Saturday Six 29 - Secret Courts and Lib Dem Conference

I'm preparing this on Friday morning, en-route to Brighton for Lib Dem Spring Conference. One issue dominates this week - the votes in the Commons on Secret Courts (or Closed Material Procedures).

Like most people travelling to conference, I consider Secret Courts top be an affront to Liberalism and Natural Justice. But I've written enough on the subject over the past few weeks and months for the regular reader to know my views, so here's a selection of other blogs, and consideration of where we go from he.

Caron provided some initial reaction from Monday night's votes on Lib Dem Voice - the comments section is quite entertaining (although not particularly constructive...)

The Liberator is right in identifying Secret Courts as being different to many of the proceeding issues in which Lib Dem parliamentarians have defied Party policy. I think this may have ramifications for years to come - particularly post 2015. Tim Farron's decision to vote against the Whip may well have increased his chances of securing the leadership should he decide to stand...

On A View From Ham Common, Richard Morris identifies some of the questions the issue raises. Including "Is There Much Hope?"

Mark Thompson wonders whether it's worth attending Lib Dem Conference at all...

...whilst a more drastic response is suggested by George Potter - and I'm not sure it's all that tongue in cheek either...

It isn't all about Secret Courts though - Caron Lindsay on Lib Dem Voice seeks to put Conference in a wider perspective.

And that's it for another week!

Andrew

In Which My Name Appears in the Daily Mail

As you may know, the Justice and Security Bill returns to the Commons today in a move which appears to have been engineered to get it out of the way before the Liberal Democrats' Spring Conference.

 

My latest blogpost on the subject is here. Aside from blogging, I've also supported conference motions (both when debated at Autumn Conference and when proposed for Spring Conference), signed the petition to our parliamentarians, written an open letter to Nick Clegg, written an actual letter to Nick Clegg and signed a letter to The Times.

 

Over the weekend, I also signed a letter, organised by the Lib Dems Against Secret Courts campaign, which is in today's Daily Mail. My name appears 39th in the list of 116 activists who had signed by the time the letter was submitted.

 

Andrew

Secret Courts - #notinmyname

Over the weekend, there have been reports that the Tories want Britain to withdraw from the European Convention on Human Rights (ECHR)*. It appears that Theresa May wishes to make this a manifesto commitment for the 2015 general election. This would go further than their 2010 commitment to replace the Human Rights Act (which enshrines the ECHR in British law) with a Bill of Rights. 

It is also at complete odds with the Coalition Programme which spoke of building on all our obligations under the ECHR, ensuring the rights it bestows continue to be enshrined in law and protecting and extending those liberties.

"We will seek to promote a better understanding of the true scope of these obligations and liberties."

One would like to think that these last words were drafted and inserted by the Liberal Democrat side of the coalition. Given the recent rise of UKIP - and an emboldened Tory right - Liberals need to make a positive case for the ECHR (as well as the European Union which, whilst completely separate as an institution, is often deliberately confused with the ECHR.)

The Convention has earned its "hated" reputation as a result of a number of high profile cases, as well as the length of time that things can take in being settled at the Court in Strasbourg. As with any legal system, there will always be cases in which the outcome is at odds with what some (or many) of the populace want. But that is why we have a court system: to prevent mob justice.

Whilst we may disagree with some of the judgements of the Court, the underlying principles of the ECHR are about a society in which people are entitled to liberty and justice without fear or favour. It contains such outlandish notions as the Right to Life, Prohibitions of Torture, Slavery and Forced Labour, Rights to Liberty and Security, Freedom of Thought, Conscience and Religion, Freedom of Expression and Freedom of Assembly and Association. And it contains a right to fair trial.

Withdrawing from the ECHR would be a retrograde step for Human Rights in this country - but that day (if it is coming) - is some way off. 

