Data Protection Policy

Several people on Lib Dem Voice have asked questions about data protection issues relating to this campaign after we sent an email on Friday evening.

To be clear, we don’t share data provided to us with anyone else. We never have and we never will. Our data is stored in a web database that only the campaign can access.

As campaigners, of course we want to use the widest range of tactics in order to get rid of secret courts. These put an end to fair trials and threaten the Rule of Law itself across the UK. They are being used now to cover up torture and kidnap in which British officials are said to be involved.

At the time that Secret Courts was passed, we considered and discounted trying to channel the justifiable fury of members into a challenge to the leadership – as a way of getting a leader that would be prepared to deliver Liberal Democrat party policy opposing secret courts. The benefit of hindsight is a great thing – perhaps we should have gone ahead at that time.

Times have changed and we were alerted to the Lib Dems for Change campaign, and we agreed with the analysis. So we sent one email which provided information about the campaign.  The email was sent by us and not by Lib Dems for Change.

People have disagreed with our campaign tactics now and in the past. They have every right to do so – and, should they wish not to hear from us again, every email we send out has an unsubscribe link. But that won’t stop us doing whatever it takes to get Secret Courts struck from the statute books. It’s a tragedy for our party and for liberalism in the UK that the Lib Dem leadership has so far failed to take proper notice. We look forward to the day when we have a leader prepared to deliver Lib Dem party policy.

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[Lib Dems against Secret Courts] Letter to Nick Clegg

On Friday, May 23rd, we sent the following email to supporters of the campaign:

Dear No to Secret Courts campaigner,

You may already have seen the letter going round about Nick Clegg and the Leadership.

I know many of us had huge concerns about his leadership over Secret Courts – and I sometimes wonder if we should have acted more decisively then.

If you want to read and back the letter, there’s a site for people to sign it online at http://www.libdems4change.org/

Best wishes,

Martin Tod

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It’s started. The Government lies about the need for closed proceedings at the Supreme Court

It turns out we didn’t need to wait too long for the Government to start misusing the secret courts procedure.  It happened already in a case involving the Treasury and an Iranian bank accused of indirectly helping finance Iran’s nuclear weapons programme.

The Government took the opportunity to get journalists, the public, bank officials and lawyers representing the bank excluded from the case for 40 minutes during the case.

But it turned out that the reasons were spurious. They used the 40 minutes to show ‘secret’ material that was already available in material laid out in open court.

To quote Lord Hope in this article in the Huffington Post:

“The attitude which they have adopted in this appeal was a misuse of the procedure, because they invited the court to look at the closed (material) when there was nothing in it that could not have been gathered equally well from a careful scrutiny of the open (material)”.

As he also says:

He added: “The most obnoxious feature of the closed material procedure at the stage of an appeal is the possibility that the appellate court may have to give the whole or part of its reasons for the disposal of the appeal in a judgment to which the State only, and not the other party to the appeal or anyone else, has access.”

Lord Hope said secret justice “at this level” was “really not justice at all”.

The whole article is worth a read.  It’s depressing, but it gives a sense of how the Government is likely to misuse these powers in the future.  They’ve almost certainly started as they mean to go on.

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The Guardian: John Le Carré: The influence of spies has become too much. It’s time politicians said no

A cracking article from John Le Carré in the Guardian laying out how our politicians have become supine in the face of the security services:

What are secret courts? Why do we need them? To protect Britain’s special relationship with the United States, we are officially told; to protect the credibility and integrity of our intelligence services. Never mind that for decades we have handled security-sensitive cases by clearing the court whenever necessary, and allowing our secret servants to withhold their names and testify from behind screens, real or virtual: now, all of a sudden, the credibility and integrity of our intelligence services are at stake, and need urgent and draconian protection.

Never mind the credibility and integrity of parliament and centuries of British justice: our spies come first. And remember, these aren’t criminal courts. These are civil courts where anyone attempting to obtain redress for a real or perceived injustice perpetrated against him by British or American secret agencies must have his claims heard and dealt with in secret.

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Jo Shaw: Secret Courts: 8 nightmare scenarios now possible in Britain

An update from Jo on the OpenDemocracy blog - Secret Courts: 8 nightmare scenarios now possible in Britain.  In the article, she lays out four scenarios based on real-world case studies, and then imagines how they might proceed now that secret courts are a reality, and then four further imaginary cases demonstrating how Closed Material Procedures may operate in future..

