Government plans to hold more inquests and court cases behind closed doors appeared to be in tatters after Deputy Prime Minister Nick Clegg told Cabinet colleagues he could not support the proposals in their current form.
The intervention by Clegg came as MPs and peers on the cross-party Joint Committee on Human Rights savaged Justice Secretary Ken Clarke’s “inherently unfair” plans.
Clegg’s concerns were set out in a letter to the Government’s powerful National Security Council in which he warned that his Liberal Democrat colleagues would not be able to back the proposals without major changes.
The plans are aimed at finding a way of managing sensitive evidence from the security services, but Mr Clegg said their concerns “cannot be allowed to ride roughshod over the principles of open justice”.
He said the powers to take evidence in secret should not apply to inquests and that judges rather than ministers should decide when the measures are used in a small number of civil cases expected to be affected, the Daily Mail reported.
The Joint Committee on Human Rights heaped further pressure on Clarke to perform a U-turn in a damning report which said the controversial and wide-ranging proposals were based on “vague predictions” and “spurious assertions” about catastrophic consequences.
In reality, the plans are a “radical departure from long-standing traditions of open justice” which should only ever be used when publicly disclosing material would carry “a real risk of harm to national security”, the committee said.
Dr Hywel Francis, the committee’s chairman, added it was “troubling” that the justice and security green paper “was not as clear as it should have been on the scope of its proposals or the narrowness of the justification for changing the law”.
The report strongly criticised Clarke’s green paper, saying his view that the plans were only intended to be used in a small number of cases “is clearly a change of position as there is no doubt that the proposals in the green paper are very broad in scope”.
Responding to the committee’s report, Clarke said the Government’s proposals were “a common sense solution to a genuine problem in a very small number of cases”. He said: “They will ensure that the Government is properly held to account when individuals challenge its actions in civil cases only, without revealing information which would compromise public safety.”
‘Lives at risk’ in open court
Responding the criticism today, Clarke said inquests and court hearings involving national security cannot be allowed take place in public if doing so meant lives would be lost’
In a round of broadcast interviews after Deputy Prime Minister Nick Clegg said he could not support the Government’s proposals for more secret hearings in their current form, Mr Clarke said he shared the concerns of the Liberal Democrat leader.
But the cost of open justice could not be counted in lives lost, he said.
Clarke told Sky News the changes would allow judges and coroners to have access to more information instead of the “silence” that happens now over sensitive evidence.
“The ideal cannot be pursued when you put lives at risk if you give it in open court,” he said. “If the judge is satisfied that lives will be at risk, the judge can still hear it in a closed court, then it can inform the judge’s judgment. I think that is an advance on where we are.
“I’d love open justice but let’s have some common sense here. Open justice cannot be at the expense of lives being lost.”
He also recognised worries over whether the Justice Secretary should make rulings on what information should be heard privately – and committed to ensuring it would always be a judge who made the final decision.
But Clarke insisted that procedures needed to be in place to ensure that other countries, particularly the United States, were happy to share intelligence without fear of it being exposed in British courts.
Clarke told the BBC Radio 4 Today programme that while he was not given specific details, he had been made aware that the American agencies were “extremely cautious” in the wake of the Binyam Mohamed case and it was “getting in the way” of investigations.
Mohamed’s case risked damaging the UK’s intelligence relationship with America amid claims that Britain released US intelligence that was not already in the public domain, Mr Clarke has said.
Intelligence could sometimes only be shared on the basis of confidentiality, he said, adding that he “couldn’t make the Americans put up with” information being released.
Clarke went on: “We are trying to get the evidence in. Otherwise what happens is it is not just closed hearings, it’s closed altogether.
“We will be protected against terrorism, which we must be, but those security services will be more accountable to both Parliament and to the court, and more evidence will be heard by judges than is now.”