Any reform to the law on Official Secrets must provide robust protection for public interest disclosures and open justice

 

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Judith Townend

 Judith Townend, together with Lorna Woods and  Lawrence McNamara, comment on the Law Commission’s proposals to reform ‘Protection of Official Data’. This blog post accompanies their submission to the Law Commission’s consultation, and is part of our series documenting the submissions.  

With the election now in the past, the wheels of government are beginning to grind again. While most eyes are on Brussels, it is important that the bright lights of Brexit do not draw attention away from other work that is resuming and ongoing. Among it, the Law Commission will continue its project that considers the revision of the laws on Official Secrets, with its final proposals expected later this year.

The initiative to consider existing law on the ‘Protection of Official Data’ – primarily the Official Secrets Acts 1911-1989 – began with the Cabinet Office when it referred the project to the Commission in 2015. A 315-page consultation paper with provisional recommendations was published by the Commission in spring 2017. It will be the Government that will decide how to proceed, and whether to introduce new draft legislation, once the final recommendations are made.  (No reference to Official Data or Official Secrets was made in the Queen’s Speech).

The Law Commission, which came under – perhaps unanticipated – fire from the media and NGOs for the nature of the proposed reform plans and a perceived lack of consultation before the first report was published, has since been engaging with a wider range of groups and individuals through in-person meetings. It has also published a ‘myth-buster’ on Twitter in response to some of the reports, and shared more explanatory material ahead of meetings.

However, this has not assuaged concerns, with strong reservations about the proposals expressed in a range of written industry and third sector written submissions, a number of which are available online.

We are among those who have met with the Law Commission since publication of its report, and in our written submission we focus on aspects of the consultation that relate to freedom of expression and the public interest: the public interest defence; the Independent Statutory Commissioner model; and access to court proceedings. We also address the related issue of the conduct of trials.

In important respects our position on these issues is often substantially at odds with the Law Commission’s provisional views. In summary:

  • We reject the Commission’s view that the difficulties surrounding a public interest defence outweigh its benefits. We recommend that there should be a public interest defence in official secrets offences for all those engaged in journalism in the public interest, including sources;
  • We recommend that any reformed system should not rely solely on an independent Statutory Commissioner (as the Commission suggests). It should instead adopt the Canadian model of an Independent Commissioner in addition to a public interest defence for official secrets offences;
  • We agree that the Commission’s proposed test of necessity for closing public access to proceedings is an improvement on the current law, but we argue that the proposed change alone falls short of what is required to adhere to the rule of law;
  • We disagree with the Commission’s tentative suggestion that the availability of closed material procedures in civil cases, now permitted under the Justice and Security Act 2013, should prompt a wider review of the ways that fair trial rights and safeguarding of secrets is balanced in criminal cases. On the contrary, there is no good reason at this point in time to embark on a wider review of criminal process and national security issues.

Our full submission can be read at this link.

As a research exercise, independent from the official consultation, the Information Law and Policy Centre at the Institute of Advanced Legal Studies is continuing to publish submissions on this topic: if you or your organisation would like to share yours in this way, please contact Dr Daniel Bennett at daniel.bennett@sas.ac.uk.

Lorna Woods is professor in law, University of Essex; Lawrence McNamara is a reader in law, University of York and senior research fellow at the Bingham Centre for the Rule of Law; and Judith Townend is a lecturer in media and information law at the University of Sussex.  They are also affiliated to the Information Law and Policy Centre (ILPC) at the Institute of Advanced Legal Studies. The views expressed by the authors in this report are made in a personal capacity and do not represent the views of the ILPC. This post first appeared on the Information Law and Policy Centre’s blog.

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Eligible legal aid clients left without local representation – one reason we’re taking part in the Brighton Legal Walk

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Judith Townend

You might think that those asylum seekers and immigrants who qualify for state-funded legal advice and representation, following cuts to the scope of legal aid in 2013, are the lucky ones.

But even where legal aid is still available for asylum applications and some other cases, such as those involving domestic violence and victims of trafficking, clients face difficulties in securing representation.

In Brighton and Hove, for example, there is now only one organisation offering legal aid funded representation in asylum cases – Brighton Housing Trust. The only other firm in the city holding a legal aid contract for immigration and asylum services has recently decided it will no longer continue state funded work in this area.

