Dark days ahead for British justice

27 March 2013
Author: 
Sophie Farthing, Policy Officer

Last night was a dark moment for British justice as odious Government plans for Secret Courts moved to the brink of becoming law. The House of Lords voted against introducing safeguards to the Justice and Security Bill ensuring that so-called Closed Material Procedures (CMPs) were used only as a last resort. The margin was tight, but nevertheless the legislation was passed in its entirety and now heads for Royal Assent and the statute book in all of its foul, shadowy glory. Not only are Secret Courts infesting our civil law system – minor restrictions making them slightly less deplorable have also been dismissed.

Peers voted by 174 to 158 against a Labour amendment which would allow CMPs only where a judge decided a fair verdict was impossible by other means. The proposed safeguard won cross-party support, with 26 Liberal Democrats rebelling alongside 16 crossbenchers, six non-affiliated peers, one Conservative and 109 Labour counterparts to back the amendment. Regrettably it wasn’t to be, and we now move towards a world where Ministers will be able to rely upon secret evidence – never disclosed to the claimant, let alone public or press – during cosy private chats with judges behind closed doors.

And yet the principled opposition to Secret Courts was clear throughout the Upper House. Labour opposition spokesperson for justice Lord Beecham, moving the amendment, urged peers to help “minimise the damage threatened to the most valued elements of our jurisprudence and judicial system”.

Liberal Democrat peer and former Director of Public Prosecutions Lord Macdonald of River Glaven QC observed: “Nothing would be more corrosive of justice and public confidence in justice than the routine intrusion into our system of closed procedures, of secret courts, of excluded defendants, of confidential meetings between government lawyers and the judge.”

“I have never been convinced of the Government’s position that expelling one party to the proceedings and running the risk of evidence not being challenged is better justice than excluding some evidence, not a party, from the hearing,” said Conservative peer Baroness Berridge, a member of the Joint Committee on Human Rights. “It is better for the Government, but not for justice.”

And former Attorney-General and Labour peer Baroness Kennedy of the Shaws QC told the House of Lords: “Openness will sometimes be more important for the health of the nation because of the poison that is released by secrecy.”

“This legislation involves so radical a departure from the cardinal principle of open justice in civil proceedings, so sensitive an aspect of the court’s processes, that everything that can possibly help minimise the number of occasions when the power is used should be recognised and should appear in the legislation itself,” added non-affiliated peer and former Justice of the Supreme Court Lord Brown of Eaton-under-Heywood.

We also mustn’t forget the mountain of outside opposition which the Government ignored in forcing the Bill through. Lawyers, the international community, the Scottish Government and much of the national press rejected the legislation, along with politicians of all political stripes and hordes of Liberal Democrat supporters. Liberty members also fought the proposals determinedly and we salute their dedicated campaigning.

That the Government failed to make the case for Secret Courts is beyond debate. There wasn’t a shred of evidence suggesting they were necessary; not a single previous case where the existing system for handling sensitive material had fallen short. Clearly the argument was won, but not quite the politics. Needless to say we’ll continue working hard on this – starting as soon as the Bill is rolled out.