David Howarth responds on the question of secret courts

Tom McNally has expanded his Brighton speech in favour of the Justice and Security Bill on Liberal Democrat Voice. He makes several assertions and assumptions that simply do not stand up to scrutiny.

  • The main objection to closed material proceedings is not, as Tom (and most of the media) claim, that they are ‘in private’ but that they are one-sided. Not only the public but also the other party is excluded. Even the other party’s lawyer is excluded. The other party is ‘represented’ by a special advocate who is not allowed to reveal the precise facts in issue. ‘Evidence’ put forward in those circumstances is not really evidence at all. It is untested assertion.
  • Tom talks about the Bill applying to civil actions as if they are all about money. But since the Bill doesn’t define ‘civil’, the assumption must be that it applies to all cases to which the Civil Procedure Rules apply. That includes judicial review cases and cases where claimants seek not money but to vindicate their rights, for example habeas corpus cases. We have to ask ourselves why the Bill extends to such cases. What kind of evidence does the government want to put forward in habeas corpus cases that cannot be shown to the person imprisoned? In a habeas case, the court asks the person who is holding someone against their will what legal justification they have for holding that person. Are we really to have a system in which the secret services can put to the court accusations they refuse to allow their prisoners to know about? I thought we were against Guantanamo.
  • Tom asserts that secret one-sided proceedings will only happen where ‘there is no other possible way of hearing the arguments’. But this is not the same as allowing them only as a last resort, a rule the government has voted out of the Bill. It means that the government insists on its arguments being heard even if the only way of doing so is to destroy the fairness of the proceedings. Tom claims that judges will have a choice about whether to allow secret one-sided proceedings, but the government refuses to allow judges to make that choice on the basis of whether the interest in national security would outweigh the damage to fair and open justice. Instead, judges have to apply a test that assumes that secret one-sided proceedings are fair simply because they put more information in front of the court. If one took that idea seriously, the whole law of evidence would have to be abandoned and courts would turn into mini-Parliaments where anyone could say pretty much anything.
  • Tom asserts that allowing secret one-sided proceedings is ‘necessary to protect both our intelligence and our intelligence-sharing relationships’. This is the argument that dared not speak its name at Brighton, that the real reason for the Bill is that the USA is insisting on it and is threatening to restrict the information it shares with us about terrorists unless the Bill passes. But that would be an extraordinary way for the USA to behave, especially since there are so many US citizens in Britain at any one time that any large-scale terrorist attack here would risk American lives. It is highly unlikely that a US administration would risk such a moral and political catastrophe. It would also be a weird way to treat its closest ally.
  • Tom worries that allowing claimants to succeed in civil actions against the secret services will cause them reputational damage. But the Bill itself is leading to the same reputational damage. What the secret services are saying is not that they did not torture or kidnap but that they had good reason to torture or kidnap. The fact that they are not prepared to say openly why they tortured or kidnapped leads many to suspect that the details of their arguments are just as shameful as the basic facts of what they did.

But the greatest weakness of Tom’s piece is that it looks only at what happens during trials. Lack of fairness in individual cases is only the start of the objections to closed material proceedings. The most fundamental objection is that they lead to secret law. Judgments in existing closed material proceedings cases (e.g. control order or TPIM cases) have passages that are only shown to the government and the special advocate (for an example see Secretary of State for the Home Department v CC and CF [2012] EWHC 2837 (Admin)). These cases create precedents that only the government can fully understand.

This is bad enough in the limited field of TPIMs, but the Justice and Security Bill threatens to extend secret precedent into the very heart of the law. Consider, for example, the torts of assault and battery and false imprisonment, torts on which our freedom from state oppression are built. The defences to these torts include necessity and self-defence. Those are precisely the defences that would be in issue in the most profound and difficult of cases, for example a torture and ticking time-bomb case or a case of holding a potential terrorist’s family as hostages. Are we really to have secret precedents in these areas of law? The very thought should make any liberal, or indeed anyone who believes in the rule of law, shudder.