Closed Material Procedures (or “CMPs”) mean that one party is not able to take part in either part or the whole of a trial. This party will almost always be a civilian who is bringing a claim against a government agency. It could be a civilian who is the defendant in a case. The government and its lawyers are present during the CMP. The civilian and their lawyer

  1. cannot be present,
  2. cannot see the evidence the government is relying upon (and which is said to be national security sensitive information),
  3. cannot know the government’s case on this evidence,
  4. cannot challenge this evidence or the government’s case and
  5. cannot know the reasons for the judge’s decision on that evidence and therefore (at least a part of) their case.

The civilian will be told whether they have won or lost, but not the full reasons why.

And finally, she lays out what we can do about it!

The first step is vigilance. The legal profession, journalists and campaigners need to develop a system whereby any application for a CMP is registered with as much information about the case as is lawfully available – for example case number, details of the parties, particulars of claim and other pleadings, case summary (if available), issues raised by the claim and defence. The media needs to be encouraged or persuaded to report these cases frequently and regularly, and as soon as they are aware of a new case as the Independent and Guardian have done recently

Secondly, those concerned about the use and spread of CMPs need to liaise and work together. Human rights/civil liberties NGOs, academics, journalists, lawyers, politicians and the general public can all assist one another in this work. No popular movement against the spread of secret courts, and a secret body of law, will be possible without collaboration and cooperation.

Thirdly and related, any official report or review of the operation of CMPs needs to be properly examined and scrutinised, and questions asked.

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Email to supporters: “The eleventh hour – this weekend could make the difference”

Here’s our latest email to campaign supporters…

Dear Fellow No to Secret Courts Campaigner,

The campaign continues and reaches the eleventh hour this week. The Lords vote on Tuesday will either improve this terrible Bill, or see it pass in its current non-JCHR compliant form which will mean the campaign to stop the Bill will have failed.

The Special Advocates have yesterday evening published their response to the proposed amendmentsIt is here and is worth reading and circulating as widely as you can. It also provides useful arguments against some of the nonsense being talked in support of secret courts.

The amendments have now been submitted. Liberal Democrats, Labour and crossbencher peers are working together to put forward two amendments to make the Bill less bad. This article in the Guardian is helpful in explaining what is going on.

We need you to write to Lib Dem and crossbencher peers in the next two days. The vote is on Tuesday and there are lots of shenanigans going on behind the scenes by the government to try and get the votes going against the recommendations of the Joint Committee on Human Rights.

Huge pressure is being put on backbench Lib Dem peers to give up the position they held when the Bill was first debated in the Lords and back the Government line. Your support to them could make the difference.

The amendments being proposed by Lord Macdonald and Lord Beecham are in line with the two JCHR reports. Here’s what the JCHR said in its first report.

“The question for Parliament is whether or not the Government has persuasively demonstrated, by reference to sufficiently compelling evidence, the necessity for such a serious departure from the fundamental principles of open justice and fairness. To the extent that the Government has in our view failed to discharge that burden of justification, we recommend amendments to the Bill.”

- JCHR 1st report 06.11.12

Here is a draft email for you to send to any Liberal Democrat or crossbench peer – or use to draft your own. You may wish to leave out Lord Wallace, Lord McNally and Lord Marks as they are the principal cheerleaders for this Bill in our party, sadly.

“Dear Lord / Baroness [ ],

This week you have the opportunity – once again – to protect fair trial guarantees which have existed since the Civil War.The measures introduced by the Justice and Security Bill undermine the Rule of Law in our country and amount to an attack on the ability of the citizen to hold the government to account.

All the way through the process, Lib Dem backbenchers in the Lords and the Commons have leaders in trying to protect civil liberties in the face of this bill.

  • In the Lords, Lib Dem peers were instrumental in adding many of the protections recommended by the Joint Committee on Human Rights.
  • In the Commons, Lib Dem MPs, Julian Huppert and Mike Crockert tried to protect those changes in Committee in the face of Government amendments designed to weaken civil protections – and add further amendments that would bring the Bill in line with the original recommendations of the JCHR.

