justice

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By Dr Ruvi Ziegler – lecturer in law and researcher of citizenship and electoral rights at the School of Law, University of Reading

The Supreme Court will determine on Tuesday whether the Government have power to give notice pursuant to Article 50 of the Treaty on EU of the UK’s intention to withdraw from the EU without an Act of Parliament providing prior authorisation to do so. The PM has announced that she intended to ‘trigger’ Article 50 before the end of March 2017.

Many may ask: what difference will the ruling actually make?

Euro coin

Brexit ruling: on which side will the Supreme Court come down?

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Dr Chukwumerije Okereke, Reader in Environment and Development and Director of Research in African Environment and Development in the School of Human and Environmental Sciences, writes about the forthcoming Earth Summit and why justice must not be overlooked.

Between June 20 and 22 many world leaders, civil society groups and a bevy of media organisations will gather in Brazil to commemorate the 20th anniversary of the United Nations Conference on the Environment and Development (Earth’s Summit) held in Rio de Janeiro, Brazil,  3-14 June, 1992. The Rio Summit remains the largest ever global conference on environment and development convened by the United Nations.

The stated objective of Rio+20 is to secure renewed political commitment for sustainable development and assess the progress to date and the remaining gaps in the implementation of the outcomes of the major summits on sustainable development. The two themes for the conference are: (a) a green economy in the context of sustainable development and poverty eradication; and (b) the institutional framework for sustainable development.

There is no doubt that the 1992 Earth Summit was a critical landmark in the history of global environmental governance.  It continues to: (i) serve as an inspiration for humane international co-operation and multilateral environmental diplomacy; (ii) provide impetus for the quest for an ecologically secure and sustainable planet; and (iii) remind everyone of the need for a truly democratic platform for bringing together governments and civil society in the search for solutions to challenges that threaten humans’ common existence.

Rio 1992 produced three main agreements, including the UN Climate Change Convention, the Convention on Biodiversity and the Forest Principles. However, important as these three treaties are, it is probably fair to suggest that the most important outcome of Rio 1992 was the institutionalisation of the concept of sustainable development – the recognition that environmental protection and human welfare are inseparable parts of the development process and cannot be considered in isolation. Despite, however, many conventions and treaties related to sustainable development since 1992, the levels of global poverty and environmental degradation both remain unacceptably high.

It is right then that Rio+20 should focus on assessing the progress that has been made to date and the barriers standing against the achievement of global sustainable development.  As an ethical concept, the intuitive appeal of sustainable development resides in the attention it gives to three key dimensions of justice: (a) justice within and between nations; (b) justice between present and future generations; and (c) justice between human and non-human nature.

Today, distributional justice remains central to any effort to achieving sustainable development as it did 20 years ago. And only careful attention to the three dimensions of justice above can ensure the achievement of a lasting balance between economic, environmental and social dimensions of development which the concept of sustainable development envisages. In fact, I am convinced that the current lack of attention to justice is the most important barrier against the design of effective policies and institutions for achieving national and global sustainable development.  In other words, Gro Harlem Bruntland was right when, in 1987, she declared that:  “It is futile to attempt to deal with environmental problems without a broader perspective that encompasses the factors underlying world poverty and international inequality.”

Green Economy has emerged as the new buzzword in preparation for Rio +20. However it must be noted that emphasis on ‘green economy’ does nothing to affect the centrality of distributional justice in the quest for sustainability.  There will certainly be winners and losers in the transition to a global greener economy, at least in the short term.  Moreover, the move to a green economy would itself entail material costs, and green products and services may generate their own externalities and risks. States, businesses and the civil society gathering in Rio in June must therefore ask how policies and institutions aimed at encouraging a greener economy can better take account of the full range of justice impacts and prospects such a transition would generate. In discussing this matter I suggest that lasting answers can only be achieved in Rio if the following four perspectives are adopted:

  1. Distributional justice should not be seen as merely instrumental but at the heart of sustainable development
  2. Questions of environmental justice must be seen as questions about the mode of wealth creation and appropriation itself rather than as an add-on optional extra. Hence, achieving global sustainable development should be seen to require more radical interrogations of the basic structure of the international society and of patterns of social relations between the poor and rich
  3. The idea of global environmental/planetary citizenship should not been seen as mere moral lectures but one that deserves to be taken as the foundation upon which institutions for environmental governance should be built
  4. The current global economic recession should be seen as an opportunity (not as a hindrance) to tackling unsustainable development and world poverty.

