A response to Julian Huppert’s analysis of the Justice and Security Bill
We learned on Wednesday this week that the Justice and Security Bill is being rushed into Report Stage in the Commons. The government has now published its latest proposed amendments to the Justice and Security Bill. Astonishingly I have been told that Conservatives are saying the Bill has been moved forward to conclude in the Commons on 7th March to avoid a further motion at our Spring Conference.
Julian Huppert and Mike Crockart worked very hard during the Committee stage of the debate, and voted (supported by Labour) to defeat secret courts when their attempts at amendments were unsuccessful. Yesterday Julian wrote about his views of the Bill. I disagree with him about the current shape of the Bill, about the reasons we have opposed it for the past year, and about what should happen now.
As a starting point, the autumn Conference decision to oppose secret courts specifically and to call for the withdrawal of Part II generally was not based on the lack of safeguards within the legislation. The rejected amendment proposed by party leaders was about safeguards and last resorts. For Liberal Democrat members the issue was one of our core values trampled upon by this Bill and we voted against it entirely on that basis. I would suggest Julian is wrong to hint that this Bill might ever be in any way acceptable to the Liberal Democrat membership.
The last set of government amendments removed the following sensible and clear safeguards which were passed with overwhelming majorities, by the Lords after the JCHR report recommended them:
- That Judges should refuse CMP’s where the public interest in the fair and public administration of justice outweighed the likely damage to national security.
- A provision that CMPs should be a measure of last resort.
- That the judge must first consider PII before ordering a CMP.
- That the citizen must have the same right to apply for a CMP as the State.
The position now is no different, save that it appears that CMPs may now be made available on the same terms for any party. This is welcome but does not make this is anything other than a bad Bill.
A new government amendment (in clause 6(7)) appears to give the government the ability to rely upon evidence not relevant to the proceedings as the basis for its application for a CMP (closed material procedure – or secret court). This is shocking.
It is essential that our MPs vote the right way on this Bill. Labour’s position is hardening after months of dithering. It is unimaginable (isn’t it?) that we would vote to the right of Labour on an issue of civil liberties. Principled Conservatives and some nationalists are also voting against this Bill. Amendments have been tabled by MPs from other parties which delete Part II altogether. Are our MPs going to find a red line?
To respond directly to Julian’s points from his post yesterday:
PII / last resort
The government amendment to the Bill does not require a judge to consider whether the PII process is more appropriate. The only thing it requires is for a judge to be satisfied that the Secretary of State has considered whether PII should be used. This is not using CMPs as a last resort or anything close to it.
The Joint Committee on Human Rights called for the use of CMPs to be as a “last resort” in both of its reports. This safeguard has been deleted from the Bill and must, if nothing else, be restored. The government say this measure is only for an exceptionally small number of cases – so then the last resort provision should be stated on the face of the Bill.
The “Wiley test” – the balancing exercise of the public interest in protecting national security and the public interest in the open and fair administration of justice – has been removed and must be restored. Again this is one of the JCHR recommendations. Judges are well used to having their decisions guided by statute. If this is what the government intends by the Bill again it should say so, both at the point of deciding whether a declaration permitting a CMP should be made (section 6), and at the point of the proceedings when the use of a CMP has to be considered specifically (section 8).
Review “every five years” ?
There is no commitment to a review of the legislation every five years. By the government’s new clause there would be a review once, five years after the Bill is enacted. There is no provision for review after that. Given the extremely serious implications of this Bill, at a minimum there should be an annual sunset clause. The JCHR called for the Act to lapse every year unless parliament decides to renew it. That would ensure proper scrutiny of legislation with such far-reaching constitutional effects.
Return to open court provision
This is a welcome change, but is not the same as retaining the principle of open justice and the ability to know the case one is facing. In other words, the fair trial guarantees that have existed in our legal system since the Civil War.
The Joint Committee on Human Rights reported again on 28th February 2013. The Report reminds the reader that “In our first Report we were unpersuaded that the Government had demonstrated by reference to evidence that there are a significant and growing number of civil cases in which a closed material procedure (“CMP”) is essential for the issues in the case to be determined.” This remains the case.
As the Special Advocates (the security cleared lawyers who work in secret courts that exist in very limited cases) said in their paper to the JCHR we “reaffirm our view that no compelling justification for the proposals in Part 2 of the Bill has been made out”. They reiterated “CMPs are inherently unfair” and that there is “No case for CMPs”.
Julian Huppert is right to say that the Bill is not one we Liberal Democrats would want. We didn’t before and we don’t now. It was not part of the coalition agreement, was not in any party’s manifesto and it is not necessary. It runs contrary to Liberal Democrat core values which prompted most of us to join the party and become involved with campaigning. Our parliamentarians must lead the fight against this Bill, as we would be in opposition, before it is too late. Currently some parliamentarians’ reaction appears to be “We’ve done all we can.” I respectfully disagree with this. To me, it seems the most parliamentarians can do, and what we are entitled to expect, is to vote against this Bill.
The Justice and Security Bill was, is and will always remain a bad Bill. No amount of amendment will make it anything other than a full assault on fair trials in this country. It must be defeated, and we are watching Liberal Democrat parliamentarians, including Mike Thornton, to see they do everything they can to defeat it at every opportunity.