Unfortunately our backbench MP were unable to get these protections into the Bill. Both Julian Huppert and Mike Crockart voted for the amendments along with Party President Tim Farron and Deputy Leader Simon Hughes. Julian and Mike voted against the Bill at 3rd reading.

You are now presented with a Bill that:

  • fails to deliver the protections voted into the Bill by Lib Dem backbenchers in the House of Lords
  • fails to deliver the recommendations of the JCHR
  • fails to deliver Lib Dem party policy
  • fails even to deliver the amendment proposed by Lord Marks that was heavily defeated at Lib Dem Conference in the Autumn. As you may recall, the  amendment sought to commit us to:

    Ensure that closed material proceedings can only be used as a last resort in cases that would otherwise be incapable of being tried.

There are amendments tabled which will improve the Bill. Lord Pannick wrote in the Times on 13th March 2013 about the issues of principle which remain, and the amendments which are necessary. These are now reflected in the two amendments tabled by Lord Macdonald of River Glaven, and the amendment tabled by Lord Beecham. These amendments put into effect the recommendations of the Joint Committee on Human Rights.

The Special Advocates have published a further briefing note which supports these two amendments. It is here: http://ukhumanrightsblog.com/2013/03/22/exclusive-special-advocates-open-letter-and-briefing-note-on-secret-trials/ and also attached to this email.  This briefing highlights, for example, that the argument that ‘last resort’ would ‘necessitate a costly and time-wasting PII exercise to be undertaken before it could be said that a fair determination was not possible without a CMP’ is – at best – misleading. As they argue:

Whatever procedure is adopted, courts will have to subject to careful scrutiny any material said to be sensitive on grounds of national security. Our experience of disclosure processes under statutory CMPs suggests that it is no less time consuming than the process of examining documents for which PII has been claimed in non-statutory proceedings.

Please support both of these amendments when you are called to vote next week. The consequences for our judicial system could not be more serious. You may have seen the reports of the Supreme Court sitting in closed session for the first time in history on Thursday 21st March 2013. Lord Neuberger, the President of the Supreme Court, said the court did so only with “grave reluctance”. He spoke out regarding his concerns about this Bill on 4th March when he said: “anyone interested in democracy” would be concerned about Closed Material Procedures.

I am not in the privileged position of having a vote to determine the protection of our freedoms. You are. Please protect our democratic institutions, protect our fair trials, and vote for the amendments in line with the recommendations of the two reports from the Joint Committee on Human Rights on Tuesday 26th March.

Many thanks.

With best wishes,

[Your name]

Many thanks for everything you are doing.

Best wishes,

Martin Tod                         Charlotte Henry

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One-sided courts and secret law – David Howarth demolishes Tom McNally’s LDV article defending secret courts

David Howarth has posted an excellent article rebutting Tom McNally’s article on secret courts over on Lib Dem Voice.

It provides a useful summary of many of the biggest problems with the ‘secret courts’ proposals:

  • They lead to one-sided justice.
  • They don’t just cover cases where ex-prisoners are claiming financial compensation. Civil procedures are the base for a wide range of areas including judicial review and habeas corpus
  • Despite Government claims, under the current proposals, they will not be a last resort
  • They establish secret precedent and therefore – as a direct consequence – secret law.

To quote David:

The most fundamental objection is that they lead to secret law. Judgments in existing closed material proceedings cases (e.g. control order or TPIM cases) have passages that are only shown to the government and the special advocate (for an example see Secretary of State for the Home Department v CC and CF [2012] EWHC 2837 (Admin)). These cases create precedents that only the government can fully understand.

This is bad enough in the limited field of TPIMs, but the Justice and Security Bill threatens to extend secret precedent into the very heart of the law. Consider, for example, the torts of assault and battery and false imprisonment, torts on which our freedom from state oppression are built. The defences to these torts include necessity and self-defence. Those are precisely the defences that would be in issue in the most profound and difficult of cases, for example a torture and ticking time-bomb case or a case of holding a potential terrorist’s family as hostages. Are we really to have secret precedents in these areas of law? The very thought should make any liberal, or indeed anyone who believes in the rule of law, shudder.

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Jo Shaw’s resignation statement

10th March 2013

Today after almost twelve years I am resigning my membership of the Liberal Democrat party.

