SECRET JUSTICE PLAN CRUMBLES

Clegg says he’ll block it. Report by MPS and peers damns it. And now ministers are close to a U-turn

PLANS for a huge extension of ‘secret justice’ are close to ruin after Nick Clegg warned the Prime Minister he cannot support them as they stand. Last night Government sources said Justice Secretary Kenneth Clarke would signal a U-turn on the proposals within weeks. The Deputy Prime Minister told Mr Cameron and other members of the highly secretive National Security Council that without major changes, the Liberal Democrats will not back legislation allowing more court hearings and inquests to be held behind closed doors.

In a letter to members of the NSC, he insisted that the security services – who have led demands for the law to be changed – ‘cannot be allowed to ride roughshod over the principle of open justice’.

Mr Clegg is insisting that the powers cannot apply to coroners’ courts and that judges, not ministers, must have the final say on whether they apply in a small number of civil proceedings.

His intervention comes as a cross-party report lambasts the proposals as ‘inherently unfair’ and a ‘radical departure from

long-standing traditions of open justice’. MPS and peers warn today that the Government has failed to demonstrate any ‘real, practical problem’ in how courts currently deal with sensitive evidence.

Instead, ministers have relied on ‘vague predictions’ and ‘spurious assertions about catastrophic consequences’ of such evidence being disclosed in open court.

The Joint Committee on Human Rights (JCHR) is scathing about Justice Secretary Kenneth Clarke’s attempts to justify the Government’s plans and calls on him to go back to the drawing board.

The Daily Mail has led criticism of Government plans to allow so-called ‘closed material procedures’, in which cases are conducted behind closed doors, in any civil or inquest 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.

The procedure is currently used in tiny numbers of immigration and deportation hearings, but the Green Paper proposes giving ministers sweeping powers to order closed hearings whenever they feel the public interest is threatened.

Ministers have suggested that unless they may order that some cases are conducted behind closed doors, the Government will either have to reveal privileged security information or settle out of court.

Mr Clarke says it is also vital to change the law to reassure officials in Washington that sensitive intelligence the U.S. shares with Britain will not be publicly disclosed.

Senior Government sources revealed Mr Clegg had set out a series of ‘ red lines’, warning Mr Cameron, Mr Clarke and Home Secretary Theresa May that unless they are met he will not be able to support the legislation.

In his letter, he insists closed hearings cannot be applied to inquests, whatever the circumstances.

Mr Clegg, who is understood to have seen today’s critical crossparty report, said they should be complementary to existing procedures, in which judges issue public interest immunity certificates, rather than replacing them. And if they are applied in a narrow number of civil cases involving issues of national security, judges, not ministers, should decide whether the move is justified, he added.

‘Nick Clegg knows the Home Secretary and the security services are not going to like what he is saying. But he has been struck by the strength of feeling that has been demonstrated against the Government’s plans,’ said one source familiar with the NSC letter.

‘He understands that there are problems with a very small number of exceptional cases where there can be no justice because the core material that forms part of the case is too sensitive to be heard.

‘But his overriding principle is that he will not allow the security services to ride roughshod over the principle of open justice.

‘Closed procedures should be available only for matters of national security, not for any material that police or security agencies deem sensitive. ‘ The proposal should not apply to inquests, an idea which has caused a great deal of controversy. It is vital that cases such as the 7/7 bombings inquests are held in public.’

In today’s report, the JCHR says a ‘constant theme’ in the evidence it heard from experts was that the Government ‘ seriously underestimates the extent to which its proposals represent a radical departure from the UK’S constitutional tradition of open justice and fairness, or natural justice’.

But when Mr Clarke was challenged by MPS and peers on the scale of the change he was proposing, and the need for him to demonstrate a compelling justification, ‘we were surprised to hear that he denied it’.

There was a clear discrepancy between the Justice Secretary’s claim that the new powers were intended to be ‘of the narrowest possible application’ and the sweeping proposals outlined in the Government’s proposals, the report adds. Conservative MP Dominic Raab, a member of the committee, said: ‘There is no evidence we need to extend these Kafka- esque hearings to protect our security. There is every reason to fear they would cast a shadow over our basic principles of open justice.’

Shami Chakrabarti of civil rights campaign group Liberty said Mr Clegg’s demands for changes before the Queen’s Speech in May did not go far enough.

‘The Deputy Prime Minister is suggesting a practical compromise that some will find more palatable,’ she said. ‘But this doesn’t constitute a principled defence of the rule of law.

‘We would urge him, as someone whose party has always made civil liberties a core issue, to respond with principle, not pragmatism.’

She added that the JCHR’S ‘damning report shows Parliament finally asserting itself over the increasingly cocky demands of the spooks’. She said: ‘First they want private chats with judges to replace open justice; then total access to all our internet browsing and communications.

‘No scrutiny for them and no privacy for us. Is it time to ask who runs Britain?’

Justice Secretary Mr Clarke said: ‘Our proposals are a commonsense solution to a genuine problem in a very small number of cases.

‘This Government will do everything possible to uphold the principle of open justice. But British intelligence agents obviously cannot give evidence in open court about their sources, their techniques and their secret knowledge.

‘We will listen to those who have made suggestions as we develop our plans. I am quite clear, though, that the current system is not working and needs to be reformed.’