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: 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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Our letter in today’s Daily Mail – with more signatures added!

Here is the letter which is printed in today’s Daily Mail. It was originally sent to the Times, but they refused us. The Daily Mail has run a long-standing campaign against the Justice and Security Bill. We may not like much of what they say, but on this issue the Mail is absolutely right.

I’ve added in the signatures we received after the noon deadline. There are now 130 Liberal Democrat members, peers, MEPs, Councillors, local party chairs and officers and campaigners who are calling for all MPs to do the right thing when the Justice and Security Bill is debated this afternoon.

Letter to the Daily Mail 4th March 2013

Dear Sir,

We are writing to urge all MPs to do the right thing by voting against Part II of the Justice and Security Bill when it has its Report stage in the Commons today.

The Justice and Security Bill runs a coach and horses through fair trial guarantees which have been part of our country’s constitution since the Civil War and which were first enshrined in the Magna Carta. The secret court measures contained in the Bill could even apply to habeas corpus proceedings.

The stakes for our country could not be higher. The “War on Terror” led to many mistakes: liberty was sacrificed in the name of security. This led directly to British agents facilitating kidnap and torture such as the cases of Binyam Mohammed and Abdul-Hakim Belhaj. For those who are victims of such crimes to be shut out of the trials of their own claims for damages runs totally contrary to any notion of justice.

As the Special Advocates reiterated last week, the case for this Bill has not been made. The Joint Committee on Human Rights reported on 28th February 2013 that the government has failed to meet its requirements to make “Closed Material Procedures” less unfair.

We call on all MPs now to act before it is too late, and they become complicit in irrevocable damage to our constitution.

This issue goes beyond party politics. However, as Liberal Democrats the protection of civil liberties is of crucial importance. We are looking to Nick Clegg to lead the Liberal Democrat MPs in opposition to the Bill. Opposition to Part II is what liberal democracy demands of us. Secret courts must not form any part of the legacy of a government in which Liberal Democrats have a role.

