Jo Shaw: Secret Courts update – please support our new motion to the Lib Dems’ Spring Conference

Supreme Court - Some rights reserved by cphoffman42The Justice and Security Bill, which introduces secret courts into almost all civil cases, was rushed into its second reading in the House of Commons on Tuesday this week.

The Minister in charge of secret courts in the Commons, Ken Clarke, made an opening statement in the debate which made it clear that the Coalition Government does not accept the amendments proposed by the Joint Committee on Human Rights, some of which were passed by the Lords. It is still not clear whether the Coalition is going to accept even the limited number of amendments which were passed by the Lords.

What is clear is that the coalition is determined to enact this “unnecessary, unfair and unbalanced” Bill. So it is also clear that the overwhelming rejection of the illiberal and unnecessary secret courts in Part II of the Justice and Security Bill at our Party Conference in September is being ignored by our party leadership.

This Bill would be a terrible blow to our country’s proud history of fair trials and it runs a coach and horses through our core values. It is therefore a significant party problem for Liberal Democrats.

The overwhelming view of Liberal Democrat members is that this Bill is an affront to our values. Our core values are fairness, freedom and openness, and we have democratic structures to ensure they are delivered.

Since Conference voted against the attack on open justice contained in the Bill, Martin Tod and I, along with many others, have been campaigning to see that our core values are delivered in this case. We have had a number of meetings with very senior party members and Ministers. We have been given clear advice as to how secret courts can be stopped.

Given Labour’s weakness on secret courts, the only way secret courts can be stopped is at the Quad. Sadly, as yet, despite numerous requests, Nick Clegg has refused to meet with us to discuss the Bill, and the Liberal Democrat response to it.

We are therefore left with few options open to us. So we are now asking for your support for a further motion for Conference. This calls for the policy decision from September’s Conference to be implemented. If it is not implemented, we are calling for a debate at the next Party Conference to consider an appropriate response in line with the Constitution.

This is difficult territory for every Liberal Democrat. However, we believe standing up for our core values is vitally important, particularly when we are in government. We believe that if the party’s policies are not implemented then the appropriate response needs to be debated by Conference.

If you agree with us that our Liberal Democrat core values of fairness, freedom and openness are fundamentally undermined by Part II of the Justice and Security Bill then please support the motion. Please email me or Martin confirming you are an elected Federal Conference rep and providing your name, local party, and membership number. Many thanks.

    Spring Conference motion
    Conference notes:
    – The motion “No Government Above the Law – the Justice and Security Bill” passed overwhelmingly at the Liberal Democrat Federal Conference in September 2012 called for:
    o Part II of the Justice and Security Bill to be withdrawn or defeated by Liberal Democrat parliamentarians; and
    o Public Interest Immunity to be put into legislation;
    – That the amendment calling for “CMPs to be used only as a last resort and in cases that would otherwise be incapable of being tried” was rejected overwhelmingly by the Liberal Democrat Conference;
    – That Liberal Democrat peers formed the majority of those voting in the Lords to remove secret courts from the Justice and Security Bill;
    – The Liberal Democrat party’s unique characteristic is that party members decide policy at Federal Conference;
    – That despite the above, the government’s intention as stated by Ken Clarke in the Commons on 18th December 2012 is to pursue enactment of Part II of the Justice and Security Bill including some, but not all, of the amendments proposed by the Joint Committee on Human Rights.

    Conference believes:
    – That the measures in Part II of the Justice and Security Bill will mean the courts system of the United Kingdom will provide neither justice nor security in cases involving allegations against the state of the most serious nature including torture, rendition, negligence of armed forces, malicious prosecution and false imprisonment;
    – That the proposals in the Justice and Security Bill are directly contradictory to the core values and stated purpose of the Liberal Democrat party as enshrined in the Preamble to the Constitution, namely to “build and safeguard a fair, free and open society”;
    – That Part II of the Justice and Security Bill should be withdrawn immediately;
    – That active support for the proposals contained in Part II of the Justice and Security Bill in opposition to agreed party policy is tantamount to conduct evidencing material disagreement with the fundamental values and objectives of the Party.

    Conference calls for:
    – In the event that Part II of the Justice and Security Bill is not withdrawn in accordance with the above, the agenda of the next Federal Conference shall include a debate to consider sanctions or other measures in accordance with the Constitution;
    – A pledge to repeal Part II of the Justice and Security Act (if so enacted) to be included in the Liberal Democrat manifesto for the next General Election.

