My speech in secret courts debate to Scottish Conference

Ok, this might be slightly egotistical, but I thought you might be interested in seeing the speech I made proposing the motion opposing the legislation on secret courts at Scottish Conference this weekend. The motion, calling for a repeal of the legislation to be put into our manifesto in 2015, was passed overwhelmingly. There were in fact only two votes against in a busy hall, and one of them was from Jim Wallace. If you scroll to the bottom, you can see a wee snippet of it.

Here’s what I said:

For over four centuries our legal systems have been based on two principles:

The first is openness (justice is done and is seen to be done – this means the judge giving his /her decision in open court after an open hearing)

The second is equality of arms (the ability of each party to know the other’s case, see the evidence, challenge it, call evidence in rebuttal if necessary and make submissions on it)

Anything less and it is impossible for the trial to be fair.

I never thought I would see the day when this fundamental basis of fairness was interfered with – far less that Liberal Democrat MPs would support it as they have done with Part II of the Justice and Security Bill. This provides that in civil cases, where national  security is at stake – so cases where the security services are said to have been complicit in torture and kidnap, or a damages claim by a member of the armed forces against the MoD for negligence when equipment blows up and injures them – the government should be able to show its case and its evidence directly to the judge. The civilian person making the claim will not be able to see it. Instead, they will be represented by a Special Advocate who won’t be able to discuss any details of the Government’s evidence with them. Funnily enough, the Special Advocates oppose this measure.

We’ll no doubt hear from lots of clever lawyers about the technical issues in this debate but I want to strip this bill back to its bare bones.

We’ve heard arguments –  unsubstantiated arguments – that if we don’t allow these secret courts, the Government will have to pay out lots of money to nasty people.  Let’s look at what Lord Ken MacDonald, a former Director of Public prosecutions and Liberal Democrat peer, has to say on that:

“Ken Clarke is being thoroughly misleading. If someone is financing terrorism, the police can arrest them and the CPS can prosecute them, because it’s a crime. This happened all the time when I was DPP. Ministers also possess far-reaching asset-freezing powers that allow the courts to freeze the funds of anyone simply on the basis that they’re suspected of being involved in terrorism.

The sad truth is that Mr Clarke’s comments look like a smokescreen for plans which are aimed not at keeping the British people safe, but at sparing the embarrassment of the security services when they get mixed up in wrongdoing.

My own view is that if we can’t provide a fair trial then we shouldn’t be having a trial at all. This Bill is essentially the state wanting preferential  treatment.

But let’s look at it from the other side. What if the person suing the Government has a case?

Conference, if you torture me and I sue you and you file a defence that I can’t see, how am I supposed to tell the Judge that you are talking hogwash?

And when the Judge makes a ruling against me, which I also am not allowed to see, how am I supposed to know what my grounds for appeal are?

Mike Crockart and Julian Huppert have worked really hard on this Bill. They spent days on Committee trying to change it. They moved a vote to delete the secret courts provision and lost by one vote. But even all their hard work wasn’t enough. Mike and Julian did not think that there were sufficient safeguards in the Bill for them and they voted against it last week.

The fundamental principle behind the secret courts provision is so fundamentally wrong that it is impossible to amend it to make it acceptable. I think the best you can say is that they’ve turned it from a cowp to a midden. Mike Crockart is unable to speak in this debate because he has been committed for some time to another event at the Conference but I have his permission to tell you that he is fully supportive of this motion.

Conference, there are some things you just can’t polish. This legislation should never have seen the light of day, and certainly never with a Liberal Democrat’s name on it.

Others will probably tell you about flaws with PII. They may be right that it isn’t perfect but as Liberal Democrats our instinct should be, is, to protect people from the excesses of the state. We can’t replace something not very good with something that is worse.

Someone once said “you shouldn’t trust any Government, actually including this one, full stop. The natural inclination of Government is to hoard power and information, to accrue power to itself in the name of the public good.”

That someone is Nick Clegg.  After he became DPM, too.

I agree with Nick.

This Bill is the embodiment of a state accruing power, in the name of the public good. It puts people the Government may have harmed at a disadvantage and makes it easier to cover up wrongdoing.

When the likes of Liberty, Reprieve, every human rights organisation, the UN Special Rapporteur on Torture, the Bar Council, the Law Society and even the special advocates themselves oppose this Bill, Surely we must realise that we are on the wrong track. How many red flags do we need?

We should not be determining how we vote on an issue of core liberal principle by parliamentary arithmetic. And by the way, even Labour is dissatisfied with the Bill in its current form. They abstained at Third Reading in the Commons. That’s right. too illiberal for the shower who wanted to lock people up for  3 months without  charge.

The campaign to kill this Bill continues and will do up to and until it receives Royal Assent. The campaign for open justice will continue if, and this will be a terrible day, it is put on the statute book. Therefore, I think it is perfectly legitimate to ask the people who are writing our manifesto to say that we will repeal this Act if we are in a position to do so. A different, more liberal parliament should do that as a priority.

I end with the words of Anthony Peto QC, on Lib Dem Voice last week, in response to an article by Ming Campbell in favour of the Bill:

“Imagine the secret agents of the state have you and your wife and children kidnapped. You are tied up, hooded, gagged and shackled all in front of your children. You are all bundled on a plane to face the tender mercies of Gadaffi. This is not fantasy. It is what happened to the Al-Saadi family.

You sue. You expect the courts to give you a fair trial remedy. But because of this Bill, the secret agents will be able to whisper in the judge’s ear. He will give them preferential privileged treatment.“

Conference, if you agree with me that this Bill is wrong, that we are liberals and we don’t agree with this sort of thing, and that the party leadership have made a compromise too far, please support this motion.

Finally, we have a wee snippet, complete with Glasgow’s Hugh Waterfield being provocative in a genius sort of a way.

* Caron Lindsay is Editor of Liberal Democrat Voice and blogs at Caron's Musings

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