Clarke attempts to quell concerns over secret court hearings
Tuesday 06 March 2012
Kenneth Clarke has attempted to quell growing concerns over proposals to hold more court hearings in secret by saying the measure will only apply to a “tiny” number of civil cases in “very limited circumstances”.
The Justice Secretary admitted he was “dismayed” that proposals set out in the Government's justice and security green paper had given rise to fears over “secret justice”.
And he moved to appease opponents by vowing that hearings would only be held behind closed doors if the evidence being omitted had the potential to put public safety at risk.
Writing in the Daily Mail today ahead of an appearance in the Commons to defend the reforms, Mr Clarke said: “I have heard, loud and clear the fears from many campaigners including special advocates, that the Government's proposals are too broadly drawn and might even mean that the likes of the Stephen Lawrence trial and de Menezes case could end up in secret.
“That's not what anyone wants. The reforms we are proposing will apply only in very limited circumstances, in a tiny number of civil cases, where the public safety could otherwise be put at risk.”
The controversial reforms are said to be aimed at improving the way information from the security services, including MI5 and MI6, is handled while still protecting national security.
But the plans to hold civil hearings in secret have been criticised by civil rights campaigners and have even been deemed “fundamentally unfair” by the group of specialist lawyers who would be involved in such cases.
Clare Algar, executive director of Reprieve, said the proposals “would wreck our justice system and put politicians and officials above the law”.
“Ministers clearly have not thought this through. They must now listen to reason and change course,” she said.
It also emerged the Ministry of Justice impact assessment on its proposals to reform so-called closed material procedures (CMPs) found that “vetting and/or exclusion may be seen as excessive or intrusive, leading to resentment or a reduction in confidence in court processes”.
The impact assessment said “family members may resent the use of CMPs during inquests” and also warned of a “higher risk of potential security breaches due to a larger number of individuals accessing sensitive information”.
It said: “The Government's willingness to settle out of court to protect such information suggests that the value of such information is significantly high. Therefore any potential breaches may impose substantial costs to UK security.”
The special advocates who would be used in such proceedings, including 19 Queen's Counsel, criticised the proposed reforms in January, saying that the introduction “of such a sweeping power could be justified only by the most compelling of reasons”.
They said: “No such reason has been identified in the Green Paper and, in our view, none exists.”
They added that such procedures “represent a departure from the foundational principle of natural justice” and “undermine the principle that public justice should be dispensed in public”.
But Mr Clarke has warned that the number of cases involving security services was “steadily increasing”, adding it was “becoming fashionable almost” to start challenging such cases in the courts.
Last July the highest court in the land ruled that secret evidence cannot be used in trials of civil damages claims in a judgment hailed as a “victory for open justice”.
The Supreme Court upheld the Court of Appeal's decision that courts did not have the power to order a CMP for the whole or part of a trial of a civil claim for damages.
It followed secret multimillion-pound payouts to 16 terrorism suspects, including former Guantanamo Bay detainee Binyam Mohamed, last November after they claimed they had been mistreated by security and intelligence officials.
Mr Clarke said justice was not being served under the current system and national security was being put at risk.
Under the plans, an impartial and independent judge would have the power to review the Government's statement that national security would be damaged if evidence were openly disclosed, helping to “ensure that closed procedures are only used where absolutely necessary”, he said.
The special advocates in civil courts, such as those already used in cases involving the security services heard by the Special Immigration Appeals Commission, would be able to examine secret documents in closed hearings.
Mr Clarke added: “Under these plans, there will be no change to anyone's right to make their allegations public. Courts would continue to hear the vast majority of cases in the open. Closed hearings would be limited to evidence that would genuinely endanger the most sensitive informant that we rely on to protect the public.”
Shami Chakrabarti, director of civil rights group Liberty, said: “I've always had great respect for Ken Clarke, but this policy was never truly his own.
“As a former government lawyer, I know the old trick of starting with such a sweeping proposal that any concession makes you look more reasonable.
“Even if this policy were limited to so-called national security cases, the 7/7 inquest would have been shut away from the public and victims' families.
“The Government can't point to a single case where judges have compromised state secrets under the current law. The fight goes on.”
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