Terror watchdog says secret courts plan could work

The MI6 building in London. Ministers have settled cases out of court rather than divulge information held by MI5, MI6 and others

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The terrorism laws watchdog says controversial plans for more secrecy in British courts can be made to work.

David Anderson QC said measures in the Justice and Security Bill could be "tolerable" if judges have the final say on when court doors close.

He said the plans to bar claimants from their own cases should also only be used as a last resort.

The proposals are designed to prevent sensitive information relating to national security becoming public.

The government says the Justice and Security Bill is necessary to protect sensitive information where people have brought cases against the intelligence and security agencies, including MI5.

It would cover damages claims, such as those where people allege that the UK has been mixed up in their ill-treatment abroad by foreign agencies. The law would also allow the Home Secretary to fight a growing number of cases where she has refused to give someone British nationality on the basis of a secret assessment.

If the proposal becomes law, security-vetted lawyers, known as Special Advocates, would represent a claimant in secret "closed material procedures".

LIVE CASES THAT COULD INVOLVE CLOSED COURTS

  • 29 cases before British courts
  • 15 relate to damages claims against government and agencies like MI5 or MI6
  • 4 are test cases relating to nationality applications
  • 3 relate to terror asset freezing powers

Ministers say the procedure would allow evidence to be tested before a judge without disclosing the information to a claimant or the public.

The procedure is already used in cases where terrorism suspects are subjected to a form of house arrest and in deportations relating to national security.

David Anderson QC, the Independent Reviewer of Terrorism Legislation, told Parliament's Joint Committee on Human Right that ministers were trying to deal with a genuine problem in cases where information could not be made public, but evidence had to be tested.

"Closed material procedures are far from ideal but at least the evidence gets an airing," he said.

"Closed material procedures can be tolerable providing that certain conditions are satisfied."

Mr Anderson said that courts should only go into closed sessions as a last resort in cases which would otherwise be impossible to hear.

He said that judges should also have the final say on when to use the power rather than being forced to agree to every application from a minister. Critics of the legislation say that a key part of the proposals force judges to rubber stamp secrecy applications, rather than test whether they are genuinely needed.

"The judges' hands are tied," said Mr Anderson. "The Secretary of State continues to pull the strings.

"We have to trust the judges. Closed material procedures should not be resisted as a matter of principle, but it has to be for the judges to decide on what is the fairest way to deal with the case."

Mr Anderson's evidence to the joint committee came shortly before the second reading of the bill in the House of Lords. Ministers say there are 29 live cases that could involve closed material procedures including 15 in which people want to sue the intelligence and security agencies.

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