The Justice and Security Bill: an important point that’s been missed

The debate at this year’s Liberal Democrat conference on the Justice and Security Bill was one of the highest quality of the whole conference, particularly on the part of those supporting the motion (and opposing the party leadership’s amendment). It was no wonder after hearing those fantastic speeches that the motion was passed so overwhelmingly.

It is true that significant amendments have been made to the Bill by Liberal Democrats since it first arrived in Parliament. It has undoubtedly been improved. One of the main improvements was to remove inquests from the scope of the closed material procedures that are at the heart of the Bill. This was a point repeatedly made by those opposing the motion at conference.

However, welcome as this amendment was, it is undermined by the provisions of clause 11 of the Bill, containing the following:

(2) The Secretary of State may by order amend the definition of “relevant civil proceedings” in section 6(7).
(3) The power to make an order under subsection (2)—
(a) may, in particular, be exercised so as to add or remove a court or
(b) includes power to make supplementary, incidental, consequential,
transitional, transitory or saving provision (including provision
amending, repealing or otherwise modifying any enactment),
(c) is exercisable by statutory instrument which is not to be made unless a
draft of the instrument has been laid before, and approved by a
resolution of, each House of Parliament.

In other words, the justice secretary can, by order, change the courts to which the bill applies. Does anybody really think that a future justice secretary, when a difficult inquest comes along, will be able to resist the call of securocrats and civil servants to bring inquests back under the scope of the Bill?

And don’t be fooled by the necessity to lay the order before Parliament. Dozens of pieces of secondary legislation of this type go before Parliament every week; they almost never have any votes against, let alone any chance of being defeated or of effective scrutiny.

This is a pernicious Bill in many, many ways; the unfettered power given to the secretary of state by clause 11 is just one. If Lib Dem MPs don’t vote against the Bill as the conference motion implores them to do, they must, at the very least, get rid of clause 11 and stop future justice secretaries undermining open justice any further.

* Nick Thornsby is Thursday Editor of Liberal Democrat Voice and blogs here.

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  • Peter Andrews 27th Sep '12 - 2:19pm

    Hear hear

  • Jonathan Featonby 27th Sep '12 - 3:12pm

    The House of Lords debated this Clause back in July, including two Labour amendments which would have removed the order-making power completely. There was also a Lib Dem amendment which would have removed 3(a) from the Clause. Lord Wallace of Tankerness replied for the Government and failed to properly explain why we need this power. His excuse was:

    “the case for extending CMPs to another civil context may emerge in the future. Where there is a case for change, it is important that there is a mechanism that will allow CMPs to be used swiftly in relevant proceedings.”

    Unfortunately, non of the amendments were put to the vote. The changes made from the original White Paper regarding the reach of the Bill are welcomed (although I agree with Conference on this issue) but this Clause would undo that good work.

    I agree with Nick (T): at the very least, Clause 11 must go.

    For those of you who like this kind of thing, the Lords debate is on Hansard here:

  • Alex Sabine 27th Sep '12 - 3:29pm

    Very well said Nick. As you highlight, clause 11 is probably the most alarming aspect of a thoroughly bad Bill. The conference debate on this subject was a credit to the Lib Dems (and a welcome antidote to barmy motions on things like imposing 20mph speed limits!)

  • jenny barnes 27th Sep '12 - 4:24pm

    alex – the conference was overwhelmingly in favour of 20mph speed limits in residential roads. Maybe it’s not so barmy after all.

  • Alex Sabine 27th Sep '12 - 6:39pm

    Jenny: As I understand it, the conference endorsed the use of lower speed limits in residential areas but rejected the absurdly centralist idea of imposing it on local councils…?

    I would put Baroness Parminter’s ‘fizzy drinks tax’ idea in the same category, in this case for unattractive paternalism and nannying.

    But on the more fundamental issue of open justice, the conference showed why a Lib Dem influence is valuable to our political discourse.

  • Other points that have been missed – jury trials in cases such as false imprisonment, malicious prosecution, fraud, slander, libel – are removed in CMP cases by the Bill – Schedule 2, Part 2, paragraph 5.

    And habeas corpus is also included in CMP (according to Lord Wallace in the House of Lords debate, 12th July 2012). That means that someone could be imprisoned and ask for the reasons why (as habeas corpus has required them to do for over 800 years) and then be told “sorry we can’t tell you because national security is engaged, so we are going to use a CMP, so you can’t be present”.

    Not reassuring.

  • Sorry – I’ve just noticed I gave the wrong date reference about Lord Wallace’s speech in the House of Lords confirming that CMP could apply to habeas corpus proceedings. It was on 11.07.12 at Hansard column 1242.

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