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42 Comments

  • James Sandbach 15th Mar '13 - 4:28pm

    David as ever has hit the nail on the head, the problem is about the one-sided proceedings ; it is this one-sidedness that risks undermining the integrity of the legal process, the precedents this produces, and a claimant’s equality of arms with powerful protagonists in the context of civil law procedings. But does David also agree with me that there are wider access to justice issues also at stake that the Party would do well to reflect on that are perhaps less politically toxic, but also go to the heart of what a fair justice system is about? See
    http://www.libdemvoice.org/tribunal-justice-do-our-parliamentary-parties-get-it-33697.html

  • Anthony Hawkes 15th Mar '13 - 4:46pm

    While I welcome Tom’s explanation of the coalition position and the attempts by the LibDems to make it acceptable, David has quite clearly identified why this bill should not be made law. This should not be a politically toxic issue for the LibDems as it is a point of fundamental principle. We are rightly proud of our opposition to the Iraq War even though we were in a parliamentary minority. We probably cannot stop this bill becoming law at this late stage, but we should keep our integrity.

  • Richard Dean 15th Mar '13 - 5:12pm

    Some of these objections to the Bill are addressed in Section 7(2) of the Bill, which refers to the declaration of a CMP, and which states and requires the following:

    “The court must keep the declaration under review, and may at any time revoke
    it if it considers that the declaration is no longer in the interests of the fair and
    effective administration of justice in the proceedings.”

    Consequently, for example, it seems unlikely that a court would accept unsubstantiated accusations as “fair” evidence, or that a suspension of habeus corpus is necessarily in the interests of justice in the proceedings.
    http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0134/2013134.pdf

  • David Howarth 15th Mar '13 - 5:40pm

    Richard: I cannot see how 7(2) makes any difference. The test for revoking an order is the same as that for granting one. None of the issues I have raised would come as a surprise to a court that had granted a CMP order and so no new ground for revoking it would come into existence later. In any CMP case, the court would know that the evidence it was about to hear was by definition ‘unsubstantiated’ because it would know that the other party would not be in a position to challenge it. Specifically in a habeas case, a court granting a CMP order would know that the government would be about to try to justify holding someone using ‘evidence’ it was not prepared to allow the prisoner to see. More generally, the phrase ‘administration of justice’ seems to exclude any consideration of the secret law objections, since it seems to refer to the specific case in front of the judge, not the general effects on the law.

    James: I agree with you about access to tribunals about welfare rights. Claimants often face the exercise of arbitrary power already and this will make things far worse.

    thechristophe: Perhaps one thing that ought to remain secret and one-sided is procedural and tactical advice about Parliament. Suffice it to say that there are devices available in both Houses that would leave the Bill in limbo until the end of the session killed it off. My former colleagues know where to find me if they are interested…

    My apologies to any other commenters for the rest of the evening. I will look again late tonight or tomorrow morning.

  • Justice needs to be seen to be done in a fair, accurate and timely manner, I am not convinced the Justice and Security Bill achieves all three elements. It seems worthy of the former Big Brother Labour administration or the Conservative’s patronising paternalism. While I recognise Tom McNally has done a lot to make this less unpalatable and I still maintain my ongoing support for both my parties leadership and the Coalition government, this still strikes me as profoundly illiberal.

  • *applause and whistling*

  • Nick T Nick Thornsby 15th Mar '13 - 6:37pm

    This is an utterly fantastic piece, and David’s point about the creation of secret case law is a scary and under-talked about one.

  • Very well put David.

  • Eddie Sammon 15th Mar '13 - 7:19pm

    I have no strong feelings about this bill, I do not know enough. However what does concern me is that liberals are so concerned about civil liberties yet appear to be verging on apathetic to national security. I just think this needs balancing up a bit.

  • I see no evidence of this supposed Liberal Democrat “apathy” on national security. Perhaps the evidence is such that it cannot be produced in open court?

  • “I have no strong feelings about this bill, I do not know enough. However what does concern me is that liberals are so concerned about civil liberties yet appear to be verging on apathetic to national security. I just think this needs balancing up a bit.”

    Why do you think there is any concern whatsoever about national security here? Do you mean you think that under the present system, based on public interest immunity, information is being released that endangers national security? How do you think could that happen?

  • Eddie Sammon 15th Mar '13 - 8:28pm

    David, I don’t want to get into silly arguments, I’ll just say I think the Liberal Democrats need to toughen up on defence.

  • Patrick Smith 15th Mar '13 - 8:33pm

    I presumed that since the `Glorious Revolution’ and Bill of Rights 1689 that habeas corpus prevails in open court and with a jury.

    I would say that only when there is a national and immediate threat of any breach national security should `secret courts’ be permitted as part of war-time emergency legislation, when various if not all civil rights, can be suspended as was the case, in WW2.

    I would have voted with the majority of delegates against the imposition of `Secret Courts’ at the spring conference in Brighton.

  • An apt comment from Jonathan Calder:
    Today David Howarth, MP for Cambridge before the last election, replied to Tom McNally. If it were a boxing contest the referee would have stopped it long before David got to the end.
    http://liberalengland.blogspot.co.uk/2013/03/time-for-lib-dem-leadership-to-come.html

  • Jack Holroyde 15th Mar '13 - 9:59pm

    ‘Because terrorism’ has never, and will never be a valid argument.

  • Richard Dean 16th Mar '13 - 12:19am

    Any chance of LibDems sticking up for victims of terrorism?

  • Squirrel Nutkin 16th Mar '13 - 4:34am

    Congratulations, Richard Dean! You have just presented us with a riposte so fatuous and clichéed that it would cause embarrassment if used in a 6th form debating society, yet still manages to be thoroughly offensive in the way it implies something utterly false about the members of this party. You must feel very proud.

  • Richard, this sort of erosion of our normal standards breeds more terrorism, just like internment did in Northern Ireland.

  • Richard Dean 16th Mar '13 - 6:52am

    I do wonder if some of the commentators on here might believe the UK is a terrorist state? Well, human psychology is a funny thing! 🙂 But a government’s duty is to ensure there are means available for protecting the people, and so the government and nation needs a way of combatting real terrorists and other real nasties.

    Public Interest Immunity has failed to maintain civil rights for a long time. It did not stop internment in Northern Ireland. It did not stop any actions we may or may not have been involved in relating to Guantanamo Bay. It apparently did not help at all in the Matrix Churchill affair. http://en.wikipedia.org/wiki/Public-interest_immunity

  • Paul In Twickenham 16th Mar '13 - 8:25am

    @Alistair – how true. I grew up in the Bogside in the 1970’s and Operation Motorman was the best recruiting sergeant that the IRA could have wished for.

  • “yet still manages to be thoroughly offensive”

    Don’t tell him he’s managed to be offensive. You’ll only encourage him.

  • Michael Hall

    “It would be helpful if you could explain how you think this case should have been dealt with by the court in the post CMP world, and what outcome you believe would be successfully achieved by the proposed abolition of the closed material procedure.”

    Perhaps you could explain what you mean by “the proposed abolition of the closed material procedure”.

    We are discussing, are we not, proposals to introduce CMPs for civil proceedings in general. Obviously the abolition of CMPs for different kinds of proceedings where they currently apply is an entirely different question, and would bring in entirely different considerations – the possibilty of a threat to national security, for example, where control orders are concerned.

    I have seen no comprehensible argument that the introduction of CMPs in civil proceedings is necessary to protect national security. If you are suggesting that, please could you explain why?

  • David Howarth 16th Mar '13 - 10:08am

    Michael Hall: I am not arguing here against CMPs in TPIMs cases but against their extension to all civil cases and the extension of secret law into the heart of the legal system. If, however, you want to start that debate, I suggest you write your own piece justifying CMPs in those circumstances. In that piece you would have to show at the very least that CMPs for control orders (or TPIMS) have prevented a single terrorist attack. I think you would find that difficult. Control orders and TPIMs are imposed on people who already know they are under surveillance, so they are hardly likely to do much anyway. All the recent successes against terrorist plots seem to have been achieved without the use of control orders, TPIMs or CMPs. If the security service dropped its absurd objections to the use of wiretap evidence (note that the authorities already successfully use bugging evidence and the difference between the two is minimal) their successes would be even greater (or at least quicker). But if you want to have a go, good luck.
    Richard Dean: The trouble with your argument is that you have misidentified what the state is supposed to be protecting. It is not the population’s physical safety. It is their freedom, of which physical safety forms part, but only part. Your point of view looks to be the same as that of Tony Blair, who was fond of saying that the only human right that mattered was the right to life and that he could not live with the thought that a single life might have been lost because of something he failed to do. But that view places no limit at all on repression. Freedom implies risk. If you cannot bear that risk, you are against freedom.
    You also talk loosely about the victims of terrorism. Those of us who lived through the Birmingham pub bombings, when the IRA took to blowing up our neighbours and friends, will never forget the emotions they generated, not least the unbridled anger many people felt. But emotion is no basis for legislation.
    On PIIs, whatever their faults, unlike CMPs they do not lead to the pollution of the law with secret precedents.

