Spies,Lies and Whistleblowers: MI5 and the David Shayler Affair

Book_coverMy book about the Shayler affair (the MI6 plot to assasinate Col. Gaddafi) and my experiences as an Intelligence Officer in MI5.

I was invited on to “The Richard and Judy Show” in 2005 to talk about my book, and it is featured on the show’s website.

William Podmore was kind enough to review my work:

In this remarkable book, Annie Machon makes serious allegations against the British state’s intelligence services, MI5 and MI6. Ms Machon and her partner David Shayler are former high-ranking MI5 officers, both now retired from the service. The book’s allegations derive from their experiences and deserve at least to be the subject of inquiry.

She asserts that MI5 has illegally investigated thousands of British citizens for their political views; that there was collusion between the Army Forces Research Unit and loyalist terrorists; that MI5 failed to stop four major terrorist attacks in Britain, even though it had reliable evidence; and that MI5 and MI6 let a known Libyan terrorist into Britain and let him set up a terrorist network here.

She alleges that MI6’s counter-Iranian section used the Sunday Telegraph (and the journalists Con Coughlin, John Simpson and Dominic Lawson) to try to blame Iran for the 1988 Lockerbie bombing, the destruction of flight PA103. MI6 was trying to deflect attention from the fact that it was actually a Libyan retaliation for the US bombing of Tripoli (backed by Thatcher) in 1986.

The book’s most significant allegation is that MI6 illegally paid tens of thousands of pounds to Al-Qa’ida in 1995-96 to assassinate Colonel Gaddafi and seize power in Libya. In the attempted coup, several innocent civilians and security police were killed. If this is true, MI6, a British state agency, sponsored our terrorist enemies in a conspiracy to murder, which resulted in the killing of innocent civilians.

But Blair refuses to hear any evidence against the intelligence services, and prosecutes and harasses critics and whistleblowers. The Intelligence and Security Committee, set up under the 1994 Intelligence Services Act to oversee the services, is no use, because it is appointed by and reports only to the Prime Minister.

The intelligence services should work under the rule of law and respect democratic rights. Terrorist suspects should be arrested and brought to trial under criminal law, not detained, or executed, without trial, as has happened in Northern Ireland and elsewhere.

The intelligence services are supposed to protect us, but it would appear that they have instead connived in terrorism, putting us at greater risk of terrorist attack.

The Campaign for Press and Broadcasting Freedom (CPBF) also highlighted it.

The book can be ordered through Amazon.

May 2005 – The Times

MI5 kept schoolboy on its files

The partner of
David Shayler reveals how a letter to the Communist Party brought its
youthful author to the attention of the security services

A BOY who wrote a letter to the British Communist Party for a school
project ended up with his own MI5 file, a former Security Service
officer claimed yesterday.

The
boy had asked for information for his school topic, but his letter was
secretly opened by MI5 in the 1970s when the Communist Party was still
regarded as a hotbed of subversion, according to Annie Machon, who
worked for the domestic intelligence service from 1991 to 1996.

Ms
Machon is the partner of David Shayler, the former MI5 officer jailed
under the Official Secrets Act for disclosing information acquired in
the service.

In a book which has been passed for publication by
her former employers, Ms Machon says that the schoolboy’s letter was
copied, as was all correspondence to the British Communist Party at
that time, “and used to create a PF (personal file), where he was
identified as a ‘?communist sympathiser’ ”.

180pxspieslieswhistleblowers
On another
occasion, a man who was divorcing his wife wrote to MI5 claiming that
she was involved in Communism, and she was the subject of a personal
file, Ms Machon claims in her book, Spies, Lies & Whistleblowers.

She
saw the two files, among “more than a million” when working at MI5, and
claimed that they had been in the Security Service archives for 20
years. “Why was this information still available to desk officers some
20 years after these individuals had first come to attention, in less
than suspicious circumstances?” she writes.

