David Miranda was detained and questioned for nine hours on 18 August 2013 under a very broad, but little known anti-terrorism power. This article looks at the increasing government powers in this area and the potentially worrying consequences.
The Miranda case highlights a thickening veil that our legislature has given the government. By citing ‘national security’ concerns a person can be detained without reasonable suspicion, information confiscated and hard drives destroyed. These laws are important in a new age with new threats, but they can be used to stifle important public debate and limit journalism the government finds embarrassing. There of course needs to be a balance between allowing citizens to exercise fundamental civil rights and the protection of national security; but is the balance swinging too far in one direction? Does claiming a threat to national security now give the government carte blanche?
There may of course be very good reasons for preventing certain information reaching the public domain.
Schedule 7 of the Terrorism Act 2000, used to detain Mr Miranda, is currently at the centre of the media storm, but is not the only worrying piece of legislation. Enter the Justice and Security Act 2013 (JSA 2013). The Miranda case shows us the potential effects of a combination between the JSA 2013 and our already existing anti-terror laws. The Student Lawyer raised the issue when the Bill was still a green paper. The bill that quietly made its way into law could have a very real impact on Miranda’s case and anyone else who falls foul of similar circumstances.
So what could happen?
Part 2 of the JSA 2013 extends the use of Closed Material Proceedings (CMPs) in ‘any proceedings (other than proceedings in a criminal cause or matter) before (a) the High Court, (b) the Court of Appeal, (c) the court of Session, or (d) the Supreme Court’ (section 6(11)).
The court, any party to the proceedings or the Secretary of State (even if not a party to the case) can make an application to invoke this procedure (section 6(2)). Theresa May could therefore apply to the court for a declaration that a CMP could be used if the court was satisfied of two things: that ‘sensitive material’ would be required to be disclosed (section 6(4)(a)) and that it would be in the interests of ‘fair and effective administration of justice’ to allow closed proceedings (section 6(5)).
If this succeeds then Miranda (and the public) would be excluded from the proceedings while any sensitive material which provided evidence against him was heard by the court. This would force Miranda to avail himself of the ‘Special Advocate’ procedure, making it very hard for him and his Special Advocate to rebut the Government’s case coherently. Miranda’s challenge by judicial review to the lawfulness of his detention can be subject to CMPs under the JSA 2013.
What has happened so far?
Miranda has obtained a limited injunction. It prevents the police and government from ‘inspecting, copying or sharing’ the material, but examination for national security purposes is still allowed. It remains to be seen if the government abused their power as the Home Office and Police now have until 29 August to prove that there is a genuine threat to national security.
Other recent government actions are also troubling. Alan Rusbridger, editor of the Guardian’s legal section, was forced to destroy or hand over some of the Guardians ‘Snowden material’. This was a bold move but the government were in fact on fairly solid legal ground in that instance. Section 5 of the Official Secrets Act 1989 makes it a criminal offence for one to further disclose information that one knows was unlawfully disclosed by another. A clear demonstration of the enormous power the government wields when trying to protect its secrets.
As Rusbridger says, ‘the threat to journalism is growing’. True. With it, though, is the threat to important public debate. Transparency in government is becoming opaque under the blanket of terror prevention. The combination of various pieces of legislation designed to protect us from attack are keeping us out of the loop.
The counter argument
There may of course be very good reasons for preventing certain information reaching the public domain. Information that we should not acquire and frankly would probably rather not know about. It is important in an age where we are faced with modern extremism and terrorism that we can police our borders. New threats require new police powers including very broad ones such as Schedule 7.
There is an accepted balance. We pay in civil liberty for the protection from the murky threats that we know little about. But when does the price become too high and value for money run out?
The public debate about the balance between security and liberty has been fuelled by people such as David Miranda…
The case to watch is that of Mr Sabure Malik. The European Court of Human Rights will consider whether Schedule 7 is compatible with the ECHR. Mr Malik’s argument is based on Schedule 7 being a violation of his right to liberty (Article 5) and privacy (Article 8) due to the fact that it does not require ‘reasonable suspicion’ in order for it to be exercised. The outcome of this case could be a key turning point against the tide of government anti-terror powers.
The Miranda case is still in its inception and there may well be a perfectly good reason for his detention. However, there is a wider problem posed by the governments’ persistent attempts to limit their accountability and to keep the public in the dark. This article hopes to throw up some of the ways in which a combination of legislation can be used to worrying effect. Our current laws deter litigation against the government and give an advantage to the government once litigation is commenced. This is a worrying time for the UK with serious questions to be asked about the way it and the world moves forward.
The public debate about the balance between security and liberty has been fuelled by people such as David Miranda and Edward Snowden raising difficult questions for the US and UK governments. This is a vast topic and one that will invoke huge amounts of comment and analysis in the coming weeks. The outcome of the Miranda case will be telling: either the government over extended themselves in a worrying attack on journalistic freedom of expression, or Miranda was caught red handed. Time will tell.
Chris Pask is a Birmingham law graduate and recently completed the BPTC at the College of Law, Birmingham. He is seeking pupillage whilst working as a trainee advocate for a solicitors firm.