Many fellow no-to-secret-courts campaigners have emailed their MPs, Liberal Democrat or from other parties, to express opposition to the Justice and Security Bill. We have seen some of the responses. This one came in earlier this week from a Liberal Democrat MP and Minister who shall remain nameless. I was so shocked by the misinformation in the email that I felt it would be useful to respond line by line.
The worst offence against the truth is the suggestion that there is any risk of compensation money finding its way to terrorist organisations (paragraphs 4-6 below). You may have seen Lord Ken Macdonald’s statement on this subject yesterday. Lord Macdonald, the Liberal Democrat peer and former Director of Public Prosecutions completely demolishes this argument which is unworthy of any politician.
The original email (produced in full save for the name at the end) is in black, my comments are in numbered paragraphs and in blue.
RE: Justice and Security Bill
Thank you for your email regarding the Justice and Security Bill. I can certainly appreciate your concerns about this and as Lib Dems, we have had our own concerns over this Bill. As such we have worked hard to secure major changes to this Bill.
(1) The government amendments passed in Committee undo those of the Lords which introduced four sensible and clear safeguards. These were passed with overwhelming majorities, by the Lords:
- That Judges should refuse CMP’s where the public interest in the fair and public administration of justice outweighed the likely damage to national security.
- A provision that CMPs should be a measure of last resort.
- That the judge must first consider PII before ordering a CMP.
- That the citizen must have the same right to apply for a CMP as the State.
These amendments were recommended by the Joint Committee on Human Rights. On 28.02.13 the JCHR reported again on this Bill. The view of the Committee is that the Bill does not meet the standards it requires. In other words, the JCHR does not support the Bill in its current form. It was on the understanding that the JCHR recommendations would be delivered that our peers were persuaded not to vote down clause 6 (which introduces secret courts). The government has failed to stick to its assurances. It now appears equality of arms is included in this Bill which is welcome, but does not make it anything other than a bad Bill.
I completely agree with you that the universal right to a fair trial is one of the central principles of our justice system. It is also clear to me however that the former Lord Chief Justice, Lord Woolf, who has explained that in fact the safeguards we use at the moment to protect sensitive information have “the very unfortunate effect that [neither the claimant nor the defendant can] rely on the material that is in issue”, made a very valid point.
(2) The letter cites Lord Woolf as if he supports the government’s position on PII. This is wrong. Lord Woolf voted against the Government in the Lords and in favour of the amendments which the Government is now seeking to scrap.
(3) The scenario described by Lord Woolf where “both the Claimant and the government want to rely on [the same security sensitive material]”, could probably be dealt with by the use of a confidentiality ring and without a CMP. The CIA and American courts have regularly used confidentiality rings in terrorist cases.
I hope you will agree that this is deeply damaging. It means that some of the actions of our security and intelligence agencies are not being scrutinised in the courts. Former detainees who bring cases against the Government alleging mistreatment are simply not able to access justice properly. And because the Government cannot bring evidence in its defence it is forced to settle claims with individuals whose cases may be spurious. Given that some of those involved in these cases are suspected terrorists there is a high risk that the potentially millions of pounds of pay-outs made could make its way back into funding terrorist activities. This is a quite appalling prospect.
(4) This is quite wrong. Firstly our security services are being scrutinised by the courts. That is precisely their objection and the reason the security services have been lobbying for years for this Bill to be passed. The cases of Binyam Mohammed and Abdul-Hakim Belhaj are deeply worrying for those who are trying to protect agents who have been complicit in the most serious crimes – kidnap and torture – supposedly to “protect” us.
(5) It is entirely misleading to suggest that compensation has gone to terrorist activity, or that there is even a risk of this. There is absolutely no evidence that any of the recipients of compensation in the Al Rawi, Binyam Mohammed and Al-Saadi litigation have been charged or convicted of terrorist offences before our courts or are subject to anti-terrorist restrictions. Mr. Al-Saadi’s wife and young children were rendered to Gaddafi’s Libya. No-one is suggesting that they are terrorists.
(6) If the Government really thought there was a risk of funding terrorist activities, it could and certainly should have frozen the compensation monies. The UK has some of the broadest asset seizing powers in the world. They did not do so. On 1st March 2013 Liberal Democrat peer and former Director of Prosecutions said Lord Ken Macdonald said:
“Ken Clarke is being thoroughly misleading. If someone is financing terrorism, the police can arrest them and the CPS can prosecute them, because it’s a crime. This happened all the time when I was DPP. Ministers also possess far-reaching asset-freezing powers that allow the courts to freeze the funds of anyone simply on the basis that they’re suspected of being involved in terrorism.
“The sad truth is that Mr Clarke’s comments look like a smokescreen for plans which are aimed not at keeping the British people safe, but at sparing the embarrassment of the security services when they get mixed up in wrongdoing.
“Instead of promoting this thoroughly un-British legislation, which is designed to make our courts secret as though we were living in Europe in the 1930s, Mr Clarke and his colleagues in government should concentrate on holding the security agencies to account when they break the law.”
So it is clear to me that something must be done to reform the system. The Independent Reviewer of Terrorism Legislation, David Anderson, has confirmed that in this very small number of civil (not criminal) cases “it is preferable that the option of a Closed Material Procedure (CMP) should exist.” I agree with this assessment.
