Plans to extend ‘secret justice’ are too broad and should be amended, admits Ken Clarke
Draft legislation would allow ministers to order civil court cases or inquests to be held in private if they ‘damage the public interest’
By James Chapman
Last updated at 11:12 PM on 5th March 2012
Ken Clarke insists the Government has heard criticism ‘loud and clear’
Highly controversial plans to extend ‘secret justice’ are too broad and should be amended so that only a ‘tiny number’ of cases will be included, Kenneth Clarke concedes today.
As it stands, draft legislation would allow ministers to order that civil court cases or inquests must be held in private if they have the potential to ‘damage the public interest’.
But the Justice Secretary, writing in the Daily Mail ahead of an appearance before MPs and peers to justify his proposals, insists the Government has heard criticism ‘loud and clear’.
Mr Clarke claims the reforms will apply narrowly to a ‘handful’ of civil cases involving the ‘most highly sensitive of intelligence material’ and suggests that a judge – not ministers – will have the final say.
He insists cases such as the private prosecution by the family of Stephen Lawrence against his suspected killers, or the inquest into the death of Jean Charles de Menezes, who was shot dead after being mistaken for a terrorist, will not be covered by the final legislation.
However, his concessions look unlikely to satisfy civil liberties campaigners and MPs and peers from all parties who have criticised the Government’s Justice and Security Green Paper.
The Daily Mail has revealed growing cross-party anger at proposals for a huge extension of so-called ‘closed material procedures’ in a wide range of legal cases.
Security services have been pushing for the move, arguing that they have been unable to defend themselves in court for fear of disclosing sensitive intelligence.
But opponents say the proposals undermine the ancient British tradition that justice should be seen to be done, as well as the Coalition’s commitment to liberty.
The Justice Secretary, who held urgent talks over the way forward with officials from the Home Office yesterday, insists there is a ‘serious problem’ of holding the Government to account when serious allegations are made but information they rely on can compromise public safety.
In the case of Binyam Mohamed, a former Guantanamo Bay prisoner who sought to sue the Government for complicity in torture, the Government tried to conceal documents disclosing his alleged torture – but was overruled by the courts. If spies gave evidence about such cases in open court about their methods and knowledge, it is ‘obvious’ that the public would be endangered, Mr Clarke says.
‘Our intention is that the circumstances in which this would apply will be narrowly drawn – not criminal trials, nor most civil proceedings, but only that handful of civil cases, and only where the most highly sensitive intelligence material is involved.
Shami Chakrabarti of Liberty says this policy was never truly his own
‘Inquests would be affected only in the most extreme circumstances; and even then, only the parts of the evidence which could compromise public safety would be heard in closed session. And, critically too, we are seeking to ensure that strong safeguards are built in. That is why the final decision on whether individual pieces of evidence must be disclosed will rest with the judge.’
Former shadow home secretary David Davis, who argued last week that the plans were more suited to despotic regimes such as Syria and Iran than the home of Magna Carta, said: ‘I welcome the fact that Ken Clarke is listening and appears to accept that as they stand, the proposals are too broad.
‘But if the final decision is to rest with a judge, as he suggests, the Government must explain what’s wrong with the procedure we currently have. The simple truth is we already have a system of public interest immunity for such cases where the judge has the final say.
‘The fact is, ministers haven’t made any case beyond a wholly speculative one for what’s wrong with that system.’
Shami Chakrabarti, director of the civil rights group Liberty, said: ‘I’ve always had great respect for Ken Clarke, but the fact is this policy was never truly his own.
‘As a former government lawyer I know the old trick of starting with such a sweeping proposal than any concession makes you look more reasonable.
Even if this policy were limited to so-called national security cases, the 7/7 inquests 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. This isn’t nearly enough from Ken Clarke, and the fight goes on.’