Civil Liberties in Britain face a more immediate attack. Today (Monday) the Justice and Security Bill will return to the Commons' for the Report Stage before completing that stage and receiving a Third Reading on Thursday. It appears the Government want to get the Bill out of the way before the Lib Dem Spring Conference, beginning on Friday.**

The bill's principles run contrary not only to the instincts of the Lib Dems at large but also to the Coalition Agreement - but it appears to have been agreed to wholeheartedly by Nick Clegg and Danny Alexander within the "Quad". Furthermore it appears not to have been agreed as part of a deal - so Liberal Democrats now appear to be supporting a piece of Draconian legislation with no Quid Pro Quo. Not only so, but the leadership have not been particularly forthcoming with a explanation or rationale for supporting the legislation.

Liberal Democrats are opposed to the provisions in Part Two of this bill, which provide for "Closed Material Procedures", dubbed Secret Courts. This has been demonstrated with a overwhelming vote in favour of a motion opposing them at Party Conference, numerous blogposts across the blogosphere (including a number of my own), a petition, and letters to The Times. The exception to this rule appears to be the leadership of the party, and our Parliamentarians (with a few honourable dissenters). 

An additional motion was proposed for Spring Conference but rejected by the Federal Conference Committee. An Emergency Motion has now been proposed which it is hoped will be discussed at conference - even if, by then, the die has been cast. If passed, the motion would reaffirm Liberal Democrat policy to repeal the legislation if in a position to do so.

Lib Dems in Government have achieved a number of notable successes - including in the area of Civil Liberties. The ending of Child Detention, abolition of ID cards and the associated database, the scrapping of the Draft Data and Communications Bill. But this bill, if passed would strike at the principles of fair access to courts which have underpinned our legal systems for centuries. This bill would be a stain on our reputation as a Country - and as a Party.

Defending Human Rights and Civil Liberties should be central to our politics. Whether that be supporting the ECHR against a reactionary press or fighting the erosion of basic legal principles against an authoritarian government machine. If the Security and Justice Bill is passed - and Closed Material Procedures become part of Civil Court proceedings - it will be a sad day for Liberal Democracy, and for Liberal Democrats.

Andrew

*For any Sun readers reading this, that's the "Hated European Convention on Human Rights"...

**This, in itself, is a kick in the teeth to all those who campaigned for the party in Eastleigh, securing a win which will have helped to shore up Clegg's position against the small number of those who wish to see a change in leader.

Jo Shaw has written an excellant summary of the current state of play, here.

Letter to the Leader - A Response

Recently I wrote this letter to Nick Clegg with regard to the Security and Justice Bill. Today I have received a reponse.

 

Here it is, in full, with no comment (for now...) The only edit I've made is to omit the name of the staffer who sent it.

 

 

Dear Mr Brown,

 

Thank you for your email to Nick Clegg. I am replying on his behalf.

 

We fully understand that our members instinctively have concerns about the implications of the Justice & Security Bill for civil liberties and I hope to address these concerns in this email.

 

As you know, we are part of a coalition with the Conservatives, which naturally requires compromise. Where compromise has been necessary, the Parliamentary Party has strived to ensure that all proposals put forward by Coalition Government are as fair and sustainable as possible and I would like to assure you that Liberal Democrats in Government, as they are in local government, are working to secure the best possible deal for the British public, while building a stronger economy in a fairer society.

 

Under the current system, the only method available to protect very sensitive material such as the identity of informants from disclosure in open court is through Public Interest Immunity (PII). A successful PII application results in the complete exclusion of that material from the proceedings. Therefore, any judgment reached at the end of the case is not informed by that material, no matter how central or relevant it is to the proceedings. This system works well, but problems may arise when a case is so saturated in sensitive material that the PII procedure removes the evidence which one side requires if they are to make their case.

 

In these very limited circumstances, the Justice and Security Bill would allow sensitive national security evidence to be heard in closed material proceedings (CMP). CMPs are already used in other areas of law, including Terrorism Prevention and Investigation Orders (TPIMs), the Special Immigration Appeals Commission (SIAC), and sensitive employment tribunals. This will ensure that civil cases which are currently not heard will be heard, and that allegations made against the Government are fully investigated and scrutinised by the courts. It also means that the Government would no longer be forced to settle cases which it believes have no merit.