  • Richard Dean 16th Mar '13 - 10:08am

    The IRA bombings that preceded and led to Operation Motorman caused many deaths and injuries, and were undoubtedly a great recruiting sergeant for support for the UK government. http://en.wikipedia.org/wiki/Operation_Motorman .

    The operation appears to have generated fewer casualties than the IRA had killed in the previous month. It demonstrated rather conclusively to the IRA that the government had overwhelming resources and will. By showing clearly that a campaign of violence would never succeed, the operation was arguably a positive step towards persuading its opponents to change tactices, thereby helping to lead to an eventual peace accord.

  • @Richard Dean
    I think if you look back to the threads around the time of the Eastleigh election you will see many expressing disgust at the Labour candidates comments. Personally I have experienced the results of terrorism during my time in the armed forces but I do not think that circumventing the rule of law and the long held belief in open justice is the route to be followed.

  • Richard Dean 16th Mar '13 - 10:12am

    The security services are indeed tasked with protecting our freedoms. So why do we weigh the scales of justice so heavily against them defending themselves?

  • @Richard Dean
    I lost 11 friends and colleagues in 1989 some 17 years after Motorman, today is 20 years since the tragic loss of two young lives in Warrington. Motorman was not a significant step to the resulting peace process. It led to a significant change in PIRA tactics but no peace. As a serviceman I was always frustrated that we knew who the “players” were but needed evidence to take action. But where does it end if you take the alternative route ?

  • Richard Dean 16th Mar '13 - 11:04am

    Well, it’s good to see that two people who appear to have once been on opposing sides in a bitter conflict, Steve Way and Paul in Twickenham, are now agreeing freely on something important. There is cause to feel good after all 🙂

  • David is – as usual – spot on in what he says about civil liberties. My concern is about how the party is reacting. It seems to me that we have a problem, not for the first time, in reconciling principle and pragmatism. I can’t imagine there are many Lib Dems who are in favour of secret courts in principle – but there are some who accept that a) there may be some very difficult and rare cases where secrecy might be unavoidable and/or b) think that the party is not going to shift the Tories (or parts of Labour) and so the country is going to be saddled with an act that enshrines secrecy. I am in despair at what this is leading to at the far ends of that spectrum. The principled can’t accept any sort of compromise and in some cases are leaving the party. But how will that help stop secret courts? All they lose is the ability to influence, persuade and push for something better. No other political party is going to fight secret courts like the Lib Dems. And the pragmatic are too readily accepting compromises and starting to sound as though their allegiance to the coalition has the same weight as their allegiance to party policy and the very firmly expressed views of conference. Politics is the art of the possible – but you also need a firm grip on your principles or you lose your way. So we need both the idealists and the realists (neither term meant perjoratively) to reinforce and complement each other. They can be disappointed with each other, they can feel strongly that they are right, but can they PLEASE remember who are the REAL enemies of civil liberties – and it’s not the Liberal Democrats, not even Tom McNally.

  • “No other political party is going to fight secret courts like the Lib Dems.”

    The party is not “fighting secret courts” at all. The leadership would have been in a position to kill the proposals stone dead at the outset, because they are not in the coalition agreement, but the the leadership chose to support the proposals instead. And most Lib Dem MPs and peers have voted to support the principle of secret courts. So it is quite untrue to say the party is fighting secret courts.

    As far as ameliorating the proposals, most of the Lib Dem MPs voted against opposition amendments designed to do that. Arithmetically, those amendments would have passed if the Lib Dem MPs had supported them.

    I really hope people in the party aren’t going to try to foster a myth that the Lib Dems have been bravely trying to block these proposals, and have been thwarted only by lack of parliamentary numbers. The truth is entirely different.

  • David Evans 16th Mar '13 - 1:16pm

    Prue makes a very good point. The problem we face as I see it is that the leadership are all pragmatists, and haven’t and apparently don’t want to discuss and debate this with the principled others. This underscores a wider problem, and that is the lack of willingness to actively debate substantive issues and reach an agreed position. This is what Lib Dems should have in their DNA: Liberal means everyone has the right to a say; Democrat means you have a vote (open and clear) to decide differences. Then you can unite around the decision.

    Failure to unite around a decision leads to splits, fragmentation and resignations, and if the Leadership want their own way to such an extent theyavoid debate and ignore votes, they are gradually, and wilfully, destroying the party.

  • “The security services are indeed tasked with protecting our freedoms. So why do we weigh the scales of justice so heavily against them defending themselves?”

