Government plans for secret courts have been criticised again – this time by House of Lords Constitution Committee.
Justice Secretary Ken Clarke’s controversial Justice and Security Bill is due for its second reading in the Lords on Tuesday.
It proposes to extend the use of closed material procedures (CMP) to civil cases, in particular where information is considered sensitive to the state or the intelligence services.
Legal, media and political commentators have criticised the bill, which would allow the Government to present evidence behind closed doors without the other party or their lawyers having access to the evidence.
The Government insists that closed hearings are necessary to protect the interests of the country. It has also been suggested that the US authorities are unhappy at intelligence ‘leaking’ from the UK’s system of open justice.
Critics say the CMP plans are a reaction to embarrassing revelations in open court about the behaviour of UK agencies and allies, such as detainee Binyam Mohammed’s treatment at Guantanamo Bay.
The committee, chaired by Baroness Jay of Paddington, has today raised three principal areas of concern: that the Government is acting as sole gatekeeper; an absence of judicial balancing, and the secretary of state’s role in ruling on what evidence is made available to those litigating against the Government.
It said: “The committee says it is constitutionally inappropriate for the Government to have a dual role in civil proceedings of acting as a party to the litigation and being the gatekeeper deciding on how that litigation is conducted.
“The committee says that there’s no justification for removing the [current] Wiley balancing exercise under which the interests of national security in allowing CMP must be balanced against the damage to the public interest of fair administration of justice.”
On Tuesday the House of Lord will debate the general principles of the bill. After that is the committee stage where the Lords undertake detailed line-by-line scrutiny of the proposals and can make amendments.
The Government’s secret justice proposals have already been condemned by theJoint Committee on Human Rights (JCHR) which said they represented a “radical departure” from British legal principles (4 April 2012).