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Kenneth Clarke
Ken Clarke said it would be 'risky' to include in the justice and security bill that secret courts should be used as a last resort. Photograph: Matt Cardy/Getty Images
Ken Clarke said it would be 'risky' to include in the justice and security bill that secret courts should be used as a last resort. Photograph: Matt Cardy/Getty Images

Lords to vote on restoring safeguards to plan for secret courts

This article is more than 11 years old
Government says amendments being considered by peers will make expansion of secret courts unworkable

Peers vote on Tuesday on whether to restore extra safeguards to the justice and security bill – amendments that the government has warned will make the expansion of secret courts unworkable.

Opponents of the bill are determined to reintroduce clauses ensuring that so-called closed material procedures (CMPs) are used only as a last resort and that judges can balance the wider public interest in fairness against "national security".

When the House of Lords voted on the issues last autumn, the coalition government was heavily defeated by margins of around 100 votes. Several key amendments were subsequently removed in the Commons.

Because the bill began its parliamentary passage in the upper chamber and is not a financial measure, the Commons has no power to overturn peers' decisions. The legislation may be caught up in "ping pong" – the process when bills are shuttled back and forth between the two chambers.

In a Centre for Policy Studies report released on Tuesday, the Conservative MP Andrew Tyrie and barrister Anthony Peto QC say the bill remains "neither just nor secure".

CMPs are currently used in a few specialist immigration and intelligence tribunals but the justice and security bill would allow them in the main civil courts. They allow for evidence to be presented in secret that only the judge and security-cleared special advocates can see; claimants may never know the full allegations against them or why they have lost their case.

Tyrie said: "The Lords did good repair work on the bill, but the government has undone much of it. The Lords now have a final chance to restore their original sensible amendments and further improve the bill. I very much hope that they will take it."

Peto said: "This bill started in the Lords. If the Lords stand firm [and reinstate the amendments], the Commons will not be able to veto it. It is not a financial matter."

Their report states: "In deciding whether to order a CMP, a judge should be permitted to balance the degree of harm to the interests of national security if the material is disclosed against the public interest in the fair and open administration of justice.

"The Lords added this safeguard, and the government removed it. Judges have shown themselves to be well capable of exercising their judgment."

Their report also warns that under the current terms of the bill, claimants will not be entitled to even a broad summary or gist of what is contained in the secret evidence.

Ken Clarke, the cabinet minister without portfolio who is steering the legislation through parliament, maintains that the bill will allow cases where the government currently has to settle and pay out compensation to be argued in court.

In the Commons this month he said requiring CMPs to be used only as a last resort and giving judges the power to balance public interest against security would render the bill unworkable.

He told MPs: "We are talking about how we can best frame our response to [parliament's] joint committee on human rights [which remains highly critical of the bill] without actually compromising the process and making it unworkable.

"I cannot be persuaded that putting 'as a last resort' in the bill is not risky. The balancing test … is totally unsuitable for a closed proceeding; it is designed as a stiff test when one is proposing to take all the evidence out of consideration altogether."

Clare Algar, executive director of the civil liberties organisation Reprieve, said: "Secret courts will mean the end to the British right to a fair trial as we know it, and will put the government above the law. The Lords must today do everything they can to limit the impact of this dangerous bill. At the very least, that must mean reintroducing the changes that were stripped out by the government in the House of Commons.

"The only safe course for British justice is for our parliamentarians to kick out plans for secret courts altogether. However, they must also take any chance they get to vote for changes which might lessen the damage which this bill will wreak on the British tradition of open and equal justice."

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