The Daily Telegraph and the Times (£) have reported on warnings from the Independent reviewer of Terrorism Legislation, David Anderson QC, that the US is deeply concerned by the future of intelligence sharing between the two countries in light of the public disclosure of US intelligence which Britain promised would remain secret. He made his comments whilst giving evidence to the Joint Committee on Human Rights after discussing the Government’s plans for ‘secret trials’, detailed in the Justice and Security Bill, with key figures in the US government.
From the Daily Telegraph:
“David Anderson, QC, told Parliament that Britain is already “on probation” because of fears in Washington DC that judges could reveal top secret information, despite concerted diplomatic efforts to win them over.
“He said he was “quite sure” that the US authorities had joined in the calls for the Justice and Security Bill, which will allow ministers to demand that civil cases involving state secrets are held behind closed doors.
“Mr Anderson, the independent reviewer of terrorism legislation, was clear that any watering down of the draft law – as demanded by the Liberal Democrats – would lead to a re-thinking by the Americans of their security relationship with Britain.
“He added, however, that he personally believes the legislation still gives too much power to ministers and threatens public confidence in the Government and judges.
Under the new proposals which have already been ‘watered-down’, victims and their lawyers would be prevented from seeing the evidence against them and would be represented instead by ‘special advocates’. The government claims that the decision to carry out ‘closed material procedures’ would be at the discretion of judges, rather than ministers.
The article continues that “The [American] authorities had demanded “unconditional assurances” that classified information they shared would remain secret.
“Asked if he thought the legislation had been driven by American demands, he replied: “I’m quite sure that they had something to do with it. Quite how much I don’t know.”
“Asked what would happen if the bill were watered down, he replied: “There would have to be a reassessment of the intelligence-sharing relationship.
“He went on: “It is clear to me that if our courts were to get into the habit of disclosing information of this kind contrary to the wishes of the US government, the US government would wish to reassess the intelligence relationship.
“There are signs that we are currently on probation and there has already been a diminution of intelligence-sharing.”
Despite relaying American concerns over current intelligence-sharing arrangements, Anderson expressed his own reservations of the proposals for secret trials:
“Neither public confidence in judges nor public confidence in the Government and security services is going to be achieved by a closure that isn’t even-handed and doesn’t give judges the discretion to make what is in essence a case-management decision.”
The article states that “the watchdog repeated his view that the current plans, which are due to be voted on by the House of Lords later this year, address a “genuine question” but are done in a “disproportionate manner” and that “He said the legislation could be improved by allowing any party in a case to request a CMP, not just the Secretary of State.”
"He said litigation about the law is “inevitable”, and suggested there should be an annual review of how the law is working to check against any “creep” of its purposes.
The Cabinet Office defended the proposals, stating that "Our current inability to properly protect sensitive material is seriously undermining the confidence of our international partners, which is vital to our national security.”
The government fought a hard legal battle to suppress evidence of its complicity in the torture of former Guantanamo Bay detainee, Binyam Mohamed, which it lost following a court ruling that evidence from the US of Mohamed’s torture must be disclosed. This and a number of other cases have angered the US, who has relied on secrecy in sharing intelligence with the UK as well as other allies. Most recently, legal action has been taken against key elements of the Government by Libyans Abdel Hakim Belhadj and Sami al-Saadi who allege British complicity in their rendition and torture, a case which has attracted much public attention and has arguably tarnished the Government’s reputation.
The need to keep secret evidence given to Britain by ‘allies’, as well as protecting Britain’s reputation, are just some of the reasons, it has emerged, that the government wants to extend the use of secret trials in British courts. That Anderson should come out expressing some, albeit reserved support for the proposals is surprising given his position on for example terrorism legislation which he has argued needs to be “rebalanced in favour of liberty”. The proposals have come under fire from a number of corners; including the Labour Party with shadow justice secretary Sadiq Khan arguing that the Government’s claim of the process being ‘judge-led’ is “positively misleading”. An article published today in the Law Society Gazette states that Khan “[asserts] that measures are already at the disposal of judges to ensure national security is not compromised.” Civil liberties organisations have also been particularly critical, and a report published by Amnesty International earlier this week criticised the ‘creeping’ use of secret trials, which according to the report are already used in twenty-one different contexts. In addition, a report published this week by the Foreign Affairs Select Committee on the Foreign and Commonwealth Office’s human rights work argued that “The Government must also reconsider the proposals in the Justice and Security Green paper which could prevent victims of human rights violations finding the truth.”
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