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  • Simon McGrath 23rd Dec '12 - 9:24am

    We should certainly oppose Secret Courts. But what does this mean ? “-In the event that Part II of the Justice and Security Bill is not withdrawn in accordance with the above, the agenda of the next Federal Conference shall include a debate to consider sanctions or other measures in accordance with the Constitution;”
    What sanctions or other measures?

  • Gareth, surely it wouldn’t be the same topic at both conferences. One would be “we want the leadership to behave” and the other (potentially) would be “the leadership has not behaved”

  • “The Minister in charge of secret courts in the Commons, Ken Clarke, made an opening statement in the debate which made it clear that the Coalition Government does not accept the amendments proposed by the Joint Committee on Human Rights, some of which were passed by the Lords. It is still not clear whether the Coalition is going to accept even the limited number of amendments which were passed by the Lords.”

    Hold on- from looking at the report of the debate this seems deeply misleading. What Ken Clarke actually said was:

    “Dr Francis: Do I detect from the warm way in which the Minister responded and referred to the report of the Joint Committee on Human Rights that he will be minded to accept many of its recommendations?

    Mr Clarke: Minded to? Certainly—we will accept some of them. I speak warmly of the Joint Committee because I do not believe it was pursuing objectives that differed from mine or those of my colleagues. I think it will probably fall to the Under-Secretary of State for the Home Department, my hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire) to explain in Committee why we are not wholly convinced that every one of the amendments is quite right, or even that some of them would have the effect that the Joint Committee proposed.”

    And then later:

    “I want to make it clear—it goes back to what the right hon. and learned Member for North East Fife (Sir Menzies Campbell) asked me earlier—that the Government will not seek to overturn the most important amendment—the most important, in my opinion—made by the House of Lords that the court “may” rather than “must” order a closed material procedure upon an application. I do not see how we could give a wider discretion than that.

    We will also accept that any party, not just the Government, should be able to ask for a closed material procedure. I think it highly unlikely that any plaintiff will be in any situation to start arguing that he wants to protect national security, but if people want that, they can have it. More importantly, the court of its own volition should be able to order a closed material procedure.

    A further series of amendments were made which we still need to look at more closely. We have time to look at them closely and the others will be addressed by the Under-Secretary of State for the Home Department, my hon. Friend the Member for Old Bexley and Sidcup in Committee. We are not against the principle, but we are not sure that the amendments add anything. ”

    That doesn’t seem like making it clear they are rejecting the JCHR amendments to me!

  • Richard Whelan 23rd Dec '12 - 12:30pm

    There is a dilemma us liberals have to contend with and it is this:

    ‘How do we protect civil liberties at the same time as we protect security?’

    As someone who has studied a Master’s degree in Terrorist Studies I can tell you that there are people in this world who will stop at nothing in their desire to espouse their warped view of Islam even if it means killing hundreds and sometimes thousands of innocent victims. We saw this on 9/11 and again on 7/7.

    Surely as liberals it is our responsibility to capture those who would commit such unspeakable crimes before such terrorist attacks are allowed to take place, thus protecting the civil liberties of the law abiding majority, rather then afterwards when innocent victims have either died or become seriously injured.

    If secret intelligence is needed to both capture and convict these individuals, the next question that has to be answered is how the information from this secret intelligence can be used in a way that doesn’t reveal sources or threaten the national security of the country.

    Do you have any suggestions as to how this can be done without such secret intelligence being heard in a closed session of the trial in question?

    I would love to hear your views on this because I have been trying to grapple with this problem myself.

  • Richard Whelan 23rd Dec '12 - 6:04pm


    I did not say ‘Islam’, I said ‘warped view of Islam’ meaning that I only meant those fundamentalists who are hell bent on commiting such acroticies, not everyone from the Islamic faith.

    The question still stands. How can secret intelligence be used in a way that protects sources and national security in general while promoting civil liberaties particularly that of a fair trial?

  • Andrew Suffield 23rd Dec '12 - 6:16pm

    How can secret intelligence be used in a way that protects sources and national security in general while promoting civil liberaties particularly that of a fair trial?

    By publication of the intelligence material in question. It’s usually only secret to cover somebody’s arse for screwing up, so the best thing for national security is to get it out in public.

  • Harry Matthews 23rd Dec '12 - 8:20pm

    Jo – what were Nick’s reasons for not meeting with you?

