Chakrabarti debates Clarke on secret courts bill

7 March 2013 by

ClarkerabartiThe Constitutional and Administrative Bar Association (ALBA)  hosted an invigorating debate on Tuesday night, pitting Minister without Portfolio Ken Clarke against Shami Chakrabarti, Director of Liberty, over the question of Closed Material Procedures (CMPs) in civil claims, as proposed in the Justice and Security Bill.

The Bill is currently going through the parliamentary process, having reached the report stage in the House of Commons on 4 March 2013. Of particular note to those with an interest in human rights are the proposals to introduce CMPs into civil damages actions, where allegations such as complicity in torture by the UK intelligence agencies are made.

Ken Clarke defended the proposals in the Bill to use CMPs in civil damages claims. He argued that the government is currently forced to settle claims, because to make a defence would require public revelation of information of high value to those who wish to harm the UK, in particular by posing a threat to national security. In claims of this type, he argued, it is in effect impossible for the government to permit a defence to be made, resulting in expensive settlements being paid out to claimants.

He explained that the status quo, where the government can apply for a public interest immunity (PII) certificate, allowing it to withhold material from disclosure, is inadequate for a number of reasons, including that the judge deciding the case never gets to see the material, even though it may be highly relevant to the issues being argued about. The current proposals for circumstances where CMPs may be held, he argued, have several important safeguards built into them and the judge retains discretion not to hold a CMP even if those hurdles are overcome.

His crucial point was that CMPs allow trials to occur, testing the evidence, rather than the government settling cases to prevent the risk of information of a highly sensitive nature escaping. This would make intelligence agencies “more accountable” because a judge would be able to test their defences.

Shami Chakrabarti on the other hand described the proposals as an “odious bill”. Her central attack was based on the fact that CMPs do not allow claimants to see the evidence used to defend against their claims. This allows “one side in civil litigation to control the court room”. The debate, she believes, is about “equality of arms”.

She vehemently denied that the government currently has no option but to pay damages to settle civil claims of this nature: applications for PII certificates had not even been applied for in some cases, she said. This option is currently open to the government as a means of protecting national secrets, and she was not aware of a single case where a judge had been accused of making the wrong decision in relation to PII, endangering national security. The best way for security agencies to protect their reputations, she stressed, was not to “get mixed up in torture”.

She rebutted Ken Clarke’s argument that the Bill would lead to more trials, and that this would be beneficial for the administration of justice by allowing the real issues to be tested in Court, stating “fair trials don’t equal more trials”.

Who won the debate? Tell us what you think in the comments section below.

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  1. U.K. Police State, Secret Court, catch all excuse, “It, not in the National Interest” to divulge this Information. Tory/Labour/Lib-Dem, all have vested interest to stop Democracy. Police/Media, all controlled, by Elite.

  2. marie says:

    Dear Ms Rosemarie Cantwell,

    I entirely agree with your comments on civil liberties erosion if there is no equality of Arms. This is a real danger to those like myself and my late mother who have already encountered “rough justice”.
    I believe that CMP’s are a contravention of ECHR Article 6. Many laws such as the Mental Capacity Act and the Best Interests doctrine are simply instruments of manipulating and controlling outcomes. Governments, historically made laws to gain control over the desired outcomes.

    CMP’s is about monopolistic power and thus control of due process and not about justice. I would like to take this opportunity to thank you for your comments of 17 February on the MidStaffordshire enquiry bloc. I found your reply very very helpful. I have a question on inquests and human rights. 07851401715.Many many thanks.


  3. Novanglus says:

    Is there a recording of the debate?

  4. James Lawson says:

    Evidence would otherwise be uncontentious can now bear the security caveat ‘RESTRICTED’. Anything reasonable discoverable in the public domain can now be classified ‘CONFIDENTIAL’ UK EYES ONLY’ anything originating out of hearsay or freely available on a US Website, Wikipedia or third-hand rumour and gossip which forms any part of a decontextualised report and dressed up as ‘fact’, incapable of being tested by cross-examination may be classified ‘SECRET’ along with the ‘TOP SECRET’ Law Report which you will not find on LEXIS/NEXIS any time soon.

    It is open-season on anything and everything having a security classification attached to it by a minor civil servant in the Stationery department ‘just in case’ it might at some time in the future be needed to bring it within the domain of ‘National Security’ and open the door to ‘closed evidence procedure’.

    It is a beautifully designed system which will ensure that whole tracts of the government machine are ‘immunised’ from accountability within a flourishing culture of impunity.

  5. Rosemary Cantwell says:

    7 March 2013

    Dear Ms Mcardle

    Thank you very much for this illuminating artlcle of yours. Civil liberties will definitely be eroded if there is not the “equality of arms” as stated by Shami Chakrabati because some civil cases can be referred on to other court fora, including Magistrates and Crown Courts, and so if there is not a properly investigated Civil Court claim where both sides have equal access to the full documentation and knowledge of the allegations, then you could end up with terrible rough justice which is not justice but kangaroo courts.

    This is not the policing of Dixon of Dock Green nor is it liberty or humane and it certainly breaches the UN Convention of Human Rights.

    Thank you very much for your excellent article.

    Yours sincerely,

    Rosemary Cantwell

  6. Lofthouse says:

    He had ‘arguments’? Kept them very well hidden on the night…I barely noticed them :)

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