Jo Shaw asks… Is there a way out of the Secret Courts mess?

It’s a strange and rare thing for a Liberal Democrat to be pinning her hopes for a civil liberties victory on a combination of government bad faith, Conservatives of principle voting the right way and Labour sticking to their guns. Yet that combination, combined with the votes of Lib Dem MPs, could offer a lifeline for those campaigning to defeat secret courts contained in the Justice and Security Bill.

The Bill is now in Committee in the Commons. At the last possible moment the government published its proposed amendments to the Bill. The government line is that these amendments clarify the Lords amendments (which were passed – with some controversy – along the lines of some of the recommendations of the Joint Committee on Human Rights). The position of just about everyone else, including Labour, is that these amendments are a backward step which make the Bill’s proposals more unfair and undo the improvement to the Bill by the Lords.

In particular the government amendments make it more difficult for a civilian party (eg a victim of torture) to use a Closed Material Procedure (a secret court) when it would be to their advantage to do so – ie rather than having their case struck out. This is a key test of the government’s good faith. Ken Clarke has said that CMPs are needed so the judge can see all the evidence and reach a fair decision. On that basis either CMP should be available for everyone, or no-one. It now appears that the government don’t like the idea of anyone being able to apply for a CMP, so are trying to make one rule for the civilian party, and another for the government.

Allegations of torture have been proven against the US, and British complicity in torture has also been proven. This Bill, if passed, will mean that torture is more likely, not less. It will make it more difficult for victims of torture to obtain justice. Parliamentarians of all parties need to have this at the front of their mind when voting on this Bill.

Of course, as has been graphically pointed out to me just yesterday, amendments to this Bill are the legislative equivalent of polishing a turd. Liberal Democrats voted overwhelmingly to reject secret courts in civil claims under any circumstances. The best way for this Bill to be killed off is still for Nick Clegg to say Liberal Democrats will not support it and to insist on it being withdrawn. For reasons which are not clear he has rejected this course of action in the face of the party’s clear decision.

This week Labour has said that the government needs to amend the Bill along the lines proposed by the JCHR. Previously Labour has said that unless this happens, they will not vote for the Bill. So, if the government doesn’t amend as recommended by JCHR, and if Labour vote in accordance with their previous statements (by no means guaranteed) then the numbers could stack up to defeat this “unnecessary, unbalanced and unfair” Bill which undermines centuries of fair trial protections at one fell swoop.

The question will then be: what will our MPs do? Despite the considerable efforts of the no to secret courts campaign, few of them have been prepared to state their views and even fewer have come out in opposition to Part II of the Bill – either publicly or privately.

If Part II of this Bill is defeated in the Commons, it returns to the Lords. Because the Bill started in the Lords the Parliament Act cannot be used to force it through. Suddenly it is all up for grabs again, including our party’s reputation for standing up for civil liberties.

So if Labour are prepared to vote against secret courts in the Commons, what will Liberal Democrat MPs and peers do?

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17 Comments

  • So Clegg & Co can vote down the boundary changes but let fundamentally illiberal legislation like this to pass? Just beggers belief.

  • Caron Lindsay Caron Lindsay 31st Jan '13 - 8:03pm

    I’m annoyed by the fact that Liberal Democrat MPs are supporting this bill at all, but I’m exasperated and infuriated by their lack of engagement on the issue. It’s as if they think if they just ignore the party that we’ll go away. They have no idea of the damage they are doing to morale and goodwill by their behaviour.

    I saw the list of replies you have had from MPs – the silence is spectacular. I am annoyed by those who hide behind their constituency boundaries. Surely they have some sort of accountability to member of the party? I am, however, pleased to see that one of the few replies you’ve had, even if it’s not as anti the bill as I’d hoped, is from Mike Crockart.

    I think it’s important that those of us in the party who oppose this bill keep trying to get the leadership and parliamentarians to engage, to see if we can get those heads out of the sand. One crazy idea I had is that we all get the Letter from the Leader every Saturday. Why don’t we, once we’ve read it, reply to it with a pithy note saying that we want him to withdraw support for this Bill. Ok, it’s not going to go straight into his inbox, but someone in HQ will take note and pass it on, I’m sure. If you agree, can you please help me spread the word.

