Technically illegal

Too often, secrecy prevails in sensitive areas such as security, intelligence and surveillance for understandable reasons but with few effective safeguards against abuse. Discuss. In order to answer this question I will first briefly discuss why secrecy is important in sensitive areas and how can too much secrecy be a cause for concern. Having done that, I will seek to analyse what safeguards are available, and what methods have been employed, in the UK to ensure prevention of abuse to which secrecy can give rise.

Secrecy prevails as a result of our concerns emanating from national security. To keep the national security intact the state must have measures in place to combat espionage, terrorism and subversion. A reasonable person would realise that the need to have a secure state would be compromised if too much sensitive information is made available.

The importance of secrecy is emphasised by the existence of the Official Secrets Act 1989 (OSA) which, even though came into force as an antidote to section 2 of OSA (1911), imposes rigid restrictions on the disclosure of many kinds of information which endangers or is likely to endanger national security. Therefore it is conceded that secrecy is vital to safeguarding the interests of paramount importance. However, too much secrecy may undermine an indispensible feature of our society, namely democratic accountability.

If we examine the OSA 1989, the ineluctable conclusion is that huge amounts of information relating to the activity of many governmental agencies, which may upon proper scrutiny reveal malpractice and gross errors, would escape such scrutiny. This is evident from the Butler inquiry which concluded that undue emphasis was placed on the unreliable intelligence about the existence of WMDs in Iraq and whatever evidence was available, it was not sufficient to render Iraq as being a potential threat.

1 Disclosure of evidence that the intelligence was not reliable or that proper checks on the sources of intelligence were not carried out would have given rise to criminal penalty to which the only defence would have been that the person did not know and had no reasonable cause to believe that the information related to security or intelligence ("a virtual impossibility for security and intelligence personnel"). 2 Was it because of the fear of criminal penalty that no one came forward to say that intelligence was faulty?

Moreover, although not technically illegal but highly unethical (in David Shayler's view)3 act of the MI6 of bugging the office of Kofi Annan in UN was, by virtue of OSA 1989, supposed to be concealed and any unauthorised reporting of such an act was likely to prompt criminal prosecution against the reporter. Clair Short and Katherine Gun were clearly in breach of Section 1 of the Act, however the Attorney General decided not to bring prosecution as it could have been too embarrassing for the government to do so. This concern was disguised under the pretext that Gun's "defence of necessity" 4 could not have been disproved.

Further, Scotts report revealed that Public Interest Immunity (PII) certificates were used to conceal, in the Matrix Churchill trial, government's involvement in the Iraq arms procurement network. The judge ordered the disclosure of many documents to which the certificates related and as a result of what transpired following the cross examination on the basis of the disclosed information the trial was discontinued. With regard to the intelligence information the PII certificate was signed by Malcolm Rifkind, then home secretary. His argument was that the information related to the class that should not be disclosed in the public interest.

Sir Scott expressed concern over the scope of information that would be covered by this class claim. Following the report the government published a paper in December 1996 which spelt out a new approach to PII certificates. The new approach did away with the distinction between class and content claims and set out that PII claims could only be made "where disclosure of material could cause real damage to public interest. " 5 Where PII is claimed the onus is on the person challenging the public interest as to why they want the documents and how they are likely to assist him.

If the he cannot be precise on this point his request will be treated as a fishing expedition. Only if the onus (which is undoubtedly heavy) is discharged the judge will inspect the documents. 6 In cases concerning documents relating to national security the judge will rarely inspect the appropriately drafted certificate. 7 For example in Balfour v FCO8 the Court of Appeal held that where it was shown that the documents posed an actual or potential threat to the national security the court should not exercise its right to inspect the documents.

Hence, in cases where PII is claimed on the basis of national security it is highly unlikely that the individual will have access to evidence necessary to establish his case. If OSA 1989 and the culture of secrecy is to have such an effect on open democracy then there ought to be certain safeguards present to ensure a balance between keeping secrecy for executive efficacy and democratic accountability of those working in areas of security, intelligence and surveillance. In the following paragraphs I will analyse how the English law and the courts have tried to strike a balance between these two interests.

The judgement of the House of Lords (HOL) in R v Shayler9 draws our attention to the routes Shayler could have taken to disclose the information internally. The law lords were of the view that Under s 7(3)(a) of OSA 1989 (lawful disclosure) a member of the services could go to the Attorney-General, the Commissioner of the Metropolitan Police, DPP, Prime Minister or other Ministers with regard to the legality of the British agents . If no action was taken he could request under s 7(3)(b) a "wider audience" (going to the press).

The refusal to such authorisation could be judicially reviewed. These safeguards in the opinion of HOL were effective and sufficient10 and hence the interference with the freedom of expression was not in breach of Article 10. 11 However, the effectiveness of the judicial review in such a case is dubious in view of the decision in Secretary of State v Rehman12 where the HOL (Lord Hoffmann) ruled that whether something is in the interest of national security is not a "matter for the judicial decision.

