Liberal Democrat Lawyers’ Association speak out on secret courts

house of lordsThe Liberal Democrat Lawyers’ Association held a special meeting on Monday to discuss the Justice and Security Bill. They have sent this message to Lib Dem peers:

It was the unanimous view of the meeting that the measures introduced by the Justice and Security Bill amount to an attack on the Rule of Law in the United Kingdom and that those present were opposed to the measures contained in Part II of the Bill. I was felt that arguably the measures are a greater attack on our traditions and freedoms than that posed by terrorists, as the infringement of our freedoms is State-led.

The meeting urged all peers, and MPs, particularly Liberal Democrats, to support the three amendments for the following reasons:

1. Last resort
The responsible Minister, Ken Clarke, has said that the use of a Closed Material Procedure should be only as a last resort. However his wording currently included in the Bill does not deliver this. The wording proposed by the amendment, which was passed by the Lords on 21st November 2012, and was reversed by the Commons in Committee, delivers the last resort meaning and effect.

2. Wiley balance
For decades judges have protected our national security whilst also protecting the open and fair administration of justice. Throughout the course of this Bill the government has been unable to point to a single case where national security has been jeopardised by a judge’s order for disclosure. The “Wiley balance” amendment gives the judge the ability, in essence, to balance the public interest in protecting national security with the public interest in the open and fair administration of justice.

3. Renewal
This Bill has constitutional significance. It changes at a stroke the relationship between the State and the individual – and the ability of the individual to call authority to account for wrongdoing. As such, it is entirely appropriate for a renewal clause to be debated every four years.

* Mary Reid is the Tuesday Editor on Lib Dem Voice.

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36 Comments

  • Geoffrey Payne 26th Mar '13 - 12:20pm

    You could probably fit all the Lib Dems in favour of secret courts in a taxi…

  • Richard Dean 26th Mar '13 - 12:33pm

    You could probably fit all LibDems who understand what these proposals are in a mini!

  • @Richard
    I think by virtue of their profession it would be safe to assume that this particular group are fairly well informed. I guess I would also add that whilst there appears to be room for you in the taxi I doubt if there is any in the mini…

  • Richard Dean 26th Mar '13 - 1:00pm

    @Steve Way
    I’m a democrat. I believe that everyone’s opinion on this has equal weight. Plus my experience of the legal profession tends to move me towards belief in the caricature that a lawyer is just a crook who’s learnt how to get away with it.

  • Believing “everyone’s opinion has equal weight” has nothing to do with democracy.

  • Richard Dean 26th Mar '13 - 1:34pm

    One person one vote?

  • The fact that someone’s vote counts the same as mine does not oblige me to assume that their opinion is just as good as mine, especially not if my opinion is based on research and facts and informed comments, while theirs is based on their intuition, prejudice, or which side of the bed they got out of this morning.

  • Stuart Mitchell 26th Mar '13 - 2:44pm

    Who cares what lawyers think? Knowing the law is not the same as being concerned about justice. Lawyers care about “open” justice only when it suits them. For example, they will happily seek to have evidence ruled inadmissible on the flimsiest of technicalities if they feel it will help their case. For a good recent example of this, see the Chris Huhne case.

  • “Who cares what lawyers think? Knowing the law is not the same as being concerned about justice. Lawyers care about “open” justice only when it suits them. For example, they will happily seek to have evidence ruled inadmissible on the flimsiest of technicalities if they feel it will help their case.”

    I rather think that’s known as doing your job. How would you feel if you were on trial and your counsel said to you “The evidence against you is technically inadmissible, but I’m not going to argue the point because I think on the whole it’s fair it should be admitted. Sorry.”?

    As for flimsy legal technicalities, I can’t help thinking of the revised version of the Merchant of Venice in the Vincent Price movie, Theatre of Blood: “Now we come to the part where Portia, with a mean, pettifogging little piece of legal trickery saves your life”. Legal technicalities can be quite important. It’s probably no exaggeration to say that the rule of law is founded entirely on legal technicalities.

  • @Richard
    Sorry but your comments are contradictory. You say “everyone’s opinion on this has equal weight” and yet your first comment clearly implies that the association does not understand the issue (unless of course it has only a few members). It also goes against your comments on other linked threads where you support the parliamentary party avoiding open debate (and therefore avoiding listening to others opinion).

