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The crime of the Justice and Security Bill

17 November 2012

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.

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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:

‘The right to be informed of the case made against you is not merely a feature of the adversarial system of trial, it is an elementary and essential prerequisite of justice.’

Scores of Liberal Democrat members are dismayed that their party leadership has introduced such illiberal legislation. A petition of party members has prompted over 500 signatures, critically including enough elected conference representatives to trigger a Special Conference that would, if called, be severely damaging to the party leadership.

Moreover, the Social Liberal Forum and Orange Book equivalent Liberal Reform have come together to publish a campaign letter demanding the plans be dropped. This is not simple instance of the usual suspects railing against the party leadership.

Unlike economics or welfare, where Lib Dem members have a spectrum of views, on civil liberties the party membership is as close to being of one mind as is possible. It is clearly felt that, if the Lib Dems are to prove their worth in government, they must stop these plans.

Charlotte Henry is a writer and consultant on liberal politics. She tweets @charlotteahenry

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Show comments
  • Mar

    This might be of interest!
    “The Justice and Security Bill: An Orwellian State Device or a Necessity for National Security?”

  • The_Missing_Think

    “…legalese for secret courts in sensitive civil cases.”


    Isn’t this system, like all, vunerable to abuse?

    Could people that make the Govt people feel a little bit uneasy, (their critics) start disappearing via these secret courts?

    I find the idea of a future “zero tolerance” politically correct Govt weilding such power a very unhealthy prospect.

    It must be slain for us all. (Govt-power types excempt).

  • Q46

    Coalition says, ‘The Government believes that the British state has become too authoritarian…”

    Coalition proposes, “On Monday, the government is set to announce its alcohol strategy. It is expected that this will call for a minimum unit price of 40p… it’ll help cut down on binge drinking and by stopping supermarkets from doing cheap offers will help pubs compete.”

    Cognitive dissonance anyone?

  • eeore

    The simple answer is that the security services should be more careful in order to prevent it’s assets from becoming involved with the legal system. Then there wouldn’t be this issue of needing to keep sensitive information out of the public arena.

    • salieri

      And how does that simple answer work, exactly? Suppose a suspected terrorist is detained on suspicion of planning to plant a bomb at Heathrow. There isn’t enough evidence to charge him, or else it’s more useful to keep him under surveillance instead, so he is released. He then sues the government for false imprisonment. The government has evidence which more than justifies the arrest. But this is evidence from the intelligence services – for example that they intercepted a mobile call to co-conspirators outside the country, discussing the attack. Are you seriously suggesting that MI6 should have given a damn about “the legal system” when gathering that evidence, or could in some unfathomable way have prevented “it’s [sic] assets” from being involved? You accept that there’s an issue, but surely the issue is preventing the legal system from becoming involved with secret information, not the other way round. At least the Bill attempts to address this.
      And has anyone commenting on this post actually read the Bill?

      • RatherAnnoyedPleb

        Sadly, although this is the wisest post in this thread, it will be ignored.

        • Colonel Mustard

          Why are secret policemen now in the business of lobbying for laws which give them more power rather than just enforcing the laws we already have?

      • eeore

        You assume that the suspect is not an asset. That the operation has not been set up by the security service. And the government does not benefit from the heightened security and public alarm.

        All you have done with your hypothesis is regurgitate a scenario programmed into you by TV.

        Which is why I don’t accept there is a need for a bill – which is another false assumption on your part.

        I simply say that the security services should keep it’s assets out of court and that would solve the problem.

        • salieri

          Yes, I have made the first three assumptions. Otherwise, why would the suspect be suing the state for damages in the first place? As for the fourth, I didn’t presume to say you accepted the need for a Bill, only that you accepted there is an issue involved here.

          And I earnestly assure you that it’s possible to read the Bill, without watching TV, and to work out for oneself in what situations it might apply – and, more importantly, would not apply. That’s what it’s all too easy to lose sight of.

          • eeore

            No. I said you are repeating hypothetical scenarios fed to you by TV.

      • Colonel Mustard

        Yes. I have. The terrorism aspect is just window dressing, the thin and justified end of a very large and intrusive wedge. The Bill also provides for a council jobsworth to spy on your emails because you owe a parking fine or put out the wrong bin.

