Don't trust Lib Dem leaders on Secret Courts

Almost a year ago in Brighton at Lib Dem Federal Conference there was a debate where the party membership overwhelming told the leadership that, in brief, they didn’t like secret courts and didn’t want the government to introduce them in ordinary civil claims (as the government proposed to do in the Justice and Security Bill). The party members were ignored.

Then, this past March, after most of the Lib Dem MPs and a large number of the Lib Dem Lords had voted in favour of secret courts (or Closed Material Procedures) on a couple of occasions, back we went to Brighton and there was another debate at Spring Conference. Again, the Lib Dem membership said they really really didn’t want secret courts. The leadership put up a half-hearted opposition.

Civil liberties are the core of the Liberal Democrats. Their heart and their identity. The Lib Dem Leadership ripped out the party's heart, and did so in the face of clear and repeated objections from hundreds of loyal party members.

The Lib Dem constitution says the party exists to “build and safeguard a fair free and open society”. It’s what it’s all about for many party activists. So when the leadership ignored hundreds of loyal party members and supported secret courts, thereby simultaneously undermining fairness, freedom and openness (a political triple whammy), unsurprisingly people felt the core values of the Liberal Democrats had been surrendered without cause.

In April the Justice and Security Act passed into law. I wrote about the possible effects of secret courts on OurKingdom in June. In July the new rules of court were passed with barely a whimper from either House, with the notable exception of Lord Pannick. (They were explained by Angela Patrick of Justice in her blogpost at that time).

So now, what appears in the Lib Dem Conference agenda for Wednesday 18 September? A policy motion about secret courts? Well, no. But there is a motion and buried in the policy paper behind it (please bear with me through the minutiae of Lib Dem procedure) there is a statement about secret courts. [PDF]

The policy paper has a foreword by Nick Clegg, so we can assume he or a SpAd has given it the once over. And the motion is being introduced by David Laws, beloved of Orange Book Lib Dems and leadership favourite. Presumably therefore this motion is being given the thumbs up by the Powers That Be in the Lib Dem party.

The Guardian today reports David Laws on secret courts. Apparently the Lib Dem leadership have now decided to listen to party members. It is a shame they didn’t do so earlier. They could have prevented an outrage being committed to the British justice system. The article, misleadingly headlined Secret court laws to lose backing of Liberal Democrats, in fact reports that the Lib Dem leadership is “preparing to abandon support”, not that they actually are abandoning support.

Laws says “we will be looking closely at this”. Oh well that’s alright then. Because no one else has done that already, like, say, the Joint Committee on Human Rights, or the Special Advocates, or the UN Special Rapporteur on Torture.

This motion, and policy paper has caused some celebration in a few Lib Dem circles. Not quite Champagne corks popping, but almost as close as you get to it in what I gather are the misery-laden recesses of Lib Dem activism these days.

“Hurray!,” they sort of cry, “the leadership are listening! They’ve realised their mistake on secret courts! We are getting our party back!"

Sadly, having resigned from the Lib Dems in March over this wretched unnecessary illiberal unprincipled [insert further outraged adjectives here] legislation I can’t join in the congratulations. A few problems remain.

In fact the motion doesn’t refer to secret courts at all. There are references to UN  and EU work against climate change, to reform of the electoral system and House of Lords, dispersing power to the regions, securing better global financial regulation etc etc (in other words a reprise of classic Lib Dem policies of generations past). . . 

And then, if you read as far as line 39 of the motion (Page 59 of the agenda), you find, at last, the bit about civil liberties and human rights being protected by a written constitution.

A written constitution has been Lib Dem party policy for years, so no surprises there. Tellingly, there is no specific commitment to repeal of the Justice and Security Act – as there was with the promise in the last manifesto to end child detention, for example, or for the scrapping of ID cards and DNA detention.

And in the aforementioned policy paper what is it that some people are getting excited about?

Here it is, On page 24:

“We will find practical alternatives to the use of closed material procedures within the justice system, including the provisions of the Justice and Security Act 2013, with the aim of restoring the principle of open justice.”

First up. There already were practical alternatives to the use of Closed Material Procedures in UK courts and had been for decades. They are called PII certificates. A Public Interest Immunity certificate is a means by which the government can seek to have certain security sensitive information excluded from the case. The judge decides what is included or excluded from the trial.

They weren’t perfect by any means but they had been used for years, judges knew them and found ways to balance the public interest in protecting national security with the public interest in open justice. And evidence relied upon in court was either seen by both parties (or at least their lawyers) or wasn’t used in court at all.

