UK Govt doesn’t know if Secret Courts could be used to restrict liberty

March 4, 2013

Ken Clarke today contradicted his own ministerial colleagues over whether the Government’s plans for secret courts could apply to habeas corpus cases, where an individual’s liberty is at stake.

Asked whether it would apply in such cases – where an individual challenges their imprisonment by the state – Mr Clarke, the minister responsible for the Justice and Security Bill, initially said “no.” He subsequently changed his answer, reading out a note from a civil service lawyer which said “we can’t envisage” such a situation.

Yet at Committee stage, Home Office Minister James Brokenshire confirmed that secret courts – or ‘Closed Material Procedures’ – could be used in habeas cases, saying “Were there a case in which sensitive information was relevant, it would be appropriate for it to be considered within a CMP structure”.

Habeas corpus is a centuries-old British right which allows a prisoner to challenge their detention, and secure release if that detention is unlawful.

Were a CMP to be available in such cases, the result could be that those challenging their imprisonment could remain in detention, while being denied a reason why, as they would not be allowed to hear or to challenge the evidence used against them.

Commenting, Reprieve’s Executive Director, Clare Algar said: “It is appalling that, even at this late stage in the debate, the Government doesn’t know or won’t say whether secret courts could be used to deprive people of their liberty. One minister says they can, yet Ken Clarke says they can’t. Parliament must oppose these plans, or risk a situation where people could be left in prison without knowing why. Complete opposition to secret courts is the only safe way forward.”


Notes to editors

1. For further information, please contact Donald Campbell at Reprieve on 07791 755 415 /

2. Mr Brokenshire confirmed that CMPs would be available in habeas corpus cases at committee stage in February this year, in response to a question from Andy Slaughter MP: Mr Slaughter: If I understand the Minister correctly, he is repeating what Lord Wallace said in the other place: if the principle of habeas corpus applied to a civil case—a case example was given in the other place—the Government would want to see a CMP applied. That is what the Minister is saying, is it not? The Minister is saying that there will be no exemption. James Brokenshire: The point I am trying to make is that, first, the circumstances in which this issue would arise are very unlikely. Were there a case in which sensitive information was relevant, it would be appropriate for it to be considered within a CMP structure, so that the individual concerned could defend their case. See column 190: