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Police Spy Case Shows Threat of Secret Courts

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KEN CLARKE
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Last week, lawyers for the police were partly successful in pushing a case concerning what has been described as the "sexual and psychological abuse of campaigners for social justice... by undercover police officers" into a secret tribunal, from which little if any evidence of just how this was allowed to happen will emerge.

For now, that is not the end of the story - the judge ruled that although part of the case, brought by women who say they were deceived into having sex with undercover police officers, will be heard by the intensely secretive Investigatory Powers Tribunal (IPT), this will be followed by an open hearing in the High Court.

However, should the government's plans for a vast roll-out of secret courts across the civil justice system pass parliament, it will be a very different story in future. The women bringing these allegations - described by the judge as "very serious" - would likely find themselves faced with the choice of the secret tribunal on the one hand and a secret court on the other.

Neither would allow them to challenge the case presented by the authorities, or to even hear the evidence which is used against them; should they lose their claim - which becomes much more likely in a system where the odds are stacked in the government's favour - they would never know why; and of course, both press and public would be left in the dark about just what our law enforcement and security services had been getting up to in our name.

Ministers may claim that the plans for secret courts - known as Closed Material Procedures (CMPs) - currently before Parliament would apply to only a tiny number of cases, concerned with 'national security.' Yet this is a nebulous term which the government refuses to define and which is known to have been misused to cover up embarrassment in the past. It is all too easy to see how the activities and techniques of the police could be claimed to have a bearing on 'national security', and therefore require the doors of the courtroom to be shut.

Moreover, the Kafkaesque claims made by police lawyers in this week's case - that they could not have a fair trial unless the other side was excluded altogether - are eerily similar to the claims currently being advanced by Ken Clarke in support of the secret courts bill. It is worth emphasising just how dangerously wrong-headed such claims are: the state is in effect saying that it is unfair to the state if they are not handed a massive advantage over their opponent. This takes the form of being allowed to kick the other side out of a closed courtroom, meaning that while the state can challenge the evidence brought forward by the citizen, the citizen cannot challenge or even hear the evidence brought forward by the state.

The potential spread of the new rash of secret courts would - by Ken Clarke's own admission - not stop at cases involving the security services. Questioned in Parliament, Mr Clarke was forced to admit that secret courts could also be used in cases where soldiers' families brought cases against the MoD for negligence resulting in the death of a loved one; he also refused to rule out that they could be used in cases where the government faced embarrassment over corrupt arms deals.

This week's case has demonstrated that the desire for secret courts - which would represent a license to cover-up government embarrassment - is widespread among state authorities. For now, the civil courts represent a last safeguard to ensure ministers and officials can be brought to book for any abuses they carry out. But should the Secret Courts Bill pass Parliament in the coming months, this last redoubt will be lost. MPs must not nod through these plans which would not only destroy our centuries-old traditions of fair and equal justice, but would in effect put the government above the law.

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