Last September in Brighton, the Conference voted to remove part 2 of the Justice and Security Bill. That Bill is now completing its final stages in Parliament. But let me assure you, that because of Liberal Democrat pressure, the Bill is now radically different. Amendments have been made such as unfettered discretion for the judge and increased safeguards in order to meet previously raised objections.
The Bill is no longer the one that was before Conference last September and I believe it is now right that it should be supported.
But first, I want to draw attention to the problem that the Bill seeks to address. The aims of the Bill are extremely straightforward: to enable the court to examine in full a small number of civil claims for damages (not in criminal cases or inquests) involving information which, if revealed in public, would be damaging to national security. The kind of information which could do so would be the identities of agents (possibly putting them at risk to their lives) and the procedures and techniques of the agencies when gathering information, some of which are very sophisticated. Such information would be of enormous interest to our adversaries.
At present, evidence which is too sensitive to be heard in open court is kept completely secret. This is because the current means for dealing with such a situation is a system called Public Interest Immunity certificates (PII). The effect of such a certificate, signed by a Minister, results in sensitive material being entirely removed from scrutiny. It is surprising to hear people who have previously been highly critical of these procedures now becoming such staunch supporters of PII. The Bill proposes a system of Closed Material Proceedings (CMPs) which will require a judge, if requested by either party to a case, to consider whether evidence damaging to national security should be heard in secret. The discretion of the judge has now been widely extended and at any time during any such hearing the judge can decide to recall his original decision. Early proposals that inquests into the death of individuals could be subject to CMPs have been abandoned and it has been never been the case that CMPs should have been available in criminal trials.
The effect of the Bill is to give a judge complete and unfettered discretion over whether to make an order for CMP. His powers to ensure that the trial is fair under Article 6 of the ECHR are undiminished. He may order summaries of evidence, known as a gist, to be given to the claimant and may require the government to disclose disputed material if he believes to do so would not damage national security. Taken together these powers entitle a judge only to accept CMP when he or she is convinced that no other course of action is open to the court because of the possibility of damage to national security.
This Bill is not the same Bill that conference discussed in September of last year. The strong concerns of the Liberal Democrats have brought effective changes. The Bill is now proportionate and sensible. Together with the measures in Part One, which enhance parliamentary scrutiny of the intelligence agencies, they provide an appropriate balance between principle and necessity.
The Government in my considered opinion has chosen the most pragmatic and proportionate way forward thanks to the pressure from Liberal Democrats in which our Conference played a part.
In all the time I’ve been in Parliament I have sought to ensure that individual liberties and personal freedoms should be sustained. I would not be in favour of this Bill as now drafted if I did not consider that it was necessary and that no other course could be followed. MPs are sent to Westminster to exercise their individual judgement. I wish it was unnecessary to have this legislation but I fear that it is. That is why I have voted for it.
* Sir Menzies (Ming) Campbell is the MP for North East Fife, and a former leader of the Liberal Democrats
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22 Comments
The redaction of the names of agents seems like a red herring, as such redaction would not usually compromise the ability of a party to present his or her case, except in such cases — hopefully rare — where the agent was someone known to the party or could be shown to have motives not purely related to information-gathering. Presumably in most cases the agent is a person unknown to the party whose identity is not relevant and could not affect the case one way or the other — though those instances where it is relevant are obviously a source of great concern.
The key phrase here, therefore, appears to be “the procedures and techniques of the agencies when gathering information, some of which are very sophisticated. Such information would be of enormous interest to our adversaries.”
One is obliged to inquire whether the “sophisticated procedures and techniques” involved are being concealed, not because they would be of aid to the enemies of the United Kingdom, but because some of them, even if legal, might be widely decried as abhorrent and inadmissible in a civilised state.
To be fair, Ming Campbell deserves credit for being the only Lib Dem MP who supported secret courts to offer any justification for the way he voted this week – as far as I have seen.
But the problem is that liberals can’t simply put blind trust in “complete and unfettered discretion” for judges, when that involves a case being decided on the basis of evidence that is kept secret from one of the parties. Surely it is a fundamental principle of justice that the evidence in any case should be open to scrutiny and challenge by all parties.
What is the pressing need that means this principle should be destroyed? There is no suggestion here that national security is threatened – because currently sensitive information is already protected from disclosure under the PII system described by Ming Campbell. Apparently the problem is that in “a small number of civil claims for damages” the evidence cannot be examined in full – so some of those cases go by default when – perhaps, only perhaps – under the proposed system the government would be successful and avoid having to pay damages.