        • dalai guevara

          It is unbelievable – it was only two days ago -on the topic of elections and democracy- when I had to bring myself to comparing Britain to DPR of China. Now, I feel the urge to make a connection to the DPR of North Korea.

        • salieri

          The Bill is right in front of me. Please tell me where I can find these clauses.

          • Colonel Mustard

            See The Missing Think’s comment below. The Bill is full of ambiguity. Time and time again we have been reassured of a Bill’s specific intent only to see that intent abused by its application and “unintended” consequences.

            • salieri

              Instead of answering my question, you refer me to someone
              else’s hysterical howls about secret courts making people disappear, for God’s sake.

              I repeat my question because what you have stated as fact is simply untrue. I haven’t missed your point – but it’s a bad point. The abuses of power you describe were made possible by the previous government’s Prevention of Terrorism Act (2005). I have inveighed against those often enough on other threads. But you really can’t blame Cameron for them in this knee-jerk way.
              The only freedom interfered with by the present Justice and Security Bill is the freedom of unscrupulous scroungers, liars and traitors to take hundreds of thousands of pounds off the taxpayer – with the assistance of cynical specialist lawyers who know very well that these cases cannot, currently, be defended by the government AT ALL without exposing its intelligence and the lives of its agents.

              I would have thought from your other posts that these are exactly the
              kinds of people you would not want to encourage.

              So I repeat my question: what sections of the draft Act are you
              referring to? And now I also challenge you to identify the clauses
              you say are full of ambiguity, and to explain precisely how.

              Sorry, Colonel Mustard, but I’m annoyed now because if you
              really have read the Bill you are wilfully distorting it. I blame the Spectator for allowing this ignorant and thoroughly irresponsible post to go up in the first place.

              • Colonel Mustard

                Sorry, but you are missing the point – and my reply. The track record of this awful government does not make me believe that only the guilty will be pursued or even that the guilty will be pursued. I refer you to the fact that the Bill does not define the meaning or scope of “national security” but leaves it open to be interpreted by a judge, it does not define “sensitive information” but again leaves that open for interpretation by the owners of that “sensitive information”. It includes “alleged information” and it is couched to include any government department, not just those concerned with security or intelligence operations – however those are to be interpreted and bearing in mind that previous unrepealed legislation has allowed local councls to mount security and intelligence operations against parents in respect of school cachment areas.

                This is not about distortion but about concern and this government singularly fails to make its case, persuade or reassure but instead presses ahead arrogantly. Do you think I should welcome this Bill when the Home Secretary cannot even expel a foreign national who is wanted by a friendly state in connection with terrorist crimes but can imprison an Englishman and refuse him bail for a much lesser allegation?

                You are annoyed? Come and live in my world as I watch the cornerstones of British justice eroded on an almost daily basis by invoking the threat of terrorism. Something even the Luftwaffe couldn’t accomplish in five years of sustained aerial assault.

                • salieri

                  But why do you refer to “the guilty” being pursued, like that silly woman referring to “the prosecutor”? No possible questions of prosecutions and guilt arise here. The Bill only applies to closed material which needs to be considered within civil actions; it expressly excludes criminal proceedings.

                  I agree that “national security” is not defined. How could it be? I also agree that in principle that could be open to abuse – and has been in the past. But “sensitive information” is certainly defined, and very carefully defined, so as to apply to information which might lead to the identification of, or provide details of, sources of information, other assistance or operational methods available to the intelligence and security services: Section 13(3) and Sch 1, Paragraph 4. The words “alleged information” appear nowhere.

                  It sounds as if dislike of this government has blinded you to the purpose and reasonableness of this Act. The paradox is that you rely on the state’s inability to deal with immigrant terrorists as a reason for opposing this small attempt at doing so.

                • Colonel Mustard

                  Dislike of this government has not blinded me. Rather my eyes have been opened and I don’t like what I see.

                  “The words “alleged information” appear nowhere.”

                  Then please look again. Part 2 13 (6):-

                  “information” includes—
                  (a) information contained in any form of document or stored in any
                  other way, and
                  (b) alleged information

                • salieri

                  Thank you, I stand corrected on “alleged information”. Will you similarly concede that “sensitive information” is in fact clearly defined?

  • Cogito Ergosum

    Of course we would not need a bill like this if we could just throw the bums out.

    More seriously, it is fine to have first class civil rights for legitimate residents in and visitors to the UK. But we, and foreigners, should accept the world as it is instead of pretending that we live in a moral utopia with only a few tiny blemishes.

    We must assert the absolute right to deport foreigners convicted, or reasonably suspected, of serious crime, no matter what country they are from If they protest, well they should have thought of that before they broke our laws.

    • Noa

      In addition, those on welfare benefits should not be able to afford the luxury of binge drinking. A food voucher system would go far to address that aspect of the drink issue.

      • eeore

        So pensioners should be banned from drinking? Or those on low wages in receipt of housing benefit? Or those in receipt of family credit or child benefit?

        And what of those with a government sponsored mortgage through the bail out? In what sense are they not on welfare?

  • salieri

    Just a minute. Before we all start crying foul, this article is a tendentious, unfair and downright misleading summary of the Bill – which anyone can read online.
    It is nonsense to say that “such proceedings do not protect state secrets” – that is their very purpose. The Bill applies only to civil actions which have been brought against the government, some part of which turns on the uniquely sensitive evidence of the intelligence services: i.e. spies. Only that restricted part of the evidence involves the claimant’s ‘special advocate’, who has no role to play in the rest of the case. The special advocate is appointed by the Attorney General. Since these are civil proceedings there can’t be a “prosecutor” anyway. As for the special advocate himself being given “limited access to the protected evidence”, the Bill contains no such provision.

    And please do bear in mind that this tiny number of cases could not otherwise be heard at all, because the court would have to grant a public interest immunity certificate effectively preventing a trial, so that the claimant’s case cannot even be contested and he/she ends up winning huge compensation by default – from the taxpayer.

    Yes, it is true that some LibDems, supported naturally by the Guardian, don’t like the idea. But there is another side to the story which it is childish to suppress – let alone to misrepresent. See Ken Clarke’s interview at

    • Colonel Mustard

      I have read the Bill online and it is a nightmare for liberty, giving every jobsworth the right to spy for any number of trivial reasons and to share unsubstantiated data. Besides, you are completely missing the point. The Coalition promised to end this nonsense, Cameron to “sweep it all away”. They are liars and expose that the real power lies not with an elected government but in the hands of unelected secret policemen, bureaucrats and foreigners.

  • anyfool

    Why after hundreds of years does British law need to be so radically changed to the detriment of its citizens, could it be in the last few decades the citizens have become so criminalised,disloyal or just so lacking in empathy to the state that it needs these powers to keep the residents of these Isles in check or is it that the importing of so many people of disparate cultures that it needs these powers to keep the peace.
    What a lot of the immigrants over the last few decades should reflect on is, did you really come here to end up with laws somewhat harsher than the ones you left behind, or are you the cause because you could not leave the venal parts of your culture or religion behind.

  • Noa

    The real power in government has long been in the hands of the Sir Humphreys, eurocrats and Tallyrand’s as they are to a man.

    They have consistently sought this and similar powers to provide fig leaves for their machinations and exposed incompetencies under both the previous and the Coalition administrations.
    Another day and another U turn for the sock puppet Cameron.

    • telemachus

      I will guarantee tomyounthat after 2015 the Treasury will be firmly in the hands of Ed Balls who has the ideas the drive and the intellect to over rule and control the mandarins

      • Noa

        What you mean is that, if given the opportunity, he and his missus, will resume his old habit of optimising his own housing and expenses?
        Fortunately I doubt that the voters in Oldham will make the mistake of electing him again in 2015.

  • Colonel Mustard

    Thank you for this article. This is an absolute disgrace and should disabuse everyone of the idea that Cameron tells the truth or means what he says. Or indeed that he is any kind of Conservative.

    Can we now have something from the Speccie on Common Purpose, Sir David Bell, the Media Standards Trust and its influence on the Levison enquiry?

    • Noa

      Ahhh! Another Neathergate expose by the Speccie!