    Last time I checked our freedoms include the right to fair trials, due process. We arent the 51st state – yet. We got into the Iraq war because of misplaced confidence in the infallibility of the security services and an over closeness to the US. At that time, Labour and the Tories united to back the war and they were proved wrong when no WMD were found, and wrong again when no planning was made to restore peace. Let them unite again to back this measure and let us see where it leads us. I know our MPs can’s stop this measure, that in itself is no reason to back it.

  • There have been examples of the Home Office providing contradictory evidence in different hearings. This particular example only came to light because the same Special Advocate was involved in both cases – had they not its’ very unlikely this would have been exposed.
    http://news.bbc.co.uk/1/hi/uk/6042872.stm

  • ““The proposed abolition of the closed material procedure” was my shorthand for the proposal of our party conference to reject Part 2 of the Justice and Security Bill.” This would have the effect of leaving the law in an uncertain state by letting the decision of the Supreme Court in Al Rawi v The Security Service stand

    It’s very difficult to make sense of that. If you’re suggesting that the Supreme Court was wrong, and civil courts already have the power to use CMPs, then rejecting Part 2 of the present Bill could not “abolish” that power, could it?

    But I was asking what you meant in the context of your previous comment, where you spoke of a case involving control orders in which a CMP had actually been used. You asked how such a case should be handled “in the post CMP world”, and linked this to what you described as “the proposed abolition of the closed material procedure”. I still don’t understand at all what you were driving at, because – whatever happened to the present Bill – CMPs would remain available in cases where they are available now.

  • Michael

    I was hoping you would clarify those comments I referred to in the second paragraph of mine at 3.39 on Sunday. Failing that, I’m going to assume you did mistakenly think that David Howarth’s article was arguing for the abolition of CMPs where they are currently available.

    I don’t think your characterisation of the Supreme Court judgment is accurate, but sadly I think the point will soon be an academic one.

    Finally, I don’t think it’s true that “David Howarth has made clear that he is not against the use of the CMP as provided for in existing anti-terrorist legislation”. What he said was that “I am not arguing here against CMPs in TPIMs cases” [my emphasis]. He implied that was a separate debate, and the tenor of his comments suggests to me that you may be making a false assumption about his attitude.

  • The Justice and Security Bill 2013 is a UK charter of cover-up so that MI5 (British Security Service), the British Government (including its corrupt Home Office) can conceal their own wrong doing. How do we know this? The latest news paper reports concerning former British Agent Martin McGartland has confirmed that MI5 is going to apply for a closed hearing, a secret hearing in the McGartland case. The McGartland case, as the the reports confirm, have nothing at all to do with ‘National Security’. The case relates only to MI5 case officers incompetence, those MI5 case officers withdrew medical support from Martin McGartland after he was blasted up to 7 times by PIRA terrorists. MI5 recklessness withdrew the treatment even after they had received 2 separate medical reports stating that McGartland required between 3 and 5 years further treatment. MI5 ignored the medical advice and Martin McGartland was left for 9 years without any type of treatment or medication. Both of witch MI5 stopped (withdrew) overnight. The end result was that McGartland’s health seriously deteriorated during that period. This is an important case because it relates to nothing at all more that a very straightforward case of negligent, a failure by MI5, Security Service, a breach of duty of care. MI5 are now going to use closed material proceedings (CMP) in the Martin McGartland case so that they can Lie to the court (in secret of course) and so that they can cover-up their own wrongdoing; http://www.scribd.com/doc/142524339/MI5-Security-Service-Bids-to-Have-Provo-Spy-s-Case-Heard-in-Secret

    MI5 allegedly applies for secret court session after informant sues for being denied protection:: http://www.independent.co.uk/news/uk/home-news/mi5-allegedly-applies-for-secret-court-session-after-informant-sues-for-being-denied-protection-8605107.html

  • Phil Mills, Bedford 19th Jul '13 - 8:37pm

    Mi5, Home Office have applied for secret hearing in the Martin McGartland case. State coverup in the Martin McGartland case. Anyone who knows of that case will know that the State has hounded the guy for over 20 years. Here is some interesting videos , t.v footage on the case; http://www.youtube.com/watch?v=C0AYxPWNstw http://www.youtube.com/watch?v=11yk7p3KpSI&list=TLF5BWl5i4Np8 http://www.youtube.com/watch?v=i3O0CQPSKf0

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