I replied to the last Letter from the Leader asking for a full explanation of the secret courts episode. I have now received this response from the office of Nick Clegg:
Thank you for your email to Nick Clegg sharing your concerns about the Justice & Security Bill. I am replying on his behalf.
This Bill is a judgement call over the best way to allow sensitive evidence to be heard in civil courts. It does not apply to criminal cases at all. Obviously people hold a range of views about this Bill but I can assure you that if Liberal Democrat parliamentarians thought it were fundamentally illiberal then they would not be supporting it by the overwhelming majorities that they have been.
We do not believe that supporting a system which is designed to allow more evidence to be heard in court relevant to cases of government wrong-doing, albeit in limited and not ideal circumstances, is against fundamental liberal principles. Under the current system, the only method available to protect very sensitive material such as the identity of informants from disclosure in open court is through Public Interest Immunity (PII). A successful PII application results in the complete exclusion of that material from the proceedings. Therefore, any judgment reached at the end of the case is not informed by that material, no matter how central or relevant it is to the proceedings. This system mostly works well, but problems may arise when a case is so saturated in sensitive material that the PII procedure removes the evidence which one side requires if they are to make their case.
In these very limited circumstances, the Justice and Security Bill would allow sensitive national security evidence to be heard in closed material proceedings (CMP). CMPs are already used in other areas of law, including Terrorism Prevention and Investigation Orders (TPIMs), the Special Immigration Appeals Commission (SIAC), and sensitive employment tribunals, and have been judged to be fair by the UK Supreme Court and the European Court of Human Rights. This will ensure that civil cases which are currently not heard will be heard, and that allegations made against the Government are fully investigated and scrutinised by the courts. It also means that the Government would no longer be forced to settle cases which it believes have no merit.
Last September, conference made clear its opposition to the Justice and Security Bill and the emergency motion at spring conference demonstrated its continued opposition to the Bill. However, it is important to note that due to both the Conservative and Labour parties supporting the case for Closed Material Proceedings, there is no majority in either House of Parliament to remove part II of the Bill entirely. While it has not been possible to secure the removal of Part II, Liberal Democrats have secured a dramatic package of improvements which we feel meet all of the practical legal concerns raised. These include restricting the scope of the Bill to national security cases only, removing inquests from the scope of the Bill entirely, and ensuring there is unfettered judicial discretion and control of the proceedings.
It is important to clarify that the Bill will not move cases that are currently heard in the open into closed proceedings. The proposals extend civil justice so that cases which are currently not heard by the courts can be. A judge will decide which pieces of evidence should be heard in open court and which in closed. Only evidence which, if disclosed, would be damaging to national security will ever be heard in closed session – material that is currently not heard in open court at all and is excluded from proceedings altogether. In practice no evidence that’s given in open court at the moment is going to be given in secret under the Government’s proposals. What we’re talking about is evidence that might be given by spies about their sources, their technologies, what they know – none of which is ever given in open court in any country in the world, including Britain.
Thanks again for taking the time to share your concerns on this important issue. With the changes Liberal Democrats have secured to the Bill, I would like to assure you that CMPs will only ever be used as a last resort in a limited number of cases of national security, where secret evidence is so sensitive that under the current system of Public Interest Immunity the case could not otherwise be heard.
Office of Nick Clegg MP