Opinion: Secret courts are the final path towards the police state

In November 1926, Mussolini established the Tribunale Speciale, which was a secret court designed to convict those of dissident and anti-state activities. The Organizzazione per la Vigilanza e la Repressione dell’Antifascismo was the secret police force, wtih the authority to arrest opponents of the regime.

4,000 citizens were detained in secret, tried in secret and exiled in secret. 10 individuals were even executed in secret. Secret courts were not isolated to Fascist Italy; Nazi Germany, the Soviet Union and countless authoritarian states used or use secret trials to silence dissidents and guard state secrets. The auspice of national security is invoked to justify the illiberal, oppressive and totalitarian nature of clandestine courts; it would become impossible to hold the state accountable, if it had the power to ensure actions and mistakes are kept hidden.

All governments, including this Liberal-Conservative coalition, are capable of abusing such great powers. Secrecy, as a Former American President once said, is repugnant to a free and open society; we should not fear openness and transparency. These are not only liberal principles, but democratic ones. This Justice and Security Bill will morph Britain into a quasi-police state, an Orwellian nightmare would await us. Our liberal democracy could become an arcane relic and at the mercy of a secret judicial system.

The Home Office also has a desire to extend snooping powers, even though countless accusations of abuse have appeared in the press. The state cannot be trusted with security measures; it will inevitably be exploited to monitor harmless and trivial matters. Imagine what could occur if secret courts were allowed? Legitimate protesters might find themselves tried and convicted without even knowing the evidence against them.

Liberal Reform have issued a press release, outlining possible scenarios in which secret courts could be used. The following example directly explains what might occur, if the bill passes:

(4) A newspaper publishes articles exposing corruption by government ministers in the arms trade. The government ministers and the arms companies sue for defamation. The newspaper relies on justification and brings forwards evidence that the allegations are true. The government minister wishes to adduce evidence of malice against the paper and says his sources are security sensitive. He uses a CMP (Closed Material Procedures) to determine the case in his favour relying on the evidence of the security services. The newspaper is effectively gagged from repeating the allegations.

Closed Material Procedures (CMPs)are just a bureaucratic term for secret courts; it is designed to ensure the intentions are pure and not harmful. Yet, a CMP is no different from the Tribunale Speciale; Mussolini’s secret judicial system took all evidence and accusations in private, too. Just because we are a democracy, do not assume the government has our best interests at heart. It will do all it can to save face and reduce the fallout from potential embarrassments and scandals.

I struggle to conclude how any Liberal Democrat M.P. could support and vote in favour of such measures; this negates the philosophy of our party and liberalism in general. Arbitrary government should be restricted, not strengthened. Authority should be opposed, not appeased. We did not go into coalition to construct a police state; it was on a promise to increasing freedom and personal liberty – not destroy it.

* Daniel Furr is a former Liberal Democrat member from Canterbury and blogs here

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4 Comments

  • This is an excellent piece Daniel. Which begs the question. Why has it been here for 24 hours, with no comments?
    Perhaps, because half the population naively, think, no, no, no, Daniel, you are paranoid. Those kind of secret underhand political tactics, could never happen here. Not in this liberal, open, transparent, green and pleasant land.
    And the other half of the population, are munching on Doritos, tweeting on their iToys, and waiting for the next episode of X Factor.
    God help us Daniel. I suspect we truly are FUBAR.

  • Richard Dean 30th Oct '12 - 6:15pm

    Does this article represent the actual proposals fairly? Could this be why 24 hours?

    Is it not true that there is a process that a government minister has to go through to get a closed material procedure, and this process involves an independent judgment that will not necssary always be in favour of the minister?

    Is it also not true that a closed material procedure can only be applied under certain circumstances? A minister cannot apply for one arbitrarily?

    For instance, in case (4), the minister’s application for a CMP might be refused?

    What is the wording of the actual legislation being proposed?

  • Richard – the legislation is here: http://www.publications.parliament.uk/pa/bills/lbill/2012-2013/0027/lbill_2012-20130027_en_1.htm

    The application process for a Closed Material Procedure is set out in clause 6 of the Bill. This provides that a Sec of State may make an application for a declaration that the proceedings are those where an application for a CMP may be made. (clause 6(1)).

    By clause 6(2) the court MUST make this declaration if the judge considers that (a) a party to the proceedings would have to make disclosure, and (b) that this disclosure would be damaging to national security [neither damaging nor national security is defined in the Bill]. So there is no discretion for the judge – once national security is at issue, the judge has to make the declaration.

    And by clause 6(3) the judge CANNOT take into account that a Public Interest Immunity certificate could be applied for (so this route would be effectively wiped out).

    A SoS can apply for one in any relevant case. They first have to consider whether to make a PII application (clause 6(5)), but they do not have to do so, and consider is of course a very loose test to satisfy.

    In (4) if national security is considered to be at risk of being damaged by the relevant disclosure, then a declaration for CMP would be inevitable.

    Hope helpful. :-)

  • Richard Dean 31st Oct '12 - 11:01am

    Case (4) is not so simple.

    Whatever the SoS may claim, it is the judge who must consider whether the disclosure may be damaging to national security. This gives the judge control, and if the judge does not consider it to be so, the CMP would be refused.

    Generally I find that over-stating a case damages the case, and I think the claim the CMP would be automatic in case (4) does this.

    However, it does seem like the judge is a rather lonely person in this activity, and one must aslo ask whether the SoS may appeal. The defendant is worse position, unable to challenge the SoS and perhaps unable to appeal a decision?

    One of the considerations involoved, and in many minds, will be the reality of a court case, because in reality there is always a transfer of information from prosecution to defence – the defence learns how the evidence was obtained, as well as what it is, and in principle there really can be national security issues here.

    So, rather than overstate a case, I suggest that an alternative approach that addresses the national security concerns as well as the concerns for justice, and the avoidance of corruption thereof, is developed.

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