Secret courts at odds with fair trial rights, says watchdog

October 31, 2012

The Government’s plans for secret courts are incompatible with both the centuries-old common law right to a fair trial and the European Convention on Human Rights, a government watchdog has warned.

The Equality and Human Rights Commission (EHRC) has published legal advice from a QC which directly contradicts ministers’ claims that the Justice and Security Bill is compatible with article 6 of the European Convention – which concerns the right to a fair trial.

The EHRC also warns that the Bill’s proposals for rolling out secret courts – known as ‘Closed Material Procedures’ (CMPs) – across the civil justice system is “incompatible with the common law right to a fair trial.”

The report undermines the claims of ministers, who have repeatedly sought to justify the proposals by claiming that they are compatible with rights to a fair trial and Article 6 of the Convention. Defending the Bill in the House of Lords, Lord Wallace has said that: ‘We believe that the CMP proceedings will be fair. I say that with confidence because the Bill makes it absolutely clear that it does not affect Article 6 of the European Convention on Human Rights, which guarantees a right to a fair trial.”

However, the ECHR’s legal advice states that: “We are unclear why what would be regarded as being in breach of one of the rules of natural justice and unfair at common law…should be regarded as providing a fair hearing for the purpose of article 6.” The Commission’s conclusions are that:

    “The provisions of the Bill relating to the introduction of a closed material procedure are incompatible with the common law right to a fair trial of an excluded party.” “The options to invoke a closed material procedure and to make a closed material application are incompatible with article 6 of the European Convention on Human Rights (the Convention) notwithstanding clause 11(5)(c) of the Bill.”

Commenting, Reprieve’s Executive Director, Clare Algar said: “This leaves the Government without a leg to stand on. It shows that ministers are wrong to claim that secret courts are compatible with European rights to a fair trial. More importantly, it demonstrates how plans for secret courts will ride roughshod over centuries-old British rights to justice. It is not too late for ministers to think again, before taking a wrecking ball to the British tradition of fairness and equality before the law which is an example to the world.”

ENDS

Notes to editors

1. For further information please contact Donald Campbell in Reprieve’s press office: 0207 427 1082 / donald.campbell@repreive.org.uk

2. The EHRC’s briefing and legal advice can be found here: http://www.equalityhumanrights.com/legal-and-policy/parliamentary-briefings/justice-security-bill-with-advice

3. The Government’s claims to Parliament that the Justice and Security Bill is Article 6-compliant can be found here: http://www.publications.parliament.uk/pa/ld201213/ldhansrd/text/120723-0003.htm#1207241000056

4. Further information on the Justice and Security Bill can be found on Reprieve’s website: http://www.reprieve.org.uk/investigations/secret_justice