'The right to know and effectively challenge the opposing case has long been recognised by the common law as a fundamental feature of the judicial process" – so said .
However, the now going through parliament would give the government the power to decide that certain evidence in civil proceedings might cause "damage" or "harm" to the public interest, and therefore must be given in secret. It would use the , which excludes non-state parties from a hearing or from any knowledge of the secret evidence given in these . Those of us campaigning on human rights in Northern Ireland are particularly concerned about the impact of this legislation in our region.
The Northern Ireland dimension is important for three reasons. First, the legislation is a breach of the common law principle of open justice, which is at least 300 years old. Second, similar measures have been trialled in and led to miscarriages of justice. Third, applying this law here would add to the cover of secrecy over the past and present actions of security and intelligence agents – threatening to undermine the peace process and nurture a culture of impunity.
The establishment of a parallel "anti-terrorist" justice system would lead to the kind of human rights abuses that fuelled the conflict in Northern Ireland and marginalised communities. And this legislation risks weakening the peace process in one crucial way. One of the gaps in that process is the lack of a comprehensive method of dealing with the legacy of the past, especially in terms of unsolved murders and other crimes. Instead there is a patchwork of measures, including public inquiries, the , ongoing investigations by the Police Service of Northern Ireland, the police ombudsman and inquests.
Thankfully, the secret justice proposals do not relate to inquests. But a range of civil proceedings dealing with the legacy of the conflict would be affected, including any future judicial reviews of investigations into conflict-related deaths, challenges relating to decisions not to prosecute, and civil actions for damages that concern miscarriages of justice, cases of ill-treatment or unlawful killings. This legislation would in effect close off all the other legal avenues that victims or their relatives are trying to use to get at the truth.
Many of these cases revolve around the actions of state agents – whether uniformed policemen or soldiers, or the shadow army of agents and informants recruited by a range of secret agencies during the secret war in Northern Ireland. There is a pattern emerging of covering up these activities and refusing to properly investigate cases where state agents may have been involved in unlawful killings. This pattern includes the refusal of an inquiry into the murder of the human rights lawyer Pat Finucane – the most prominent and serious collusion case admitted by the UK prime minister.
There can be little doubt, however, that the experience of waging a 30-year dirty war within the borders of the UK has deeply corrupted the British security establishment. It is arguable that its long experience in Northern Ireland has normalised human rights abuses in the pursuit of "counter-terrorism". Today the dirty war is not confined to Northern Ireland but has a global theatre of operations. And, under the same lid of secrecy, a culture of impunity for the security establishment corrupts and rots the very fabric of democracy and the rule of law.