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National security is paramount but ‘secret courts’ are an illiberal attack on British justice

    Writing for the LibDemVoice website, Lewis Brown examines why the LibDems should welcome Andrew Tyrie and Anthony Peto's report 'Neither Just nor Secure'. 

    In September 2012, the Liberal Democrat Conference voted overwhelmingly against the most contentious aspect of the government’s Justice and Security Bill - the extension of ‘secret courts’, otherwise known as Closed Material Procedures (CMPs), into civil courts.

    CMPs, originally introduced in 1997 for use in the immigration system but subsequently applied to other areas such as control orders and Terrorism Prevention and Investigation Measures, allow the Government to present evidence to a judge without having to disclose it to the whole court, including in some cases the defendant or claimant.

    The Justice and Security Bill seeks to extend this power to general civil courts, allowing ministers to submit a CMP application to a judge that material relating to national security be withheld from the defendant/claimant and their legal team despite being used as evidence. As Andrew Tyrie MP and Anthony Peto QC explain in “Neither Just nor Secure”, published today by the Centre for Policy Studies, this is worrying because “in an adversarial system such as the English one, the right to know and challenge the opposing case is not merely a feature of the system, it is the system”.

    The Conference vote came against the wishes of Lib Dem Party leaders including Nick Clegg, and although the Deputy Prime Minister has previously expressed some hesitancy over the plans, indications are that the Parliamentary Party is prepared to accept the Bill following the House of Lords amendments made in December. The original part of the Bill focusing on CMPs has been shredded by these three amendments:

    1. To provide that the claimant, in addition to the Secretary of State, could apply for a CMP.
    2. To provide the judge with discretion as to whether to order a CMP if he considers that a party to the proceedings would be required to disclose material and that such a disclosure would be damaging to the interests of national security.
    3. To re-insert the judicial balancing test when deciding whether to make a declaration of CMP. The judge weighs harm to national security if material is disclosed against the public interest in fair and open administration of justice.

    While these amendments go some way to addressing the unacceptable nature of the Bill’s CMP proposals, they do not go far enough and an amendment withdrawing the relevant part of the Bill in its entirety was rejected.

    The extension of CMPs into civil courts puts at risk two fundamental elements of the common law justice system, the right to a fair hearing (natural justice) and open justice – the principle that a case be heard and decided in public. Though the vast majority of people would recognise the government’s necessity to maintain secrets that would threaten national security, the broad scope of allowing CMPs in civil cases means the potential for great misuse in the future. Parliament’s Joint Human Rights Committee commented:

    After listening to the evidence of the special advocates [specially-trained representatives appointed by the government to represent the defendant or claimant’s interest], we found it hard not to reach for well-worn descriptions of it as ‘Kafkaesque’ or like the Star Chamber.”

    In fact, many Special Advocates have themselves resigned at the unfairness of the system, which prevents them from disclosing material to those they represent, or even communicating with them without the government’s permission. In the Special Advocates’ response to the Green Paper, they concluded:

    The introduction of such a sweeping power could only be justified by the most compelling reasons and, in our view, none exists.”

    To combat the illiberal aspects of the CMP proposals, Tyrie and Peto suggest several further amendments:

    • CMPs must be a last resort; a judge should have to exhaust the possible use of current “Public Interest Immunity” powers before considering the use of a CMP.
    • Even where a CMP is approved, the judge should be able to balance the interests of justice against those of national security in deciding if information should be disclosed.
    • Where CMP is used, summaries of the national security sensitive information should be provided to the excluded party and his or her legal representatives.
    • A sunset clause should be incorporated so that the legislation is limited to five years, unless new legislation is passed to renew it.

    It is clear that by voting for the Bill as it is presently, Liberal Democrat MPs would not just be ignoring the wishes expressed by their grassroots members, but challenging the fundamental principles of open and fair justice in Britain.

    The Liberal Democrats should welcome this report from a senior Conservative backbencher and are in a unique position to force through these vital amendments to the bill. They should not pretend that the current Lords’ amendments are sufficient. It is an opportunity to demonstrate that Lib Dem leadership can really count in the Coalition. 

    An edited version of this post originally appeared on the LibDemVoice website

    Lewis joined the Centre for Policy Studies in April 2011 with responsibility for social media and digital engagement.

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