The United Kingdom government’s plans for a substantial extension of the use of secret evidence in the justice system have been heavily criticized in a new Amnesty International report published today.
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.
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.
The 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.”
The report also includes testimony from a number of individuals who have been subjected to measures based on secret evidence, who describe the severe impact of the measures on them and their families. One man, a 43-year-old - who can only be publicly identified as “G” - has been subjected to detention or required to live under highly restrictive conditions over a ten-year period, based in large part on secret evidence he has never seen. “G” told Amnesty:
“I want justice: the opportunity to defend myself, in a fair trial […] I am not even allowed to know the evidence the state claims to have against me.”
“G”’s wife said:
“In December last year we marked the ten-year anniversary since my husband was first detained. We still don’t know what he is accused of and we are still living under conditions which make life very difficult for us […] My husband wears a tag, but we all have an invisible tag.”
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.
“A person who can credibly accuse the UK of responsibility over their torture, enforced disappearance or other human rights violation has a right to a fair and effective remedy. The public also has a right to know the truth about whether and how the government has been involved.
“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.”
The government’s efforts to gain agreement over controversial measures in the Justice and Security Bill come after - among other things - a recent civil action for damages brought by a number of individuals who alleged that the UK had been involved in their rendition, unlawful detention and mistreatment, including while at Guantánamo Bay.
Whilst Amnesty International recognizes 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.
Over the past decade, there has been an ever increasing reliance on secret evidence by the UK government in the name of national security. Amnesty International believes that this growing resort to secrecy undermines basic standards of fairness and open justice. This report examines the increased use of what is described as a “closed material procedure”, which allows the government to rely on secret evidence presented to the court behind closed doors, in a range of non-criminal judicial proceedings in the UK.