It has left those adults entitled to legal aid with limited local representation, as owing to stretched resources and the high number of child asylum seekers, Brighton Housing Trust is currently prioritising cases involving children.

As Catherine Brown, caseworker at the charity Brighton Voices in Exile explains: ‘We currently have no legal representation for our destitute clients who are entitled to legal aid – both those who are facing appeals with short notice and those who are in the early stages of their asylum claim.’ BVIE are trying to secure legal aid representation out of the area, without success.

According to Brown: ‘Without representation at appeal their chances of a successful outcome are clearly diminished.’

Earlier this year the University of Sussex Clinical Legal Education programme facilitated a meeting of stakeholders at Brighton Town Hall to assess local immigration and asylum needs. The startling revelation that adults eligible for legal aid may not be able to access it locally was one of the many concerns that came to light.

It’s clear, from talking to local communities and individuals in need of legal support, that there’s a local crisis in immigration advice and representation.

A law clinic may only provide a ‘sticking plaster’ as one attendee described it. It’s true that the local and national crisis cannot be solved with the development of a student law clinic.

Nonetheless, a sticking plaster is better than no assistance at all, and we believe it’s important that a range of law clinics support local needs, however they can, while contributing to a broader debate on national legal funding and services.

It’s our hope that by securing relevant practitioner support and the necessary financial assistance we will be able to develop a service in this area.

This is just one reason that colleagues at the University of Sussex School of Law will be walking with a range of legal organisations on 26th June 2017 to raise funds and awareness of legal needs in East and West Sussex.

  • You can support us by donating at this page here
  • More about Sussex Clinical Legal Education here
  • Find out more about Sussex Law School at the Sussex Community Festival on 25th June 2017
  • If you have concerns about local legal provision in this area, or can offer assistance to a student law clinic, please contact the project lead: Professor Nuno Ferreira

Judith Townend is a lecturer in media and information law at the University of Sussex and a volunteer with Sanctuary on Sea and the Brighton Syrian community group. This post first appeared on the Justice Gap blog and on the Brighton & Hove News website.  

No Pain, All Gain: The Case for Farming Organs in Brainless Humans

by Ruth Stirton and David Lawrence

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Ruth Stirton

It is widely acknowledged that there is a nationwide shortage of organs for transplantation purposes.  In 2016, 400 people died whilst on the organ waiting list.  Asking for donors is not working fast enough.  We should explore all avenues to alleviate this problem, which must include considering options that appear distasteful.  As the world gets safer, and fewer young people die in circumstances conducive to the donation of their organs, there is only so much that increased efficiency in collection (through improved procedures and storage) can do to increase the number of human organs available for transplantation. Xenotransplantation – the transplantation of animal organs into humans – gives us the possibility of saving lives that we would certainly lose otherwise.

There are major scientific hurdles in the way of transplanting whole animal organs into humans, including significant potential problems with incompatibility and consequent rejection.  There is, however, useful similarity between human and pig cells, which means that using pigs as the source of organs is the most likely to be viable.  Assuming, for the moment, that we can solve the scientific challenges with doing so, the bigger issue is the question of whether we should engage in xenotransplantation.

A significant challenge to this practice is that it is probably unethical to use an animal in this way for the benefit of humans. Pigs in particular have a relatively high level of sentience and consciousness, which should not be dismissed lightly.  Some would argue that animals with certain levels of sentience and consciousness – perhaps those capable of understanding what is happening to them – have moral worth and are entitled to respect and protection, and to be treated with dignity.  It is inappropriate to simply use them for the benefit of humanity.  Arguably, the level of protection ought to correlate to the level of understanding (or personhood), and thus the pig deserves a greater level of protection than the sea cucumber.  The problem here is that the sea cucumber is not sufficiently similar to the human to be of use to us when we’re thinking about organs for transplantation purposes.  The useful animals are those closest to us, which are by definition those animals with more complex brains and neural networks, and which consequently attract higher moral value.

