Secret courts plans: Concessions not enough

Government amendments to the Justice and Security Bill are a small step in the right direction, but they don’t go far enough to reduce concern over the extension of secret courts to ordinary civil law cases.
Responding today to the Governments amendments to the Bill the Law Society said that the plans for secret courts could still fatally undermine the fair operation of the civil justice system, whereby evidence is heard in open court and claimants are able to challenge evidence through cross-examination and calling evidence of their own.
The changes to the secret courts plans, known as Closed Material Procedures, were announced today by Ken Clarke and Home Office Minister James Brokenshire.
The Government’s concessions would mean that a request for a secret hearing would be at the discretion of a judge, rather than the Secretary of State and that either party, not just the Government, would be able to make an application.
The Government has also suggested that the court should be obliged to ‘keep the declaration under review’ and ‘revoke it if it considers that the declaration is no longer in the interests of fair and effective administration of proceedings’.
Law Society President Lucy Scott-Moncrieff said: “Closed Material Procedures undermine an essential principle of justice, which is that all parties are entitled to see and challenge all of the evidence relied upon before the court, and to combat that evidence by calling evidence of their own.
“If Parliament deems these Procedures to be necessary we would like to see the Government accepting, as a bare acceptable minimum, Liberal Democrat amendments to the Bill which would oblige the relevant party (i.e. the party withholding the evidence) to provide a summary to the other party sufficient to enable the party to give effective instructions on the undisclosed material to their legal representatives.”
She added: “Legislation with constitutional and human rights implications of this magnitude should be kept under constant review. That is why we would strongly urge the Government to also accept the Liberal Democrats’ proposed new clause requiring an annual vote in both Houses of Parliament to approve the continued application of the plans, as is already the case with other national security related legislation.”
The Society insists that the Government has failed to make a national security case for extending CMPs to ordinary civil litigation.
The Society has submitted a detailed memorandum to the Public Bill Committee.
29 January 2013

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