Queen's speech: plan for secret hearings in UK civil courts brought forward

Queen's speech: plan for secret hearings in civil courts brought forward

Justice and security bill will be put through parliament this session, bypassing preparatory white paper stage

Owen Bowcott and Richard Norton-Taylor
http://www.guardian.co.uk/law/2012/may/09/queen-speech-secret-heari...
Wednesday 9 May 2012 12.42 BST

Prison training acadamy
Ken Clarke has said the powers are needed to reassure other countries that they can share intelligence without fear of it being exposed in UK courts. Photograph: Anthony Devlin/PA

Plans to expand secret hearings into civil courts have been accelerated by the government. Rather than moving to the preparatory white paper stage, a justice and security bill will be put through parliament this session.

The government has come under severe pressure from MI5 and MI6 to impose a system of secret hearings in courts ever since disclosures that the security and intelligence agencies had been involved in the brutal treatment, and knew of the torture, of UK residents and citizens detained by the CIA.

So-called closed material procedures(CMPs) would allow sensitive evidence to be given in court but not seen by all the participants. Defendants or claimants and their courtroom representatives would be barred from the closed part of a hearing.

Human rights groups and many lawyers, including those vetted to represent alleged victims of wrongful behaviour by MI5 and MI6, are alarmed at the proposals, warning that evidence that cannot be challenged or tested in court may be unreliable and could lead to miscarriages of justice.

Ken Clarke, the justice secretary, has said the powers are needed to reassure other countries, particularly the United States, that they can continue to share intelligence without fear of it being exposed in British courts. Evidence emerged during a high court hearing brought by lawyers for Binyam Mohamed, the UK resident held in Guantánamo Bay.

The bill is designed to ensure courts can consider all the evidence in civil claims made against the government, so that the government does not have settle cases that it believes have no merit.

The green paper on the bill also proposed secret inquests. The recent inquest into Gareth Williams, the GCHQ official seconded to MI6 who was found dead in a holdall at his London flat, would have been held in secret, opponents of the measure point. The coroner severely criticised the behaviour of MI6 in her verdict. The MoJ insists the same information would have emerged under the new proposals

A Ministry of Justice spokesperson said: "These proposals will extend civil justice so that cases which are currently not heard by the courts can be. They will mean that allegations made against the government will be fully examined by an independent court, and that the government will no longer have to pay out taxpayer's money settling cases which it believes have no merit. Closed material procedures, which are at the heart our proposed reform, are already used in the UK justice system in several areas - including immigration and employment cases."

Ministers contend that CMPs will improve accountability and oversight because they will at least allow highly sensitive intelligence information to be heard in private as opposed to being excluded under a public interest immunity certificate.

One of the key issues, likely to be disclosed when the bill is published later this month, will be whether a cabinet minister would have a veto over what information could be disclosed or whether the judge would have the final say. Clarke has suggested that a judge would be able to scrutinise a minister's decision, but the MoJ could not confirm that.

The government's preceding security and justice green paper suggested that the powers of the parliamentary intelligence and security committee could be broadened. The committee could in future have the authority to "require", not just "request" information from MI5 and MI6 and a decision to withhold it would be taken by a cabinet minister, not the heads of the security and intelligence agencies.

Human rights groups are opposed to the bill. Shami Chakrabarti, Liberty's director, said: "Two years ago, the coalition bound itself together with promises and action to protect our rights and freedoms. While action on free speech is extremely welcome, proposals for secret courts and a snoopers' charter risk allowing no scrutiny for them and no privacy for us."

Clare Algar, executive director of Reprieve, said: "Closed courts will not strengthen oversight of the intelligence agencies – in fact, they will do precisely the opposite. They will put the government above the law.

"The proposals for secret justice would massively skew courts in favour of ministers, and prevent the public from finding out the truth about serious wrongdoing. The reality is that these plans are designed to spare the intelligence agencies embarrassment. They are a recipe for unfair and unaccountable government."

Tara Lyle, Amnesty International UK's policy adviser, said: "These proposals are dangerous and should be dropped. They will allow the government to throw a cloak of secrecy over wrongdoing, including matters as serious as the alleged involvement by UK officials in human rights violations like rendition, secret detention and torture.

"After David Cameron promised to get to the bottom of allegations of complicity in human rights violations by UK officials, this bill is a sell-out to the security services. The victims of human rights abuses as well as the general public have a right to learn the truth about whether and how government officials have been involved in human rights violations like rendition, secret detention and torture."

Helen Shaw, co-director of the charity Inquest, said: "It is deeply regrettable that the government is pursuing proposals to extend the use of closed material procedures. It has been clearly demonstrated that they have not been necessary in relation to inquests, as the joint committee on human rights unanimously concluded last month."

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