Independent reviewer of terrorism legislation says closed material procedures justified if US-UK intelligence cooperation would suffer
The independent reviewer of terrorism legislation has said there is a "small but indeterminate category of national security-related claims" in which a closed hearing would be preferable to existing court procedures.
David Anderson QC, who took over the role from Lord Carlile QC in February 2011, was commenting on the government's plans to allow what are called closed material procedures (CMPs) to be used in all civil claims if a minister certifies that this would be in the public interest. Anderson had previously said he did not have the evidence on which he could judge whether the moves, outlined last year in a green paper on justice and security, were justified.
Last week, he attended a meeting with the intelligence services, after which he was left with a "bundle of top secret material". The QC was shown three cases, "saturated in secret material", in which claimants were seeking damages. In each case, there was material of central relevance to the issues that it seemed highly unlikely could ever be deployed in open court.
Cases such as these would have to be settled or struck out rather than fought to a conclusion, Anderson continued. This was undesirable.
He went on:
We are in a world of second-best solutions: but it does not seem to me that the level of injustice inherent in the use of CMPs in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought.
The cases to which I have been introduced persuade me that there is a small but indeterminate category of national security-related claims, both for judicial review of executive decisions and for civil damages, in respect of which it is preferable that the option of a CMP – for all its inadequacies – should exist. No one has sought to persuade me of the need for a CMP in cases not related to national security.
Anderson went on to confirm the government's view that intelligence cooperation with the United States had suffered in the light of the Binyam Mohammed case, in which the court of appeal had ordered publication of seven paragraphs summarising information supplied to the UK by US intelligence agencies.
Anderson commented:
The realisation that secret US material could in principle be ordered to be disclosed by an English court, notwithstanding the control principle, and that the government had no power to prevent this from happening, appears to have come as a genuine shock to many influential people in America.
He concluded that the government's green paper "accurately summarises both the limited reduction already seen in the flow of intelligence information from some US sources, and the possibility of a further reduction if it is perceived that information supplied in confidence might be released for other purposes".