      • telemachus

        Neather is not an honourable man

        • Noa

          The dishonourable men, traitors all, were those Labour ministers who implemented a covert policy of unlimited mass third world immigration to rub the right’s nose in diversity, which will destroy the very core and fabric of Britain within 30 years.

          As James Neather actually exposed this plot against the very existence of the British people that means you support this policy of treachery and its evil consequences.

          • telemachus

            I do celebrate influx of new talent to our shores
            And yes the motives ascribed to the last government are scurrilous
            This is not treachery but an event as important in our isle as the advent of the Normans, the Hugenots and Idi Amin’s Asians

            • telemachus

              PS Noa
              It was Andrew
              As I told the vicar you have to keep a careful eye

            • Noa

              No it’s simply treason and will be judged as such by our successors who will have to, n fact already are having to deal with its consequences, as they can no longer afford education, obtain work, indeed be actively discriminated against, or buy homes in their own homeland.

              At some stage an honourable labour movement that sought to protect its own fellow working countrymen was subverted by the stalinist journey and placemen who have made alliance with the useful idiots who have worked to destroy our very democracy and culture.

              Perhaps you can clarify which you are?

              • telemachus

                They said the same on behalf of the children when the Hugenots came
                You are guilty of short term ism
                The talent and cultural diversity of these folk outweighs a few short term concerns
                Generations on we will welcome their driving our great nation forward as we have with the Frisians, Angles, Jutes, and Saxons

            • Cassandra1963

              New talent like Abu Qatada? Hundreds of thousands bought and paid for ‘ child spouses’ from the villages of rural Pakistan, Nigeria, Ethiopia,Sudan unable to speak English and with no skills. Supposedly single mothers with no English and no skills and supposedly refugees along with their elderly who will be a burden on the state for the rest of their lives. What talent? The talent to know how to claim benefits and how to get a council house and where the local mosque is? Most immigrants are net consumers of state funding and will be for the rest of their lives and those they bring in will become state clients from day one and remain that way.

              • telemachus

                See my reply to Noa below
                The very few problems are ours to solve
                Qatada is the consequence of weak government
                Your the points are a bow to reading about racial stereotypes
                It is a joy to us all that we reap the rewards of our rich colonial past

    • telemachus

      I thought David gave a creditable performance at Levison

      He is an honourable man.


      “I have spent
      my life in and around newspapers and believe passionately in them and the enormous importance of a free press. I believe that the remit of the Inquiry is broad enough to be able to focus effectively on relations between politicians, the press and the police.

      I am
      or have been, connected to a number of organisations which have direct or indirect links with the media and communications industries and want to offer some background and context.

      I was
      founder Chair of the Media Standards Trust which was set up in 2006 to foster
      high standards in British journalism and has, among other things, done several
      major pieces of work on the effectiveness of press regulation in the UK and on
      the provenance of news on the internet. It is a registered charity funded
      almost entirely by Foundations from both sides of the Atlantic. The Trust has
      also been one of the members of the Hacked Off campaign.

      I stepped down
      as Chair of the Media Standards Trust on my appointment to the Inquiry and have been succeeded by Roger Graef who has been a member since the start.

      I have
      a number of roles connected to media organisations. I am paid in my non-executive role on the Economist, the other work is unpaid. I have never asked for and have no influence over any editorial material they may produce. These organisations include:

      The Bureau of Investigative Journalism

      Institute of War and Peace Reporting

      The Economist

      I am
      Chairman of Common Purpose, a registered charity which operates in the UK and some ten other countries and runs leadership and other courses which mix people from the public, private and NGO sectors. Common Purpose has had several dealings in the past few years with the office of the Information Commissioner in connection with comments that have been made repeatedly about it on the web without, in Common Purpose’s view, any foundation at all.

      I am
      Chair of Crisis, and one of the trustees is Jane Furniss who runs the
      Independent Police Complaints Commission. I am a member of Liberty whose Chief Executive is also on the panel. I have never been to a meeting nor voted in any Liberty election.

      I do not
      belong to any political party, but in the past have given some money at
      election time to the Liberal Democrats.

      I have
      family connections with the media too. My son is an editor who works for BBC
      Radio 4 News and my son-in-law is the Britain Editor of the Economist magazine.

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