Clarke’s secret courts belong in a repressive regime and undemocratic society warn lawyers
- Justice and Security Bill would allow civil cases involving national security to be conducted behind closed doors
- Law Society warned it would badly damage Britain’s reputation for open and fair justice
- Leading lawyer says current proposals are ‘unfair, unnecessary and unbalanced’
PUBLISHED: 00:19, 20 November 2012 | UPDATED: 08:08, 20 November 2012
Kenneth Clarke yesterday admitted that Government plans for secret courts may be defeated as one of the country’s leading legal bodies said they were more suited to ‘repressive regimes and undemocratic societies’.
As the House of Lords began to debate the Justice and Security Bill – which would allow civil cases involving national security to be conducted behind closed doors – Mr Clarke made a last-ditch attempt to rally support for the legislation.
But he played down the significance of Parliamentary defeats, suggesting the Government may have to water down its plans still further to get them into law.
In a significant blow to the Bill, the Law Society yesterday warned it would badly damage Britain’s reputation for open and fair justice.
The Daily Mail has led criticism of Government plans to allow so-called ‘closed material procedures’, in which cases are conducted entirely in private, in any civil hearing.
Defendants or claimants will not be allowed to be present, know or challenge the case against them and must be represented by a security-cleared special advocate, rather than their own lawyer.
Currently, such procedures are used in tiny numbers of immigration and deportation hearings, but the Government wants to extend them across the civil courts in cases deemed to involve national security.
Lucy Scott-Moncrieff, president of the Law Society, the professional body for solicitors, said: ‘Secret trials and non-disclosure of evidence are potential characteristics of repressive regimes and undemocratic societies.
‘Whilst the Government rightly takes a strong stance in respect of the importance of the rule of law globally, we fear that if passed, this Bill will adversely affect the UK’s international reputation for fair justice.
‘It is our belief that closed material procedures depart from an essential principle of natural justice which is that all parties are entitled to see and challenge all of the evidence relied upon before the court, and to combat that evidence by calling evidence of their own.
‘In addition, CMPs also undermine the principle that public justice should be dispensed in public and will weaken fair trial guarantees.
‘It will be impossible for lawyers to advise their clients in their best interests if they are not privy to the information being used against them in court and are able to discuss this with those clients,’ she said.
‘We believe this breaches a fundamental right of defendants in a just society.’
Crossbench peer Lord Pannick, a leading lawyer, insisted that the current proposals were ‘unfair, unnecessary and unbalanced’.
He said judges were already ‘very experienced’ in ensuring that justice and security are satisfied, taking steps such as ordering security witnesses to give evidence from behind a screen, or editing documents to conceal the names of informants, for example.
He also insisted it must be left to the judge to decide whether a secret hearing would be necessary.
Lord Pannick said the existing law of public interest immunity already ensured any evidence with national security implications was concealed from open court.
Former Justice Secretary Mr Clarke, who is now a minister without portfolio but remains in charge of the legislation, insisted it was necessary because terror suspects are launching a ‘steady stream’ of compensation claims against the security services.
He said the law ‘simply cannot deal with what we’ve suddenly started acquiring – these cases where people bring claims against MI5, MI6, usually saying they’re complicit in some ill treatment they’ve suffered … and the only evidence that can be used to defend it is evidence from agents who are revealing their sources, or saying what they know about organisations.
‘And everybody agrees that can’t possibly be given in open.’
But suggesting the Government believes it may lose key votes in the Lords tomorrow, forcing them to amend the legislation, Mr Clarke added: ‘Any defeat is actually a debate between lawyers.’
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