    I would say that all comments should be heard, and that everyone should get an equal vote but all opinions are not equal. For example were I to need life saving surgery it would be the surgeons opinion that would carry more weight than the nurses. Nothing against nurses, I am married to one, but a person trained to a high level in the subject area in question can give a qualified opinion. Every Court in the land accepts the principle of expert witnesses, and will value qualified opinions above those of a layperson.

  • Richard Dean 26th Mar '13 - 4:40pm

    @Steve Way. I see no contradiction. I do not vote for which nurse will tend me or which doctor diagnoses me. I do vote for whether the government has a right to defend itself or not, and whether people’s general respect for the justice system can survive this compromise.

  • “Plus my experience of the legal profession tends to move me towards belief in the caricature that a lawyer is just a crook who’s learnt how to get away with it.”

    So having made this comment, maybe you could let us know how many you have reported to their professional standards body(s)?

  • @Richard
    The contraction is that you claim all views are equal then dismiss those,despite being from within the legal profession, as uninformed. You claim all views should be heard, and then support MP’s avoiding debating the issue…

  • Richard Dean 26th Mar '13 - 5:17pm

    Are you joking, Hywel? Do you report the devil’s helper’s to the devil?

  • Stuart Mitchell 26th Mar '13 - 6:19pm

    @Chris
    Of course lawyers are doing their job – that’s the point. The job of a lawyer is to win cases. That is not necessarily the same as achieving justice, which would require that the guilty be convicted and the innocent be acquitted. In fact, in the vast majority of cases, half the lawyers are actively trying to achieve an outcome which is contrary to justice, and likely know it. Like you say, that’s their job, and it’s an essential job – I just don’t see how it gives them any special authority to pontificate on the nature of justice. Reducing the rule of law entirely to technicalities simply turns the law in to a game.

    Kudos for the Theatre of Blood quote though – one of my favourites.

  • Stuart

    I’m sorry, but I don’t think it’s fair to accuse a lawyer of not being concerned about justice just because he/she does the best he can for his/her client while working within an adversarial system.

    On the wider point, if a meeting of the Liberal Democrat Lawyers’ Association concludes unanimously that a measure being supported by the party leadership amounts to “an attack on the Rule of Law”, then surely that view should be treated seriously and considered carefully, not simply dismissed.

  • Tony Greaves 26th Mar '13 - 10:04pm

    The Government has won the first vote in the Lords (at about 9.30) by 174 to 158, majority 16. The second vote was then not called.

    First impressions are that the LDs were split down the middle, Labour did not keep their troops back in sufficient quantities and the Cross-benchers had largely gone home. In such ways does the HoL pronounce.

    There’s anothe rvote now but I think the Government have owon lock stock and barrel this evening.

    Among other things, blame stupid lawyers who talked and talked as more and more people went home after the dinner hour, when they should have simply moved the amendments and gone to the vote. Everyone knows th e arguments ten times and backwards .

    Tony Greaves

  • Tony Greaves 26th Mar '13 - 10:16pm

    Third vote -Jonathan Marks’ Amendment – Government won by 141-65. A posse of Liberal Democrats standing in the last ditch. Labour mainly gone home.

    End of the saga. Bill now passes and goes to the Queen to be signed.

    Tony Greaves

  • Richard – or the indpendent legal services ombudsman. What your saying is that you know of lawyers who are crooks and your not willing to do anything about it – correct?

  • Patrick Smith 26th Mar '13 - 11:20pm

    I am not a lawyer but have taught law to college students and believe that `secret courts’ are tantamount to a breach of the rule of law .

    This legislation that permits `Secret Courts’ may be justified to some but is illiberal to those who hold with the open jury courts that are at the core of liberal democracy in a free society.

  • “Among other things, blame stupid lawyers who talked and talked as more and more people went home after the dinner hour, when they should have simply moved the amendments and gone to the vote. Everyone knows th e arguments ten times and backwards .”

    Yes, blame those passionately defending their beliefs, and not those apathetic types who just went home. That makes total sense. I mean, how dare they keep some people from their beds; I know we are fundamentally changing our legal justice system here, but you are quite right, those who just upped and left are completely justified in doing so because, of course, changing the legal justice system or going to bed? There is no debate over which is more important. Seriously, how dare those arrogant lawyers types try to properly debate this issue.

  • Liberal Al

    The unfortunate truth is that if Lib Dem peers are “split down the middle”, they might just as well not be there. If they all went to bed at 2pm the cause of liberty would be no worse off.

    I suppose we should be thankful they aren’t as bad as Lib Dem MPs. The cause of liberty would be materially beter off if they stayed in bed all day.