 

Concerns have been raised about Part II of the Bill, which covers the disclosure of sensitive material and allows a court to make a declaration that a CMP may be used in certain civil cases. Indeed, as you are aware, Liberal Democrat conference voted in support of the removal of Part II. The deep concern expressed by conference has informed a tough approach to internal negations - while it has not been possible to secure the removal of Part II, we have secured a dramatic package of improvements which we feel meet the majority of the concerns. These include restricting the scope of the Bill to national security cases only, removing inquests from the scope of the Bill entirely, and ensuring that it is an application to a judge and not a decision by a Minister that triggers a CMP.

 

In November 2012, Liberal Democrats secured improvements to the Bill in the House of Lords by supporting a series of amendments proposed by the Joint Committee on Human Rights. There are now further safeguards to make absolutely certain that every other avenue for dealing with sensitive material can be explored before a CMP can be used, and the amendments put beyond doubt the fact that CMPs cannot be extended to inquests, or in Scotland, Fatal Accident Inquiries. In addition, recent Government amendments make sure that the judge has the power to revoke the CMP if they deem that the procedure is not fair, even after it has already begun. This will ensure that if any material arises which is just embarrassing, but not sensitive, the judge can call a halt to proceedings.

 

I would like to clarify that the Government amendments do not remove the test of last resort for CMPs. The wording ensures that the judge has full discretion on whether or not to allow a CMP, preserving the balancing test as the judge will weigh the application against the interests of a fair trial for all involved.

 

All parties to the proceedings will be able to apply for a CMP rather than just the Government. While claimants won't be in a position to make the same kind of application as someone who holds national security material themselves, the Government's amendments allow claimants to ask the court to order a CMP of its own motion. If a party wants a CMP for information they do not hold themselves, they are unlikely to be in a position to fulfil the requirements of the application for a CMP that are set out in the Bill. They won't be able to provide detailed assessments of how relevant the material is to determining the issues in the case, or what the damage to the interests of national security would be if the material were to be disclosed. It would therefore clearly be wrong to require claimants to go through the same procedural steps that they would never be able to satisfy.

 

Finally, it is important to note that the Bill will not move cases that are currently heard in the open into closed proceedings. The proposals extend civil justice so that cases which are currently not heard by the courts can be. A judge will decide which pieces of evidence should be heard in open court and which in closed. Only evidence which, if disclosed, would be damaging to national security will ever be heard in closed session - material that is currently not heard in open court at all and is excluded from proceedings altogether. In practice no evidence that's given in open court at the moment is going to be given in secret under the Government’s proposals. What we're talking about is evidence that might be given by spies about their sources, their technologies, what they know - none of which is ever given in open court in any country in the world, including Britain.

 

Thanks again for taking the time to share your concerns on this important issue. I hope this information assures you that with the changes Liberal Democrats have secured to the Bill, CMPs will only ever be used as a last resort in a limited number of cases of national security where secret evidence is so sensitive that under the current system of Public Interest Immunity the case could not otherwise be heard.

 

Best wishes,

 

Office of Nick Clegg MP

Letter to the Leader

Every week, I get an e-mail from Nick Clegg giving his persepctive on some of the Liberal Democrat achievements in Government and an insight into what goes on behind the scenes. Encouraged by Caron Lindsay and also Jo Shaw from "Liberal Democrats against Secret Courts", this week's "Letter from the Leader" received the following reply from me.


Dear Nick,

First, can I say that I (mostly) enjoy these weekly e-mails especially when they give an insight into the way the coalition works behind the scenes, as this week's does.

Secondly, I'd like to say that I was, and remain, a supporter of the coalition.

That said, however, there is one current issue which I am deeply disturbed about: the Justice and Security Bill. Two things concern me: the bill itself and your failure to engage with the party on the issue.

I appreciate that your time is limited (if you even see this e-mail) so I will not rehearse the arguments regarding Closed Material Procedures here. These can be found in more detail on the website of Liberal Democrats against Secret Courts and on this open letter to you I wrote in January.

