Reflections on the David Miranda Case

The high-profile decision in R (Miranda) v Secretary of State for the Home Department was released earlier this week. In it, the Court affirmed the proportionality of the controversial Schedule 7 powers to stop and question individuals at ports and airports, which includes a power to seize laptops, phones etc. The use of these powers is proportionate, the Court held, even when it interferes with journalistic freedom of expression where such freedom of expression might result in the disclosure of information that could (inadvertently) aid terrorists in some way.

Although there is much to be said on the implications of the case for Schedule 7, the proportionality test, and journalistic freedom (on which see Helena Kennedy QC, Paul Daly, Colin Murray and Mark Elliot), Miranda also raises interesting questions about how we manage secrecy in the counter-terrorist context. This is the element I have been most interested in, and I wrote a short opinion on it for the Oxford Human Rights Hub, which I then republished in longer form on Human Rights in Ireland. The thrust of these posts is:

Journalism—which creates ‘public public’ transparency—may not always have the capabilities to make the kinds of security judgement necessary to assess whether a particular piece of information ought to be in the public domain, but neither ought we allow security agencies to monopolise both the information that we use to assess threats and the decisions as to disclosure. While the judgment in Miranda may please the security sector by its affirmation of the former proposition, the entire affair makes it clear that the latter must be addressed as a matter of urgency.

Managing secrecy (beyond what arises in relation to closed materials in court procedures) is part of counter-terrorism that many legal scholars (including myself) have often avoided dealing with head-on. I am not sure we can do that for much longer and in my next book (which I am just finishing up) I try to tackle secrecy and transparency as matters of constitutionalism; a daunting task!