But isn’t that part and parcel of our system of justice? Don’t we accept, for example, that some defendants in criminal cases will be “wrongly acquitted”, because it is important that everyone receives a free trial and a guilty verdict requires a high standard of proof? Aren’t we essentially talking about the same thing here? Is the need for the government to win this “small number of civil cases” really so pressing, and so vital, that the whole principle of open justice has to be sacrificed?
Ming, thank you for being willing to stand up and put your case forward on this. Can I just ask – do you think thesre measures will be used to help cover up UK involvement in torture? I think that is a reasonable question in the circumstances, yet it is not one you address here.
a sensible view from Ming.
Yes, a sensible and responsible view from Ming. These are civil cases, where we accept the principle that the standard of proof is “on the balance or probabilities”. In other words, if someone sues the government for some wrong they feel they have suffered, the court decides whether the claim is more probably valid than invalid.
http://leadingcounsel.co.uk/articles/2007/11/23/evidence_part3/
In the present PII system, the government cannot defend itself in some cases where national security may be at risk if their defence evidence was to be made public, and therefore the government loses by default. That is obviously unjust. In the new system, the government will have a chance of defending itself, which is an improvement.
Imagine the secret agents of the state have you and your wife and children kidnapped. You are tied up, hooded, gagged and shackled to a trolley in front of your children. You are all bundled on an aeroplane to face the tender mercies of notorious dictator and torturer, Colonel Gadaffi. You are imprisoned and tortured and sentenced to death by a secret Libyan court. This is not a fantasy. It is what happened to the Al Saadi family. You and your family then sue the secret agents. Of all the courts in the world, you expect the English court to give you a fair trial remedy against your tormentors. But you find that because of this Bill, the British state is going to wrong you again- this time in court. The agents will be allowed to whisper their defence in the judge’s ear. He will give them
preferential, privileged treatment. You won’t know what the agents tell him and won’t be
able to tell the judge why it is false. You may lose, never knowing the reasons. One of the Al Saadi girls, now 18,
wrote to the government pleading with them not to impose on her a secret court of the same ilk that condemned her
father to death. It fell on merciless ears. I am not a LD voter. But I now realise that one of the reasons I felt safe in
England was because I took it for granted that the LDs and their leaders would never – but never – countenance
such nightmares in our courts and would die in trenches to oppose them. Many people like me, even though we
may support other parties, have respected and admired the core values of fairness and liberty which are the very
purpose of your party’s existence.Mr. Campbell and all LD Parliamentarians who supported secret courts, in
whatever form, should hang their heads in shame. We look to the ordinary, honest rank and file LDs to hold true to
their values and bring their misguided leaders back home.
What Chris said, every word. Perhaps someone would care to explain why the two Lib Dems who worked on the bill in the most detail in committee, Crockart and Huppert, were not heeded by people like Sir Menzies when they concluded that it was not something they could vote for, even in its amended form.
“I wish it was unnecessary to have this legislation but I fear that it is. That is why I have voted for it.”
I’m sure every Labour drone has said the same thing for fifteen years. In fact, reading some of the third reading debate, I thought this exchange rang a bell:
“Mr Leigh: I very much respect the views of the right hon. and learned Gentleman, but is he satisfied, as a Liberal, with the notion that from now on a litigant will not be allowed to look at the evidence in their case and cross-examine it on the basis that it will be made available to them? After all, is that not quite a serious procedure that is quite different from the defence withdrawing a piece of evidence or not adducing it at all?
Sir Menzies Campbell: It is a procedure that already exists in our law. If my hon. Friend is concerned about the universal application of the principle, that argument was lost some time ago.
Jeremy Corbyn (Islington North) (Lab): Yes, that argument was lost a long time ago, but is that a reason to pass the Bill into law when it makes the situation worse? Once again, it suggests that the view of Parliament is that somehow it is okay to go through a judicial process in which the defendant is not fully aware of the case against them and in which the public is totally unaware of the issue. It sets a dangerous precedent to have any avoidable secrecy in the judicial system.
Sir Menzies Campbell: Since the hon. Gentleman puts the point that way, let us turn it around and ask what he would do. Would he have elements of the conduct and the sources of the security services—sensitive, and perhaps at great risk to those who provide human intelligence—exposed in our courts? That seems to me the only possible alternative, or else, as has been suggested, we simply say there is a financial cost to be borne and we will settle any case that may have the consequence of causing such sensitive information to be revealed. That is not justice, as I understand it. That is the failure of the judicial system to reflect the reality of the proceedings which are brought before us.”
