Ministers retreat on plans for secret trials

Plans for “secret trials” are to be significantly scaled down as ministers prepare for a rough ride getting the measure through Parliament.

Kenneth Clarke, the Justice Secretary, has agreed to remove inquests from the scope of the reforms that will be outlined today in the Justice and Security Bill. In another significant change, judges, not ministers, will decide when evidence is heard in secret and, as previously disclosed by The Times, the remit of the Bill will be dramatically curtailed.

Intead of “closed trial” procedures being available for all “sensitive” cases, as originally proposed, the measures will apply only to cases involving national security. But the Bill still amounts to an extension of courts’ powers to hear security service evidence in secret and will still face opposition from civil liberties groups and others.

The Green Paper, published in the autumn to a barrage of criticism, proposed extending closed trials to a wide range of proceedings in civil courts. But the concessions by ministers, after coalition wrangling forced the Bill to be delayed last week, will boost its chances of becoming law.

Sir Malcolm Rifkind, the chairman of Parliament’s Intelligence and Security Committee who warned in March that the proposals were too wide, has welcomed the changes. Writing in The Times today he says that taken as whole, they “mean that the public can have renewed confidence that the watchers are being watched and the public interest well served”.

The former Defence and Foreign Secretary welcomed two further reforms: for the first time, the committee will be given statutory power to examine the secret workings of the security services. Members of MI5, MI6 and GCHQ will no longer have power to refuse to give information to the committee.

The committee will also report to Parliament, not to the Prime Minister, with Parliament deciding its membership and chairman. This, Sir Malcolm said, would “at least transform the parliamentary oversight of our intelligence agencies so that we are able to hold them to account properly”.

But Sapna Malik, partner at the law firm Leigh Day which has acted for claimants against the Government said: “Even with the anticipated concessions by the Government, our core concerns about the Bill remain. Our adversarial court system relies on the parity of the parties before the court, in terms of the evidence and legal arguments presented to the judge. A closed material procedure will cut through all that, allowing a judge to make a ruling on material which one side has advanced but the other has been unable to properly challenge.

“That these cases will frequently raise allegations of the utmost gravity, such as complicity in the torture, kidnapping and incommunicado detention of individuals, heightens the concern that such measures will be invoked to cover up clear executive wrongdoing or embarrassment.”

The plans to allow closed trials across a wide range of civil proceedings arose from the Government’s legal battle with Binyam Mohamed, the UK resident imprisoned at Guantánamo Bay, and other detainees.

Faced in 2010 with having to disclose intelligence-related material in open court, the Government agreed to pay compensation, thought to be in the region of £1 million. Until that case, the courts had not ordered disclosure where there was any question of a risk of damage to the public interest in the protection of national security. The Government has defended seven such cases since 2008 but ministers and others have warned that being forced to disclose material given in confidence puts at risk the UK’s intelligence-sharing relationship with the US and other foreign governments.

Ministers plan to legislate to make clear that disclosure should be exceptional and that such material will remain confidential.

Mr Clarke argues that the “unique and unprecedented” terrorist threat facing Britain justifies the measures. Ministers needed to be able to disclose sensitive evidence in closed trials so as to defend themselves properly against damages claims, he said.

The nature of the evidence means that it cannot be disclosed in open court without jeopardising intelligence sources and national security, they argue.

Originally the plans for closed trials would have gone beyond terrorism cases, the original trigger for the measures, to any civil case involving the police, prisons, crime, medical cases and inquests.