It’s fair to say that Liberal Reform and the Social Liberal Forum don’t always see eye to eye on economic matters, but on the issue of Secret Courts, they speak with one voice.
Last month, Liberal Democrat Conference in Brighton overwhelmingly passed a motion calling for:
- The Coalition Government to withdraw Part II of the Justice and Security Bill; and put in place instead a statutory scheme reflecting the current Public Interest Immunity system to be enacted which will retain judicial discretion, be a proportionate means of ensuring national security is not jeopardised by any litigation, and ensure the working successful democratic principle of open justice is retained.
- All Liberal Democrats in parliament to press the government to do this and in any event to press for the withdrawal or defeat of Part II of the Justice and Security Bill.
Today, both Liberal Reform and Social Liberal Forum websites carry a letter from the proposer of that motion, Jo Shaw, explaining why it’s so important that legislation enabling secret courts is voted down. She gives a number of examples to support her case:
1) A solider has his legs blown off when using MoD equipment he alleges was faulty. He and his family sue the MoD for negligence. The MoD refuses to compensate him and claims that the evidence about the alleged faulty equipment and the way he used it is national security sensitive, and therefore a Closed Material Procedure should be used. The government accuse the soldier in secret of being to blame for the accident (using a security sensitive source). He loses his case and never knows of the allegations against him or why he lost.
(2) A pensioner is knocked over by a car driven by the Security Services. She sues for damages. They claim that having regard to an alleged mission they were on at the time the driving was not negligent. They use a CMP to help them deny her compensation. She never knows the reasons why.
(3) An MI5 officer regularly visits one of his sources who has a young family in a safe house. He regularly abuses a young child of the family during the visits. The source is vulnerable and dares not complain. When the child grows up and wishes to take an action for damages against the officer the government obtains a CMP to ensure defence is heard in secret, and the reasons for denying compensation never made known.
(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 to determine the case in his favour relying on the evidence of the security services. The newspaper is effectively gagged from repeating the allegations.
She adds that the signs indicate that the Bill can be killed off with members’ help and invites them to sign the petition asking our MPs, Lords and Ministers to deliver on this motion.
The press are always trying to split us into factions but this joint working shows that we’re a much more complex organisation than that.
* Caron Lindsay is Editor of Liberal Democrat Voice and blogs at Caron's Musings
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8 Comments
I wish people would not use initials and jargon without saying what they mean. What is a CMP?
In the original letter, the quotation above is prefaced by:
Here are some possible uses for “secret courts” (so called Closed Material Procedures (CMP)):
Closed material procedure
http://www.justice.org.uk/pages/the-governments-new-secret-evidence-proposals-unfair-unjustified-and-unnecessary.html
I should probably have picked that up in my editing. I’ll amend the actual post.
The four imaginary cases seem less clear cut to me.
In the first case couldn’t the military could accuse the soldier anyway, independently of whether this legislation is passed or not ?
In the second, third, and fourth cases, does the proposed legislation not require at least that the use of a CMP has to be stated in the public parts of the court cases?
In the second case, wHatever happens in a closed session must even so follow law – what law states that the purpose of a mission is relevant to the question of whether there was negligent?
In the third case the person imagining the case has made the unwarranted assumption that evidence heard in secret cannot be challenged in cross, and will always be believed.
In the fourth case, unless there are also things like the super-injunctions, it would be obvious to the whole country that skulduggery is happening.
So, are these four cases really just inaccurate scaremongering?
Hi Richard, To answer your points. It’s true the military could accuse the soldier anyway, but under CMP the soldier would not know what was being said about him so could not challenge the government’s assertions in any way.
As far as I can see the legislation does not require that the use of a CMP is stated in public, but I will check again.
In the second case – a person can allege anything in closed session and make any particular assertion about their conduct which would then mean it was not negligent in the circumstances. Again in this case the victim would not know what was being said.
In the third case – the evidence heard in a CMP cannot be the subject of cross-examination because the victim is excluded from the hearing. The Special Advocate can cross-examine, but Dinah Rose QC who has acted as a Special Advocate in many cases said this last year:
It is impossible for me to adequately convey the frustration and helplessness felt by a barrister seeking to represent a client when a closed material procedure applies. I have sought to do it in control order and SIAC cases on many occasions. Most of your time is spent outside court, waiting to be allowed back in. When you are able to cross examine, you have no idea whether the questions you are asking are pertinent, or unhelpful. You do not know whether your submissions are on point, or wholly irrelevant. Representing a client in these circumstances has been described as like taking blind shots in the dark at a hidden target.”
In other words there is no effective cross-examination at all. How can there be when the victim doesn’t know what case is being run against them?
And Lord Kerr said, this about the idea that one-sided evidence can assist: “the central fallacy of the argument, however, list in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result, that assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead.”
In the fourth case, I would suggest that it would not be obvious what is happening, precisely because a CMP is being used. And besides that, the fact that it may be obvious that skulduggery may have taken place is unreassuring when a profound injustice has taken place.
Jo, thank you very much for your very helpful answer. It does seem like a rethink is needed. Is there another solution that can both ensure that justice is done and also that security concerns are addressed? Many voters might accept the present proposals as a price to safeguard ordinary people against events like the London bombings. Even things like the St Pauls camp frighten some ordinary people.
Thank you, Chris, Richard and Caron, for elucidating the meaning of CMP (Closed Material Procedure). Perhaps the true nature of CMPs would be clearer if they were re-designated “KKCs (Kafkesque Kangaroo Courts)”. I would certainly sign your petition if were eligible to do so.
If Parliament passes this Bill with LibDem support, I believe that the Liberal Democrats will need to rename their party, choosing a name which does not include the word “liberal” nor the word “democrat”. Meanwhile, perhaps you should press for a change in title of the Bill: to delete the word “Justice”.