(7) The claim that the government is forced to settle cases because under PII it cannot defend without damaging national security. The government initially claimed that there were over 20 such current cases. David Anderson QC, the security-cleared Independent Reviewer of Terrorist Legislation, asked to see them. Permission was refused. After persistent pressure he was permitted to see only three examples of damages cases which, as he somewhat drily observed, were “chosen” to “illustrate the government’s point of view”.
(8) It is therefore incorrect to suggest that David Anderson QC has “confirmed” that there are 20 cases in which CMPs are necessary. He hasn’t been allowed to see them. This very mistake was made by the Prime Minister in his recent evidence before a Parliamentary Committee. As the specialist group of security cleared Special Advocates reported: “There is as yet no example of a civil claim involving national security that has proved untriable using PII and the flexible and imaginative use of ancillary procedure”.
(9) The letter states that without CMP’s we “cannot get to the bottom of… shocking allegations”. In fact, PII will lead to the disclosure of more material than CMPs. PII revealed MI5’s involvement with CIA rendition in Al Rawi; and PII revealed evidence that our Afghan allies were flogging prisoner transferees with electric cables and steel rods in Serdar Mohamed. None of this material would have been revealed in a CMP.
I accept that CMPs are not an ideal form of hearing, but in many ways they are less secret than the current safeguards which were so criticised by the former Lord Chief Justice. CMPs ensure that a judge will be able to look at all the facts and provide a judgment on whether the Government is in the wrong or not. It is for that reason that in the past claimants like Maya Evans have consented to having a CMP – she realised that it was the only way of getting her case resolved. There have also been occasions where the Government has lost in Closed Material Proceedings.
(10) Maya Evans was not the victim of torture. She is a peace activist who was trying to stop the handover of Afghan detainees to the military officials there. So she had nothing to lose by agreeing to a CMP. That is not the same situation as a person seeking to bring a claim who is the victim of torture or kidnap. The Supreme Court held in Al-Rawi that secret hearings were: “a procedure which would deprive a litigant of his fundamental common law rights”.
However, we must ensure that when CMPs are used it is only if absolutely necessary and that proper safeguards are in place to make sure that this is the case. That is why Nick Clegg and the Liberal Democrats have secured important changes to this Bill, ensuring full judicial discretion, removing inquests from scope entirely, and restricting the scope of CMPs to national security cases only. Further, we have given judges the power to stop a CMP even after it has started if there is any concern that material of genuine importance to the public interest is being hidden.
(11) Again, this is incorrect. The Bill as amended, and with the amendments proposed by Ken Clarke on 28.02.13 does not include a “last resort” provision. It does not require the judge to balance the public interest in open and fair justice with the public interest in protecting national security sensitive information.
Liberal Democrats will never sanction any changes which would put the Government above the law. We have already unravelled some of the hugely authoritarian measures enacted by the last Government, from ID Cards to control orders, and we will continue to stand up for human rights in Government.
(12) Most sadly of all, this is incorrect. This Bill, supported currently by Liberal Democrats, does put the government above the law. That is its specific purpose. This Bill does not stand up for human rights. It provides a mechanism for the state to subvert and ignore our human rights. This Bill runs a coach and horses through the Magna Carta, and fair trial guarantees which have existed since the Civil War. 702 lawyers wrote to oppose the Justice and Security Bill. They said this:
“the changes set out in the Justice and Security Bill are contrary to the Rule of Law and should not be brought into force. The plans for secret courts erode core principles of our civil justice system including the right to a fair trial, equality of arms and open justice. They will fatally undermine the court room as an independent and objective forum in which allegations of wrongdoing can be fairly tested and where the Government can be transparently held to account.”
They are correct. Those who support this Bill are wrong.
While we understand the clear view expressed at Lib Dem Conference to drop Part 2 of the Bill, we have to work with what is possible – there is no Parliamentary majority in either the Lords or Commons to drop Part 2.
(13) This Bill did not form part of the Coalition Agreement. It was no part of any party’s manifesto for the 2010 General Election. The Bill in its current form fails to deliver the JCHR recommendations. It fails to deliver the amendments sought by our backbenchers in the House of Commons Committee. It fails even to deliver the promises of the (rejected) amendment to the September motion. It fails, of course, to live up to what our party overwhelmingly voted for in September. When our party voted against the Iraq war, or against 42 days detention, or against ID cards, we were not always on the winning side. However we knew we were doing the right thing because we were being true to our core values and our purpose: “to build and safeguard and fair, free and open society”. Our party in parliament is currently failing to live up to what we stand for and is betraying our party and its membership and supporters.
(14) If Liberal Democrats vote with Labour (as they did in Committee), along with sympathetic Conservatives and nationalists this Bill can be defeated. It is no excuse for our MPs to point the finger at other parties. We are entitled to expect that they will do the right thing and vote in accordance with party policy and our core values to defeat this bad Bill.
Thank you for writing to me about this important issue and please do not hesitate to get in touch again if you would like to discuss this matter or if you think there is anything further I can do as your Parliamentary representative.