Mr Shayler also
made allegations about the contents of personal Security Service files
in 1997, after he left the agency. He said that there were files on
Jack Straw, Peter Mandelson, Peter Hain, Mo Mowlam, John Lennon and the
Sex Pistols, among others. Mr Shayler was charged under the Official
Secrets Act for disclosing other secret information acquired when he
was a serving intelligence officer, and was sentenced at the Old Bailey
to six months in prison in 2002.

Ms Machon, 36, who worked in three departments of MI5 —
counter-subversion, Irish terrorism and international terrorism — joins
a relatively short list of former Security Service officers who have
managed to write books without ending up in jail.

The last
former MI5 officer to get clearance was Dame Stella Rimington, who was
Director-General of the service from 1992 to 1996.

Peter Wright, who made allegations of bugging and burglary by the Security Service in Spycatcher, published in 1987, got away with it by moving to Tasmania.

Ms
Machon repeats allegations made by Mr Shayler that MI6 helped to fund
an assassination attempt against Colonel Gaddafi, the Libyan leader, in
1996. It was dismissed by Robin Cook, the former Foreign Secretary, as
“pure fantasy”.

“Spies, Lies and Whistleblowers” – the Gaddafi Plot chapters

Excerpts from the book…..

The MI6/Al Qaeda conspiracy, Part 1

The MI6-funding of Islamic extremists and Al Qaeda members to assassinate Colonel Gaddafi, is the main reason why David Shayler finally left MI5.  It is the real ‘case that made [him] quit’.  To quote David:

“Although I knew about the plot before making my decision to leave — I believed at the time that it was more MI6 ‘Boys Own’ stuff — I was nevertheless physically sickened by the fact that MI6 wanted to sponsor Islamic extremists to carry out terrorism.  At around the time I was debating whether to leave because of the Victoria Brittain investigation, MI6’s David Watson told me he had in fact supplied his agent with $40,000 to buy weapons to execute the operation to assassinate Gaddafi.

“I joined the services to stop terrorism and prevent the deaths of innocent people, not to get involved in these despicable and cowardly acts.  I still cannot believe that the Prime Minister has refused to take my evidence or investigate this matter as this decision has sent out a clear message to the intelligence services that they can fund terrorism; conspire to murder people with impunity; and take enormous risks with our security. 

“After all, would you give an individual you hardly know — who has admitted to connections with Al Qaeda — an enormous sum to carry out a terrorist attack, when you know the group he is leading is opposed to the values of Western society?  It is difficult to imagine a greater disregard and contempt for the lives and security of the British people.”

Key points

  • The following issues arise from David’s whistleblowing about MI6 support for Al Qaeda:
    Contrary to misinformation published in some newspapers, the following account was not ‘bar-room gossip’.  David’s MI6 counterpart, PT16/B David Watson, briefed him officially on the plot as it unfolded.  As MI5 officers both David and I knew the serious threat the funding of Al Qaeda posed at the time. 
  • Despite the then Foreign Secretary Robin Cook’s denials in 1998, I have now found out that intelligence officer,                           , was MI6’s man Tunworth.  He is a member of the Islamic Fighting Group (IFG) aka the Militant Islamic Group, an Al Qaeda affiliate based in Libya.
    French intelligence has also established that leading members of the IFG like Tunworth are also members of Al Qaeda. 
  • The MI6 agent Tunworth admitted his connections with Islamic extremists and Al Qaeda members during a debrief with his MI6 handler David Watson, in late 19952 so MI6 cannot deny it did not know what it was entering into.
  • At the very least, MI6 failed to realise that it had prior intelligence about an Al Qaeda coup in Libya.  If successful, MI6 would have allowed Al Qaeda to take over an oil-rich state in North Africa, putting the lives of British and US citizens, in particular, at far greater risk.
  • By the time MI6 paid the money, Osama Bin Laden’s organisation was already known to be responsible for the 1993 World Trade Centre bombing and MI5 had set up G9C, a section dedicated to the task of defeating Bin Laden and his affiliates.
  • Under the 1994 Intelligence Services Act, the real James Bonds do have a licence to kill or immunity for criminal acts carried out abroad in the course of their work, provided they gain the permission of the Foreign Secretary.  But without that permission they are breaking the law, should they become involved in a conspiracy to murder and to cause terrorism.  In this case, they did not even seek that permission.
  • MI6 gave money to individuals who posed a greater threat to our lives and security — Al Qaeda — to assassinate an individual who posed a lesser threat, Colonel Gaddafi.  It just doesn’t make any logical sense.  In fact, it demonstrates that MI6 was motivated by revenge on Gaddafi, rather than any desire to protect British lives and national security, because he nationalised the Libyan oil industry in 1976 at the expense of BP3. 

