Wednesday, 23 September 2015

“Kafkaesque”- The Justice and Security Act, 2013. – Tim Veater

 The Lords objected to and amended provisions.
The government reversed them.
The legal profession almost unanimously objected to the provisions. It was ignored.
The Lib. Dem. party objected to the provisions.
Yet still the government got its way and a majority of MP's voted the measure through.

The Justice and Security Act, 2013.


Whilst the news media fixates and obsesses over the ancient indiscretions and
activities of ageing celebrities, relatively little is known or discussed
regarding fundamental changes to our ancient rights and customs, that serve to
protect us from over-arching and despotic government, now or in the future.

The provisions of the above piece of legislation is just such an example. It
allows, at government discretion, secret trial, in which not even the injured
party is allowed to see and thereby test, the evidence against them.

The Lords objected to and amended provisions. The government reversed them. The
legal profession almost unanimously objected to the provisions. It was ignored.
The Lib. Dem. party objected to the provisions. Yet still the government got its
way and a majority of MP’s voted the measure through.

Did it cause a storm of protest and indignation in the country? If it did I must
have missed it. Did the national media headline the story? If they did I can’t
remember seeing it. So we the people allowed another of our basic protections to
slip away without a whimper of indignation or even a measure of public
discussion.

Of course those like Kenneth Clarke who proposed the Bill, who take the view
that the threats are so profound and dangerous as to outweigh established
protections for the individual, or make the assumption that only the bad and
guilty find themselves adversely affected, are as naïve as he. (Kenneth Clarke
“naive” – no surely not?)

As always such things are abstract and academic for those not affected by its
provisions. The public is generally little interested in such things unless they
are forcefully brought to their attention. However for those who find themselves
in the unhappy “Kafkaesque” situation of not knowing what evidence has enabled
the government to incarcerate or otherwise impose sanctions on them, may not
regard it in quite so relaxed and esoteric way. Such a person could easily be
you or I. END.

FURTHER READING AND EXTRACTS.

The Justice and Security Act, 2013. The Bill has completed all its parliamentary
stages in both Houses and Royal Assent was given on 25 April, 2013


Justice and Security Green Paper

NOW PASSING STEALTHILY: A Bill allowing judges to exclude lawyers, press, public
and even litigants in their own cases from civil hearings
Posted on March 1, 2013 by JJ



Special advocates[edit]
A submission to Government ministers, from 57 of the 69 current special
advocates, states CMP’s “represent a departure from the foundational principle
of natural justice, that all parties are entitled to see and challenge all
evidence relied upon before the court, and to combat that evidence by calling
evidence of their own”. The submission states that “Government ministers should
not be endowed with discretionary powers to extend unfairness and lack of
transparency to any proceedings to which they are themselves party”. Further
warning, “it would leave Britain with more draconian rules than any other
country in the world, more suited to despotic regimes such as Iran and North
Korea”.[5]
Barrister Martin Chamberlain, who’s worked in secret courts since 2003,
describes a system of justice worthy of Franz Kafka, describing Josef K’s
fictional ordeal in The Trial, as closed material procedures in Britain in the
21st century. “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 a 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 an innocent explanation and nor will the court”.[3]

Tom Hickman: Turning out the lights? The Justice and Security Act 2013
The Justice and Security Act 2013 (“JSA”) received royal assent on 25 April 2013
and Part 2 of the Act is expected to come into effect in July 2013. Part 2 makes
fundamental changes to UK law in any civil case involving national security
issues by creating an extraordinary and seductive alternative to public interest
immunity (“PII”) procedure. The alternative, known as Closed Material Procedure
or “CMP”, represents a carve-out from basic principles of equality of arms and
open justice by allowing courts to consider any material the disclosure of which
would be “damaging to the interests of national security” without such material
being disclosed to the non-Governmental party to the case.
The significance of the JSA from a rule-of-law perspective can hardly be
overestimated, however infrequently it may (or may not) be used. During the
final debate on the measure in the House of Lords (26 Mar. 13 Col. 1032), Lord
Brown, the recently retired Law Lord and former Intelligence Services
Commissioner, warned that the “legislation involves so radical a departure from
the cardinal principle of open justice in civil proceedings, so sensitive an
aspect of the court’s processes, that everything that can possibly help minimise
the number of occasions when the power is used should be recognised…..”. Despite
this, the power is a seductive one for Government and even for the courts. It
enables the Government to place material before the courts without risk of
public exposure or scrutiny and in the knowledge that it shielded from challenge
because evidence cannot be adduced to respond to it (the other parties not
knowing what it is). Judges will be attracted by the fa
ct that it enables them to see all the evidence relevant to the decisions they
have to make.



Justice and Security Act – NUJ secret courts podcast
24 January 2014 The Justice and Security Act and Secret courts: Eric Metcalfe,
Barrister (AND OTHERS)

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