But Clarke defends closed evidence where it affects national security as ‘otherwise you would have terrorists making notes’
Ken Clarke has admitted plans to allow evidence to be given in closed proceedings in cases where it affects national security are “less than perfect” but insisted the only alternative would be “silence”.
The Conservative justice secretary has dropped plans to introduce closed inquests with evidence heard in private from the government’s “secret justice” bill to be published on Tuesday following a dispute between David Cameron and Nick Clegg.
The justice and security bill also stipulates that closed sessions will only be allowed for cases involving national security, rather than all cases containing sensitive information. Judges will decide whether to agree to a minister’s request that evidence should be heard only in secret on grounds of national security.
However, the main purpose of the bill will remain – evidence and claims made by MI5, MI6 and GCHQ would be presented to the court but would not be disclosed to individuals seeking damages or making complaints. As a result, they would not be able to challenge the agencies. Instead, their interests will be presented by vetted “special advocates”.
The move to ditch plans to hold sensitive inquests behind closed doors has been described as part of “slight concessions” made to “sweeten the bitter and unnecessary pill”, according to Shami Chakrabarti, the director of the human rights group Liberty.
Clarke defended his plans to allow evidence to be given behind closed doors in cases where it affects national security, insisting that “no country in the world” allows spies and national intelligence to give evidence in court because otherwise “you would have terrorists in the public gallery, lining up making notes”.
He told BBC Radio 4’s Today programme: “A judge will decide, I’ve made that clear in what I put forward, and the only issue where you will go into closed proceedings will be national security. No evidence that at the moment is heard by a claimant, a plaintiff or by the press is going to be excluded. We’re talking about additional evidence, when it’s relevant to the case, that can be given – has to be given – in private, in special closed proceedings, by a spy who can’t possibly reveal his sources or his technologies or what the agency knows.
“It’s taken some time to get here, and I will agree that the consultation, which is what I announced, has enabled us to refine it and improve it, and some of the critics are just … are going to be irreconcilable.
“Of course it’s less than perfect, but at the moment the alternative is silence. You either have the judge hearing the evidence in closed material proceedings or what happens at the moment is this evidence is never given at all. Sometimes you have the agencies and the government having to pay out millions of pounds to settle a claim which the agencies are still saying is unfounded, but we can’t call the evidence to prove it.”
Clarke used a column in Tuesday’s Daily Mail to announce the decision to scale back the number of secret trials, admitting the original plans were “too broad”.
Government officials heralded the move as the main concession in one of the most controversial pieces of legislation contained in the Queen’s speech, following a well-publicised row behind the scenes that delayed publication of the bill for almost a week.
Liberal Democrats are claiming credit for ensuring that inquests will not be subjected to so-called “closed material procedures”, which would mean that any information held by the security and intelligence agencies could be heard only in secret.
The advantage of the concession for the prime minister is that his deputy and his Liberal Democrat colleagues in the coalition government will be able to argue they have scored a victory.
But the Lib Dem peer Lord Macdonald, a former director of public prosecutions, warned that despite changes, the measures in the bill were still “offensive” to the traditional idea of a fair trial.
Macdonald welcomed the improvements but said the reforms to the bill had not gone far enough.
He told Today: “The fact of the matter is that people whose cases are decided against them on the basis of evidence they have never been allowed to see are still going to feel, I think, bitterly aggrieved by procedure of this sort and feel they haven’t got justice. And I think some government wrongdoing in the area of national security is going to be less likely to see the light of day if we have closed, secret sessions in court.
“So I think the bill still contains much that is offensive to our traditional notions of equal parties adjudicating cases in front of an impartial judge and I think we still need to look very closely at it.”
Clarke said later on Today: “The initial proposal was ministers subject to judicial review by judges; it was never ministers alone. But yes, I have modified it. I’ve made absolutely clear the final decision is with a judge, because the people I’m trying to satisfy are people I normally agree with. I mean I don’t think Nick Clegg’s any more in favour of civil liberties than I am and I don’t think many of my critics are.”
On the danger of ministers going into closed session to avoid embarrassing matters, Clarke added: “I don’t want that either, and what we’re now clear is it’s national security you will have to satisfy the judge is at risk before you go into closed session.”