What I would like to know is how this bill was approved by you and Danny within the Quad, without the opposition of the party being anticipated and factored in - and why when the opposition became obvious you failed to engage and either seek to delay or amend the bill or to, alternatively, allay the very real fears we have.

This is all the more baffling, following the experience with the (Draft) Data Communication Bill - but with that you did spend some political capital in getting it published in draft and examined in detail: a move which effectively killed it in the anticipated form. Surely a similar procedure could have been adopted with the Justice and Security Bill.

In your Letter from the Leader of the 15 December 2012, on the subject of the Draft Data Communication Bill, you said:

"It is no use standing up for civil liberties in opposition if you then forget all about them in power."

 and

"Liberalism for me is about protecting people from overmighty institutions while enabling people to get on in life. That’s not easy and we must always ensure that we ask ourselves tough questions, but I’m confident we are playing our part in getting the balance right. If you want to help the Liberal Democrats as we campaign for civil liberties you can support us here."

Coalition has given us lots of opportunities to implement some of our policies, moderate the extremes of the Tories and to put a Liberal stamp on the Government of Britain. This Saturday I will, along with many others including, I understand, yourself, be taking part in an Action Day trumpeting our achievements.

Sadly, this coalition government is in danger of putting a fundimental illiberal measure on the statute book: with little evidence of opposition from within the Quad or the Parliamentary party, no evidence of it being part of a deal for some other reform, little engagement with those outside and in more-or-less direct contradiction with the Coalition Agreement document.

It appears that you've boxed yourself into a corner - and there is little way out without a great deal of humilation and spending a huge splurge of political capital. Without it, though, I fear that you will have fundamentally damaged your reputation within the party and undermined our Liberal principles, as well as the principles which underpin our understanding of open justice and the rule of law.

Yours Sincerely,

Andrew Brown

Membership Number:


Update (14 February 2013): I've had a response.
 

My Mid Term Review

I'm not normally a fan of arbitrary "stock-taking" exercises, especially when they mark random things like "the first 100 days." I grudgingly accept, though, that there is a bit more logic to the "mid-term review", particularly in the context of a coalition where the yardstick is the negotiated coalition agreement, rather than a single party's manifesto.

I had hoped to be able to blog in some detail about the review itself, but I've not had the chance to have more than the most cursory of glances at it so, for now, I'll review to Stephen Tall's piece on Lib Dem Voice. That has a somewhat depressing conclusion - and I fear that he may be right.

Anyway, here are some comments by way of my own Mid-term review:

It's the Economy, Stupid. 

Well, it always is, isn't it. And, of course, we came into power to "clear up Labour's mess" Since then, growth has failed to materialise, we went back into recession, and the deficit reduction plan has had to be extended. And the fault for this?: international events, the Euro Crisis and sluggish economies elsewhere.

I have a couple of problems with this narrative. I understand the politics of it but I think it's disingenuous to blame Labour entirely for the economic circumstances into which this government stepped. But they can be lamed for fiscal mismanagement prior to the events of 2008 and, in particular, of spending the surplus which had been accumulated in the early years of their tenure.

And whilst it's not fair to ignore the international aspects to the 2010 situation, it's not fair to only blame the international circumstances since. We should have done, and need to do more, to encourage growth: through limited capital expenditure (as well as the much-vaunted guarantee schemes) if necessary.

That said, there is no magic bullet to encourage growth - and Labour lie when they suggest as much. Continued public expenditure at the levels it was at would have led to market confidence (such as it was) evaporating and our costs of borrowing escalating, along with a deficit creating artificial growth: a vicious circle which would have left us only marginally better off than Ireland, Greece et al.

There are signs of stabilisation in the economy but there's no getting away from the fact that things will remain rocky here (and in most of the developed world) for a long time to come...

Wasn't it supposed to be about Freedom, Fairness and Responsibility?

I'm going to say no more on this, other than to link to this post in which I urged Nick Clegg to meet campaigners against Closed Material Procedures. I am, and will remain, a Lib Dem to my core but Secret Courts are not being enacted in my name and I will be supporting Lib Dems Against Secret Courts motion to Spring Conference and a Special Conference if necessary.

