02/04/2014 11:13 BST | Updated 01/06/2014 06:59 BST

Northern Ireland, the Justice and Security Act and the Death of Transparency


On the 25th of April 2013, the Justice and Security Act 2013 gained Royal Assent. The law - which provides 'oversight' for security services, the introduction of 'closed material procedure' in relation to civil proceedings and the prevention of the disclosure of self defined 'sensitive information' - is a direct result of an embarrassing law suit that had to be settled out of court after claims of wrongful imprisonment and complicity in torture. The case in question is the one of Binyam Mohamed, who was one of six British detainees held at Guantanamo Bay that won a large figure settlement from the government after he alleged British MI6 had involvement in CIA abuse during his time under incarceration in the controversial US prison in Cuba. Other charges included 'unlawful imprisonment and extraordinary rendition' pointed towards the UK government - which then argued that 'disclosure' could stop the US sharing intelligence with the United Kingdom.

At the time, Amnesty International UK's Kate Allen stated that the judgement was "major setback for the government's attempts to throw a blanket of secrecy over wider allegations of complicity in human rights abuses"

Once the dust had settled, those in power did what they do best and changed the law.

The new legislation - now an Act of Parliament - contained the implementation of 'closed material procedure', often referred to simply as CMPs. This now controversial part of the bill allows authorities to 'introduce sensitive information in a trial that can only be seen by the judge and security-cleared special advocates'. The move from special cases involving terrorist or immigration into civil courts is significant - as it provides the government unparalleled opportunity to act in secrecy and behind closed doors.

On the 24 March 2014, The Detail filed an article that exposed the attempts of the Secretary of State, Theresa Villiers, to process legal action that would enforce the CMP legislation onto a case she is currently involved in - in which a 'former dissident prisoner is suing the Secretary of State for unlawful detention'.

The Detail's investigation, by Barry McCaffrey, stated:

"The Detail has learned that lawyers for Theresa Villiers are to ask the High Court in Belfast to impose Closed Material Procedure (CMP) restrictions in a legal case being taken by a former dissident republican prisoner who is suing the Secretary of State for unlawful detention. Earlier this month lawyers acting for Ms Villiers put solicitors acting for the former dissident inmate on notice that they would be making a legal application to the High Court to impose CMP measures to ensure that the lawsuit would be held behind closed doors".

When The Detail questioned the government about this report, a Northern Ireland Office (NIO) spokesman stated that "The government is strongly committed to open and transparent justice.

"However, sometimes justice cannot be fully delivered in open court because relevant material relating to national security is too sensitive to disclose".

McCaffrey reports that:

"Under the secret court legislation neither the person who the CMP is being used against, or their lawyers, are permitted to have any active part in the closed door proceedings. Instead a Special Advocate, who has been security vetted, will be appointed to represent him."

The role of 'Special Advocate' has been called 'unfair, unnecessary and unjustified' by Justice, a human rights group that describes itself as 'an all-party law reform and human rights organisation working to strengthen the justice system - administrative, civil and criminal - in the United Kingdom'.

Justice stated that the 'proposals would promote secrecy, fundamentally undermine the fairness of any proceedings in which CMP came to be used and endanger the credibility of our system of civil justice'

Justice stated that the 'proposals would promote secrecy, fundamentally undermine the fairness of any proceedings in which CMP came to be used and endanger the credibility of our system of civil justice'

The National Union of Journalists has criticised the lack of traditional judicial oversight, they say that "the government's lawyers are able to present evidence without the risk of being effectively challenged. In a normal civil case such challenges would be met by cross-examination or introducing evidence to undermine the government's case"

The Guardian, in a fantastic overview of the Justice and Security law criticised the role of Special Advocate, saying the 'advocate may not give his or her client precise details of the evidence and can only provide a "gist" or loose summary. The claimant may not therefore be aware of all the allegations being made'.

The news that the Secretary of State is attempting to impose the CMP measures in Northern Ireland only exacerbates the notion that she is drastically unaware of fragility of the province. In Northern Ireland, as the ghosts of the Troubles continue to haunt many and scars left by years of violence only deepen with time, the population should be receiving more transparency from its elected government officials - not a regression into secret deals and unaccountable judicial systems.

NI journalists and broadcasters have only gained the right to report from inside local councils, yet somehow we have also reached the point of the implementation of secret courts that will enforce secret justice away from the watchful eye of the public - all because the government see the information as 'sensitive'. It is difficult - in this instance at least - to find a reason other than embarrassment or uncomfortable truths, which should not mean all proceedings can be swiftly contained by the government without question. Put simply, we have a major problem with transparency.

The overall problems of transparency stem from the United Kingdom, and as such, have spilled onto our shores. The question of escalation is of utmost importance. The people of the province cannot be expected to sit back and watch their liberty drained dry by a self entitled government that doesn't want its dirty laundry aired in public. For a province that has only very recently felt the full force of secrecy in the form of 'On The Run' (OTR) cases - which let's not forget nearly brought our government to its knees - the news that the Secretary of State wishes to enact secret courts should not be taken passively.

This is not about protecting the alleged criminal, it is about protecting the civil liberties of every citizen living in Northern Ireland today - regardless of what side of the Peace Wall they reside.

Jason Murdock | @Jason_A_Murdock |