Maintaining the rule of law in the face of international terrorism is the greatest challenge our legal system faces. Over the past few weeks, the courts have shown themselves capable of delivering robust judgments. It’s what happened afterwards that inspires rather less confidence.
Last year, the Supreme Court was asked whether the assets of certain suspected terrorists could be frozen indefinitely – without any right of appeal to a court – under ministerial orders that had been made without even the most basic parliamentary scrutiny. In HM Treasury v Ahmed, the court decided on 27 January that ministers had exceeded their powers in making freezing orders; as a result, they were void.
A request from the Treasury to suspend the effect of the court’s ruling was refused on 4 February. ‘This court should not lend itself to a procedure that is designed to obfuscate the effect of its judgment,’ said Lord Phillips. Suspending the ruling might give the erroneous impression that the freezing orders were in force during the period of suspension, when in reality they had been void from the outset.
It was at this point that the suspects should have taken their money out of the banks. That was because the Treasury subsequently rushed amending legislation through parliament. The Terrorist Asset-Freezing (Temporary Provisions) Act 2010 came into force on 10 February. Not only did this deem the void orders to be in force until the end of 2010, the legislation also retrospectively validated anything that banks and others had done since 4 February on the assumption that the orders had been valid.
The act passed all its House of Commons stages on a single day, 8 February. In the Lords a day later, Lord Pannick QC pointed out that the new law would leave banks with a week’s exposure: ‘Someone whose funds were frozen last year and who asked the bank to release the funds on 27 January – the date when the Supreme Court handed down its substantive judgment – would have a good claim against the bank for damages.’
For the government, Lord Myners replied, quite wrongly, that ‘the Supreme Court judgment did not take effect until 4 February’. Although the minister later corrected himself by accepting that the freezing orders had been void from the start, the gap Pannick had identified remained unplugged when the act came into force on 10 February.
That was also the day on which the Court of Appeal gave judgment in the Binyam Mohamed case, rejecting an attempt by the foreign secretary to block publication of seven paragraphs from an earlier court ruling. The ruling has been much criticised by people who have not read it, with Master of the Rolls Lord Neuberger – who gave the main judgment – coming under particular attack. But the master of the rolls had originally been intending to grant David Miliband’s appeal and maintain the interim ban on publication of the missing paragraphs. Though Neuberger was sceptical about the foreign secretary’s view that publication would damage national security, he did not feel that he could simply dismiss it.
What changed his mind was a ruling by a US district court judge that had been shown to the Court of Appeal after judgment had been reserved in December. Judge Kessler’s ruling publicly recorded that Mohamed had been tortured while under US control.
‘This is one of those very rare cases where the court cannot accept a minister’s view ... that national security would be at risk if the material in issue were published,’ said Neuberger. Miliband’s views had been undermined by the subsequent ruling from Kessler.
It was in the course of a long and detailed discussion of what he might have decided if there had been no US ruling that Neuberger made some reference to the security services and their involvement in Mohamed’s mistreatment.
The judgment had been pre-vetted to ensure it would not damage national security. It is also normal practice for draft judgments to be circulated to counsel in advance. This allows the lawyers to act as an unpaid proof-reading service for hard-pressed judges. Counsel are required by court rules to send copies of their corrections to other parties. And, of course, they are not meant to re-open the arguments.
At time of writing, I do not know what the master of the rolls said in the original paragraph 168 of his judgment. Jonathan Sumption QC, for the foreign secretary, wrote a letter to the court on 8 February asking the three judges to cut the paragraph, which was ‘likely to receive more public attention than any other part of the judgments’ they were delivering.
Whether or not that would have been the case, it was certainly true after Neuberger had modified paragraph 168 and Sumption’s letter had been circulated by Mohamed’s lawyers. This publication should not have surprised the QC; his letter had been referred to in open court and, in the absence of any further order, thereby lost its protection under rule 31.22 of the Civil Procedure Rules.
But what nobody noticed last week was that Sumption’s letter was a far from objective account of the judge’s original observations. As an advocate, he would naturally have put the case for suppression of the paragraph at its highest. Several people who have seen the original version of paragraph 168 have assured me that Sumption’s letter exaggerated its impact.
Sumption should therefore support representations made to the court last week on behalf of Mohamed and media organisations that Neuberger’s missing paragraph should now be published in full. And Neuberger should hasten to set the record straight.