Saturday, 19 March 2011

Lord Neuberger - Speech to the Judicial Studies Board - "Open Justice Unbound?"

Lord Neuberger MR

The Master of the Rolls, Lord Neuberger of Abbotsbury, delivered the annual Judicial Studies Board lecture on 16th March - see the full text of the speech at "Open Justice Unbound?"   The question mark in the title of the speech is important because it raises the point that "open justice" may not be "unbound."  Lord Neuberger notes that "open justice" is a long established principle.  This theme is developed over three areas: judgments; the use of modern applications such as broadcasting proceedings, internet, tweeting; and the more controversial topics of "super-injunctions" and "closed proceedings."  A full reading of the speech is recommended.

On judgments - "Judgments must be open not only in the sense of being available to the public, but, so far as possible given the technical and complex nature of much of our law, they must also be clear and easily interpretable by lawyers. And also to non-lawyers. In an age when it seems more likely than ever that citizens will have to represent themselves, this is becoming increasingly important."    Of course, the non-lawyer citizen representing himself is at a massive disadvantage.  It was once said that cases are decided by the "artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it" - Prohibitions del Roy 1607.    If there is one certainty, that is more true today than it must have been in the days of King James I of England (VI of Scotland).

Lord Neuberger makes the important point that there is much inaccurate reporting in relation to human rights.   He said, with superb irony - "One of the most fertile grounds for inaccurate reporting is the Human Rights Act 1998; reporting which may tempt some into thinking that it is hardly worth maintaining the State’s inability to deny you a fair trial, to kill or torture you, and to preclude you enjoying freedom of expression. "  Regrettably,
certain politicians and much of the popular media seem to have little interest in even trying to be accurate when commenting about anything "European."

Broadcasting, internet, tweeting etc - The speech looks at the possibilities of  broadcasting some hearings and notes that the Supreme Court is equipped for this but the media are showing little interest - probably for commercial reasons.  Lord Neuberger was also supportive of "tweeting" and he broadly welcomed the interim guidance issued by the Lord Chief Justice.  Also, he referred to the community of active informed court reporting on the internet through blogs, and tweeting.  Legal blogging is certainly a developing area.  He argued that - "we should support the responsible legal journalists; we should initiate, support, encourage and assist public legal education. The great strength of our society is that it is built on the competing voices of free speech."

Super-injunctions and closed proceedings - On Super-injunctions he refers to the committee which he is chairing and hoped that a report would appear  before the end of April and that it will  "allay many of the understandable concerns about secret justice."   That may be hoping for too much.  It must be doubtful that it will really slake the thirst of the media wishing to find out what it is that some usually high profile person wishes to keep from the public eye.  Lord Neuberger also discussed the "closed procedure" used in certain hearings such as those before the Special Immigration Appeals Commission (SIAC) and the Court of Protection.  He points out that the open justice principle must, in some situations, give way - "... in certain, narrowly defined circumstances, the general principle can, indeed must, be set aside ..." and in some circumstances Parliament and the courts have done so.

Other posts on "secrecy" -  Secrecy in civil cases .... Secretive justice: is it "justice" .... Special advocates: Closed procedure: Secret Hearings

Other blogs looking at this speech are UK Supreme Court blog and UK Human Rights blog.

The Westminster Hall debate

On the question of secrecy in proceedings it is worth looking at the Westminster Hall debate - (or text version   Westminster Hall debate )  - mentioned at the end of the post immediately below - and also a blogpost on the Annaraccoon blog - "Hyper-injunctions: the secret misery."   It is good that at least some M.P.s are waking up to the developing threat to free speech in the U.K.  In the debate, Mr John Hemming M.P. makes many good points about the role of Parliament as a protector of the liberties of the British people and how that role is being undermined by secrecy and inability to obtain information. I wonder whether the newly appointed Commission on a British Bill of Rights will join up the pieces of the jigsaw?  One piece is our ancient rights and freedoms - Magna Carta; Bill of Rights etc.  The other piece is the more recent "human rights" convention and legislation.   Mr Hemming has done an excellent job in bringing out many of the injustices which are being pepetrated today.

Addendum - 22nd March:  The UK Human Rights Blog takes a look at this speech and provides several links of interest.  Please have a look - "Open Online Justice - What do you think?". 

Addendum - 23rd March:  The Head of Legal blog takes a look at the Westminster Hall debate.

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