Oh dear. This is a pattern we know of old. Things are already bad, so it doesn’t matter if we make them worse, the frog-boiler’s favourite argument. And in the last resort, “if you’re not with us, you must be in favour of terrorists/injustice/financial loss to the government/danger to the security services.” (Delete as applicable).
http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm130307/debtext/130307-0003.htm
An error in Antony Peto QC’s argument is that, as pointed out by Ming, the judge must be satisfied that national security is at risk, and that justice will be best served by hearing the defence. This is not automatic; arguments have to be made, and even then, if the judge later finds the arguments were flawed, the decision on CMP can be reversed.
A possible improvement might be to have two independent sets of judges, one to assess whether an application for CMP is to be accepted, the other the judge the matter itself. In general, the principle of the independence of the judiciary means that we do not start from an assumption that judges are incompetent or corrupt.
In the Al-Saadi case, under the present system, the family settled for agreed damages. If they thought it was unfair, they could have refused and continued their case. Anyway, that case didn’t achieve any objective of “bringing the government to public account”, nor indeed the agents, and might not have done so even if the case had continued.
http://www.bbc.co.uk/news/uk-20715507
http://liberator-magazine.blogspot.co.uk/2013/03/lord-bonkers-sees-ming-campbell-taken.html
It seems that really there is no reason to vote Liberal Democrat anymore. I really didn’t think it would be conceivable that the Liberals would vote for secret courts.
“MPs are sent to Westminster to exercise their individual judgement”
That’s the crux here. MP’s are not sent to westminster to excercise their individual judgement. In a representative democracy such as ours they are primarily sent to westminster to represent their constituents and those who have voted for them, and ideally do this through excercising their individual judgement. It all breaks down, however, when their individual judgement appears to be completely opposed to both their stance prior to and leading up to being elected, and also opposed to the views of their party and voters as a whole.
The thing is, ultimately if voting for this party is supposed to mean anything, it supposed to mean voting for representatives who will fight to protect individual liberties. Labour and Conservatives can be left to receive the votes of those who want detention without trial and secret courts, there is nothing philosophically compatible with secret courts and liberalism. In fact, secret courts are a gross violation of the principles of liberalism and justice, as Jeremy Bentham would say himself: “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself, while hearing, under trial.”
@ Richard Dean
Are you effectively arguing that we should assume judges are never incompetent, biased or corrupt? Empirical evidence and history has taught us that this is not the case. There need not be an assumption that judges are infalliable. The authority of judges as an insitution should be respected, but that is not incompatible with the idea that individual judges are capable of error and bias, and that there should be safeguards in place (one of which is publicity and the scrutiny of evidence) to lessen the scope for wrongdoing. It seems bizzare and utterly illiberal to claim that institutions of justice should not be open to scrutiny.
We need not start from the ‘principle that judges are incompetent or corrupt ‘ in order to recognise that on some occasions judges are incompetent and corrupt, and the right to view evidence and the openess of courts is the best way of correcting and preventing such incompetence and corruption.
” judge must be satisfied that national security is at risk, and that justice will be best served by hearing the defence. ”
Unfortunately, since we have no way to scrutinise the reasoning used by the judge in deciding which evidence should be heard, this leaves such a procedure completely open to abuse. And where abuse is possible, it will happen, and there is the possibility of it happening regularly .
Aside from all this, as liberals we should not be discussing this in terms of whether or not the judge is capable of determing whether the defendant has the right to hear the evidence against them. We should be pointing out the accused has that right REGARDLESS of whether the judge thinks they do or do not. Imagine the Kafkaesque nightmare of being accused of a crime where you know what they evidence against you is, and trying to defend yourself from such evidence. It sounds ridiculous, and is an affront by the state against the individual. Whoever thinks this is a good idea should try extending their empathy and imagine themselves being the victims of such a procedure in more mundane cases as the principle applies across the board.
