The Independent View: National security is paramount but ‘secret courts’ are an illiberal attack on British justice

Supreme Court - Some rights reserved by cphoffman42In September 2012, the Liberal Democrat Conference voted overwhelmingly against the most contentious aspect of the government’s Justice and Security Bill – the extension of ‘secret courts’, otherwise known as Closed Material Procedures (CMPs), into civil courts.

This would allow ministers to submit a CMP application to a judge that material relating to national security be withheld from the defendant/claimant and their legal team despite being used as evidence. As Andrew Tyrie MP and Anthony Peto QC explain in “Neither Just nor Secure”, published today by the Centre for Policy Studies, this is worrying because “in an adversarial system such as the English one, the right to know and challenge the opposing case is not merely a feature of the system, it is the system”.

The Conference vote came against the wishes of Lib Dem Party leaders including Nick Clegg, and although the Deputy Prime Minister has previously expressed some hesitancy over the plans, indications are that the Parliamentary Party is prepared to accept the Bill following the House of Lords amendments made in December.

While these amendments go some way to addressing the unacceptable nature of the Bill’s CMP proposals, they do not go far enough and an amendment withdrawing the relevant part of the Bill in its entirety was rejected.

The extension of CMPs into civil courts puts at risk two fundamental elements of the common law justice system, the right to a fair hearing (natural justice) and open justice – the principle that a case be heard and decided in public. Though the vast majority of people would recognise the government’s necessity to maintain secrets that would threaten national security, the broad scope of allowing CMPs in civil cases means the potential for great misuse in the future. Parliament’s Joint Human Rights Committee commented:

After listening to the evidence of the special advocates [specially-trained representatives appointed by the government to represent the defendant or claimant’s interest], we found it hard not to reach for well-worn descriptions of it as ‘Kafkaesque’ or like the Star Chamber.”

To combat the illiberal aspects of the CMP proposals, Tyrie and Peto suggest several further amendments:

  • CMPs must be a last resort; a judge should have to exhaust the possible use of current “Public Interest Immunity” powers before considering the use of a CMP.
  • Even where a CMP is approved, the judge should be able to balance the interests of justice against those of national security in deciding if information should be disclosed.
  • Where CMP is used, summaries of the national security sensitive information should be provided to the excluded party and his or her legal representatives.
  • A sunset clause should be incorporated so that the legislation is limited to five years, unless new legislation is passed to renew it.

The Liberal Democrats should welcome this report from a senior Conservative backbencher and are in a unique position to force through these vital amendments to the bill. They should not pretend that the current Lords’ amendments are sufficient. It is an opportunity to demonstrate that Lib Dem leadership can really count in the Coalition.

* Lewis James Brown is the Digital Communications Manager at the Centre for Policy Studies.

Read more by or more about , , or .
This entry was posted in The Independent View.
Bookmark the web address for this page or use the short url http://ldv.org.uk/32920 for Twitter and emails.
Advert

3 Comments

  • I don’t see why a heavy amount of redacting wouldn’t suffice for most cases. However, if there was a case where any evidence / witnesses would have their lives put in danger, than of course they should be, wherever possible, held in secret.

  • So, in other words, you will continue to ignore the Conference vote. Nice.

    I think you should kick out Clegg. Perhaps his successor will actually listen to the party members.

Post a Comment

Lib Dem Voice welcomes comments from everyone but we ask you to be polite, to be on topic and to be who you say you are. You can read our comments policy in full here. Please respect it and all readers of the site.

If you are a member of the party, you can have the Lib Dem Logo appear next to your comments to show this. You must be registered for our forum and can then login on this public site with the same username and password.

Your email is never published. Required fields are marked *

*
*
Please complete the name of this site, Liberal Democrat ...?

Advert



Recent Comments

  • User AvatarDavid-1 5th Jul - 1:40pm
    I agree with Mick Taylor that strong regional parties are desirable, but it seems to me that an essential precondition for that is the independent...
  • User AvatarSara Scarlett 5th Jul - 1:17pm
    "The big problem with a referendum is that people don’t vote on the question but on some hot political issue. The farcical referendum on AV...
  • User AvatarNotTellingYou 5th Jul - 1:11pm
    As if midwives, health visitors and teachers aren't busy enough? Speaking as a person who, as a child, had numerous social workers and was still...
  • User AvatarColin 5th Jul - 1:11pm
    Identity politics will be the death of this party. How can the Lib Dems have any kind of broad appeal when those who challenge demonstrably...
  • User AvatarGeorge Potter 5th Jul - 1:11pm
    We have to deal with the world as it is rather than as we'd like it to be. I want regional devolution in England (though...
  • User AvatarChrisB 5th Jul - 12:43pm
    >"Tim Farron’s call for the UK to take 60,000 migrants" I was too busy thinking about my own backyard and missed this vote winning beauty....
Sun 5th Jul 2015
03:00
Mon 6th Jul 2015
Wed 8th Jul 2015
Thu 9th Jul 2015
Fri 10th Jul 2015
Sat 11th Jul 2015
Sun 12th Jul 2015
Thu 16th Jul 2015
Sat 18th Jul 2015
Sun 19th Jul 2015
Mon 20th Jul 2015
Thu 23rd Jul 2015
Sat 25th Jul 2015
Sun 26th Jul 2015
Mon 27th Jul 2015
Thu 30th Jul 2015
Sat 1st Aug 2015