Why does the FCO put commercial interest above the public interest?

The open justice principle – that people should know what happens in their courts – was vindicated this week when Sheikh Maktoum, dictator of Dubai, was unable to block publication of a judge’s finding that he continues to deprive two of his daughters of their right to liberty and was responsible for kidnapping one of them.

The judgment was of obvious public interest in exposing the brutal, feudal behaviour of a close ally and in raising questions – as yet unanswered – about any political interference with an investigation into a serious crime.

It should also reinforce the basic rule that justice must be seen to be done, which is undermined in cases that involve children or that concern non-disclosure agreements used on women abused by the rich or famous.

The rule that “every court in the land is open to every subject of the King” was laid down in 1913 but evolved over centuries, formulated by Jeremy Bentham because “publicity is the very soul of justice… it keeps the judge, while trying, under trial”. Moreover, it helps deter perjury (witnesses would come forward to confound lies if they learn of them) and permits the revelation of matters of public interest.

Open justice is probably this country’s most precious legacy to the courts of the Commonwealth and to America. It contrasts with the closed political tribunals of other countries – see the farcical secret trial in Saudi Arabia of those (other than the Crown Prince) alleged to have murdered Jamal Khashoggi. The last time I went to observe a treason trial in the Emirates I was not allowed past armed soldiers. Nor was Amnesty.

Although the Sheikh’s silks could not stop publication they had a few precedents in their favour. Our judges have a knee-jerk tendency to order secrecy where children are involved, even when they are too young to read, and without any evidence that they would be damaged in later life.

Gagging orders have, ironically, been encouraged by the European Convention on Human Rights, which introduced a protection for privacy that overrides its guarantees of open justice and freedom of expression.

These must be balanced against claims for confidentiality. A recent example is Sir Philip Green, who used the courts to silence allegations of misconduct by employees via nondisclosure agreements. It took Baron Hain to reveal his name in Parliament, much to the displeasure of the judiciary but none the less to the legitimate interest of the public.

Another area where the open justice principle is often violated is in respect of those (usually young women) who allege sexual misconduct by powerful men. They can be silenced by breach of privacy injunctions and face huge costs to defend their right to speak out. In such cases, Britain does not have free speech – it has expensive speech.

The Maktoum judgment reminds us of the value of court transparency. It reveals matters of public importance – not least the question of why the police inquiry into Princess Shamsa’s kidnapping was stalled. The Foreign and Commonwealth Office is accused of intervening and it refused to give evidence that it admitted would be relevant, on the grounds it might reduce the Government’s “ability to promote UK interests”. Apparently, it puts commercial interests above public interest.

Dominic Raab should be questioned in Parliament about this decision. The CPS says it has insufficient evidence to pursue the crime of kidnap. But it should read the High Court judgment – and prepare an arrest warrant for the Sheikh when he next visits the races.