Amnesty: Secret justice plans risk harming the rule of law in Northern Ireland

New report heavily critical of secret justice plans ahead of debate on controversial bill

‘It’s a secret justice system straight from the pages of a Kafka novel’ - Alice Wyss

The government’s plans for a substantial extension of the use of secret evidence in the justice system have been heavily criticised in a new Amnesty International report published today (15 October).

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The organisation is warning that the measures could reduce the ability of people in Northern Ireland to hold the security forces to account, harming public confidence in the rule of law.

The proposals would allow the government to rely on secret evidence in civil cases, including cases of alleged government responsibility for human rights violations such as torture and enforced disappearance.

The measures, contained in the Justice and Security Bill due to be debated in the House of Lords in the coming weeks, would allow the government to use so-called “closed material procedures” to prevent individuals and their lawyers from seeing documents even when they show the involvement of UK officials in wrongdoing, no matter how grave. If such disclosures are deemed to harm “national security”, then the material can be withheld, potentially indefinitely, even if there is an overwhelming public interest in disclosure.

Patrick Corrigan, Amnesty International Northern Ireland Programme Director, said:

“This law would give the government powers to hide from open scrutiny in a court of law actions by its agents in the most controversial of cases; including where the security forces themselves may be implicated in human rights violations.

“There are a range of civil proceedings in Northern Ireland dealing with the legacy of the conflict which might well be affected by the introduction of ‘secret evidence’. These include judicial reviews of investigations into conflict-related deaths by the PSNI, the Historical Enquiries Team and the Police Ombudsman, as well as civil actions for damages relating to ill-treatment and unlawful killings.

“If introduced, these ‘secret evidence’ measures could contribute towards a dangerous unravelling of public confidence in the justice system in Northern Ireland, confidence which has already been shaken over the last year by revelations regarding the independence of the Police Ombudsman and recruitment by the PSNI.”

The government can already rely on secret evidence in at least 21 different contexts - including in appeals against the imposition of highly restrictive Terrorist Prevention and Investigation Measures (the successor to “control orders”), and national security deportation proceedings.

Amnesty’s 50-page report, Left In The Dark: the use of secret evidence in the United Kingdom, is highly critical of the unprecedented growth in the use of secret justice measures in the UK in the last decade, seeing it as a “radical departure” from the basic requirements of fairness in civil and criminal cases.

Amnesty’s report includes critical testimony from some 25 barristers and solicitors who have acted in such cases, and three “special advocates” who are allowed to see secret evidence but not allowed to discuss it with the person affected.

One of the lawyers, Richard Hermer QC, said:

“The idea that you could go to court having had the most terrible things happen to you to sue for justice and be excluded from the proceedings and at the end just be told you’ve lost without being given the reasons for that decision, runs contrary to all notions of fairness, the rule of law and open justice.”

Amnesty International’s UK researcher Alice Wyss said:

“The Justice and Security Bill is a real threat to the principles of fairness and open justice in the UK - principles which should always be at the heart of the justice system.

“It’s already bad enough that secret procedures have been allowed to creep into the justice system, but the government is now trying to extend secret justice to an unprecedented degree. It wants a system where it can simply play the ‘national security’ card whenever it wants to keep things secret.

“Evidence that is kept secret, lawyers that can’t talk to you - it’s a secret justice system straight from the pages of a Kafka novel.

“The Justice and Security Bill will enable the government to throw a cloak of secrecy over wrongdoing. We want the House of Lords to reject this bill unless it is very seriously amended, with the secret justice components removed.”

Whilst Amnesty recognises that governments can lawfully restrict disclosure of information in some circumstances, the organisation believes that the government’s broad proposals are inconsistent with its international human rights obligations. The proposed measures also depart from traditional standards of fairness and open justice, and would allow the government to avoid proper scrutiny of its human rights record.

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