  • jamessandbach 27th Mar '13 - 7:27am

    Ping-pong votes are nearly always scheduled as late as possible so Govt can win votes as opponents and rebels peel off. If a Bill hasn’t been successfully amended or defeated by this stage it’s too late and heading for the statute book – when our Mps and peers talk of 11th hour deals, amendments, negotiations and compromises they’re usually talking bollocks (or else kidding themselves)

  • Miranda Whitehead 27th Mar '13 - 8:03am

    I am a doctor ,not a lawyer ,and did not feel informed on this subject.However if someone of the calibre of Jo Shaw resigns from the party on this issue I felt I should learn more , so I attended this meeting.It was informed, worthwhile , both sides of the argument were clearly presented in a balanced manner and I learned what I needed to know.

  • Like Miranda I am not a lawyer but attended this LDLA meeting in order to hear the details of what is a complex and difficult issue. I agree with Miranda that the discussion was well conducted and informative. I arrived as someone who felt fundamentally against “secret courts” , albeit dealing with civil rather than criminal actions, but wanting to hear why people I respected in our party leadership were prepared to go along with this legislation. I’m afraid I gained the impression that in the cut and thrust of negotiation with our coalition partners this was allowed to slip through and everything since then has been an attempt to ameliorate it by negotiating amendments. At the end of the meeting I completely supported the agreed statement quoted here by Mary Reid. I am sorry to hear from Tony Greaves that the further amendments failed in the Lords. At least some Lib Dem peers were “standing in the last ditch” as Tony describes it but where were Labour? This bears out a point I made at the LDLA meeting – whatever the Lib Dems did, Labour would let this legislation through. However that does not excuse our leaders from ignoring party policy expressed overwhelmingly at two party conferences.

  • Stuart Mitchell 27th Mar '13 - 11:57am

    “I’m sorry, but I don’t think it’s fair to accuse a lawyer of not being concerned about justice just because he/she does the best he can for his/her client while working within an adversarial system.”

    Doing the best for one’s client can involve things like passing details of witnesses to gangsters, knowing full well that you are putting that witness’s life at risk, and bullying victims in the witness box literally to the point of suicide. I am not for one moment suggesting that all lawyers would do such things, but plenty of them would. Their job is to win, not to achieve justice. Which, as I say, is fine (except for excesses of the kind I just mentioned), it’s their job and it’s a vitally important one – I just don’t see how it qualifies them in any way to preach to us about the meaning of justice. In fact, in a free and liberal society, I would have thought lawyers would be the last people we would want setting the rules for the criminal justice system.

  • Stuart

    What a ridiculous comment. You know perfectly well that I was referring to the point you raised earlier – challenging the admissibility of evidence – not “passing details of witnesses to gangsters”.

  • Stuart Mitchell 28th Mar '13 - 10:01am

    Chris: That’s a strange thing to say, because the narrow point of admissibility of evidence had been mentioned only as a throwaway example two posts previously, and since then we’d been speaking in more general terms. Those other two examples I gave are from real cases.

    Going back to the original post – and I’m offering this as a general observation rather than a comment on the rights of wrongs of the secret courts bill – I find it lamentable that criminal justice is the one sphere of our public life where all notions of modernisation or change are instinctively rejected in favour of “traditions”. We mock other institutions (e.g. the churches) for being stuck hundreds of years in the past, yet stick doggedly with a court system from the middle ages, complete with fancy dress and archaic rituals. It’s bizarre.

  • James Sandbach 28th Mar '13 - 12:05pm

    Stuart – your statements that lawyers are only about winning for clients whilst defending their own self-interested privileges of the legal system are just breathtakingly ignorant.

    Lawyers don’t just have duties to their clients, but also to the court for the fair administration of justice, and to their regulatory bodies for professional conduct. You also seem to be confusing anti-modernisation traditionalism with upholding the rule of law. Modernisation is certainly needed in the justice system, but not if that’s used as an excuse to undermine the integrity and due process of the system, To recognise that the justice system is distinct from politics, should be free to hold the state to account and enable citizens to resolve disputes, should be underpinned by judicial independence and transparency and equality of treatment for parties before the court is not about resitsing change, being stuck in the past or sticking dogmatically to outmoded traditions – it’s about keeping constitutional seperation of powers and checks and balances.

