Out of the Shadows: The Courts and the United Kingdom's Malfunctioning International Counter-Terrorism Partnerships

Abstract

This article examines the fragile web of positive obligations which international law weaves in relation to counter-terrorism cooperation. Whilst recent United Kingdom governments have stressed the nature of obligations to share information in the fields of security and intelligence, such general obligations remain nascent, placing the burden on bilateral agreements. When one of the UK’s partner countries threaten these arrangements for geo-political advantage, or where their actions draw the UK into complicity in breaches of the Torture Convention, the domestic courts have been required to consider these security arrangements, leaving judges in the position of assessing classically non-justiciable issues. This paper considers the how the courts have exercised their remit in this field in cases such as Corner House Research, Binyam Mohamed and Ahmed, and what these cases indicate regarding the shifts in power between the UK’s intelligence and security services and their international partners. Moreover, it evaluates how the Coalition Government has responded to these cases through the Justice and Security Bill 2012, and how this legislation will affect the judiciary’s role in national security cases.