Stephen Tall writes: The best and most important debate at this week’s Lib Dem conference was on the motion opposing the extension of secret courts proposed in the Coalition’s justice and security bill. Jo Shaw’s opening speech was acclaimed by many as the best of the week and helped ensure the overwhelming rejection of ‘secret courts’. For the benefit of those who weren’t able to hear it, and for those who want to remind themselves of the clarity of Jo’s arguments, we’re delighted to publish the full text below.
Conference, this motion is clear in what it calls for as Liberal Democrat party policy – the rejection of secret courts in civil claims. Claims that could arise, for example, from victims of Hillsborough, families of friendly fire victims in Afghanistan, or victims of torture and extraordinary rendition. Victims of negligence just as much as victims of abuse. This is about their ability to expose the truth through a civil case.
The motion asks for two policy outcomes in the unamended lines 41-48:
1) For Part II of the Justice and Security Bill to be rejected, by Liberal Democrats in government and on the back benches
2) For the current system of Public Interest Immunity to be put on to the statute book.
Public Interest Immunity ensures judges can protect national security. And they always do. Crucially it ensures both parties see all evidence relied on by the court in reaching its decision. So our common law system of adversarial justice is respected and upheld. Both sides are able to see, challenge and contradict the other side’s evidence, with the judge deciding between the two fairly balanced sides.
Why do we have Part II of the Justice & Security Bill at all? This is a so-called solution looking for a problem. After all, we have managed quite well enough for the past 400 years without secret courts, including through the national security situations caused by the second world war, and the Troubles in Northern Ireland.
The main claim made for secret courts is that this will extend justice by allowing new material to go before a judge. Since when do secret hearings increase accountability? To that I would say – Kafka’s novel was a warning – not a manual.
The suggestion by some is that secret courts could be made fairer by allowing the judge to “decide” what evidence there is, and whether secret courts should be used at all. This is to misunderstand the judge’s role. Judges are intelligent, they care deeply about protecting national security and they are anxious to decide cases as fairly as possible.
But judges are not God – they don’t and can’t know everything. Their concerns about secret courts were stated in the Supreme Court by Lord Kerr. The problem with secret courts, he said:
- lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead.
So there’s the rub. Evidence that has not been seen and challenged by the other side is not evidence at all. Secret justice quite simply isn’t justice. It is a dangerous perversion of justice.
This motion is not saying that all the security services or government officials or police are bad, or corrupt. But some may be. Some may make mistakes and wish to cover them up. And Part II will allow a few bad apples to rot our judicial system from behind closed doors. As the Guardian reports today, the government’s own analysis of this Bill states that it will protect it from bad publicity.
So why are we having this debate at all? Surely the rule of law, calling the government to account, protecting our civil liberties – are core Liberal Democrat values which we don’t need to restate?
I confess Conference that I am at a loss to know why this is necessary unless it is because the US government have told us to. I have every respect for the US and its constitution, but it has no right to order us to abandon our most basic constitutional principles.
The judges say secret courts mislead, the Special Advocates, who will be called on to represent civil claimants in these cases say secret courts are “inherently unfair”, and the UN Special Rapporteur said that secret courts will allow evidence of torture to be suppressed.
And we as liberals know it is wrong.
In simple words, this is a bad bill.
This Bill appeared in no party’s election manifesto nor in the Coalition Agreement. It is not a tweak in policy or a bit of re-organisation.
It is constitutional reform – but the very opposite of the reform that we as Liberal Democrats strive for. As Lord Strasburger said in the House of Lords – Part II “is a toolkit for cover-ups”.
That instinctive liberal Ken Clarke has done his best to sugar this bitter pill by telling us that this is all Tony Blair’s fault. We don’t need to be reminded that on civil liberties issues Tony Blair and New Labour were disastrous. But we should not be fooled that this policy can be blamed on anyone else.
If you vote to accept the amendment to this motion, which is a wrecking amendment, then we are all responsible for secret courts in civil cases, and we will not have anyone else to blame – not Labour, not the Conservatives. This will be Liberal Democrat policy, on which our parliamentary will have to rely in negotiations, and which we will be asking our candidates to advocate in the weeks and months and years before the next General Election.
Personally I cannot imagine being able to argue that I believe in a fair free and open society and at the same time support the notion of a trial from which one side is excluded, evidence is heard in secret, judgments are handed down in secret and the government is able to rely on unchallenged and unchallengeable evidence. Those two sets of ideas seem to me to be entirely contradictory.
How can we, who stand for openness vote for a closed court which shuts out press and public scrutiny?
How can we, who believe in freedom, vote to allow the Security Services to operate wholly in the shadows?
How can we, Liberal Democrats, who have fairness at the core of our beliefs, vote for a trial which leaves one party in the dark, excluded?
I don’t believe we can. If the preamble to our constitution means anything, it means Liberal Democrats should be campaigning fearlessly against these proposals which offend every principle we hold dear.
So I ask you to vote against Amendment 1, and then support the motion as unamended. And Conference if the amendment is carried – then please vote down this motion as a whole. We cannot claim to be liberals or democrats and also support secret courts.