Sir David Davis speaks on secret courts

As reported in The Daily Mail;

“Secret courts will go ahead but judges will be given full control over when to set them up under a Government U-turn yesterday.

Cabinet minister Ken Clarke gave ground on the Justice and Security Bill after a series of defeats in the Lords. He told MPs that judges, not ministers, will have the right to decide what is heard in secret, even in cases of national security.

But he admitted that secret hearings could be used when families of dead servicemen sue the Government for negligence.

Mr Clarke also insisted that closed proceedings are necessary in cases where suspected terrorists claim mistreatment, to allow evidence from the security services to be submitted.

Ministers have agreed that plaintiffs in civil trials should also have the right to request a secret hearing, not just the Government. They have already ditched plans to hold inquests behind closed doors, following a campaign by the Daily Mail.

But Tory MP David Davis said the new proposals were still a  threat to centuries-old liberties.

At the second reading of the Bill yesterday Mr Clarke told MPs: ‘The Bill leaves it to the judge to decide what is necessary in any particular case, rather than seeking to impose disclosure requirements or fetter the discretion of the judge in deciding whether to have a closed process.’

The government has previously had to pay out millions to suspects because they cannot defend the charges without compromising the intelligence services.

But critics reacted with fury after Mr Clarke also revealed further details of the circumstances in which secret courts might be used. In such cases the government’s evidence is not even disclosed to their opponents lawyers.

Asked whether legal cases brought by the families of service personnel over the death of a loved one as a result of MoD failures could see the use of secret courts – known as Closed Material Procedures (CMPs) – by the Government, Mr Clarke responded, ‘This could actually arise’ in cases where a soldier dies in a ‘highly secret operation’.

He said: ‘I can’t rule out that a CMP application would be made.’ Mr Clarke also refused to rule out that the Government could make use of secret hearings in claims where they might face embarrassment over arms deals, in response to a question from Jeremy Corbyn MP.

Clare Algar, Executive Director of human rights pressure group Reprieve, said: ‘At last the Government has admitted the wide range of circumstances in which these dangerous plans could be used.

Ken Clarke has accepted that secret courts could be used in cases where the MoD has neglected its own soldiers, or the government has been involved in dubious arms deals.

‘Once these plans have passed, ministers will find irresistible the prospect of using a secret court to avoid embarrassing disclosures over negligence or wrongdoing. Parliament must vote against plans for secret courts, or risk putting government above the law.’

Isabella Sankey, Director of Policy for Liberty, said: ‘Our politicians continue to tinker around the edges of a Bill that would change our justice system forever.

‘These concessions are minor nips and tucks, and leave the chilling prospect of secret justice intact. Even the architect of the draft Bill now admits secret courts could apply to many more cases than the Government was originally prepared to admit.”

Tory MP David Davis condemned the proposals as threatening centuries old liberties.

‘What part of this Bill does today is create the power to take parts of the civil judicial system not only out of the public domain but completely out of the normal judicial testing procedure.

‘Evidence can be presented by the Government which the other side cannot see and even the defence lawyers cannot see, that evidence cannot be tested and therefore may be wholly wrong and misleading. This undermines the very thing that makes the system work.’”