A day after our blog on the buried judgement against Theresa May’s student deportation programme, there have been all sorts of strange goings-on.
Something unusual is happening. Yesterday, the judgement against May was published on Bailii, a database of case law. Then it disappeared. Now it's up again. But there is a rather intriguing change: it has gone up with a judicial headnote.
Judicial headnotes are little bits of text summarising a judgement – an executive summary basically. They're there on reported cases because those can easily be cited in other cases. They’re not on unreported cases, because it is very difficult to cite those in other cases. There’s no point helping someone find something which can’t really help them.
So why does this unreported case have a judicial headnote? Well, therein lies a tale. Or a potential tale, anyway. It’s all so shrouded in secrecy that we have to do a lot of guess work to figure out what’s going on.
The judicial headnote reads:
"The generic evidence upon which the secretary of state has relied to date in all ETS cases has been held insufficient to discharge the legal burden of proof on the secretary of state of proving that the TOEIC certificates were procured by dishonesty in circumstances where this evidence, via expert evidence and otherwise, has been demonstrated as suffering from multiple shortcomings and frailties and, further, the evidence of the two students concerned was found by the tribunal to be plausible and truthful."
This headnote had been seen before, because some of the people involved with the case had seen it on the judgement, back when we all assumed it would be reported. It feels very much like this was the original version of the judgement, but that something then happened and the committee suddenly decided to let the case go unreported. Then they panicked a bit and put up the original version, in case anyone noticed.
How Politics.co.uk reported Theresa May's student deportation programme
What could that something be? Why is this the only unreported case on the tribunal decisions website for 2016? It's impossible to know for sure because of the cloak of secrecy surrounding the reporting panel. But the letter threatening legal action against the committee by lawyers offers one possible explanation. It asks the committee to "please provide other written correspondences and submissions as to the president's judgement".
The lawyers are basically asking the committee if the Home Office has intervened and demanded they let the case go unreported.
Secretive legal committee tries to spare Theresa May's blushes by burying student deportation judgement https://t.co/y70UALTAWP
— Ian Dunt (@IanDunt) April 21, 2016
There's previous on this sort of behaviour. Back in 2010, Jonathan Sumption QC was acting on behalf of David Miliband, then foreign secretary, in a case on British secret service collusion in the torture of Binyam Mohamed in Guantanamo Bay. One paragraph of the draft judgement by Lord Neuberger found that security service officials had "a dubious record on human rights" and covered up their involvement in Mohamed’s torture.
Sumption secretly wrote to the court asking it to remove the paragraph from the Court of Appeal judgment. He said the judge's "exceptionally damaging" comments would lead to "an unprecedented breakdown in relations between the courts and the executive". The Foreign Office had attempted to secretly censor the ruling without informing the other legal team.
Eventually it was leaked and the whole thing came out. Miliband insisted it was a "nonsense conspiracy theory" and that his barrister had "submitted a letter in a completely normal way". But that wasn't true. It showed the lengths government lawyers are willing to go when things get serious.
But the judicial headnote doesn't just suggest a growing sense of panic behind the scenes. It also dismantles the very argument the reporting committee has been making for why the case was going unreported. Their argument so far has been that the decision was made because the case was factual. In other words, it dealt specifically with the facts in this case and didn't have general application.
That's absolute nonsense. The Home Office attached two boilerplate witness testimonies to every accusation of fraud it made. They are the same statement by the same people, everytime. Those two witness testimonies were completely dismantled in the case, as was the scientific credibility of the people who made them. An expert analysis on voice recognition demolished the science behind the supposed tests ETS did to discover fraud. What was found in that case would apply to every other case of someone being wrongly accused of fraud for their ETS test by the Home Office.
And the fascinating thing is that the judicial headnote actually admits that. It says the "generic evidence upon which the secretary of state has relied to date in all ETS cases has been held insufficient" [emphasis added]. The judicial headnote specifically disproves the argument being put about for why the reporting committee didn't report the case.
The Commons home affairs committee has launched an inquiry into the student deportations case https://t.co/iZE5wGbfwl
— Ian Dunt (@IanDunt) April 22, 2016
What is happening here? Did the Home Office really step in and make a submission to this secretive legal committee to try to limit the damage of the judgement to its student deportation programme? We have no direct evidence for that. What we know is that there are signs of definite panic in the upper tribunal, as a judgement which was clearly meant to be reported and have general application is suddenly made much more limited.
We also know who wins from this: the Home Office. And we know who loses: All the tens of thousands of immigrants wrongly accused of fraud by the Home Office.
If this did stem from a Home Office submission to the reporting committee, they may have pushed their luck too far. The legal challenge lawyers are now pursuing against the committee could bring all of this secrecy out into the daylight. And it might even start raising questions about how this shadowy system of legal power is still allowed to operate without scrutiny.
Update: Following behind-the-scenes developments at the upper tribunal, the ETS case has now been reported.
Ian Dunt is the editor of Politics.co.uk
The opinions in politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners