The questions Mr Clarke SHOULD have been asked

KENNETH Clarke was yesterday sent on to the Today programme to defend secret justice plans. Yet presenter Jim Naughtie’s questions failed to address key criticisms of the proposals. Here, Home Affairs Editor JAMES SLACK examines the issues on which he should have been grilled.

Why does the Government want cases held in private if they merely have potential to ‘damage the public interest’?

Mr Clarke was questioned as if the plans relate solely to national security and terrorism cases.

But, in fact, the green paper goes much, much further – and could apply to cases in which the police gun down somebody in the street or even a medical negligence hearing. Nick Clegg wants the ‘public interest’ wording to be tightened.

The independent reviewer of terror laws, David Anderson, says he has seen nothing to persuade him secret courts should be used in anything other than cases relating to ‘national security’. Mr Clarke has himself suggested the current definition may be ‘too broad’ – but, remarkably, he was not put on the spot about this yesterday.

Where is the proof that the U.S. has stopped sharing intelligence with Britain?

Mr Clarke’s central argument is that, if the Americans think intelligence will be disclosed in open court, they will withhold it, potentially putting lives at risk. Ministers say this has already happened following a decision by the UK courts to disclose information about the torture of Binyam Mohamed. Mr Clarke yesterday said that ‘the Americans have got nervous . . . and they have started cutting back, I am assured, on what they disclose’.

But Ken Macdonald, the former head of the Crown Prosecution Service, who dealt regularly with the U.S, says: ‘I haven’t seen any examples of it happening yet.’ He said that, while he was threatened that relations would change, they ‘never’ did.

How can ministers justify holding inquests into police killings and military deaths behind closed doors?

Mr Clarke was asked solely about inquests in which officers from MI5 and MI6 may have to give evidence in public. He responded by outlining fears about their secret techniques or agents’ identities being exposed to scrutiny.

But the current plans could extend to military friendly-fire deaths, equipment problems and cases where the police shoot dead suspects later found to be unarmed. The head of the Royal British Legion, Chris Simpkins, says secret hearings would ‘compound the grief’ of bereaved servicemen’s families. Mr Clarke, who said he did not agree with Mr Clegg’s call for all inquests to be dropped from the green paper, should have been challenged on what is arguably the single most disturbing aspect of the planned legislation.

Is the real agenda to save the authorities embarrassment?

The damaging claim was raised by one of the BBC’S own senior reporters in the pre- amble to Mr Clarke’s interview – yet Mr Naughtie failed to put it to Mr Clarke himself. Critics give the example of Abdel Hakim Belhaj, a Libyan who was handed over to Gaddafi henchmen on the basis of intelligence provided by MI6. Belhaj is now suing the UK government in a civil case which, if held in public, could be humiliating for Britain.

Lieutenant Colonel Nicholas Mercer – who served as the Army’s chief legal adviser in Iraq and was a key figure in bringing to light the case of Baha Mousa, an Iraqi hotel worker who died following a savage beating by British soldiers in 2003 – said secret courts will be used to cover up allegations of torture and war crimes.

How can ministers hope for the secret courts to work when their own lawyers are so opposed to the idea?

The secret justice system relies on the use of special advocates, who will be given access to intelligence about their client – such as an alleged torture victim suing for compensation – but will not be able to discuss what they have seen.

Some 57 out of 69 advocates are against the proposals which they say ‘represent a departure from the foundational principle of natural justice’.

They say their practical experience of working in secret courts – currently allowed only in a tiny number of immigration and deportation hearings – indicates that ‘a way can normally be found for the claim to be heard acceptably fairly, and without unacceptable disclosure of sensitive material’. Incredibly, none of this was put to Mr Clarke.