Let's not talk about Constitutional Reform.

Best not. And best not too much at the next election either. And best not make it feature of any coalition deal that follows (should that happen, should it even be desirable). No one believes in major constitutional reform more than I do but next time we have the chance, let's spend on political capital on other policy areas. I'm not suggesting giving it up, just giving it a break.

It could have been much, much worse.

I know things are far from perfect. 

I know that we have alienated the soft support from those who lean to the left. 

I know we have made enemies in the chattering classes, the Guardianistas and comedians and panellists on Radio and TV news review programmes.

I know there is going to be an electoral price to pay.

But I also know a Tory (or Labour) Government would have been worse in their own ways. It may feel worse at times, as we're seen as (and are) complicit in things that go against our grain but stop for a moment and imagine what the ideologues in the Conservatives would have done without a restraining hand. And what they wouldn't have done without a kick up the proverbial.

And, for the avoidance of doubt, I think that many of the battles we've had with the Tories would have been fought with Labour, had a viable coalition been possible. Not least on Tuition fees but also on Civil Liberties  (ending ID cards, Data Communications, Secret Courts). They may have been more amenable to fiscal policy which taxed the rich and cut welfare less but we'd have still, for example, seen VAT rise. And don't forget, they laid the foundation stones of the NHS and Education reforms which the Tories have built on and awarding Atos a contract to do assessments for the DWP in 1998.

FTW

Ending Child Detention. Increasing the Personal Allowance. Canning the Draft Data Communications Bill. The Pupil Premium. Equal Marriage. Increasing Capital Gains Tax Rates. Green Investment Bank. Instigated a "triple-lock" on State Pension Increases. Stopped the Tories freezing benefits (although conceded a 1% cap). Fought to keep a 5.2% increase in benefits in 2011 Autumn Statement against Tory resistance. Scrapped ID cards. Ended compulsory annuititisation of pensions at Age 75. Introduced Shared Parental Leave. Fought Tory "fire at will" proposals.

In summary.

We've made political mistakes. The coalition's made policy mistakes. But two and a half years on, whatever way you cut, the alternatives in 2010 were worse than what we have. We could have done things better, but things are better - for the country - than if we had sat in opposition. And for the party - at least in Westminster - as we would not have been forgiven at the polls if a minority Tory administration had gone to the polls again the Autumn.

Andrew

Dear Nick...An Open Letter on Closed Material Procedures

Dear Nick,

You don't know me but obviously I know you. I'm writing to you about the Justice and Security Bill and its provisions for Closed Material Procedures (or Secret Courts, as they have become known). In particular, I'd like to ask you to reconsider your reported refusal to meet Jo Shaw and Martin Tod to discuss the party's (and the Government's) approach to the bill. But first, for the sake of background, a bit about me.

I'm a relative newbie having (re)joined the party in 2010 (post-election). Since then, I've gradually got more involved within the blogosphere, the local party and attending conference. Conference was a great experience, in particular the opportunity to attend and vote in the debates that make our party policy. Something which we are, justly, proud and which the party makes much of when "marketing" conference to the members.

I also really enjoyed the buzz of being with (relatively) like minded people throughout the week. Yes, we're a party with some profound disagreements on certain issues, but collectively we approach things from a broadly similar, liberal, mindset. Our party democracy facilitates honest, civilised and respectful debate - even on the most contentious of issues, things remain (for the most part) courteous. It may not be perfect, but it's better than policy being decided behind closed doors and fed down to the grassroots.

I'm proud of a lot of what we are doing in Government. I know we can't do nearly as much as we would like, and I know we have to swallow some pretty unpalatable things. I'm a realist but I supported the decision to join the coalition and I remain a supporter of it. We should be shouting from the rooftop about the raising of the Personal Allowance, implementing the Pupil Premium, stopping Child Detention and raising Capital Gains Tax, amongst other things. Trumpeting our achievements, not just the things we've stopped.

