Lord Jim Wallace writes… Secret courts: only where absolutely necessary

Securocrats arguing for increased judicial scrutiny of their actions? Human rights groups praising the collapse of cases brought alleging torture against the Government?

Like me I suspect, you will suspect this is some elaborate joke, or indeed a typographical error.

But in fact these are indeed the seemingly bizarre positions into which these perennial adversaries have put themselves.

In the last few days we have seen some spectacular attempts to redefine the content of the Government’s Justice & Security Bill, casting all sorts of hyperbole and confusion on what should be a cool-headed debate.

The authors of these counsels of despair could do worse than read the pages of Hansard which recount the excellent debate we have had in the House of Lords on this Bill, drawing on the expertise of the likes of former Lord Chief Justice Lord Woolf, former Lord Chancellor Lord Mackay, and Lady Manningham Buller, former head of MI5.

What has become very clear is that there is broad agreement across the House that, as Ken Clarke puts it, the current rules which protect national security evidence from disclosure in open court are creating a ‘judicial vacuum’ in cases which raise vital questions about the nature of the society we live in.

It is not the case, as Sadiq Khan argued this week, that without any change intelligence officers would be forced to give evidence in open court. In fact, the situation we have is that these cases are simply not heard at all by a judge. No judgment is reached, and the public is left with no independent assessment of the veracity of shocking allegations made about UK actions. This worries me both as a Liberal and as a lawyer.

So the solution we are proposing is that, in a very small number of instances where the current system does not allow a case to be heard, the case should be heard in closed session. This would allow a judge and Special Advocates to see, discuss and challenge all of the secret material, and will ensure that civil cases which are currently not heard, will be heard. Nothing heard today in open court will be made secret by these proposals.

The reality is that Closed Material Proceedings will ensure that allegations made against the Government can be fully investigated and scrutinised by the courts. And the decision will always be made by a judge. The idea that a Minister would be allowed, under these proposals, to take the final decision is just not true. The judge would make the initial decision that in principle a CMP can be held only where he agrees with the Minister that disclosure would damage national security. The judge is then responsible for deciding how each individual piece of evidence should be dealt with – whether that be in closed session, or in open session – and has an array of powers with which to ensure that the hearing complies with the right to a fair trial protected by article 6 of the European Convention on Human Rights.

So critics of these proposals who say that they will allow the Government to cover up wrongdoing and embarrassment couldn’t be further from the truth.

I readily accept that closed or ‘secret’ courts are not an ideal form of justice. Open justice must and will always remain the model system for the UK. However I am also firmly of the belief, shared by the majority in the House of Lords, that they are better where the alternative is no justice at all, and where proper safeguards are put in place to ensure that they are only used where absolutely necessary.

* Jim Wallace is leader of the Liberal Democrats in the House of Lords and was Deputy First Minister of Scotland from 1999-2005.

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3 Comments

  • This will not hold the government to account. This will shield them from any justice. Just today they admitted that “secret courts would protect it from bad publicity”
    http://www.guardian.co.uk/law/2012/sep/24/government-secret-courts-bad-publicity

    If you really cared about bringing cases of torture to conclusion you would hear the evidence, which is what the court would have done (and this would have happened – it was the government that decided to settle – so blame yourself not the courts). You don’t care about accountability and when even the special advocates that are going to be representing the unpriviliged members of court are against it, you know you are on the wrong track.

    The best statement on this is from Reprieve:

    The bottom line is not only that the Bill is the wrong answer – but that the Government has asked the wrong question. After a decade which has seen our intelligence agencies become involved in unprecedented wrongdoing, we should be asking how we stop this from ever happening again – not how to remove the safeguards which allow us to hold the state and its agencies to account.

    http://www.reprieve.org.uk/investigations/secret_justice/

    So yeah, tell me again about how this is going to bring the government to account.

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