Plans for secret courts were left in tatters last night by the House of Lords.Peers voted by crushing majorities for fundamental changes to the Justice and Security Bill, which would allow civil cases involving national security to be conducted in secret.
By margins of over 100 votes, peers voted to remove ministers’ exclusive right to apply for secret hearings and to give judges ultimate discretion in deciding whether or not they should be held behind closed doors.As the legislation was introduced in the Lords, the Government’s plans came under devastating attack from several of Britain’s most senior retired judges and politicians.The defeats suggest ministers will have to return to the drawing board and accept a series of amendments – or risk seeing the entire piece of legislation thrown out.
Critics say the Government’s proposals will seriously threaten Britain’s reputation for open and fair justice.The Daily Mail has led criticism of the plans to allow so-called ‘closed material procedures’ (CMPs), in which cases are conducted entirely in private, in any civil hearing.Defendants or claimants will not be allowed to be present, or know or challenge the case against them, and must be represented by a security-cleared special advocate, rather than their own lawyer.
Currently, such procedures are used in tiny numbers of immigration and deportation hearings, but the Government wants to extend them across the civil courts in cases deemed to involve national security.The legislation has been drafted in close co-operation with the security services, which have claimed other countries may stop sharing intelligence with Britain if it risks being disclosed in open court.But crossbencher Lord Pannick, a leading lawyer, described the measures as a ‘radical departure from the principles of common law’.Leading a series of amendments to the plans, he said: ‘This is a departure from the principle of transparent justice. We should be very careful in that a CMP is inherently damaging to the integrity of the judicial process.
‘Judicial decisions are respected precisely because all the evidence is heard in open court subject to acceptance and judges give a reasoned judgment which explains their decision.’Former MI5 chief Baroness Manningham-Buller said secret court hearings should be introduced so British spies can defend themselves against allegations of torture.She said: ‘It is deeply distressing to me and to my former colleagues to be accused of inequities in cases of torture and maltreatment. We have not been able to defend ourselves.’
She claimed that presenting classified information in open court would put the lives of secret agents at risk.But Tory peer Lord Hodgson of Astley Abbotts said the new legislation failed the ‘smell test’. He warned that closed hearings could begin as a ‘rare event but will over time morph into the default position’.Lord Macdonald, QC, the former director of public prosecutions, accused the Government of reneging on a pledge to allow judges to have the final say on whether there should be a secret court hearing.‘These amendments would give judges appropriate discretion to balance the interests of national security with justice,’ he said.
Historian Lord Morgan, a Labour peer, opposed the expansion of secret courts because it would mean a ‘tilting of the balance away from the free individual towards the interest of the state’.Labour justice spokesman Lord Beecham backed a string of proposed changes to the legislation, saying the Government’s proposals constituted a ‘radical departure from the cornerstone of our legal system – the right of a party to know and to challenge his opponent’s case’.
He said: ‘These amendments place the judge firmly in control of the process with the means to balance the interests of justice and security, protecting from disclosure what is essential not to be made public.’Advocate General for Scotland Lord Wallace of Tankerness, replying for the Government, said that at present people assumed the Government settled controversial cases because there had been ‘some wrongdoing’ whereas in fact it was often that relevant material could not be put before the court.
He said there were currently 20 civil damages cases where material ‘relating to national security would be central’.Donald Campbell, of the human rights group Reprieve, said: ‘These amendments are a small step in the right direction, but the reality is that secret courts in any form are deeply dangerous.’The only way to protect our centuries-old tradition of open and equal justice is for Parliament to reject plans for secret courts altogether.’ – Dailymail