I was also proud of you, personally, when you stood up and accepted Leveson's central proposals in direct opposition to the Prime Minister. And when you accepted the Joint Committee's recommendations that the Draft Data Communications Bill needed a substantial rethink. And when you made a stand on Drugs and accepted the need for a Royal Commission and to look at alternatives to the current position.

These were bold and welcome moves. Moves that seemed to suggest you were seeking  to (re)claim the Liberal ground for us. To carve out a niche that isn't about chasing votes to the Left or to the Right. To be honest, I had hoped these would be followed with some pronouncements on the Justice and Security Bill. Sadly, though, that has not been the case...

Few things unite us more, as a party, than Civil Liberties. Few things differentiate us more from Labour - and increasingly - the Tories than Civil Liberties. For all the fine words in their manifesto, I'm sure I'm not alone in beginning to wonder how many of the coalition's achievements in this area would have been achieved without us in the Government.

I am, it has to be said, a loyalist. In political life, and life in general, I dislike dissension, aggression and conflict. But that is not to say that, when I feel strongly about things, I won't take a stand. And that brings me to the subject of this letter.

When I first read the text of the Autumn Conference Motion F41 "No Government Above the Law". I was reluctant to support it, given that it would - should - tie our Parliamentarian's hands. But, the amendment lacked, in my judgement, sufficient safeguards against the use of CMPs in circumstances conference, the party or even (perhaps) the current Government wouldn't deem appropriate.

Protection of Civil Liberties and Open Justice are at the root of an free and fair society. They are at the core of Liberal principles. The Justice and Security Bill strikes at the very heart of these principles. Just look at your Membership Card: "The Liberal Democrats exist to build and safeguard a fair, free and open society, in which we seek to balance the fundamental values of liberty, equality and community..."

So much for the issue - but what of your response? After all, the motion was selected by FPC, in accordance with the constitution of the party. The amendment was debated (supported exclusively on the floor by Parliamentarians) and rejected overwhelmingly. The unamended motion was similarly passed overwhelmingly. As such, it is Party Policy to oppose Section II of the Bill.

Now, I appreciate that you can't stop everything. I know you only have some many cards that you can play. But you have a mandate from the party to reject this bill, and you aren't bound to it by the coalition agreement. I understand you must have invested some political capital in this: and that wholesale withdrawal at this stage would be embarrassing. (This, in itself, begs the question: how did you think the party would react when this was first mooted in the Quad, in Cabinet and amongst our MPs?)

As things stand, I am minded to support a further motion at Spring Conference and, if need me, at a Special Conference. Much depends on what you do next, and whether you respond to the party's obvious concerns in any way. I urge you, at the very least, to meet Jo and Martin to discuss the issue.

To finish, I want to quote you this:

"We will be strong in defence of Freedom. [We] believe that the British state has become too authoritarian [...] We will restore the rights of individuals in the face of encroaching state power, in keeping with Britain's tradition of freedom and fairness."

Our manifesto? No... The Coalition's own "Programme for Government".

Yours, Sincerely,

Andrew Brown

In which I write to The Times...

...sort of.

 

There is a letter in today's edition Times from Lib Dems Against Secret Courts protesting against the Government's plans to introduce "Closed Material Proceedings" into civil cases. This means that the government and security forces will be able to site National Security and moved to closed courts in which the defendant would not have access to the evidence against them.

 

If passed, this would strike at both the principle of open courts and the principles which underpin fairness in the Justice system. It would leave the security services and the Home Office with undue influence over legal process.

 

This autumn's Liberal Democrat conference passed a motion - in defiance of speech after speech from our parliamentarians - calling for these proposals to be dropped from the Justice and Security Bill. Since then the campaign has been continued by Jo Shaw who has organised a petition for Lib Dems to sign and the letter to The Times - which attracted 172 signatures.

 

If you are a Lib Dem and haven't already done so, please consider signing the petition - if Liberal Democrats don't stand up for Liberalism, Democracy and a free, open and transparent legal system, who will. If you're not a Liberal Democrat - why not join us and join the fight.

 

Andrew