To stand any chance of meeting the aspirations of the majority of the global population that has been clamouring for global sustainable development, international management approaches must strive harder to reflect responsible stewardship and the fact of our common inheritance of the planetary resources. In short for Rio to succeed, the idea of justice must be reinstated at the centre in the quest for new green global economy

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Justice, security and secrecy

Law, Terrorism and the Right to Know (LTRK) is an ESRC and AHRC funded project led by Dr Lawrence McNamara in the School of Law. The project explores democratic traditions of open justice, media freedom and the contemporary demands of security. In January 2012, Lawrence and research assistant Sam McIntosh submitted a response to a Government consultation and to a Parliamentary Human Rights Committee inquiry into the Justice and Security Green Paper.

When seven former Guantanamo Bay detainees took legal action against the British Security Services, alleging complicity in their detention and mistreatment abroad, their claim for damages would inevitably involve a very public examination of UK security policy and practices. Relevant material would be disclosed to the claimants and considered in open court.

 The Government asked the court to use special procedures which would allow sensitive evidence to be considered in the absence of the claimants and the public. Disclosure, it was said, would damage national security. Conceding the case would avoid disclosure but would unjustifiably tarnish the security services. When the Court of Appeal held the law did not allow for secret evidence in civil proceedings, the Government settled the actions with payments to the claimants. However, wanting to ensure that it would in future be able use special procedures, the Government took two major steps.

First, it appealed the legal issue to the Supreme Court. In Al Rawi v The Security Service the Court held that the common law did not permit the use of special procedures in ordinary civil claims. Legislation would be required to open up that option.

As such, the second and now more significant path has been to set about legislating. To that end, in late 2011 the Government published a Green Paper on Justice and Security as part of a public consultation on how best to protect sensitive evidence.

The Green Paper proposes the introduction of Closed Material Procedures (CMPs) in all civil proceedings and inquests where sensitive information might arise. CMPs are already well established in some areas. They have been used for a decade in the Special Immigration Appeals Commission (SIAC) which hears matters such as appeals against deportations ordered on security grounds.

Under CMPs, judges and government representatives are security cleared. When sensitive evidence arises, the court goes into ‘closed session’ with the public, press and non-government parties (and their lawyers) excluded from the court. Security-cleared ‘Special Advocates’ are appointed to represent the non-government party’s interests during closed hearings. However, once the Special Advocates have seen the sensitive evidence, they cannot consult with or obtain instructions from those whose interests they represent.

The advantage of CMP is that, in theory, all relevant evidence can be considered by the judge. But there are also significant disadvantages to CMPs. A frequent criticism is that non-government parties are severely disadvantaged because they are unable to see, and therefore properly challenge, closed evidence which goes against their case. That is, while CMPs may mean that more evidence is considered, that evidence is less rigorously tested. Among the fiercest critics of CMPs are the Special Advocates who work within them. However, CMPs also have further very negative implications for the general public’s interest in judicial proceedings being conducted in open court and in accordance with the principles of open justice.

The LTRK response to the Green Paper takes issue with the Green Paper’s failure to adequately explore two key questions. First, the Green Paper seems to simply accept that CMPs are an essentially satisfactory way of ensuring justice between the parties, despite this being at odds with criticisms from Parliament’s Joint Committee on Human Rights and Special Advocates. Secondly, the Green Paper fails to seriously consider the implications that CMPs will have for open justice and ignores the real damage that their introduction could do to what Lord Brown in the Supreme Court has described as “the integrity of the judicial process and the reputation of English justice”.

Recognising that the Government appears determined to make CMP available in civil proceedings, the LTRK response goes on to suggest certain safeguards that may limit its impact on open justice. These focus on procedural checks to ensure that such proceedings are only used in truly exceptional circumstances and counter any trend towards their normalisation. Our response suggests that the criteria for engaging CMP should explicitly include the need to consider the benefits of justice being carried out openly and the harm done to the public interest of closed proceedings. It also suggests, for example, that media interests should be represented when courts consider the use of CMP.

The LTRK project will continue to examine the move towards legislation and the implications of proposals as they develop. Our website has regular updates.

www.reading.ac.uk/LTRK/

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