He said judges – and not ministers, as the bill states – should have the discretion to decide whether evidence should be heard in secret – so-called closed material proceedings (CMP) – and the bill should state clearly that such secrecy should be used only as a last resort.
The judge stressed in the McGartland case that he had read the High Court decision as going no further than "opening the gateway" to closed material proceedings being a "possibility", and he expected any application to use them to be "scrutinised with care".
There must be a review point for all closed judgments and materials heard under closed material proceedings.
So the government wants judges and security-cleared lawyers to hear the evidence in what are called "closed material proceedings" so that more cases can be heard and taxpayers' money can be saved.
This document, which has a foreword by Clegg, pledges to "find practical alternatives to the use of closed material proceedings within the justice system, including the provisions of the Justice and Security Act 2013, with the aim of restoring the principle of open justice".
The government has already introduced more safeguards to the legislation currently being scrutinised by Parliament, ensuring that judges and not ministers decide when so-called closed material proceedings are used.
Once again defying the government, peers voted by 273 to 173 to give judges and defendants, not just ministers, the right to demand closed material proceedings.
The consequence of not having closed material proceedings is not that this information all comes out in open proceedings.
We will be pushing to ensure all options that would maintain court hearings in the open are considered before a hearing becomes secret and also that a proper test is applied by a judge before opting for closed material proceedings.
The justice and security bill, which is winging its way through the Lords, will allow ministers to demand secret hearings – or, in the jargon, closed material proceedings – in any civil court case where they believe evidence might damage national security.
The government protests that secret courts – more properly, "closed material proceedings" – are all about enabling the courts to take heed of evidence that they are currently forced to ignore.
