Justice vanishes: the erosion of the rule of law
June 26, 2014 — Comment
Written by Frances Webber
The ability to secure justice has been irrevocably damaged by the combination of secret trials, trials involving secret evidence, and the continuing legal aid cuts – affecting the rule of law itself.
The ‘Trojan Horse’ affair has given us a definition of ‘British values’ – in a document for school governors issued by the Department for Education, and in an article by David Cameron in the Mail on Sunday on 15 June marking the 799th anniversary of Magna Carta. Democracy, respect for the rule of law and individual liberty, and respect for others’ beliefs are, we are told, at their heart.
So did the PM feel a twinge of alarm at the decision by Old Bailey judge Mr Justice Nicol on 19 May to hold an entire criminal trial in secret – with anonymous defendants, no press or public allowed to attend and even the trial’s existence not to be reported? We would not even have known of the trial had the Guardian not challenged the secrecy ruling. Open justice is (as the Court of Appeal observed, reversing the decision in part) both a hallmark and a guarantee of the rule of law. And the rule of law is fundamental to democracy; in providing a consistent, just, rights-based and open framework within which our relations with each other and with the state are regulated, it protects us from arbitrariness, and ensures that all are equal before the law and that no one is above the law – or beneath it. As Philip Johnston thundered in the Telegraph (5 June), in a much-used quotation from a venerable American judgment, ‘Democracies die behind closed doors’.
Three appeal judges ruled on 12 June that to hold a criminal trial in such total secrecy was both unnecessary and inimical to the rule of law. The defendants can now be named, the jury swearing-in, the reading of the charges and parts of the judge’s and prosecutor’s opening remarks will be open to the public, and selected journalists will be allowed to attend the trial (although their notes will be confiscated at the end of each day and there can be no reporting during the trial). We can be thankful for small mercies. But the judgment is hardly a huge victory for the rule of law; the core of the trial will still be heard in camera; journalists permitted to attend will be hand-picked (presumably for their willingness to comply with the stringent security measures which prevent contemporaneous reporting), and we have no idea of the extent of potential jurors’ security screening, and no guarantee that they too are not hand-picked for compliance.
It was, of course, ministers from Cameron’s government – Theresa May and William Hague, home and foreign secretary respectively – at whose request the trial was to be held in secret, the first in modern times. (Parts of a number of trials involving espionage have been heard in secret, and in 2009, then home secretary Jacqui Smith successfully applied for Chinese refugee Wang Yam’s defence to the charge of murder of a Hampstead recluse to be heard in secret. The order is now the subject of an application to the European Court of Human Rights, with Yam’s lawyers arguing that the secrecy prevented vital witnesses from coming forward.) The trial of the two men in Nicol’s Old Bailey case, which is scheduled for October, is about possessing information useful for terrorism and preparing for terrorist acts (most likely abroad, in Syria or Iraq). The defendants’ names have now been released (although the men themselves have not). They are said to be British nationals of Turkish and Algerian origin.
The defendants and their lawyers will at least hear all the evidence on which the prosecutor relies. But Cameron’s government also brought secret justice of a different kind to the civil courts. The Justice and Security Act was passed in 2013 as a riposte to the cases of British and UK-settled Muslims rendered to Guantanamo and to Libya, settled out of court to avoid exposure of the extent of UK-US and UK-Libyan cooperation over rendition and torture. It allows the state, in any civil trial (such as a claim for damages, or judicial review of detention by British officials, at home or abroad), to present evidence to the judge but withhold it from the other party on ‘national security’ grounds.
Secret evidence had been deployed by previous governments – against colonial, Irish and foreign nationals. The use of secret (‘closed’) evidence was formalised in the Special Immigration Appeals Commission, set up in 1997 for dealing with troublesome foreigners who needed to be deported to safeguard Britain’s ‘national security’ (which increasingly meant the security of ‘friendly’ dictatorships and torturing states, rather than that of the UK itself). In 2005, the model was adapted for use against British and non-deportable terror suspects (almost exclusively Muslim) after the regime of internment for non-deportable foreigners but not British citizens was ruled discriminatory and illegal.
The ‘closed evidence’ regime denies the most basic rule of law: that a person accused of something knows the case against him in order to be able to answer it. Foreigners can be (and have been) deported without knowing what they are supposed to have done which has turned them into deportable ‘terror suspects’. After 1997 the secrecy was meant to be allayed by special advocates representing suspects’ interests, who were initiated into the secret evidence (but thereafter incommunicado to suspects). When the government proposed extending the regime to civil cases in the Justice and Security Bill (now an Act), those self-same security-cleared special advocates denounced the system of closed evidence in which they participated, as unfair and inimical to justice. But the government took no notice, pushing the measure through parliament even after, in February 2013, when even the Daily Mail carried a letter signed by over 700 legal professionals warning of the dangers of secret justice.
Supporters of the measure claimed that in sensitive cases, there could be no trial at all without guaranteed secrecy. But the first case in which ministers obtained permission to apply for a ‘closed material procedure’ order confirmed the scepticism of critics who believed secrecy would be used to hide embarrassing revelations about involvement or complicity in torture, rather than state secrets. It concerns two British Muslims who claim that the government was complicit in their torture in Somaliland. There are fears that the procedures will be used to defend the government against the hundreds of claims of torture due to be brought in the British courts by former colonial subjects, such as the Kenyans detained as Mau Mau during the anti-colonial struggle. According to the Guardian, such fears are fed by indications that the security services consider damage to their reputation, however well-grounded, as damaging to national security. In two other cases, where victims of ill-treatment by the security services have sued for damages in Northern Ireland, and a third case involving an unexplained recall to prison, the Ministry of Defence and the Police Service of Northern Ireland have said they want their evidence ‘closed’, to protect informers. If permission is granted in these cases, everyone, except the security services’ representatives and witnesses, and the judge, will leave the court during this evidence – including the plaintiffs and their lawyers. The House of Lords’ Constitutional Reform Committee expressed concern during the passage of the Bill, both that the executive acts as sole gatekeeper and that judges cannot refuse closed procedures if there would be damage to national security otherwise, no matter how minor the damage, or how extensive the damage to principles of natural justice and public confidence caused by the secrecy.
The ‘usual suspects’
Following in the footsteps of its predecessor, the government also sought to extend the closed procedures to inquests, but its attempt was defeated. The issue of secrecy in inquests had become acute in the 2005 case of 24-year-old Azelle Rodney, who was shot eight times by a police officer without warning as he sat in the back of a car in Edgware. His family were denied an inquest for seven years after officers’ evidence to the 2005 inquest was so heavily redacted (under the Regulation of Investigatory Powers Act 2000, regulating information obtained through covert surveillance) that it could not proceed. The retired judge eventually appointed to head an inquiry into Rodney’s death as an alternative to the deadlocked inquest ruled that such secrecy had been largely unnecessary – and the evidence, once heard, suggested that the motive had been to protect officers involved from embarrassment or worse, rather than for legitimate law-enforcement reasons. The inquiry did not accept the firearms officer’s evidence that he reasonably believed Rodney had picked up a gun from the seat and intended to use it, but held that even if that was the case, and the first four shots were fired in self-defence, the fifth to eighth shots were ‘unjustified, disproportionate, unreasonable and unlawful’.
It is no coincidence that those most affected by closed justice and secret evidence have been black, Muslim and Irish communities, since these groups are, currently and historically, the targets of the most oppressive measures and operations, whether by police, army or security services. Other measures removing or restricting access to justice spread wider, with targets including immigrants, disabled and poor people. The Immigration Act 2014 removed all appeals against immigration decisions, except those on human rights or asylum grounds; there is no longer any right of appeal on the ground that a denial of entry, a refusal of a visa, a decision to deport is simply legally wrong. Another severely marginalised group, disabled people, are now subjected to indefinite delays when they appeal against refusal of personal independence payments, because of changes providing for an internal review, with no time limit, before an appeal is listed. Restrictions on the availability of judicial review made under the cloak of improving efficiency make challenge to administrative actions more expensive and more difficult, and the same cloak has been used to try to dismantle structures designed to ensure racial equality (the proposal to abolish the public sector equality duty was reversed following consultation). But the denial of access to justice represented by the legal aid cuts contained in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and continuing since, affects a much broader range of people, including many of the most vulnerable in society.
Unequal access to the courts
The government’s destruction of legal aid damages the rule of law just as much, if not more, than the measures allowing for secret courts and secret evidence. For equality of access to justice is fundamental to the rule of law. Yet, as a result of the vicious cuts to legal aid over the past two years, prisoners can no longer effectively challenge conditions of detention, and those suffering workplace or neighbours’ harassment, withholding of wages or benefits, extortionate rents, deposits or interest on debts, deportation from the country as a criminal, or a myriad of everyday legal problems are no longer eligible even for publicly funded legal advice, let alone representation. The cuts are sold to the public as necessary to curb profligate spending which lines the pockets of ‘fat-cat lawyers’, in defiance of the obvious truth that lawyers who want to be fat cats are in commercial law, not in housing, social security, employment, mental health, immigration or other legally aided areas of law. As predicted, the cuts mean more court time wasted, at huge expense, by litigants in person (whose cases take huge amounts of time court compared with legally represented litigants) grappling with often complex legal issues. Criminal lawyers fought off attempts to remove client choice by ‘outsourcing’ legal aid contracts to a few large firms such as Eddie Stobart, but still face fee cuts which will drive young lawyers out of the profession, achieving the same result – a poorly funded, conveyor-belt defender service – by other means. Cuts to court staff and the disastrous Capita interpreting contract compound delays, adjournments and stress, while many are forced to ‘waive’ legal rights and remedies for lack of both time and money.
The cuts have come at a time when universal access to quick and speedy legal redress is more vital than ever, with zero-hours contracts and unliveable wages at work; rampant exploitation of tenants in the private rented sector, overnight removal of hundreds of thousands from local authority waiting lists for social housing; benefit cuts, caps and bedroom taxes; sanctions applied to job-seekers with more zeal than fairness; assessments of fitness to work which operate as death sentences. Yet the destruction of public justice is not surprising, in the context of the attacks on all the other parts of the welfare state. As the vision underlying the welfare state – of a socially just and pluralistic society where everyone receives what is necessary to enable their full participation – succumbs to neoliberal values, a punitive, social Darwinistic contempt for ‘losers’, for weakness or dependency, is eroding the institutions whose job it is to make the playing field level, and to protect the powerless against abuse of power. Along with the government’s war on ‘human rights for the undeserving’, it has shown unprecedented contempt to representatives of the United Nations – most recently, the UN Special Rapporteur on Housing, whose February 2014 report on the impact of the bedroom tax was dismissed as a ‘misleading Marxist diatribe’, and two months later the UN Special Rapporteur on violence against women, who was denied access to Yarl’s Wood immigration prison following the death there of detainee Christine Case.
When Magna Carta, deployed by Cameron as an icon of Britishness, was signed, with its ringing declaration that ‘to no one shall we sell, to no one delay or deny justice’, it was for the barons, not for the ordinary people of the country. Its guarantees of liberty, due process and timely, free and fair trial attained their centrality as cornerstones of the rule of law over centuries of use against tyrannical power. It is tragic but apt that, as Cameron’s government rules in the interest only of the modern-day barons, for the ordinary people who suffer, justice is once more delayed, denied and sold. In the field of criminal justice, Muslims have become the new ‘suspect community’ who will be caught up in the same kind of round-ups which resulted in miscarriages of justice for the Guildford Four and Birmingham Six. Gerry Conlon’s early death is a reminder of the continuing price paid by those wrongly convicted and incarcerated. The combination of secret trials and legal aid cuts mean that there will be many more miscarriages of justice – although we might not hear about them.
Read an IRR briefing paper, ‘Europe’s pariah state? The future of human rights in Britain‘
Read an IRR News story, ‘Lost in privatisation: Capita, court interpreting services and fair trial rights‘
 Before 1997, appeal against national security deportation was conducted completely ‘blind’ before a secretive panel who advised the Secretary of State, a system which according to the European Court of Human Rights (Chahal v United Kingdom) had none of the essential characteristics of a court.  Some, like Ian Macdonald QC and Rick Scannell, had already resigned years before, refusing to rubber-stamp injustice.  See an IRR story, ‘Secret justice = injustice”, February 2012.  See an IRR News story, ‘Azelle Rodney inquiry’, 8 November 2012.
The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.