The moral objection to using animals in this way arises because of their levels of cognition.  This moral objection would disappear if we could prevent the animals ever developing the capacity for consciousness: they would never become entities capable of being harmed.  If we were able to genetically engineer a brainless pig, leaving only the minimal neural circuits necessary to maintain heart and lung function,  it could act as organic vessel for growing organs for transplantation.  The objection based on the use of a conscious animal disappears, since this entity – it’s not clear the extent to which is it possible to call it an animal – would have no consciousness.  It is correspondingly difficult to ground an objection in the undignified treatment of the entity.  Arguments relying on dignity imply that there is a conscious entity that is entitled to be treated with respect.  Since this engineered pig has no capacity to possess consciousness or even cognition at all, it is difficult to argue that it is capable of possessing any dignity in this sense, that can or should be protected.  Since the sentience and consciousness has been prevented, the vessel is more akin to an agricultural field than it is to a ‘normal’ pig.  There is no sense in which we would object to a ploughed field being sown with crops.  It is equally difficult to see how we could object to this vessel made of organic matter which happens to be shaped like a pig being used to grow organs.

This brings us to another scientific hurdle.  While pig organs are likely to be the most compatible with the human body, they are not necessarily ideal, and many people may not be able to handle non-human organs.  The next stage is to use the organic vessel as a host to grow human organs from induced pluripotent stem cells.  The iPSCs have no consciousness or sentience that attracts moral value.  Nor does the organic vessel.  It is simply a complex collection of organic matter, grown in a machine that happens to be made of similar materials, that is more compatible with the protection of human life.  If organs were grown from iPSCs that were HLA tissue typed to the individual patient then organs would be perfectly matched and rejection would be even less likely to occur.  Experimentation into chimeric organisms that can do just this are underway and are increasingly successful, albeit in sentient creatures.

However, this process is still less than perfect.  Using a vessel that originated from pig matter is not the ideal growing medium for human organs.  It would be much more likely to be successful if the vessel came from human tissue matter.  We can apply the same reasoning as for our pig vessel, with an escalation.  The respect and moral value that human beings attract is due to their capacity for consciousness and feelings – the elements of personhood.  We nurture consciousness and intelligence, and we protect the ability to develop consciousness once an entity with the capacity to develop consciousness comes into being.  If we were able to genetically engineer brainless humans, then the reasons behind these protections no longer apply.  The object – it is not possible to call it a human being since it has no consciousness – has no capacity for consciousness, nor did it have the potential for capacity for consciousness since it would not have been created except in these circumstances.  It is at best, similarly to the vessel of pig origin, a collection of organic matter that happens to be shaped like a member of the species Homo sapiens.  The organs grown within this vessel would be the most compatible with patients, and would help to alleviate the organ shortage crisis.

In relation to both types of vessel there are challenges to be overcome with the growing phase.  They would have to be grown using ectogenesis, outside of the womb.  A living ‘mother’, whether pig or human, would be caused a great deal of pain and suffering through gestating a brainless foetus.  Furthermore, pregnancy itself is not without its physical risks, irrespective of any mental anguish that might be suffered.  Ultimately, it is not necessary to use human persons to host the organ growth vessels since the development of the Biobag, an external womb that has been used to continue gestating premature lambs.  It is within the realms of possibility that organic matter of human origin could be grown within the Biobag, and this would also avoid some of the criticisms levelled at ectogenesis regarding parental bonds.

The transplantable organ shortage is critical.  It is imperative to find new means of procuring organs in the context of an ageing population.  It is important to continue to encourage the population to sign up to donation registers, and to pursue research into how chimeras – human/animal hybrids – can reduce immunological rejection rates.  But we must recognise that our initial distaste may be preventing us from implementing other solutions that may be more effective and more efficient.  There is no good reason to ascribe any particular value to meat that has never – and could never have – suffered, regardless of its appearance or genetic origin.  If we can do an immense good, by reducing suffering and saving the lives of the 400 people a year who die in the UK waiting for a transplant, all whilst not causing any harm or disrespect to another creature, is it right that some sense of discomfort should prevent us from doing so?  We say no, discomfort is not a good enough reason.  Further, if we were to follow this path, it is imperative to do it in the way that has the most chance of success, the creation of genuine human organs which will avoid all the scientific issues of xenotransplantation.  It is not enough to grown organs in brainless animals.   We should go further and grow human organs in organic vessels of human origin.

We do not suggest that this is the only solution or even the right one. However, the organic vessel of human origin serves to illustrate that even those methods we may have dismissed out of hand are no longer necessarily repugnant nor even morally problematic.

Ruth Stilton is a Lecturer in Health Care Law at the University of Sussex, and David Lawrence is a Postdoctoral Fellow at Newcastle University. This post first appeared on the Journal of Medical Ethics Blog