Too often, secrecy prevails in sensitive areas such as security, intelligence and surveillance for understandable reasons but with few effective safeguards against abuse. Discuss.

The judgement of the House of Lords (HOL) in R v Shayler 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 sufficient and hence the interference with the freedom of expression was not in breach of Article 10. However, the effectiveness of the judicial review in such a case is dubious in view of the decision in Secretary of State v Rehman 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 Ponting 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.   

The case of Binayam Mohammed 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 SIAC 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. However, in SOS v AF the HOL, following A v UK, 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 MB 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.

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”. 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.  

Moreover, the High Court in the case of Binyam Mohamed stated that 42 documents which were not made previously available to ISC (when it was conducting an investigation into UK’s involvement in rendition operations) and which had come to light as a result of the proceedings had been provided to the committee. However Dr Kim Howells (Chair of ISC) stipulated, contrary to the judgement, that the committee had not seen them.  He was of the view that these documents would help the ISC with their inquiry into the agencies’ policies regarding the US rendition programme.

The ISC does not possess the investigatory powers which the select committees do. Unlike the Standing Committee it cannot compel the witness’s attendance. The ISC in its report in 1997-1998 stated that it lacked the investigatory powers which it considered to be very crucial. Therefore, in the following year it appointed an investigator whose job was to inspect important documents and interview key personnel. He operated under ISA and reported directly to the committee. Investigators appointment was considered an important development as it was recognised that effective scrutiny of an agency could not be maintained if the information was to come from the officials of that very agency. The effectiveness of committee’s oversight would have been severely compromised without such an “independent investigative capacity”. Nevertheless, no new investigator was ever appointed, after the ISC’s investigator, John Morrison, left his post following making comments about the use of intelligence in relation to Iraq War on BBC. This has been seen as “a step backwards”. 

 Regulations of Investigatory Powers Act 2000 (RIPA) provides for Intelligence Services Commissioner and communications commissioners. Their main responsibility is to examine the warrants issued by the secretary of state to engage in e.g. intrusive surveillance and communications interceptions. The warrant will only be issued if it is necessary for one of the four specified grounds specified in RIPA e.g. in the interest of national security. The Act also provides for the interception of communications Commissioner who oversees the warrants given by the Secretary of State for communications interceptions. The Commissioners report annually to the Prime Minister who puts the report before the Parliament after excluding the information which he thinks would be prejudicial to important interests e.g. national security. A statement relating to the exclusion must accompany the report.

RIPA has also established a tribunal which deals with the complaints in relation to the breach of Human Rights Act by the services or persons acting on their behalf (where convention right is involved proportionality will apply ex. p Daly) and complaints allocated to it by the secretary of state (s 65(2) of RIPA). Under s 68(7) the tribunal can order disclosure from a wide range of bodies. It can provide different remedies e.g. quashing warrant, destruction of information obtained thorough warrants and compensation. In matters involving authorisation by SOS, the tribunal may report its decision to the Prime Minister. In A v B, the Court of Appeal (COA), while overruling the administrative court’s decision that a former MI5 agent could bring judicial review proceedings for the breach of Article 10 right when he was denied permission to publish his memoirs, stated that the tribunal was the appropriate body to deal with such a complaint. This has now been confirmed by the Supreme Court. In view of this decision, the claim in relation to the refusal to allow publication, as in the case of Shayler, would no longer go to the judicial review court. It has been conceded that the rule that tribunal will only investigate the matter if the complaint is not deemed “vexatious or frivolous” by it (the complainant under s 69(2)(d) is required to provide information which would facilitate such determination). This seems to be a serious impediment, given the difficulty the complainant would have in obtaining information. Information from Intelligence Services possessed by public authorities is subject to an absolute exemption under s 23 of FOIA. National security information under s 24 is subject to ministerial certificate which can only be overturned by the Information Tribunal under s 60 of FOIA on a very few grounds. Although the latter is a qualified exemption but only in exceptional circumstances the public authority would decide that the public interest in disclosing the information outweighs the public interest in maintaining the exemption. Moreover it is only theoretically possible that where a ministerial certificate is given, the public authority could still decide that the public interest in disclosure is greater. In practice, it is unlikely to happen. Evidence and the reasons for the decision would be given to the complainant keeping in mind the sensitive information is not disclosed. What may amount to sensitive information is really broad and this is evident from the decision in Rehman where national security was considered to include the security of other friendly states.  Further, in my view, the tribunal, in conventional rights cases, should be able to look at the merits of the decisions (full appeal; not just judicial review) as OSA can be seen by many as being an impediment in the way of exercise of Article 10 right. Intensive scrutiny (proportionality) may not be enough if the act is to have the intended effect even for a laudable aim. 

The statutory developments in this area have left several gaps. It does not clarify the working link between the Prime Minister and the services. Furthermore, only reports by the heads of services and not by the subordinates are dealt with by the legislation. This is a serious weakness in protection afforded by the law, given that the services officials are not covered by the Public Interest Disclosure Act 1998 (cannot make qualified disclosures) as their disclosures would constitute criminal offences i.e. breach of OSA. It has been recognised that in view of inadequate procedure for grievance resolution, the absence of detailed statutory code (stating the powers of the services in very wide terms) inhibits the effectiveness of the services. The RIPA is an improvement and does provide for complaints dealing procedures but the scope of such procedures is uncertain and the whole system of the services is unlikely to function properly if the aggrieved wishes to sue. For instance S 1 of the act sets out the tort of unlawful interception, however if the information comes from security official, he would be caught by s 1 of OSA. Moreover it has been argued that considering the imprecise nature of these statutes, they may not be the sole source of power of the services. It is true that secrecy should manifest itself in sensitive areas. However at present certain issues demand attention, such as the oversight of the operational activities of the services (ISC cannot oversee operations), publication of the major activities of the services after every 10 years, means of making the services opinion on threats and the change in their practice known. Knowledge and oversight work towards achieving democratic accountability, however, given the world that we are living in this interest ought to be balanced against maintaining secrecy for executive efficacy.

BIBLIOGRAPHY

Books

• Birkinshaw, P. (2006) Government & Information The Law relation to Access, Disclosure and their Regulation, 3rd edition, UK, Tottel Publishing.
• Birkinshaw, P (2010) Freedom of Information, The Law, the Practice and the Ideal, 4th Edition, United States, Cambridge University Press.
• Macdonald QC, J (2009) The Law of Freedom of Information, 2nd Edition, United States, Oxford Press.
• Tomkins, Adam (1998) The Constitution after Scott Government Unwrapped, United States, Clarendon Press-Oxford.

Websites

Database

• Westlaw

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