    I am slightly traumatised that the people who have been making the running on this include a Tory MP, Andrew Tyrie. Ok, so the report does give a nod to Paul Tyler and Shirley Williams, but it’s a bit galling as a Liberal Democrat member to have our lot doing nothing on this and a Tory leading the way.

  • Lib Dems are in danger of losing all their Unique Selling Points. Free higher education was one (’nuff said); Voting reform was another but that has now gone. Civil liberties is another but Lib Dem MPs voting for secret courts will put paid to that. Very soon one will start to wonder what do the Lib Dems believe in? Jo, Caron et al please keep pushing the Parliamentary Party on this. And best of luck!!

  • To be clear, are we really just talking about trying to ameliorate the proposals now?

    Am I right in assuming that Lib Dem MPs will in any case be supporting the principle of secret courts, maybe with some amendments concerning how they will work in practice, in the same way that the majority of Lib Dem peers did?

  • gwenhwyfaer 1st Feb '13 - 10:05am

    Seems to me that this is probably the time when the constituency parties need to step up and point out to their MPs that it doesn’t matter how many elections they have won so far, they will find themselves unconditionally deselected if they vote in a way contrary to the party’s expressed view.

  • Excellent article and comments – this is exactly the sort of issue we can campaign on in 2015 if we kill it now, and which wil make waverers listen to us again (far more than £10k personal allowance – we have long banked any votes coming to us on that one.)

    Caron’s suggestion of replying to the Leaders letter makes good sense. The strategy seems to be to make as little noise as possible as the media won’t jump on it, but this is a real chance to stand up for a liberal principle and bank some public brownie points which we badly need. Come on MPs – who will show some leadership here?

  • Joseph Donnelly 1st Feb '13 - 12:29pm

    @tpfkar

    Whilst I feel as strongly as many here about the secret courts issue and can’t believe we arent standing up for our civil liberty principles…the number of votes this will win us in 2015 is very minimal.

    I’d be tempted to say that an issue like this only registers with 1% of the population at most and then only a small proportion of those would actually change their vote over it.

  • Joseph Donnelly “Whilst I feel as strongly as many here about the secret courts issue and can’t believe we arent standing up for our civil liberty principles…the number of votes this will win us in 2015 is very minimal.

    I’d be tempted to say that an issue like this only registers with 1% of the population at most and then only a small proportion of those would actually change their vote over it.”

    Yes but it is one that is a red line to 99% of your supporters I would imagine. Whilst it may not win you many ‘new’ votes, can you really afford to lose your existing supporters (or the ‘soul’ of your party) ? This is the classic mistake Lib Dems have made with tuition fees, NHS etcetera. – having a cavalier attitude to the people who actually voted for you and thinking too much about appealing to those who would never vote for you anyway. And also, it’s not all about winning votes is it ? How about principles’? Or are you suggesting the Lib Dems should abandon those in a futile quest for ‘new votes’?

  • @Chris – I’m not advocating amendment of this turd-like Bill. I would prefer to defeat it altogether, but if Labour fail the civil liberties test I will still be calling for all of our MPs (whether on the payroll or not) to vote against Part II. We are supposed to have core values in our party, as described by the Preamble to our Constitution, and I expect our MPs who are priviliged enough to be politically active and paid for it on all of our behalf to do the right thing.

    @Joseph – you are probably right that lots of people haven’t registered this issue. But ask yourself whether the Magna Carta would have garnered many votes for the vast majority of the public in 1215 (assuming they had the option of voting, of course). The point is, issues like the economy are the loudest now for obvious reasons. But this Bill, which will make torture more likely, will have implications for decades, possibly centuries, to come. All MPs need to have the effect of their votes made very clear to them right now, because time is running out for this torturer’s toolkit to get kicked out.

  • This is not the only issue where Conference is being ignored. What about Rights for Shares?

  • Joseph Donnelly 3rd Feb '13 - 8:29pm

    My point wasnt that I dont think this is a red line issue, indeed I’m furious with the idea of this getting through and want our MPs to pick a big fight over it.

    But lets not kid ourselves doing so will win us any votes.

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