In 1924 Lord Hewart, in Rex v. Sussex Justices ex parte McCarthy, coined the phrase “Not only must Justice be done; it must also be seen to be done” and has been quoted ever since when emphasising the importance of public confidence in the effectiveness of our legal system.
It is quite understandable that Lord Hewart could not have foreseen the creation of the current Court of Protection or indeed the passing of the Justice and Security Act 2013.
Both the Court of Protection and Justice and Security Act delve into the murky world of ‘Justice’ behind closed doors, the details of which might never be known to you or I; but is it all one in the same or should the context, reason and purpose for the secrecy be taken into account?
The Court of Protection
The Court of Protection makes decisions and appoints deputies to act on behalf of people who are unable to make decisions about their personal health, finance or welfare. It balances dignity with vulnerability, individual rights with obligations of the state and seeks to ensure that any act or decision on behalf of any incapacitated individual is taken with their best interests in mind.
By its very nature, the Court of Protection deals with vulnerable individuals and with matters of an extremely personal nature; who they live with, where they live, can they get married and goes into detailed description and analysis of any disabilities effecting the decision making process.
In essence, the Court of Protection is not conducted in secrecy but in private and it is possible for applications to be made (by the media for example) to gain access to, and report on, proceedings if the Court is persuaded that there is good reason to do so; most likely on public interests grounds.
The Justice and Security Act 2013
An altogether different kettle of fish.
Technically, the Justice and Security Act 2013 is described as:
A bill to provide for oversight of the Security Service, the Secret Intelligence Service, the Government Communications Headquarters and other activities relating to intelligence or security matters; to provide for closed material procedure in relation to certain civil proceedings; to prevent the making of certain court orders for the disclosure of sensitive information; and for connected purposes.
The effect of this Act is to extend the use of Special Advocates to all civil proceedings. Originally and initially such measures were the preserve of limited cases, for example immigration cases where suspicions of terrorism are a feature.
A Special Advocate is a specially appointed lawyer (by the Attorney General and typically a barrister) who is instructed to represent a person’s interests in relation to material that is kept secret from that person (and his ordinary lawyers) but analysed by a court or equivalent body at an adversarial hearing held in private.
The purpose is to protect national security; the requirement is that disclosure of the material in question would be damaging to the interests of national security.
There is no definition of what national security means and even less so what ‘damage to the interests’ of national security might mean. There are obvious examples (information sharing between countries and the sources of such information) but would, for example, information seriously damaging confidence in the Government in power fall within this remit?
The application, usually made by the Secretary of State, will be decided by the presiding Judge, possibly at the exclusion of all other parties.
The fear is clear; the state will be able to rely on evidence which will not be disclosed to the other party making for a quite unequal footing and clearly placing the Government at an advantage.
One view might be to simply trust the Government, they have your mandate so they will act in our best interests; that is fine as long as our best interests are in keeping with the interests of those making such decisions. We may never know as there is no such opportunity, as that with the Court of Protection, for anyone to attend on any grounds.
To bring these two very different concepts together one can look to our Lord Chancellor and Secretary of State for Justice, Chris Grayling. Earlier this year, Mr Grayling called for greater transparency in the Court of Protection but he has remained un-surprisingly reticent over the closed material procedures (i.e. secret) that the Justice and Security Act 2013 has introduced.
So we are left with the two extremes, private hearings to protect the dignity of the individual and secret hearings to protect national security. Whether either is justified is a matter of personal opinion but we respect the following sentiment:
“In matters of truth and justice, there is no difference between large and small problems, for issues concerning the treatment of people are all the same.” Albert Einstein
