Myself, Coding, Ranting, and Madness

The Consciousness Stream Continues…

Open Courts — A Victory For Justice?

23 Nov 2012 8:00 Tags: News, Politics
It is the judge's court, not the government's. Baroness Berridge 1

The debate over the use of "closed material proceedings" (secret court hearings) in civil cases — where evidence that is considered sensitive or is even classified can be presented to a judge in a closed hearing, such that even the defendant is not aware of the contents of that evidence — ran late into the night2, with a bloc of cross-bench, Labour and Liberal peers striving to put safeguards in the Justice and Security Bill3.

The Bill was introduced in the House of Lords, and the government will doubtless be somewhat upset with the string of amendments passed. The report stage has now been completed, with the Lord's 3rd reading to come in the not too distant future. The changes, however, may have not been as far reaching as the newspaper headlines make out.

It looks like ministers will not have the decision on what evidence will invoke these closed proceedings: however, the use of secret hearings as a ‘last resort’ has been maintained. Here are some of the amendments in more detail.

Amendment 334

Amendment 33, moved by barrister and cross-bench peer Lord Pannick56, removed the constraint that only the state may move for a closed hearing, instead allowing either party, or the court itself, to request the motion.

The Government benches opposed the amendment on the point that the principal behind them was the safe usage of information related to national security — and the state was the sole protector of such information in the country. Logical, well said, and ultimately stupid.

Lord Pannick, who described the government's proposals as a radical departure from the principles of common law and transparent justice, saw his first amendment through with 273 votes to 173.

Amendments 357 and 368

A judicial discretion clause, which removed the obligation of judges to hold closed meetings at the state's request, agreed 264 to 159, and further discretion in terms of the degree of harm to the interests of national security if the information was disclosed, passed 247 to 1609.

The Others

After amendment 36 was defeated, the Government allowed the rest of Lord Pannick's amendments (3710, 3811 and 4012) to be moved formally13, signalling that the opposition had made their point. Other amendments were still fully debated, including amendment 3914 which was willing accepted by the Government benches as needed due to legal loopholes.

The Result

The bill has suffered a splattering of liberal varnish, the Government benches were slightly humiliated, and the free press has sounded the victory trumpets. The situation was perhaps best summed up by the Conservative Peer Lord Hodgson15 in his heavily debated, and eventually16 withdrawn17 Amendment 3118:

My concern is the risk that what begins as a rare event will over time morph into the default option.

I would like to see enshrined in the Bill a set of steps-hurdles, if you like-that the Government of the day will have to clear before they can resort to a CMP.Lord Hodgson of Astley Abbotts 19

The amendments saw a Liberal rebellion of about 50 peers, representing over half of the party's presence; these rebellions turned out to be primarily superfluous, with votes being won by majorities of up to 100. However, this may open the way to similar rebellions when the bill comes before the Commons.

However, all that the day really did for me is tell me I have another bill to read carefully...

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  2. 2 well, the evening from a programmer's time frame.
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  6. 6 Yes, it is pronounced like 'Panic'. Yes, this amuses me.
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  9. 9 Astute readers may haven noticed that Peers were leaving the chamber throughout the debate, highlighted by the steadily decreasing voting figures.
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  13. 13 No division was used.
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  16. 16 After over two hours of debate
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