Secret courts: un-British, second-class justice
Yes I know it was up against such titans of the TV schedules as Bedtime Live and Don’t Just Stand There I’m Having Your Baby, but last night I forsook those considerable pleasures and tuned into the BBC’s coverage of the House of Lords debate on the Justice and Security Bill via Democracy Live’s excellent website. (Yeah, I know, online parliamentary debates are the new rock ‘n’ roll).
Anyway, here’s the short version of what happened: the government won, human rights lost.
The slightly longer version is that the Lords eventually voted against one amendment that the Labour front bench had tried to put back into the Bill (after peers had previously inserted it - and others - only for them to be immediately stripped out by the House of Commons). Welcome to the not-uncomplicated world of bicameral law-making….
The key detail from last night was that a “last resort” amendment (6A), moved by Lord Beecham (who said it was a matter of deep concern to all citizens that secret justice be avoided wherever possible), was voted down by 174 votes to 158. This would at least have meant that the Bill’s much-criticised “closed material procedures” would have become a last-resort measure, used only when a court “considers that a fair determination of the proceedings is not possible by any other means”.
From my perspective, already thinking “closed material procedures” hopelessly Kafkaesque, nothing less than peers kicking the Bill back to the Commons with a “scrap this dangerous nonsense” note was ever going to do. So, yes, a deeply disappointing outcome. But there was a strange (morbid?) fascination in hearing at least part of the (lengthy) debate last night. For example …
… the former director general of MI5 Eliza Manningham-Buller said that closed material procedures were an “imperfect” arrangement, but, she claimed, they were being introduced for the purpose of allowing litigants to have cases heard that otherwise wouldn’t be (this, essentially is the not-at-all-convincing “Ken Clarke argument”). Further straining credulity Manningham-Buller said the Bill was “not primarily” legislation designed with the security services in mind, still less to shield them from scrutiny (she reckoned the security services “welcomed scrutiny”). Though also (and somewhat contradictorily?), she reckoned that “reputational damage” to the services would lead to negative outcomes to a taxpayer-funded organisation. Meanwhile she talked quite a lot about the need to protect “human sources”, apparently ignoring the fact that this can be done without the nuclear option of using closed courts. Arguing that redactions were no help, she claimed some cases would be “saturated” in redactions. Hmm, leaving aside whether this is true or actually even an argument against them, what about other tried-and-tested “security” techniques, like the use of security screens and confidentiality agreements? To me it just didn’t add up.
Lord Wallace of Tankerness, the Attorney General’s spokesperson in the Lords, said that “no-one feels comfortable” with closed material proceedings, but he reckoned the government had “given very careful consideration” to people’s concerns. Well, it didn’t feel that way. Lord Wallace admitted that what was on offer was “second-best justice”, but, he rather desperately maintained, “at least it is justice”. Well I beg to differ. Second-class justice is not the justice we should be legislating for in this country.
So these huge matters - going to the heart of how our justice system works - were quietly proceeding in the Lords last night, all conducted in the peculiar British way that these things always are. The Lord Speaker Baroness D’Souza would run through bits of the Bill in super-clipped lawyerly tones, amendments (such as they were) were voted on with peers declaring themselves “content” or “not content” (going either to the “throne” side of the Lords chamber or “over by the Bar”), and the vote Tellers would scurry back and forth carrying brass rods (not sure what they were!) while bringing the vote numbers back to the Speaker. All this while a bewigged clerk made notes and the general array of elegantly-dressed peers stretched their limbs on the red padded leather benches. An oddly British scene, but, as Amnesty’s Tim Hancock says, what was happening - calmly, decorously - was the creation of a very “un-British” secret justice system.
A final point. Not only did the Lords debate lose out to Bedtime Live et al in the viewing schedules last night, but breaking news of David Miliband’s departure from British politics meant there was little sign of the Justice and Security Bill vote in the news either. Which is bleakly ironic. Because one of the things that Miliband’s role as Foreign Secretary involved was a protracted attempt to keep details of the UK’s involvement in Binyam Mohamed’s rendition, torture and secret detention out of the public domain. Now, with the inevitable passage of the Justice and Security Bill, secret justice procedures will be able to do that job whenever the government is challenged in the civil courts.
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