4 Apr 2012

Clegg demands changes to ‘secret’ justice plans

Plans to hold more inquests and court cases in private are losing ground after criticism from senior MPs, peers, and the deputy prime minister.

Mr Clegg set out his concerns about the current proposals in a letter to the government’s National Security Council, and warned that the Liberal Democrats would not currently be able to back them.

His intervention came as MPs and peers on the cross-party joint committee on human rights said the “secret justice” proposals were “inherently unfair”.

The plans proposed by Justice Secretary Ken Clarke in his justice and security green paper are intended to allow sensitive evidence from MI5 and MI6, that cannot be made public, to be used in some court hearings.

But Mr Clegg that the concerns of privacy for the security services “cannot be allowed to ride roughshod over the principles of open justice”.

He said the current proposals are too broad, and called for well defined limits on the type of cases that can be heard in secret – namely those which involve national security and terrorism.

‘Radical departure’ from open justice

In a damning report which said the controversial and wide-ranging proposals were based on “vague predictions” and “spurious assertions” about catastrophic consequences, the joint committee on human rights also put pressure on Mr Clarke to perform a U-turn.

Closed material procedures are inherently unfair and the government has failed to show that extending their use might in some instances contribute to greater fairness. Hywel Francis, joint committee on human rights chairman

Secret justice is ‘common sense’

In response to criticism, Mr Clarke said the government’s proposals were a “common sense solution”.

“They will ensure that the government is properly held to account when individuals challenge its actions in civil cases only, without revealing information which would compromise public safety,” he said.

He said the British intelligence officers can not currently give evidence in open court.

“This means that there is a compelling case for changing the current rules which stop judges considering any sensitive intelligence evidence at all, even where the case hinges on it, in compensation hearings or other civil cases,” he added.

The justice secretary added that he would take the criticism by the joint committee on human rights on board as he develops the proposals.

What the government is proposing

Currently, parts of a very limited number of cases can be held in secret if they are part of hearings by the Special Immigration Appeals Commission (SIAC). The government wants to extend this to any civil case where there is a “national security” element.

At the moment, evidence can be redacted or even withdrawn from a case at the government’s request if the government considers the material too sensitive to disclose.

What this legislation is seeking to change is the curent procedure whereby both sides of the case can see all documentation relating to it. Under the plans, sensitive material may be kept as part of the government’s case but not revealed to the other party. So if a decision is being made on the strength of government evidence, the defendant will not have the opportunity to rebut it. Although what is called a Special Advocate would be in the room when the evidence was heard, that person would be restricted from revealing very much about what they had heard to the defendant and their lawyer.

The government says the legislation is to enable it to give the US a “cast-iron guarantee” that evidence it may have gathered and passed on to the UK authorities would not be revealed so as to potentially jeopardise sources or intelligence agents.

(Source: Reprieve)

The report said the plans mark a “radical departure” from the traditions of open justice. While Mr Clarke said he intended “secret hearings” for a small number of the cases, the committee said the proposals are “very broad in scope”.

Dr Hywel Francis, the committee’s chairman said: “Closed material procedures are inherently unfair and the government has failed to show that extending their use might in some instances contribute to greater fairness.”