One of the government’s most controversial bills of this session – the Justice and Security Bill – goes back before the House of Lords today for Report Stage consideration. The second part of the Bill makes provision for civil cases to be heard in a ‘closed material procedure‘, with one side (and the public) barred from hearing the evidence of the other if a judge deems that it would be damaging to national security if it became public.
Liberal Democrat members, of course, overwhelmingly passed a motion at this year’s autumn conference calling on our Parliamentarians to vote down Part II of the Bill. Since then a grassroots campaign has been launched to maintain pressure on the parliamentary party to follow members’ wishes.
And independent groups, too, have also stepped up their campaigns. Civil liberties pressure group Liberty has, as one might expect, been leading the opposition. And just last week groups representing the country’s solicitors and barristers made clear their opposition in a joint letter:
[Close Material Procedures] depart from an essential principle of natural justice … that all parties are entitled to see and challenge all of the evidence relied upon before the court, and to combat that evidence by calling evidence of their own.
In addition, [they] also undermine the principle that public justice should be dispensed in public and will weaken fair trial guarantees and the principle of equality of arms. These are both essential concepts of the rule of law.
Secret trials and non-disclosure of evidence are potential characteristics of repressive regimes and undemocratic societies.
Previous Liberal Democrat efforts, while the Bill was still in draft form, had succeeded in removing inquests from the scope of the “secret” procedures, but a pernicious clause giving the justice secretary the power to bring any other civil courts within the system at a later stage without parliamentary oversight remained.
Late last week, however, the government accepted an amendment removing this clause of the Bill. But while this will clearly be welcomed by most all it does is stop secret hearings spreading – it doesn’t address the objections which many have to the fundamentals of the Bill.
My understanding is that, while the government is open to further amendments being made, there remains at this stage little desire in the upper echelons of the Lib Dems to ditch the Bill. But one of the most significant amendments which could be made – giving judges the power to balance the competing interests of openness in the public interest and secrecy for national security reasons, instead of tying judges’ hands and compelling secret hearings – seems unlikely to be accepted, for it is the very situation the Bill seeks to avoid. Securocrats want certainty, not judicial discretion.
All of which puts the Liberal Democrats in a tough spot. Many in the parliamentary party genuinely seem to believe that the Bill is a necessary and proportionate response to an admittedly difficult situation. Yet, as Charlotte Henry says, the rest of the party is almost universally united in increasingly vocal opposition, in a way we have not previously seen during the party’s time in government. The likely outcome remains unclear, but it looks like there will be battles to come before a resolution – continuing today in the House of Lords.
* Nick Thornsby is Thursday Editor of Liberal Democrat Voice and blogs here.