of Protection, coroners' inquests and the Supreme Court, for example.[119] The Green Paper, however, is directly at odds with this trend.

The impact on public trust and confidence in the Government and the Courts

211.  The Secretary of State in his Foreword to the Green Paper refers to "improved executive accountability" as one of the prizes of getting reform right.[120] Both he and the Foreign Secretary have spoken of the need to restore the public's trust and confidence that the intelligence and security agencies and the Government are acting in accordance with the law.

212.  With the exception of the ministers, not a single witness in our inquiry suggested that the proposals in the Green Paper will improve the accountability of the executive. On the contrary, a great deal of evidence has expressed concern that the proposals will greatly reduce the accountability of the executive. Dr McNamara described the "culture of closure and caution" that he found in Australia where, since the introduction of the National Security Information (Criminal and Civil Proceedings) Act 2004, "the default position became to used closed proceedings where possible."[121] Dinah Rose QC thought it "inevitable" that there is the possibility of wrong decisions being made in CMPs without any kind of accountability, "because the people you are asking to make the decisions are people who are not neutral but have an interest in the outcome. With the best will in the world, however professional they are, they cannot look at it in the same way that a judge would look at it."[122]

213.  Moreover, a number of witnesses have expressed the distinct but no less important concern that extending closed material procedures into civil proceedings will undermine public confidence in the courts because it may give the appearance that the judiciary has been co-opted by the Government and the security and intelligence agencies. Jan Clements, for example, observed that secrecy undermines public confidence, and pointed to the risk that under the Green Paper's proposals the public may perceive the court as simply going along with the Government's decision that a matter should be head in private, which would result in the courts as well as the Government being mistrusted.[123]

214.  We welcome the Government's recognition in the Green Paper that one of the guiding principles of reform in this area is that, even in sensitive matters of national security, the Government is committed to transparency, and that it is in the public interest that such matters are fully scrutinised.[124] We also welcome the Government's avowed desire to improve executive accountability. We are concerned, however, about the potential impact of the proposals on public trust and confidence not only in the Government but in the courts. As Lord Kerr said in Al Rawi, "the public interest in maintaining confidence in the administration of justice [...] is an extremely important consideration and one which ought not to be overlooked."[125]

Possible safeguards for open justice

215.  Dr. McNamara said in his submission that there is "a strong need for mechanisms which counter the pressures towards normalising closed proceedings". He points out that the Australian Law Reform Commission recommended that open justice be an express consideration in national security law, but the Australian statute did not follow this advice. He recommends a number of safeguards which he says could be inserted into any legislative regime in order to ensure that open justice is not only taken into account as a relevant consideration but is given appropriate weight by the courts. We see some virtue in this suggestion, in the contest of the amendment and clarification of the law on PII as it applies to national security-sensitive material that we have recommended in Chapters 3 and 5 above.

216.  We recommend that in the statutory amendment and clarification of the law on Public Interest Immunity that we have recommended, consideration is given to including open justice as an express criterion to be taken into account and given due weight by the court when conducting the judicial balancing exercise.

Conclusion

217.  It is regrettable that the Green Paper overlooks the very considerable impact of its proposals on the freedom and ability of the media to report on matters of public interest and concern. This is a serious omission. The role of the media in holding the government to account and upholding the rule of law is a vital aspect of the principle of open justice, as has been amply demonstrated in the decade since 9/11. We are also concerned about the impact of the proposals on public trust and confidence in the courts. We recommend that the Government expressly recognises these considerations in its framework of "key principles" guiding the development of policy in this area. We also expect the human rights memorandum accompanying the forthcoming Bill to include a thorough assessment of its impact on media freedom and on continuing public confidence in the administration of justice.


104   See Lord Bingham in Turkington v Times Newspapers Limited (Northern Ireland) [2000] [UKHL 57 at [4], describing press representatives is court as "the eyes and ears of the public to whom they report." Back

105   Lord Neuberger of Abbotsbury, MR, Judicial Studies Board annual lecture 2011, para. 4. Back

106   Q101. Back

107   Q102. Back

108   Q104. Back

109   Q103. Back

110   Q118. Back

111   Ibid Back

112   Q132. We also have a concern about the media freedom of CMPs taking place by consent: see para 113 Back

113   Q110. Back

114   Q110.See, to similar effect, the evidence of Jan Clements, Q130. Back

115   Q121. Back

116   Q120 and 128. Back

117   Q113. Back

118   Q112. Back

119   Q111. Back

120   Green Paper, Foreword, p. viii. Back

121   Q123 Back

122   Q 34 Back

123   Q138. Back

124   Green Paper, Executive Summary, p. xii, para. 10. Back

125   Al Rawi. See also Lord Neuberger MR in the Court of Appeal in the same case. Back


 
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Prepared 4 April 2012