Last November, the new president of the Supreme Court, Lord Neuberger, gave a lecture entitled: ‘No Judgment, No Justice’. He reminded his audience that ‘without judgments there would be no justice, because decisions without reasons are certainly not justice: indeed, they are scarcely decisions at all…’
This observation was well-timed. It came between the two report days of the Justice and Security Bill in the Lords. Their lordships traded expertise, insight and knowledge of the principles at stake and threatened by so-called ‘secret courts’. Part II of the bill introduces Closed Material Procedures into ordinary civil proceedings for the first time; and bans the use of Norwich Pharmacal applications in cases involving national security, placing the government above the law when there has been wrongdoing involving another country in which it is involved.
The bill’s supporters say it is necessary to resolve a gap in legal procedure because of the blunt nature of public interest immunity certificates. It is unfair, they argue, that the government sometimes chooses to settle cases rather than pursue them to trial because of the risk of national security information being excluded altogether or disclosed to the other party. They also object to the settlement costs of these claims, brought by people who allege they have been tortured or kidnapped with the alleged complicity of UK state agents. Kenneth Clarke has repeatedly suggested that compensation paid to these claimants could end up in the hands of ‘dodgy people’. It seems he has forgotten that it is a criminal offence to fund terrorist activity; and that wide asset-freezing powers in UK law would prevent such a transfer of funds from torture victims to terrorists.
Opponents of the bill say that:
1. Our security services have been shown to have been involved in torture and kidnap, and to have tried to cover this up by lying to parliament and to the courts;
2. The bill’s provisions constitute ‘a radical departure from the UK’s constitutional tradition of open justice and fairness’;
3. The case for such a radical departure from the common law tradition has not been made out; and
4. The government has not been able to point to a single case where national security has been jeopardised by disclosure of sensitive information.
So, for those opposed to the introduction of secret courts into ordinary civil hearings, the bill’s implications could not be more serious. I joined the Liberal Democrats in 2001 after reading the preamble to the party constitution, which states: ‘The Liberal Democrats exist to build and safeguard a fair, free and open society.’ I was proud to be a member because I knew that my values, particularly the protection of rights and freedoms, were the core of my party. This was a sustainable position for me until the Justice and Security Bill arrived.
In parliament, the bill divides not on party lines, but on principled lines. There are those who are against – like Jeremy Corbyn, David Davis and Tim Farron. There are those who are avid proponents, like Jack Straw, who along with the UK government and Sir Mark Allen, the former head of counter-terrorism at MI6, are the defendants in the action brought by Abdul Hakim Belhaj for kidnap and torture of himself and his pregnant wife. Some believe that it is inevitable that the bill will pass, and that we must make the best of a bad job.
I profoundly disagree with such a fatalistic approach. The privilege of holding any public office carries with it the responsibility to protect all citizens from the actions of those who wish us and our values harm. That includes all those who break domestic and international law, whether terrorists or agents of the state. Agents of the state should be subject to particularly rigorous scrutiny, because they are tasked with the most important job of all – protecting our freedoms. This bill is about covering failure up and allowing a few rotten apples to ruin the reputation of the security services and the judicial system in one fell swoop.
Jo Shaw is executive director of Rosa, the UK women’s fund