The Coalition Agreement states: ‘We will be strong in defence of freedom. The Government believes that the British state has become too authoritarian, and that over the past decade it has abused and eroded fundamental human freedoms and historic civil liberties.’
The Justice and Security Bill, which returns to the Lords on Monday, contains measures that contradict the noble objectives laid out above. This should shame the coalition and the Liberal Democrats in particular, for whom civil liberties are a defining issue.
The government has made a last minute amendment (£) to the bill in order to scale back some of the ‘order-making’ powers of the Secretary of State, which will limit the scope of the bill. Yet Part II of the Bill still includes introducing ‘Closed Material Proceedings’ – legalese for secret courts in sensitive civil cases. Those bringing a compensation claim against the government are removed from court under the guise of ‘national security’, and a Special Advocate is appointed instead of their lawyer. This Special Advocate does not know the prosecutor, has previously not been part of the trial, and is given limited access to the protected evidence.
Such proceedings do not protect state secrets, but simply stop officials being embarrassed publicly for their alleged misdeeds, as Whitehall’s own impact analysis shows. If the proposals were to pass, people who allege wrongdoing by security officials and others could have their cases dismissed without ever knowing why.
A barrister campaigning against the plans expressed horror to me at the idea of being thrown out of court while someone else puts the case for their client. Indeed the Special Advocates themselves have raised concerns at the system. Furthermore secret courts appear to be inimical to our justice system, as Supreme Court Judge Lord Kerr said: