Jeremy Beecham anticipates the government's response to recent Lords defeats over its ‘secret courts’ proposals
It was a new coalition. Last Wednesday evening, the government lost three votes, heavily and in quick succession, on its deeply flawed ‘secret courts’ proposals – the centrepiece of the Justice and Security Bill. Realising the game was up it allowed two further amendments to be nodded through, clearly in fear of further defeats.
The amendments were moved by the eminent Crossbench Peer and lawyer, Lord Pannick whom I followed in the debate, supported by our fellow signatories Lib Dem Lord Lester and Tory Baroness Berridge. Between 247 and 273 peers voted for the amendments, with voting majorities of between 87 and 105.
Among those trooping through the ‘Contents’ lobby alongside Labour members were the former head of the Supreme Court , Lord Phillips, the former Lord Chief Justice Lord Woolf, crossbenchers, a sprinkling of Tories, including the 95 year old Lord Campbell of Alloway and, significantly, a large proportion of non-payroll Lib Dems. For those wondering whether Shirley Williams joined us the answer is that, as on previous highly contentious measures, such as Welfare Reform, the NHS Bill and Legal Aid she reverted to her starring role in the political version of the Hitchcock classic The Lady Vanishes.
The government tried to make light of these stunning defeats by claiming they didn’t match the 14 on the Legal Aid Bill – even though the scale was greater. The question now is whether they will seek to reverse the defeats in the Commons, as they did ruthlessly on almost all of the Legal Aid amendments, before the Bill became law.
Where the Legal Aid Act has greatly damaged access to justice, the closed material proceedings proposals in the Justice and Security Bill go even further. They change the nature of justice itself by a radical departure from the cardinal principle of our legal system, that a party has the right to know the case against him or her and to challenge it.
There are obvious concerns about the need to preserve national security. The government however, has failed to make out its case for these measures which, with the possible exception of a handful of cases, can be protected using techniques already familiar to the Courts and, crucially, subject to judicial discretion.
The Public Interest Immunity procedures, redaction, confidentiality rings, anonymity, closed hearings, even the ultimate recourse by the court to striking out claims which cannot be fairly tried are all available to protect genuine national security material from public disclosure. Following the passage of the amendments, based on the report of the Joint Committee on Human Rights these will now be available, with closed material proceedings as very much a last resort, assuming that MPs do not reject them outright and that our amendments themselves survive debate in the Commons.
The new coalition, incidentally, included such varied bedfellows as the former DPP Lord Macdonald, Tory MPs David Davies and Andrew Tyrie, The Times and The Daily Mail. It also seems to have the blessing of Nick Clegg, who replied to a question by Sadiq Khan with the words: “I’m very sympathetic to a lot of what the Committee says and the Government are considering its amendments with an open, and in many respects sympathetic mind”. Not that the government displayed such sympathy last week, but still Mr Clegg went on: “I hope we will be able to amend the Bill to allay those concerns in line with many of the recommendations of the Joint Committee on Human Rights”.
The challenge now is whether the government will, for once, listen to the very clear judgement of the Lords and respond in terms similar to those voiced by the Deputy Prime Minister. Given its recent disturbing announcement of an intention to curb access to judicial review in a wide range of cases I guess we can’t be too hopeful. Indeed, the scene may be set for a remake of another Hitchcock classic – Vertigo.
Lord Jeremy Beecham is a Shadow Justice Minister in the Lords
Published 27th November 2012