  • SImon – we are not trying to prescribe what appropriate measures could be taken – there are various things set out in the Constitution. The motion calls for a debate on sanctions or other measures, not for any specific action. It would be up to individual members / local parties to decide what steps they choose to take.

    Gareth – I think that is more of a convention of FCC than a rule. I don’t believe there is anything in the rules that Conference cannot debate the same issue again. And as Jennie says, it is not the same issue in any case.

    Chrome – 2 things. The first is this from the section of the debate you quoted. Ken Clarke said: “we will accept some of them” – being the JCHR amendments, so the government are not going to accept all of them. Even if the government did accept all of the JCHR amendments that would still mean Liberal Democrat parliamentarians were being asked (or whipped, more accurately) to vote directly against Liberal Democrat party policy. The amendment which was rejected at our Conference in September was largely along the lines of the JCHR amendments. Conference voted overwhelmingly to reject secret courts in civil claims altogether, in any circumstances.

    Andrew – I agree. As U.S. Supreme Court Justice Louis Brandeis said: “Sunlight is the best disinfectant.” The cases of Binyam Mohammed (settled) and Sami Al-Saadi (settled) indicate the security services don’t want the errors or illegal activities of some operatives heard in public. For me it would be much better to have such things aired in public to ensure they never happen again.

    Richard – the Justice and Security Bill introduces secret courts (Closed Material Procedures) into civil proceedings. It does not apply in any circumstances to criminal cases. This is not about catching or imprisoning bad people It is about the government relying on untested evidence which is unseen and unknown by the person bringing a claim against the government – a person who is, say, the victim of torture, or rendition, or false imprisonment, or who is a member of the armed forces injured by equipment due to Ministry of Defence error. This is about civil claims only. And the government are completely unable to point to a single example of a case where the use of the current procedure of Public Interest Immunity certificates has led to a risk to national security. It simply has never happened.

    Harry – we were not given any reason other than that Nick has a very busy diary. We were referred to Lord Wallace (with whom we have already met), Jeremy Browne (Home Office not Ministry of Justice) and SpAds (who we have already met). We have been told by more than one senior figure that the person who can stop Part II is Nick.

  • Cllr Colin Strong 24th Dec '12 - 12:38am

    @Jo Shaw – I wholeheartedly support your position and the excellent work being done.
    Shame I am not a Federal Conference rep.

  • Richard Whelan 24th Dec '12 - 2:17pm


    Thank you for correcting me with regards the purpose of this bill. You are absolutely right and have my full support.

  • Aren’t the Liberal Democrats, as a party, supposed to be a model of internal democracy, with a leadership highly responsive to its membership’s needs? I could swear I read that somewhere not too long ago.

  • gavin barrass 27th Dec '12 - 10:04am

    We need to engage with the policy problem as Richard says. Often I wonder if we miss understand the role of values in policymaking and then promote them to dogmas not priniciples. We all have a huge number of values in everything we do. Selecting a few values out of context of a problem or activity leads to responses which are out of touch with the challenges and to bad policy.

    Questions are being asked of the so called secret courts. There is a problems.
    1. Some people are willing and able to blow people up
    2. This is a crime and we should stop it from happening
    3. The best way of stopping it from happening is to convict them of conspiracy
    4. To get a conviction courts need evidence, and the defendent needs to see that evidence
    5. If the defendent sees that evidence they maybe able to infer where it came from.
    6. If they know where the information comes from they will change their behaviour so as to not give up information
    7. Therefore if a plot is uncovered and charges brought future plots could be harder to uncover and prevent endangering life.

    A. Therefore we live with the current threats and have the police disrupt plots but maybe look foolish when no convictions/even charges are presented.
    B. Introduce new court procedures which make evidence less transparent
    C. Risk giving up secrets/mechanisms for data collection.

    + Increase state powers to allow more data to be collection so as to be used as evidence.

  • Gavin – just to be clear. This Bill has absolutely nothing to do with stopping dangerous people doing bad things. Unless you mean by calling members of the security services who break the law to account for their actions. This Bill is about civil claims only, not about criminal prosecutions.

  • I have come to this rather late and there are some interesting comments that have been made.
    The problem is confernece made a decision and do we say that the leadership ignores conference decisions when it suits them or not. The one brilliant bit of our party which has been the case since the liberal party days is that party policy is made at conference and there is no case for deciding which bits you want to cherry pick. if Nick doesnt like it tuff luck he goes along with it the same as we all do. The FCC has also got to realise that if a confernece vote is beingignored then they have a duty to support a further review of that motion.

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