The government’s plans for a new generation of secret courts faced a fresh setback on Wednesday when its own human rights watchdog warned the proposals could be incompatible with the law.
After taking advice from leading counsel, the Equality and Human Rights Commission told MPs and peers it believes that proposals within the controversial justice and security bill are incompatible with the Human Rights Act.
“The government’s proposals to extend the use of secret hearings to civil cases are a departure from this country’s traditions of open justice and fairness,” said John Wadham, the commission’s general counsel.
“The process is incompatible with the Human Rights Act and the principle of a common law right to a fair trial, and there is no real evidence to show how the proposals would improve the justice system.”
The commission issued its verdict on the Bill under its statutory duty to monitor and advise on proposed changes of law to ensure they meet human rights standards.
The bill proposes to extend to civil trials of measures known as closed material procedures (CMPs), which not only exclude the public and media from courtrooms, but allow lawyers representing government ministers to introduce evidence that cannot be seen or challenged by a claimant or their lawyers. This will be permitted even when those ministers are themselves the defendants.
The commission said it had concluded that CMPs are:
• Incompatible with an excluded party’s English common law right to a fair trial.
• In breach of article 6 of the European convention on human rights, which protects the right to a fair trial.
• To be used without any clear definition of the national security concerns they are said to be protecting.
The government claims CMPs are needed to prevent courtroom disclosure of sensitive evidence from causing damage to the so-called “control principle” governing intelligence shared between states.
It argues CMPs would allow more sensitive intelligence information to be heard in court than before, even though it would be heard in secret.
“Courts have found time and again that CMPs can be fair and can bring justice to an area of the law where currently there’s none,” a Cabinet Office spokeswoman said. “It means courts will be able to hear cases – and see all of the evidence – regardless of how much information relating to national security is involved.”
The government says a judge would decide whether the information should be kept secret. However, the bill’s critics say it has been drafted in a way that effectively ties judges’ hands, making it extremely difficult for them to challenge any minister’s claim that information should be kept secret on grounds of national security. The fact that a hearing would be held in secret could itself be kept secret.
There is also concern that the bill is intended not only to protect the control principle, but to conceal evidence of government wrongdoing, particularly during civil claims brought by victims of torture or rendition since 9/11.
Evidence of British collusion in the abuse and rendition of terror suspects to places where they risked being tortured – including evidence of MI6’s role in the rendition in 2004 of two Libyan dissidents into Muammar Gaddafi’s prisons – might not have come to light had the bill been in force.
The commission also said it welcomes the bill’s proposed reforms of the intelligence and security committee, the body of peers and MPs that is supposed to provide oversight of MI5 and MI6, but said they do not go far enough.