Yours faithfully,


  1. Jo Shaw, Member of Liberal Democrat Federal Executive, London
  2. Martin Tod, Member of Liberal Democrat Federal Executive, Winchester
  3. Sarah Ludford MEP
  4. David Howarth, Cambridge
  5. Lord Strasburger
  6. Professor Philippe Sands QC, Camden
  7. Sandra Gidley, Romsey
  8. Robin Meltzer, Prospective Parliamentary Candidate, Richmond
  9. Elaine Bagshaw, Federal Executive member, London
  10. Daisy Cooper, Federal Executive member
  11. Mark Pack, Federal Policy Committee member
  12. Gareth Epps, Federal Policy Committee, Social Liberal Forum co-chair
  13. Benjamin Mathis, Hackney
  14. Sally Hooker, Greenwich
  15. Tracy Connell, Newcastle, Regional Officer
  16. Christina Shaw, Leeds NW
  17. David Shaw, Leeds NW
  18. Matt Whayman, Runnymede and Weybridge
  19. Chris Richards, Camden
  20. John L Oakes, London N6
  21. Paula Keaveney, Liverpool, Police and Crime Commissioner candidate, Merseyside
  22. Alix Mortimer, Haringey
  23. Tom Polak – Campaigns Secretary Nottingham Liberal Youth
  24. Rob Knight, Haringey
  25. Caron Lindsay, Member of Liberal Democrat Federal Executive, Livingston
  26. Charlotte Henry, Liberal Reform, Barnet
  27. Gemma Roulston, membership secretary, LDDA
  28. Lady Ellen Dahrendorf, London NW3
  29. Ruth Edmonds, Oxford
  30. Nick Thornsby, Liberal Reform, Rochdale
  31. Geoff Hinchliffe, Shipdham
  32. Peter Lloyd, Birmingham
  33. Councillor Jonathan Bloch
  34. Mark Platt, Westminster & City of London party
  35. Tom Barney
  36. Roger Crouch, Twickenham
  37. Jennifer Liddle, Cambridgeshire
  38. Kirsten de Keyser, Camden
  39. Andrew Brown, Bristol
  40. Simon McGrath, Chair, Merton Liberal Democrats, Liberal Reform
  41. Scott Walker, Nottingham
  42. John Faulkner, Guildford
  43. Kat Dadswell, Liverpool
  44. Cllr James Baker, Calderdale Liberal Democrats.
  45. Emily Fieran-Reed, Islington
  46. Cllr Alaric Rose, Cherwell District Council
  47. David Wright, Harlow
  48. Nick Barlow, Colchester
  49. Tony Miller, President, Ealing Liberal Democrats
  50. Phil Stevens Chair Liberal Democrat Disability Association
  51. Mrs Janet King, Chair, Bromsgrove Liberal Democrats
  52. Corry Cashman, Leighton Buzzard
  53. Prof. Denis Mollison, Musselburgh
  54. Cllr Richard Cheney, Lib Dem Group Leader, Stratford DC
  55. Robert Leslie, Treasurer, Banffshire & Buchan Coast Liberal Democrats
  56. Hannah Bettsworth, Edinburgh South
  57. Simon P. Hughes, Epping Forest, Social Liberal Forum
  58. Richard Broadbent, Sutton
  59. Jonathan Price, London SE24
  60. Chris Smart, Chester
  61. Fionn O’Donovan, Oxford
  62. Richard Lowe
  63. Prateek Buch
  64. Charles Scanlan, London NW8
  65. Chris Nelson, Kettering & Wellingborough
  66. Rev Simon Wilson, Broadland
  67. Peter Brooks
  68. Neville Farmer
  69. Cllr Janet Battye, Liberal Democrat  Leader, Calderdale MBC
  70. Anthony Fairclough, London Region Exec & Merton Borough
  71. Jonathan Calder
  72. David Abrahams, Camden
  73. Richard Morris, Richmond and Twickenham
  74. Alex Marsh, Bristol
  75. Geoff Payne, Hertfordshire
  76. Peter Reisdorf, West Kirby
  77. Bridget Fox, Islington
  78. Paul Wild, Walsall
  79. Lisa Smart, Hazel Grove
  80. Ros Gordon, Hampshire
  81. Patrick Hadfield, Edinburgh
  82. Lancelot Casely-Hayford, Liberal Youth Campaigns Officer
  83. Reece Edmends – Liberal Youth Non-Portfolio Officer
  84. Timothy Oliver, Hull
  85. Ellis R Palmer, Secretary of the Univeristy of Birmingham Liberal Democrats
  86. Robert Pitt, Secretary, Leeds Liberal Youth
  87. Kavya Kaushik, Liberal Youth co-Chair
  88. Joe Donnelly, Chair of Durham University Liberal Democrats
  89. Kevin McNamara, President of University of Kent Liberal Democrats
  90. Sam Fisk, Liberal Youth co-Chair
  91. Jezz Palmer, Youth and Student Rep, Winchester
  92. Conor McKenzie, Harrogate, Liberal Youth International Officer
  93. Ashley Wilkes – President of Lancaster University Liberal Democrats
  94. Jonathan Lancaster, York Outer
  95. Alexander J. Harding Last, Ipswich
  96. Will Fielding, Hull and Hessle Liberal Youth Officer
  97. Harry Matthews, Sheffield
  98. Alex Barry, Norwich
  99. Stuart Wheatcroft, Chair, West Midlands Liberal Youth
  100. James Higgin, Aberdeen
  101. Emma Sandrey, Cardiff Central
  102. Samuel Barratt
  103. Cllr Mathew Hulbert, Barwell, Leicestershire
  104. Dr Maria Pretzler, Swansea & Gower
  105. Katrin McClure, East Yorks
  106. Cllr Keith Moffitt, Leader, Liberal Democrats, Camden
  107. Conor McGovern-Paul, Kingston-upon-Thames
  108. Marek Lipinski, Ealing
  109. Jacquie Bell, Dunbar, Scotland
  110. Brian James Woodcraft,Eltham, London
  111. Jean Evans, Chester
  112. Jason Lower, Tonbridge and Malling
  113. Cllr Terry Stacy, Leader, Islington Liberal Democrats
  114. Adam Bernard, Cambridge
  115. Chris Caswill, Wiltshire
  116. Ed Fordham, Camden
  117. Mike Falchikov, Edinburgh South Lib Dems Exec
  118. Councillor Henry Vann
  119. Dr Clive R Sneddon, St Andrews
  120. Sue Baring, Westminster
  121. Greg Judge, Coventry
  122. Gareth Jones, Maidenhead
  123. Nigel Quinton, Welwyn Hatfield LibDems
  124. Alisdair Calder McGregor, Nottingham
  125. George Potter, Secretary of Guildford Liberal Democrats
  126. Cllr Lyn Barton, Colchester
  127. Maureen de Beer, Harrow
  128. Linda Chung, Lib Dem councillor, Hampstead ward
  129. Tom Simon, Lib Dem councillor Belsize ward
  130. Govert Klaasen, Camden
  131. Angharad Bethan Jones
  132. Lee Dargue
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A chance to listen again to Jo’s excellent interview on the BBC Westminster Hour

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