Parliament’s human rights committee has delivered a robust response to the justice and security green paper
Central to the justice and security green paper, roundly criticised on Wednesday by parliament’s human rights committee, is Britain’s “special relationship” with the US. And central to that relationship is the sharing of intelligence.
The Bush administration told the Labour government that it would restrict the amount of intelligence the US passed to MI5 and MI6 if British courts were allowed to disclose such intelligence. The threat was prompted by an appeal court ruling in 2010 that a brief summary of CIA information about Binyam Mohamed, a British resident brutally treated in Pakistan, Morocco, Afghanistan and GuantÃ¡namo Bay, should be disclosed.
MI5 and MI6 responded to the threat by telling Labour ministers, and subsequently the coalition government, that a law must be introduced to prevent any intelligence information from ever being disclosed in court. They said they had been forced, in another case, to pay millions of pounds in compensation to UK citizens and residents incarcerated in GuantÃ¡namo in an out-of-court settlement. That, they claimed, was the only way to prevent sensitive intelligence from emerging in court. MI5 and MI6 are defending the “control principle” whereby the original gatherer of intelligence must decide whether or not it can ever be disclosed, not those subsequently provided with it. Thus the CIA, and the CIA alone, decides whether intelligence it passed to MI5 or MI6 can be revealed.
The joint parliamentary human rights committee of MPs and peers makes it clear what it thinks of such a principle. “An absolute exemption cannot in our view be considered to be consistent with the rule of law,” it states.
“Often the individuals seeking the disclosure are fighting not only for their liberty but for their life. Binyam Mohamed himself was facing the possibility of the death penalty in the US when he first sought disclosure of the material in the possession of the UK government which would help him to contest the charge.”
The government, it says, appears to want “to be able to give a cast-iron guarantee to the Americans that any intelligence shared with the UK will never be disclosed without the Americans’ consent”.
Three years ago, high court judges hearing the Mohamed case said the CIA material which the US and British governments were fighting to suppress “could never properly be described in a democracy as ‘a secret’ or an ‘intelligence secret’ or a ‘summary of classified intelligence'”. Rather, what it revealed was “admissions of what officials of the US did to BM [Mohamed] during his detention in Pakistan”.
The judges added that it was “impossible to believe” President Obama would take action against the UK if the summary of CIA material was disclosed. Publication was “necessary to uphold the rule of law and democratic accountability”, the judges continued. “A vital public interest requires, for reasons of accountability and the rule of law in the United Kingdom, that a summary of the most important evidence relating to the involvement of the British security services in wrongdoing be placed in the public domain in the United Kingdom.”
The appeal court judges noted later: “In principle, a real risk of serious damage to national security, of whatever degree, should not automatically trump a public interest in open justice when it concerned UK knowledge of unlawful interrogation techniques used by US officials.”
The appeal court added: “Dealing with this appeal as a matter of practical reality rather than abstract legal theory, unless the control principle is to be treated as if it were absolute, it is hard to conceive of a clearer case for its dis-application than a judgment in which its application would partially conceal the full reasons why the court concluded that those for whom the executive in this country is ultimately responsible were involved in or facilitated wrongdoing in the context of the abhorrent practice of torture.”
They concluded: “Such a case engages concepts of democratic accountability and, ultimately, the rule of law itself.”
Wednesday’s report suggests that the US appeared to believe that the British courts could never stop the disclosure of information that could damage national security. The US authorities were suffering a “misperception”, the committee says. There are other ways to prevent genuinely sensitive information to be kept secret. There was a case for clarifying the law but that must be done in a proportionate and limited way, to respond to legitimate, specific, requests from the security and intelligence agencies. …