    Governments mess with these things at their risk (which is why seceret courts is such a serious issue) – but they are the fundamentals of liberal democracy and why the one thing that all tinpot dictators have in common is their perpetual interference in the administration of justice, One can see many examples around the world of where the State and the political parties that run the state get too powerful, the people who lead the pusback on this are nearly always the lawyers…

  • Stuart Mitchell 28th Mar '13 - 3:22pm

    James: Are you the same James Sandbach who is a member of the Executive of the Liberal Democrat Lawyers? I’m sorry you didn’t like my criticisms of lawyers.

    “Lawyers don’t just have duties to their clients, but also to the court for the fair administration of justice, and to their regulatory bodies for professional conduct.”

    Yet my understanding is that in the case I referred to earlier – where a witness had his details passed to gangsters by a lawyer, and had his life completely ruined as a result – no action of any kind was ever taken against the lawyer.

    The justice system is not “distinct” from politics, and nor should it be. If it were, we should all be out on the streets demanding the right to elect judges. I have no view on the secret courts bill as I have not looked in to it enough, but I have no problem in principle with our elected representatives reforming the criminal justice system.

  • James Sandbach 28th Mar '13 - 6:11pm

    Yes, am on LDLA exec,The justice system is distinct (re separation of powers etc), rightly so, can’t possibly agree that the justice system should be collapsed into politics – that way lies steady erosion of all human rights and is precisely what happened in Soviet Russia when the political apparatus took over the judicial structure and so called judges were made to take direct orders from the politbureau,

    I think time will show that it’s been a big mistake in the UK to move to non-lawyer political lord chancellors; once the powers of politicians and courts are blurred and the former gain supremacy we get into bad situations in which civil liberties are invisible. I don’t object to politicians reforming the criminal justice system at all, that’s their job as legislators – but it’s not their job to interfere in things like your right representation in court, your right to a fair trial process etc or judicial decision-making, ie the fundamentals of justice itself.

    Of course there are crooked and unprofessional lawyers who should be dealt with – but that’s not a problem you deal with by trying to imply that all lawyers are crooked.

    Generally am suprised that these sort of sentiments which seem to doubt the role that an independent legal system (yes that means judges and lawyers!) has in upholding seperation of powers, rule of law and basic civil liberties are coming out on LDV, as these thing are really the most basic cornerstones of a ‘liberal democratic’ political system as almost any text on constitutional issues will confirm.

  • James, I agree completely.

    Stuart, if that is true, then that is truly woeful; however, first, this is an issue you should be taking to the relevant authorities, such as the Legal Ombudsmen, ( http://www.legalombudsman.org.uk/ ) and secondly, that does not reflect the whole legal profession. That would be like me suggesting that every doctor is crooked because one GP’s surgery tried withhold my personal information from me.

  • @Chris: You are probably right, the end result would be the same, but fatalism always has and always will only benefit those interested in injustice. You must, in my opinion, always fight for what is right, even if you cannot win.

  • Helen Dudden 30th Mar '13 - 7:59am

    I hope to continue with my law studies again very soon. I can not agree with the idea, that all lawyers are out for their own ends as suggested by some comments above. That is a foolish comment.

    In every walk of life that happens, but it would be foolish to put yourself in a profession where the law is what you live by.

    Not all law is simply law, family law, and international family law is even more interesting. Additions are Mediation, and the ability to resolve a disagreement. It is not simply looking up the law for a given subject, there happens to be a little more to the subject.

  • Stuart Mitchell 30th Mar '13 - 1:26pm

    Liberal Al: The case I referred to did not happen to me (thankfully – the man concerned is having to spend the rest of his life in hiding), and even if it had, it looks to me from the legal ombudsman’s website that they would only investigate complaints against my own lawyer. I already said earlier that I was not claiming this lawyer’s actions were representative of the entire legal profession. There has been some pretty wholesale misrepresentation of my views in some of these responses.

    Hands up – my initial post here was needlessly strident and too general. I regret not having the time (and quite probably skill) to express adequately the point I was trying to make. James, of course you are right that lawyers are often to be found at the forefront of the fight for civil liberties. But is it not a fact that every time a lawyer goes to court to fight for one person’s civil liberties, he finds himself opposed by another lawyer fighting just as hard to curtail them? Don’t despots and enemies of justice have armies of lawyers, too? So my general point here is that while there are plenty of good lawyers, there are plenty of rotten ones too, and there is nothing intrinsic in the profession of the law itself which makes lawyers always want what is right. Of course the LDLA are as entitled to their views as anyone else, but I see no reason to give their views special respect (or for that matter less respect) simply because they are lawyers. That’s all I was trying to say.

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