I am the last person to argue that you should never resign from a political party. I resigned from the Labour Party just over thirty years ago. I know it to be an intensely personal and often painful decision. So I pass no judgement on those who have decided to leave the Liberal Democrats because of opposition to the Justice and Security Bill. I think I am entitled to ask, however, what kind of Justice and Security Bill we would now be contemplating if either Labour or the Conservatives had been governing alone?
It seems incoherent to me to resign from the Liberal Democrats when we are the ones who have forced through essential safeguards. All three parties have voted in favour of the Bill but only one of those has been responsible for negotiating crucial changes that have allowed for full judicial discretion, the removal of inquests or material not relating to national security from scope – all changes which changed fundamentally the balance, scope and focus of the Bill.
It is very difficult to get the right balance between security and liberty. I understand why Liberal Democrat activists and the Parliamentary Party in both Lords and Commons have agonised long and hard about the issues involved. But in all the impassioned arguments and grand gestures in speeches and editorials I have yet to find a viable way, other than proposed by the Bill, to ensure that serious charges made against our security services can be examined in a court of law.
The situation at the moment is that there are civil cases brought against the Government for compensation due to allegations of mistreatment where, in a minority of cases the Government cannot defend itself. This is because evidence which would do damage to national security, such as names of agents or methods of our intelligence agencies, cannot be heard in open court. In the vast majority of cases we have developed tools to deal with this problem, such as Public Interest Immunity certificates, which excludes sensitive material from the courtroom entirely. This is not a perfect system but is necessary to protect both our intelligence and our intelligence-sharing relationships.
However, where a case is saturated with this type of material, it becomes impossible to keep removing material from the court’s consideration without also removing crucial evidence needed to put a coherent case across. This is damaging not only because it means the Government is forced to settle and pay out taxpayers’ money with no chance to defend itself, but also because if the allegations are true, and the intelligence agencies have acted irresponsibly or worse, then the public have no way of knowing.
So the Government has brought forward, and the Opposition supported, a solution to this problem. Not a perfect solution by any means. But one which means that in this minority of cases (Government estimates that there are around 20 at present) a judge is able to hear both the case both for and against the government. This will happen only with full judicial control of the process. It will be for national security cases only, and only when the evidence is so central or relevant that there is no other possible way of hearing the arguments. And, if at any time during the process the judge believes that justice is not being done, or the proceedings are not fair, he or she will be able to put a stop to them. But with these caveats, and many others including compatibility with the ECHR, we believe that a fair balance has been struck.
All of these safeguards were not originally in the Bill. It has taken hard work to get them there, and campaigning from Liberal Democrat members as well as the reports of the Joint Committee on Human Rights have helped make the case for improving and changing the Bill. But that is all the more reason to ensure the Liberal Democrats use their leverage within government rather than campaigning from the outside.
My old mentor, Jim Callaghan, once advised me, in relation to our security services, “Always listen to what they say; but never suspend your own political judgement”. That is still sound advice. That is why I want to see accusations made against our services tested in a court of law and why I support the sometimes overlooked provisions of the Bill which strengthen parliamentary oversight of those same Security Services.
I want to be crystal clear with party colleagues that this bill and the introduction of CMPs will lead to more evidence being presented in court (albeit in closed circumstances) than currently, it will provide for more potential for justice to be done and more opportunities than is currently available for the security services to be held to account. I can understand why conference has voted as it has, but I would ask in return that those who oppose the government’s position recognise that there is a genuine, real and difficult problem in the current system and that we have made an authentic and liberal attempt to solve that problem – even if it is one they do not feel able to support.
I am in absolutely no doubt that the cause of liberalism and civil liberties has been protected by Liberal Democrats being in Government, but the public can also have confidence that our party does not flinch from taking the tough decisions when the national interest demands it.
Of course it is always disappointing when somebody chooses to leave the party. But I for one am proud to remain in a party that in government has scrapped ID cards, halved the period of detention without trial, ended child detention for immigration purposes, stopped fingerprinting in schools and removed millions of innocent people from the DNA database.
That is why I, and many others, will stay actively involved in our party – fighting for every vote and every seat to help build a fairer economy and a stronger society enabling every one to get on in life.
* Tom McNally is Leader of the Liberal Democrats in the House of Lords and a Minister of State for Justice