Opinion: Secret Courts – one month on

One month ago today Liberal Democrat members voted overwhelmingly against the government’s plans for secret courts contained in Part II of the Justice and Security Bill. The motion was passed unamended despite the efforts of party leaders who attempted to dilute the motion into an apology for unfair trials.

Reporting of the Bill has continued, none of it reassuring. During the debate I said I could not understand why our government would suggest this illiberal measure, unless it was due to pressure from the US government. Disturbingly it seems I was right as it was what David Anderson QC, the government’s independent reviewer of terrorism said when he appeared before the Joint Human Rights Committee last week!

Since Conference, the campaign has grown. Many crossbench peers are willing to vote against the Bill. Sadiq Khan of Labour has already spoken out against, and Labour and Conservative members both Houses have similar misgivings. So where are the Liberal Democrats on this? Sadly it seems there is a clear split between the parliamentary party and the membership (from all sides).

Despite the clear will of the party, and the voices of more than 300 members who have signed the petition calling on our parliamentarians to respect what Conference voted for, and to implement it in parliament, the signs are not encouraging. Liberal Democrat parliamentarians have said “concessions will be sought” or “that some closed trials are better than no trials at all”. But those in parliament who support the Bill have failed to deal with the following points:

  1. The Closed Material Procedure is not a fair trial. It takes place behind closed doors, with one party (the civilian) locked out, and with evidence being introduced on behalf of the government with the civilian party having no idea what is being said. One of the fundamental principles of British justice is “Justice must not only be done, it must be seen to be done”. CMP fails this crucial test.
  2. Conference rejected the government’s case on CMP. We listened carefully to the arguments put forward by those in favour of Part II of the Bill, and emphatically rejected them. Conference voted to uphold our proud reputation of protecting civil liberties and human rights and to reject these plans which breach our key values of fairness, freedom and openness.

Party members decide our policies. One month ago the members decided Liberal Democrat policy on secret courts: It is for Part II of the Bill to be withdrawn by the government, or voted against by our parliamentarians. The issue will be raised at the Federal Executive meeting on Monday 29th October. I still believe that our parliamentarians will have to respect the principled stance taken by Conference. With many hundreds of other Lib Dem members I will be campaigning to make sure this happens.

Your support will help us to win this fight to kill this illiberal, unnecessary and oppressive Bill! Please join the campaign, by signing the petition here.

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9 Comments

  • Richard Dean 25th Oct '12 - 1:50pm

    Many people recognize the value of secrecy in their daily lives, and indeed this is enshrined in our views on data protection and privacy. The TV is also replete with examples of bad people getting away with things because of the rights that the justice system provides them. For these reasons, there may be significant popular support for secret trial. There might be little sympathy for a justice system that cannot try a rapist or pedophile because some of the evidence cannot be exposed in a public hearing for security reasons.

    The crux of the matter seems to be a conflict between defending citizens against attacks from bad people (such as the London bombers), and defending citizens from bad justice. Part II of the Justice and Security Bill represents one compromise between the two badnesses. To be credible, opponents may need to put forward proposals for an alternative compromise, one that defends citizens against both threats. WIthout this, the LibDem rejection at conference may possibly just damage the LibDems, and have little or no effect on the matter itself.

  • jenny barnes 25th Oct '12 - 2:26pm

    The lib dem rejection at conference is the democratically expressed opinion of the party. Maybe it’s stupid, maybe it doesn’t fulfil your strawman requirements, Richard, but it’s what the party mandated. If the parliamentary party ignores that, it makes conference, and any idea that there is in fact a Lib Dem party that consists of more than Clegg and his mates, absurd.

  • Richard Dean 25th Oct '12 - 2:36pm

    There is no strawman in my comment. Do the LibDems have an alternative compromise? Can they think intelligently about the issues involved? Or are they intent on losing popular support, leaving them unable do much more than bark at the moon?

  • Hi Richard,

    This would have been my reply to your question on yesterday’s post too!

    The alternative is to put the current system of Public Interest Immunity Certificates (PII) onto the statute book, and this is what the motion called for.

    It is correct to say that PII are problematic, but the logical abyss which exists at the moment in those proposing CMP (secret courts) is that because PII isn’t great, we should have a closed hearing from which one party is excluded. The problem they have to overcome, it seems to me, is this: Under PII either evidence is seen by both parties and the judge, or noone can use it. Under CMP one party sees all the evidence and knows their case, and the other, the civilian, doesn’t.

    The judge’s difficulty under CMP is that which I referred you to yesterday outlined by Lord Kerr. PII offers a proportionate way to deal with security sensitive information. An application is made by the government for PII to be applied (so they seek the relevant document to be excluded altogether).The judge looks at the material, decides whether it is security sensitive, and if so decides whether it is so impossible to use without jeopardising national security that it has to be excluded altogether, or if the national security information can be protected in some way. If it can, then the document or evidence has to be disclosed for use by all parties to the case. So a document could be redacted, or a witness could give evidence anonymously, or the court could sit in private (excluding press and public, but, crucially, NOT excluding one of the parties to the case) or the document can be “gisted”. If the government doesn’t want to disclose the document / evidence, even with those protections in place then it can choose to settle the litigation. In making this decision about disclosure, the judge has to weigh up two public interests: the first being the public interest in national security, the second being the interests of open justice.

    The PII system therefore leaves discretion in the hands of the judges. Part II of the J&S Bill does not. Once an application for CMP is made by the government if a judge finds that national security is in any way damaged then there has to be a CMP- there is no discretion at all, and no balancing of the competing interests of national security and open justice.

    The problem for the security services (who have been pushing very hard for this Bill to be enacted) is that the current system exposed their complicity in torture. That is an uncomfortable position for the security services to be in, but if wrongdoing and illegal activity is exposed then I think them being uncomfortable is a price worth paying.

    The point is that CMP is unnecessary – PII can deal with these situations perfectly well, and has done so. It’s just that the security services don’t like the outcomes that have resulted from PII.

  • Gareth Loveridge 25th Oct '12 - 5:46pm

    The most disappointing thing about this issue and the ‘shares for rights’ issue is the complete silence from our party leadership as other than the usual spin emails from party HQ we’ve heard absolutely nothing. It’s all well and good the leadership saying ‘we are listening’ as Nick did during his tour this summer and also saying ‘dont worry, you can trust us, we know what we are doing’ to any critics when in my opinion, they clearly don’t get it as they continue to ignore the views expressed by the membership at conference plus they also appear to have no understanding of the feeling amongst the membership on these issues.

    Keep up the good work though Jo as hopefully if we continue to bang our heads against the wall long enough, the party leadership will eventually get out of their ivory towers and do what the membership has asked them to do (hopefully anyway).

  • Richard Dean 25th Oct '12 - 6:33pm

    Thanks, Jo. PII does seem like a credible alternative. And maybe there are other ways to improve it?

  • While I have signed the petition I think we’re a little past that now. If any of our MPs vote against the express wishes of conference they should be denied reselection. It’s time to remind them that the leadership is not the ultimate source of power in the party but the membership is.

  • Richard, I’m sure there are ways to improve PII – and codifying the scheme (which is currently governed by legal precedent rather than legislation) will be a way to do so.

    Carl, We are hoping that the leadership will respect the clear will of the grassroots party members on this issue. Deselection is one possible route (which hadn’t occurred to me) of ensuring the party implements the policy we voted on in September. There are other possibilities too. But as I say, I am hopeful that due to the stance being taken by crossbenchers and Labour that this won’t be necessary and we can kill the bill off without needing to take or even threaten any such extreme measures.

  • The other thing I should have reminded readers about is the support of Lib Dem peers – for example Lord Strasburger and Baroness Sarah Ludford who both spoke in the debate at Conference in support of the unamended motion. They are working hard with others to kill off Part II. Apologies to them and all those in our parliamentary party who oppose this legislation and who I have not named, because I don’t know who they all are!

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