" It involved questions of judgement and policy, to deal with which the Secretary of State had the required information and expertise. The information about the malpractice would undoubtedly involve matters concerning national security, and as seen above the national security decisions are within the purview of executive and not judiciary. Moreover, the requirement that only the Attorney general (save offences under s. 4(2)) can bring prosecution under OSA has been criticised as a weak safeguard as he is a member of the government and the "protector of the public interest".

Considering McCowan J. s view in R v Ponting13 that the interests of the state are the same as the interests of the government of the day, it is understandable that the decisions of the Attorney General have been rarely perceived as impartial. 14 The case of Binayam Mohammed15 illustrates how the courts have maintained the principle of democratic accountability in a situation where secrecy was demanded on grounds of national security.

The COA rejected the Foreign Secretary's argument that the incorporation of redacted paragraphs in an open judgement would pose a serious threat to the UK's national security by way of a change in the intelligence passing arrangements between UK and USA. The court took the view that redacted paragraphs would not reveal anything of interest or value to a terrorist or a criminal and there was nothing in the redacted paragraphs that could not be deduced from the open judgements. The court accepted that there was a public interest in Binyam and the community at large knowing the full reasons on the basis of which his allegations were vindicated.

This decision clearly shows that where PII is claimed by reason of national security the courts would not be willing to accept that claim unless the executive demonstrates that revealing the documents would lead to a real risk of serious harm to national security. In my view Binyam is an example of judicial oversight, given the interest of open justice in a democratic society, necessary to make sure that the concept of secrecy is not exploited. Secrecy is also a conspicuous feature of matters going to SIAC16 where the prosecution is likely to withhold sensitive evidence from the defence.

To maintain the secrecy of sensitive evidence (e. g. practices of MI5 and MI6 agents) and to ensure the fairness of SIAC proceedings Rule 34 SIAC Act 1997 provides for the use of Special Advocates. The Special Advocate (SA) (security vetted, normally barrister) after having met with the defendant, would be given the evidence in the absence of the defendant and his lawyers. Thereafter, he would represent the interest of the defendants. The role of SA suffers from a number of shortcomings. For example, once he has seen the evidence he cannot take instructions from the defendant or his ordinary legal representatives.

He has no power to call witnesses. S 6(4) of 1997 Act excludes any responsibility of the Special Advocates towards the appellant and his role is described as that of a representative (this significantly alters the lawyer/client relationship). Submissions are made to the commission in the absence of appellant and his lawyers. 17 However, in SOS v AF18 the HOL, following A v UK19, held that sufficient information had be given to the controlee and his lawyers to make an effective challenge to the allegation against him.

If the case against the controlee was based solely or to a decisive degree on closed materials and the open materials consisted purely of general assertion, the requirements of Article 6 would not be satisfied irrespective of how cogent the case on the closed material might be. In holding so the HOL overruled its previous decision in MB20 where it said that there may not be any need to provide the whole evidence provided that the proceedings are conducted fairly when looked at as a whole. Hence, SOS v AF may safely be seen as alleviating the effects of secrecy in this context.

Intelligence Services Act 1994 (ISA) and Security Services Act 1989 put security and intelligence on statutory basis. ISA established the Intelligence and Security Committee (ISC) whose task is to examine the expenditure, administration and policy of the services. Members of the ISC are notified persons under s 1(1)(b) OSA 1989 and would be guilty of an offence for making an unlawful disclosure. The committee annually reports to the Prime Minister which is subsequently put forward before both the houses. It is debatable, whether the oversight provided by the ISC is sufficient.

Firstly, the report laid forward before the Parliament excludes the information which the Prime Minister thinks would be "prejudicial to the continued discharge of the functions of the services"; a feature unique to this committee. The only safeguard against this is the duty upon Prime Minister to confer with the committee about the exclusion and a statement relating to the exclusion has to be given with the report. 21 Secondly, it can be refused information by the respective directors of the services on various grounds e. g. if the director thinks the information is sensitive.

Thus, it is conceivable if the director does not want to reveal the information to the committee he can simply say that the information requested is sensitive e. g. because it might give out the sources of intelligence. However, the director may disclose sensitive information if he thinks it would be safe to do so. In addition to that, sensitive information may be vetoed by the secretary of state. He would only be justified in doing so if it is of such nature that if he were requested to lay it before Commons departmental select committee, he would not deem it proper to do so.

He may, nonetheless, choose to disclose sensitive information where he thinks it is "desirable in the public interest". 22 While the ISA bill was going through the parliament these constraints were thought to be "draconian" as they would hinder the effective influence on the services by the ISC. Further, the ISC has expressed concerns in its 2006-2007 annual report in relation to the provision of the documents. For example, the documents (relevant ministerial submission) were refused by the Foreign Secretary who said that he himself did not have access to the documents as they related to a previous administration.

Subsequently the committee approached the Foreign Secretary to whom the submissions were made. Despite the positive response from him the refusal persisted. The reasons given for the refusal were, firstly, that the committee had access to the relevant information and hence there was no need to see the actual documents and, secondly, by virtue of Schedule 3 of ISA the documents were sensitive and there was no issue of them being disclosed in the public interest.