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By Matthew Barrett
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Clarke ken_small.ashxYesterday, Ken Clarke announced the watering down of some elements of the proposed Justice and Security Bill, which has caused some controversy due to the parts of the Bill which would allow courts to hear cases in secret. Gone is the ability for the Government to hold sensitive inquests, such as those concerning troops killed overseas, in secret. 

However, certain controversial elements remain. Citizenship cases (for example, a suspected terrorist applying for a British passport) will be heard by the Special Immigration Appeals Commission, which can conduct cases in secret. Civil courts will also be allowed to go into private sessions when hearing intelligence material, if a request is made by a Minister. Some of these measures have been tightened up. Approval for a closed hearing would have to come from a judge, and can only be granted on the grounds of national security. The Intelligence and Security Committee will also be able to hold MI5 and MI6 to account, with only Ministers being able to refuse to hand over information.

A common sense change many people would think right to introduce is that now Ministers are exempt from demands for secret intelligence material from foreign courts.


So far, Mr Clarke has been robust in his defence of his Bill. On the Today programme yesterday morning, Mr Clarke defended hearing cases in secret. He said that the Government has had to concede many compensation claims made by terror suspects, because the intelligence agencies cannot publicly state their evidence, and therefore even baseless claims cannot be rejected by British courts. This problem also makes it hard to stop terror suspects applying for British passports. Mr Clarke said holding any such trials in public would mean we would have "terrorists in the public gallery, lining up, making notes". He continued:

"A judge will decide, I’ve made that clear in what I put forward, and the only issue where you’ll get closed proceedings will be national security. No evidence that at the moment is heard by a claimant, a plaintiff, or the press is going to be excluded. We’re talking about additional evidence, when it’s relevant to the case, that can be given – has to be given – in private, in special closed proceedings, by a spy who can’t possibly reveal his sources or his technologies, or what the agency knows."

The Daily Mail reports this morning that last year, Ministers paid out £20million in compensation to 16 terror suspects who alleged British complicity in torture. Another 27 cases involving compensation claims or passport applications are also in the system. Mr Clarke says the new rules would stop ministers paying compensation in cases that had no merit:

"Of course it’s going to be less than perfect, but at the moment the alternative is silence. You either have the judge hearing the evidence in closed material proceedings or what happens at the moment is this evidence is never given at all. Sometimes you have the agencies and the Government having to pay out millions of pounds to settle a claim which the agencies are still saying is unfounded, but we can’t call the evidence to prove it."

Mr Clarke has had a difficult balance to strike. A government attempting to reform court hearings relating to terrorist suspects is either portrayed in the media as trying to create an oppressive and secretive state, or being soft on terrorism. Leaving aside his views on certain other issues – we should hope Mr Clarke has struck the right balance between liberty and dealing with terrorist suspects in a sensible manner. 

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