The Government published the Justice and Security Green Paper on 19 October 2011. It considered how closed material procedures could be developed in th the UK to ensure that secret intelligence was not revealed in the course of court proceedings.

There is, however, confusion in the Coalition over liberal policies. This one is about secret courts. On 4 April 2012, the BBC reported that:

David Cameron has said “gaps” in national security must be plugged as he defended plans for more secret court hearings and more internet monitoring.

He stressed there had already been “huge engagement” with the legal profession and civil liberties groups and added: “We are not at the end of that process yet… these are issues that we need to deal with. There is still time [before the Queen's Speech] to deal with everybody’s concerns.”

But he added: “Prime ministers have a responsibility for national security. We should take every step that is necessary, to keep the country safe, we shouldn’t put our civil liberties at risk by doing so, but where there are gaps that need to be plugged, we need to plug those gaps.”

The first line of the Liberal Democrat Constitution reads as follows:

The Liberal Democrats exist to build and safeguard a fair, free and open society, in which we seek to balance the fundamental values of liberty, equality and community, and in which no one shall be enslaved by poverty, ignorance or conformity.

There, however, appears to be confusion over the Liberal Democrats’ stance over ‘secret justice’. Lord Carlile is reported as saying:

The Green Paper Mr Clegg appears to have disowned was, as I understood it, a Green Paper he supported when it was issued. We need some consistency from the Government on these issues, and a proper part played by the Government before the political criticism starts; much of it very poorly informed I’m afraid.

The Daily Mail is strongly opposed to ‘secret justice’. Here is an extract from a recent article:

Ed Miliband has dealt another heavy blow to government plans to extend ‘secret justice’ by warning ministers to drop legislation from next month’s Queen’s Speech and go back to the drawing board. The Labour leader used an interview with the Daily Mail to signal that his party will not support the proposals unless the Government agrees to abandon plans to change the law in the next session of Parliament and open cross-party talks on how to proceed. Mr Miliband admitted the last Labour government had been too ready to make fundamental legal changes that threatened ancient liberties on the grounds of national security, adding: ‘The experience in this area is that rushed legislation is bad legislation.’

Simon Hughes MP has said that the principle of open justice must not be compromised, simply because the authorities wanted to change the system.

The Ministry of Justice recently reported that:

The Committee regrets that the Green Paper overlooks the very considerable impact of its proposals on the freedom and ability of the media to report on matters of public interest and concern. It is also concerned about the possible impact of the proposals on public confidence and trust in both the Government and the courts.

The principle of ‘open justice’ is provided in 196.

196.  The status of the open justice principle as both a foundational common law principle and an important human rights obligation is not in doubt. In Al Rawi, for example, Lord Dyson said:

There are certain features of a common law trial which are fundamental to our system of justice (both criminal and civil). First, subject to certain established and limited exceptions, trials should be conducted and judgments given in public. The importance of the open justice principle has been emphasised many times [...] The open justice principle is not a mere procedural rule. It is a fundamental common law principle. In Scott v Scott [1913] AC 417, Lord Shaw of Dunfermline (p 476) criticised the decision of the lower court to hold a hearing in camera as “constituting a violation of that publicity in the administration of justice which is one of the surest guarantees of our liberties, and an attack upon the very foundations of public and private security.” Lord Haldane LC (p 438) said that any judge faced with a demand to depart from the general rule must treat the question “as one of principle, and as turning, not on convenience, but on necessity”.

However, the Joint Committee on Human Rights then goes on to say:

209.  There appears to have been little thinking so far about how to address the many problems to which closed judgments give rise. How can they be made accessible to those, such as special advocates, who are both entitled to access them and require to do so in order to perform their function of representing the interests of parties to litigation who are excluded from closed material procedures? If closed judgments have legal precedent value, as the special advocates told us they sometimes do, how can that content be extracted and made publicly accessible as the rule of law requires it to be? How long will judgments remain closed for? What should be the mechanism for closed judgments becoming open? We recommend that the Government brings forward proposals to deal with the important questions we raise which relate to closed judgments.

210.  It was also pointed out to us that the current trend, throughout the court system, is towards greater openness and transparency: in family courts, the Court of Protection, coroners’ inquests and the Supreme Court, for example.[119] The Green Paper, however, is directly at odds with this trend.

So the question is: will secret courts be in the Queen’s Speech?  The Queen’s Speech at the beginning of the 2012-13 Session will take place on 9 May 2012.