Under Closed Material Procedures one party (not the government who are present and represented throughout) gets shut out of court altogether. They don’t know the government’s case, they don’t see the evidence being relied upon by the government to defeat their case, they don’t have the knowledge needed to call evidence to rebut any allegations, they don’t hear submissions made by the government and they don’t get to know the judgment of the closed aspect of the trial, other than whether they have won or lost. If that’s justice, as the man said, then I’m a banana.

Secondly, interestingly, that policy paper sentence suggests looking at getting rid of secret courts in all cases in the judicial system. Presumably that includes the Special Immigration Appeal Commission, Control Orders  — now known as Terrorism Prevention and Investigation Measures by which people suspected of involvement in terrorism can be deprived of liberties such as freedom of association, freedom of movement by electronic tagging, curfews, banning them owning or using any electronic equipment such as a computer or mobile telephone without the bother of a trial  — and some Employment Tribunal measures.

That would mean looking at a much greater amount of legislation, and would be fiercely opposed by people from Lord Carlile of Berriew to David Blunkett to Jack Straw to Ken Clarke. Definitely worth doing, then. I won’t hold my breath.

Thirdly, the “aim of restoring the principle of open justice”. Hmm.

What does restoring the principle mean? Surely you either have open justice, or you don’t? Would it be possible to restore the principle of open justice, without actually having open justice in reality?

As a side note, I take no comfort from the belated recognition by senior Lib Dem politicians that the Justice and Security Act ran a coach and horses through fair trial protections and ended open justice. Campaigners did make this point, with no doubt monotonous regularity, in the six months or so before the Act was passed. We never really got an acknowledgement that we were right. At last the penny has dropped. For those who care about justice that is too little, too late.  

The time to protect civil liberties is when you are in government. Holding forth on what you might do if you are lucky enough to get a second go at being in charge is not values driven leadership. It's . . . something else. 

So, back to the “aim”. I am suspicious of "aims”.

When you aim at something, it is perfectly possible to do your best and still miss. I prefer “commitment” or “promise” or, (see where I am going with this?) “pledge”.

Aim is a fluffy, nice sounding word on which it is far too easy to renege. I don’t know about you, but personally I’ve had just about as much as I can take of politicians of any party aiming at things and missing. When it comes to fundamental principles of freedom and fairness I don’t want aims. I want a political party that is going to do what it says on the tin. If not, count me out. This was largely my resignation speech in March, to be honest.

Since the Act passed, there have been suggestions the government will seek to use secret courts in the case of Abdul Hakim Belhadj, the man tortured and sentenced to death by Gadaffi after he was returned to Libya after MI6 informed the Libyans secret services of his whereabouts. A national secret or a national scandal?

Jack Straw is named as a Defendant in this case – which fact, incidentally, did not prevent Straw voting in the Commons to bring into force the secret courts that would help his defence and possibly fatally undermine Abdul Hakim Belhadj’s chances of getting a fair hearing (by having it almost certainly heard in secret without Belhadj being present or represented by his lawyers).

Mr Belhadj’s wife is also bringing a claim for false imprisonment and assault. She was shackled to a wall for three days despite being pregnant with her first child. She was not given any food during that time, only some water. There is no suggestion by anyone that I am aware of that she (or her unborn child) was a dangerous person.

Collateral damage, as the Defendants in her case might put it.

Also this summer, the David Miranda case has shown the depths to which those who assert they act to protect our security will stoop. Miranda was the journalist’s assistant detained at Heathrow for nine hours by police ostensibly relying on Schedule 7 of the Terrorism Act because of his connection to the Snowden revelations which were so embarrassing to the NSA, GCHQ, MI5 etc. 

At a hearing in August, the government’s lawyers refused to rule out applying for a secret court (or Closed Material Procedure) in Miranda’s claim for an injunction and for damages for false imprisonment. Whether they did so lawfully remains to be decided, but Miranda may be told only the result of his claim, not the reasons why he has lost or won, if a CMP is used.

In July the Supreme Court ruled that the families of armed forces personnel killed or injured while serving in Iraq could bring damages claims against the Ministry of Defence for faulty or missing equipment. [PDF]I predict an application for secret courts in these cases too. I hope that I'm wrong. 

Those who still believe that civil liberties are important, and that a political party should be standing up for them – I agree with you wholeheartedly, but I wouldn’t trust Nick Clegg with my vote in 2015. I strongly suggest you don’t either. First time, shame on you. Second time, shame on me. And many people have had enough of being ashamed of the Lib Dem leadership.

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Editor's note: Thank you to Martin Rowson for his cartoon.