Ken Clarke fights amendments to security bill

Former justice secretary says judges alone would decide whether to order a secret hearing under new justice legislation
Ken Clarke
Ken Clarke made an impassioned plea to legal experts and civil liberties groups that his legislation will improve the justice system. Photograph: Carl Court/Getty

Judges should be given the "maximum amount of discretion" in deciding whether or not to order a secret court hearing under the justice and security bill, Ken Clarke has told MPs and peers.

The former justice secretary, who had asked to appear before a parliamentary committee, made an impassioned plea on Tuesday afternoon to legal experts and civil liberties groups that his controversial legislation will improve the justice system.

The political battle over expanding "closed material procedures" (CMPs), also known as secret courts, into civil courts is turning into a test of strength between Clarke and parliament's joint committee on human rights. The committee's last set of proposals led to the bill suffering a series of crucial defeats in the House of Lords.

Made up of peers and MPs with extensive legal experience, the committee has warned that it intends to produce a further critique of Clarke's latest changes – which reversed many of the Lords amendments – before the bill goes back to parliament in the coming weeks.

In his evidence, Clarke went further than ever before in saying that judges alone would decide whether or not to order a secret hearing at which claimants would not be entitled to hear the full details of the evidence against them. "We have tried to go for amendments which give judges the maximum amount of discretion," he told the committee. "It's the judges who will decide whether or not there are closed proceedings."

But he was less inclined to give ground to requests that he introduce a clause that using CMPs should be a matter of last resort. He also resisted moves to reintroduce the House of Lords amendment allowing judges to carrying out an explicit "balancing exercise" between national security interests and the public interest.

"I think public interest immunity certificates [PIIs, which prevent information being used by either side in a trial] are wholly inferior to CMPs," Clarke said. With PIIs, nothing is heard by the court, he added.

His amendments, he said, carried through the spirit of the committee's earlier amendments. "We are getting down to legalist hair-splitting" over detailed hypothetical cases, he warned.

Clarke's reassurances are unlikely, however, to wash with civil liberties groups opposed to the basic concept of secret courts. The Conservative MP Richard Shepherd, a member of the committee, also expressed fundamental concerns.

"I find the greatest difficulty in accepting that an applicant to a court may not know the reasons why they have lost their case," he told Clarke.

"It seems to me that confidence in our judicial system is profoundly damaged when you can't say to your client why they have lost their case. "

A spokesman for the human rights group Reprieve said after the hearing: "The alternative [to CMPs] is not 'silence', but rather that the government comes clean on the serious abuses it became involved in in the 'war on terror'.

"For example, we know from documents found after the fall of Gaddafi that MI6 colluded in kidnapping his opponents and sending them back to Libya along with their wives and young children.

"Given that mechanisms already exist which ministers can use to protect information which is a genuine threat to national security, the conclusion that must be drawn is that the plans for secret courts are aimed at sparing the blushes of ministers and their officials, and have nothing to do with either justice or security."

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