- The ‘secret courts’ proposals within the Government’s Justice and Security Bill, which would allow Ministers to seek that civil hearings and trials take place in secret, with neither the public nor the other party having the right to see relevant evidence, where national security is at risk of being damaged.
- That these proposals for ‘Closed Material Procedures’ (CMP) did not form part of either the Liberal Democrat or Conservative manifestos in 2010, nor the Coalition Agreement.
- Widespread opposition to the proposals, including from the majority of the ‘Special Advocates’ who would be the lawyers authorised to participate in CMP proceedings, who in their response to the Green Paper described the CMP proposals as “fundamentally unfair”.
- The Bill’s removal from the powers available to the court the ‘Norwich Pharmacal’ order which permits disclosure of information about the actions of a third party (such as a foreign government) where the UK government had an involvement in the third party’s actions and has relevant information, thereby preventing this relevant information from being disclosed.
- The success already of Liberal Democrats within Government in:
- Excluding inquests from these proposals.
- Restricting to their use to cases where ‘national security’ is at risk, rather than a broader ‘public interest’ test.
- Achieving some judicial oversight of Ministerial applications for CMP.
- Existing arrangements for handling secret information in court, known as the Public Interest Immunity (PII) system work well, with decisions about sensitive disclosures being made by a judge rather than an interested party, namely a Minister and Government being prevented from relying on evidence that is untested and therefore potentially misleading.
Conference believes that:
- It is a fundamental principle of a democracy that no-one shall be above the law.
- It is essential for confidence in the UK judicial system, the UK government and the UK security services for justice to be seen to be done via a transparent, fair and open judicial process.
- These proposals represent a fundamental challenge to the balance between the Government and citizens in the justice system.
- The UK courts should not be banned from disclosing evidence of serious wrongdoing by Britain or its allies, especially where that evidence may be vital to an individual’s interests or in holding to account those responsible for serious criminal acts.
- These proposals risk further undermining the reputation of British Security Services and damaging public trust and confidence in those Services due to judgments in the CMP handed down in secret, after a trial potentially held entirely behind closed doors from which parties to the litigation other than the Government are excluded.
Conference reaffirms its belief in the importance of the principle of open justice, the right to a fair trial, that transparency is a fundamental aspect of democratic accountability and that Government must not set itself above the law.
Conference calls for:
- The Coalition Government to withdraw Part II of the Justice and Security Bill; and put in place instead a statutory scheme reflecting the current Public Interest Immunity system to be enacted which will retain judicial discretion, be a proportionate means of ensuring national security is not jeopardised by any litigation, and ensure the working successful democratic principle of open justice is retained.
- All Liberal Democrats in parliament to press the government to do this and in any event to press for the withdrawal or defeat of Part II of the Justice and Security Bill.