I have done so because I cannot reconcile the principles which form the backbone of the Liberal Democrats – fairness, freedom and openness – with the measures introduced by the Justice and Security Bill and supported by the party leadership. This Bill passed through the Commons this week with barely more than a handful of objections from Liberal Democrats. In opposition I know the Liberal Democrats would be spearheading the campaign against this illiberal repressive Bill. The fact this party has chosen not to do so when in government is deeply troubling for anyone who cares about a free society. It signals the party leadership turning its back on what had been red line issues for us and which defined us to ourselves and to society more widely.

I have therefore been forced to conclude I should resign. This is extremely sad both politically and personally. In campaigning, serving on committees and attending Conference over the years I have made many friends in the party and have worked with some incredibly inspiring people. I will miss everyone very much.

I am resigning because of a chronic failure of political leadership. If liberal principles are to mean anything, a liberal’s duty is to challenge excesses and concentrations of power, particularly concerning the State.

However, for reasons which are still entirely unclear, the leadership of the Liberal Democrats has chosen to ignore hundreds of party members, ride roughshod over party policy, overlook reasoned argument, and rely instead on shoddy logic and misleading arguments to support this unfair, unnecessary and unbalanced Bill. The leadership has chosen to protect secrecy and abuses of power over openness, accountability and freedom. I cannot support such a leadership.

I wish all my friends and colleagues well. I would particularly like to express my gratitude to Martin Tod and Charlotte Henry for their inspirational work and support in the Liberal Democrats Against Secret Courts campaign. The strength of feeling in the party against this Bill has been evidenced by the hundreds of letters, emails and messages of support we have received over the past seven months. It is a testament to the incredible spirit of party members and I am very proud to have been associated with them in this campaign. They are all truly inspirational.

This party has a fine and proud history, both recently and in its previous incarnations, of campaigning to uphold civil liberties and human rights. I very much hope the party finds its principles and its soul again, and soon, because the United Kingdom urgently needs a liberal and democratic party to build and safeguard our freedoms.

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David Howarth responds to Lord Woolf’s letter to the Times

An excellent response to Lords Woolf’s letter to in today’s Times from David Howarth, former MP for Cambridge.

Dear Sir,

Lord Woolf’s defence of the government’s proposals to introduce closed material proceedings (‘secret courts’) in civil matters is very surprising for a common law judge.

Lord Woolf argues that under the government’s proposals, judges will be able to control the fairness of the proceedings in front of them. That, of course, assumes that one-sided proceedings at full trial can ever be fair, but there is another problem that should worry anyone who values the way the common law operates. Judicial decisions in a common law system not only resolve the case in front of the court, they also create new law.

The consequences of closed material proceedings include not only trials from which one side is effectively excluded but also judgments that only one side may see.  They cannot help but produce secret law, a set of rules to which only the state has access. This is fundamentally unacceptable.

Yours faithfully,

 

David Howarth
Reader in Private Law, University of Cambridge
MP for Cambridge 2005-2010

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Belhaj calls Government bluff on need for Justice and Security Bill

If you haven’t seen it yet, have a look at the front page of today’s Guardian. In advance of the debate on the Justice and Security Bill this afternoon there is a very significant development in one of the cases the government is facing, and in which the government wants to use the new secret courts being proposed. This development will shine a light directly on the government’s key claim that its motivation for this Bill is to avoid making unwarranted payouts to terror suspects.

The Libyan government official, Abdul-Hakim Belhaj, is claiming damages against the UK government, Jack Straw and the former head of counter-terrorism at MI6, Sir Mark Allen, for his kidnap, rendition and torture with the complicity of the UK security services. He has made an open offer to settle his claim for a token sum of £3 – £1 from each defendant – and, crucially, a full unreserved apology and a full admission of liability by each party. He has done so, he says:

“My wife and I suffered deeply during our kidnap and in Libya, and … continue to suffer. My wife may never be the same again. But we have come to court in Britain because we believe your courts can deliver justice. We are primarily bringing this claim to secure a public judgment, recognising the wrongs we have suffered.”

Mr Belhaj wishes to make clear that his motivation is not seeking money, but the truth. What is the government’s motivation?

 

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