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Bill to be killed off is still for Nick Clegg to say Liberal Democrats will not support it and to insist on it being withdrawn.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?