Article 50 in the courts: the secret state meets the nanny state?

Union Jack, from Flickr, creative comms, Dave King

Union Jack, from Flickr, creative comms, Dave King

The government arguments in the Brexit litigation surrounding the role of parliament in triggering article 50 have been published after yesterday’s decision by Cranston J, upholding an application to allow disclosure in The Queen (on the application of Miller) v Secretary of State for Exiting the European Union.

It should be unremarkable that the 20 page document containing the government’s grounds of resistance to the claim is available to the public. After all, as the Civil Procedure Rules state regarding supply of documents to a non-party (part 5.4C), the general rule is that a person who is not a party to proceedings may obtain a copy of the statement of case. A court may, on application of a party, depart from that general rule, but the general rule is very clear.

While the immediate focus has very understandably been on the substance of the government submissions, the other key aspect of the decision – the fact that an application was made to keep them secret – warrants considerable attention because it is, on its face, a truly remarkable application that looks like another creeping move towards attempts to normalise secrecy in British justice.

The 4-page submissions by the interested parties on 22 September seek the clarification or variation of a 26 July order that imposed confidentiality requirements on a range of documents. Confidentiality was, it seems, necessary because at the hearing, ‘the Divisional Court expressed its grave concern on receiving reports that parties and prospective parties to these proceedings, and their legal representatives, had been the subject of abusive conduct by a minority of members of the public, which may be criminal and/or in contempt of court. The Divisional Court also considered a remark by Counsel for the Defendant about the possibility of solicitors ‘tweeting’ the pre action correspondence if it was not kept confidential.’

The applicants now argued that the order could not encompass statement of case documents that would ordinarily be available, and Cranston J agreed: ‘Against the background of the principle of open justice, it is difficult to see a justification for restricting publication of documents which are generally available under the rules.’

Although that resolves the issue, it is worth looking closely at two more questions: How strongly did the government resist the application? And why?

On the first, according to the applicant’s submissions the Secretary of State ‘strongly objects’ to the state’s detailed grounds of resistance and skeleton arguments being published and ‘objects’ to the claimant publishing its own submissions unless reference to the state’s position is redacted.

As to why, we don’t really know. We are told in the applicant’s submissions that ‘the basis for the Secretary of State’s objections has not been developed in correspondence’ and ‘the reasons given so far are in the second paragraph of the Government Legal Department letter of 16 September 2016′, but the latter is confidential under the original 26 July order.

And we don’t know anything more. The 28 September order by Cranston J does not give any indication of what the government arguments were. In the absence of a successful application for the government submissions to be disclosed, or Cranston J publishing further reasons, it seems we will never know.

One might speculate. The starting point would seem to be the arguments for the 26 July order. If the reasons for resisting this application were the same as the concerns raised in July then they do not seem very strong. If the government arguments were based on the possibility of criminal or contemptuous abusive acts being directed at parties then the courts and the state have more than enough power and resources to tackle that.

A protective rationale in such circumstances is the stuff of the nanny state; seeking a blanket of confidentiality to protect lawyers and to protect parties who have voluntarily taken an action, in which there is such obvious great public interest, is entirely inappropriate.

If the government arguments were based on the possibility of a solicitor making an unauthorised disclosure, then (putting to one side whether this is in fact likely) the same applies with regard to the power and resources at the disposal of the state and the courts, and add the regulatory authority into the mix.

Alternatively, maybe there were new submissions advanced. For example, if the government arguments were somehow based on substantive reasons related to policy and future negotiations then that should be apparent from the now-published material. To my eye, there is nothing that would approach that, nothing in the immediate commentary following the decision indicated it either, and Justice Cranston’s order makes no reference to that possibility. Or, perhaps, there were other reasons.

We should, as lawyers and as citizens (and as non-citizens who may be greatly affected by Brexit), be deeply worried that we do not know the reasons why the state argued in favour of secrecy and that there is not yet any indication that those reasons will be revealed. This should worry us because in a case of exceptional public interest, with no apparent reason why the arguments should be withheld from the public eye, the state requested secrecy. Even though the court refused the request, the fact it was made at all is grounds for concern.

While the rise of closed material procedures under the Justice and Security Act, and the creeping of secrecy requests into criminal cases, have seen normalisation of secrecy on security grounds (as I have argued before), the Article 50 litigation now moves quite some way further down that path.
Lawrence McNamara is Deputy Director and Senior Research Fellow at the Bingham Centre for the Rule of Law. He is grateful to his colleague Jan van Zyl Smit for discussion of the issues and, especially, for the ‘secret state meets the nanny state’ turn of phrase. The documents referred to are available on the news pages of the solicitors for the claimants and interested parties, Bindmans.

Author: Lawrence McNamara

Lawrence McNamara is deputy director and senior research fellow at the Bingham Centre for the Rule of Law

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