Of the many speeches from Honourable Members on the Loyal Address in the Commons this week, one of the most impressive was David Davis’s oration in defence of civil liberties and against the coalition’s Draft Comminications Bill, which he described as a “snoopers charter”.
The former Tory shadow home secretary explained in concise, forensic detail why the bill was wrong in all regards – including that both his party and the Liberal Democrats had opposed the Labour government’s similar plans in opposition - pointing out the ineffectiveness of such measures, and went on to expose to the House the workings of Britain’s network of “secret courts”.
Watch his contribution in full:
• Labour must become the party of freedom 22 Oct 2011
Lifting the lid on the UK’s secret courts, Davis said (see vid from 08:24 onwards):
“My last point is on a justice measure, but it is not a measure like the snooper’s charter, which will create a tsunami of reaction as it goes through the House – I am confident of that, because we already have 137,000 signatures on the online petition.
“Secret courts affect only tens and perhaps hundreds of people, but they bring against those people a serious injustice. I take the view – a very unfashionable one in modern politics, with too many polls and focus groups – that an injustice against one is an injustice against all, and the secret court proposals undoubtedly propose an injustice.
“I say that with complete confidence, but for a rather obscure reason. A secret court procedure is proposed, but we already have such procedures. They are called special immigration appeal courts – SIAC – and they have existed since 1997, when the Labour government introduced them to deal with people they thought they could not deal with in open court.
“Of course, no hon. Member has ever been in one or seen one in operation. No hon. Member knows how they work, including all ministers of this government and the previous one.
“One group alone understands how those courts work: special advocates. There are 69 special advocates, of whom 32 have had detailed exposure to the proposed closed material procedure.
“The procedure involves the Executive – a minister – saying to a court:
“This information can be heard only in very close camera.”
“It cannot be heard in court as a whole in secret: the judge and the government advocate of the argument can hear the evidence, but only the special advocate – a lawyer who cannot talk to the defendant or litigant in the case – can challenge it…
“The simple truth is not my view, but the view of the 32 special advocates who have had such experience. Virtually all of them signed a document that challenged the government’s green paper, in quite robust terms.
The special advocates said that closed material procedures:
“…represent a departure both from the principle of natural justice and from the principle of open justice. They may leave a litigant having little clear idea of the case deployed against him, and ultimately they may prevent some litigants from knowing why they have won or lost.
“Furthermore, and crucially, because the SA appointed on his behalf is unable to take instructions in relation to that case, they may leave the SA with little realistic opportunity of responding effectively to that case. They also systematically exclude public, press and Parliamentary scrutiny of parts of our justice system…
“Our experience as SAs involved in statutory and non-statutory closed material procedures leaves us in no doubt that CMPs are inherently unfair; they do not ‘work effectively’, nor do they deliver real procedural fairness.
“The fact that such procedures may be operated so as to meet the minimum standards required by Article 6 of the ECHR, with such modification as has been required by the courts so as to reduce that inherent unfairness, does not and cannot make them objectively fair.”
That is the view of the only people who understand this system.
The secret courts measure is being held up as a proposal to improve our security. It would undermine and corrode our justice system, and it would not improve our security, because the other point made by special advocates is that the public interest immunity system as it now stands – again this is not properly understood by ministers – works perfectly well, and much better than what is proposed.
“Indeed, one special advocate has pointed out that this proposal is less good than that available to the terrorist suspects in Guantanamo Bay. That is how poor this procedure is. In fact, there are many other procedures abroad that would work better than this one. Sadly, this is not a measure that I will support in the coming months.
“The government came in with a grand, important and liberal – both small “l” and big “l” – tradition to uphold. That tradition supported both freedom and justice in this country. These two measures – putting the Lords to one side, as that is a matter for argument – would, if we are not very careful, undermine that tradition and our reputation, and do nothing to improve the protection of Britain against terrorism.
“Indeed, just the reverse – they would make it worse.”
Nick and Dave agreed with David in Opposition; what’s changed?