And to add to the points made be others here. There is no question that under the current system in some cases the government may be forced to back down from pursuing charges that could embarass itself. Liberals, however, should recognise that this is a price worth paying in order to have a justice system worthy of the name. As Chris points out, in some cases the pursuit of justice means that guilty people will go free, either because there is too little evidence to convict them or because the only ways of acquiring evidence against them would be unjust, intolerable, illiberal and wrong. That is something we have to except in order to have a justice system which on the whole doesn’t wrongfully convict innocent people, that allows defendents to properly defend themselves, and to live in a free state as opposed to a police state. How anyone can call themselves a liberal and support this bill utterly flumoxes me.
@Richard Deen
“In the new system, the government will have a chance of defending itself”
Unfortunately, the individual may well not have that chance, which will be even more unjust.
“Imagine the Kafkaesque nightmare of being accused of a crime where you know what they evidence against you is, and trying to defend yourself from such evidence.”
The frightening thing is that – unless I’m missing something – the arguments being advanced in support of Closed Material Procedures in civil cases could just as easily be used to support them in criminal cases. If anything, the arguments would be stronger for criminal cases. Not that I accept them in the least, but with reference to criminal cases it could at least be argued that some public interest was involved, stronger than the loss of a relatively small amount of public money. But perhaps we should be thankful that Lib Dem MPs are not (yet?) arguing that people should be locked up on the basis of evidence they are not allowed to hear.
Is there actually anything in the concept of “liberal” that requires everybody to be able to see everything always? To many people, including many voters, liberal means something else entirely – essentially that government doesn’t regulate something unless it’s bad.
In these national security cases, the defendant is typically a government agent or agency – see the Al-Saadi case for example – so the argument that the defendant must be able to mount a defence is argument in favour of CMP, not against it.
This party is not only liberal but democratic, which implies that we are pledged to serve the electorate and not ourselves. Many voters would probably think that taking taxpayer’s money from the government, without the government being able to defend itself, is bad, and that something should be done about it.
” Many voters would probably think that taking taxpayer’s money from the government, without the government being able to defend itself, is bad, and that something should be done about it.”
It would save a lot of taxpayers money if the judge immediately decided whether someone was guilty or innocent, or if the mob was allowed to lynch anyone they think is guilty. That, however wouldn’t be justice, and neither are these proposals in the interest of justice.
“which implies that we are pledged to serve the electorate and not ourselves”
Defending people’s right to a fair trial and the right to see evidence involved in their cases is not self-serving- quite the opposite in fact. And you are implying that defending a long held principle which is essential to the functioning of a decent justice system is incompatible with serving the electorate. I beg to differ.
“Many voters would probably think that taking taxpayer’s money from the government, without the government being able to defend itself, is bad, and that something should be done about it.”
Perhaps, but I doubt the majority of liberal voters support these proposals, and ultimately Lib Dem MPs were elected by these people to represent them, not by the electorate as a whole.
Accountability is probably more part of the democratic tradition, rather than the liberal one. I don’t recall reading anything in the literature on democracy that says that the only method of achieving accountability is by public scrutiny.
I suspect that many models of democracy would accept elected delegates as representatives charged with scrutinizing some activities, working on behalf of the population.
In our democracy we are a bit more sophisticated; with judges that are independent of parliament, and who are therefore ideally suited to scrutinize cases where, in effect, politicians or a government agent/agency may be at fault.
In parliament, MPs are supposed represent ALL their constituents, not just the ones who voted for them, in this democracy.
“Is there actually anything in the concept of “liberal” that requires everybody to be able to see everything always?”
There is something very fundamental in the concept of justice that requires all the parties to be able to see, and challenge, the evidence on which the judgment is going to be based.
Frankly, I think that must be self-evident to anyone with a genuine interest in justice.
Damning comment from Henry Porter in the Observer, under the title “If nothing else, we knew Nick Clegg and Co would champion civil liberties and rights. How wrong we all were”:
http://www.guardian.co.uk/commentisfree/2013/mar/09/lib-dems-civil-liberties-rights
Whose concept of justice is it that prevents one party, usually the government, from defending itself?
Sorry Ming
I have great respect for you but as an ordinary member I cannot agree with you.
If the bill is as you say so fundamentaly changed from what we voted on last time, then why did we not have it as a debate this time and people like yourself who voted for it in parliament argue their case before conference.
If conference felt that your arguments were sound then conference would have voted to accept what you said.
Instead you all kept quiet there was no proper debate only an emergency motion.
I and a lot of others I think believe I think that you all realised that you would lose again and the easiet option was to ignore conference. As i said previously we are not the Tories or Labour and if our MP’s think that they can ignore conference when they feel like it they might find that people will not be supporting them when elections come around.