How David was briefed on the conspiracy

In summer 1995, at the height of the illegal investigation into Victoria Brittain, David was first briefed on the plot.  David Watson, David’s counterpart in MI6, asked to meet to discuss an unusual case which he could not mention over the phone.  At the subsequent meeting, PT16/B told David that:

A senior member of the Libyan military intelligence service had walked into the British embassy in Tunis and asked to meet the resident MI6 officer.

The Libyan ‘walk-in’ had asked for funds to lead a group of Islamic extremists in an attempted coup, which would involve the assassination of Colonel Gaddafi, the head of the Libyan state.

Although the Libyan military intelligence officer led the group, he had said he was not an Islamic extremist himself.

The Libyan had a brief MI6 record, which PT16/B thought was enough to confirm that the Libyan did have the access to the regime that he claimed.

In exchange for MI6’s support, the Libyan offered to hand over the two Lockerbie suspects after the coup.  Getting them to the UK for trial had at the time been one of MI6’s objectives for about three years but there is no guarantee that the coup plotters could have done this.  It is debatable whether the coup plotters would have had either the resources or expertise required to track down the suspects after their planned coup.  At first, David was sceptical to the point of ennui.  After all, MI6 officers had often claimed that the Lockerbie two were about to be handed over or that Gaddafi was about to die or be toppled but nothing had come of this supposedly keen and reliable intelligence. 

In the following weeks, PT16/B told David that the Libyan was codenamed Tunworth.  At some point in the following weeks David briefly saw the printout of MI6’s record of him.  It contained around two or three separate mentions.  They supported his claim to be a senior member of Libyan military intelligence but were not detailed.  David checked the Libyan’s name against Durbar and Star, MI5’s records, but the service had no trace of him.  David did not make any effort to remember the name because he believed that the whole thing would come to nothing as other MI6 plots had done.  Watson also issued at least two CX reports detailing intelligence provided by Tunworth at his meeting with the resident MI6 officer in Tunis4.  David remembers it concerned changes in personnel in the Libyan regime.  MI5 had collateral for it so G9 assessed that Tunworth had some access to the regime.  David takes up the story:

“Throughout this process, I briefed my line manager, G9A/1 — Jerry Mahoney until December 1995, Paul Slim, after that — about these developments.  As the operation was in its infancy when Mahoney left, I don’t believe that I told him anything other than the bare basics.  When briefing his successor, Paul Slim, I told him that this might be more ‘Boys’ Own stuff’ on the part of MI6 and that we shouldn’t take it too seriously although we agreed to review this in the light of new information. 

“It is inconceivable that G9A/1 did not think an MI6-funded plot to engineer a coup in Libya was worthy of mentioning to his line manager, G9/0, Peter Mitchell.  In turn, it is unthinkable that G9/0 did not raise the matter with his line management who would have informed his boss until the DG herself had been made aware.  I wonder if it was included in the first draft of Dame Stella’s book and removed on the orders of the authorities.”

In December 1995, James Worthing, R/ME/C at MI6, circulated CX95/ 534526 report to Whitehall and other addressees, warning of a potential coup in Libya.  It confirmed that a member of the rebel group gave detailed intelligence to his MI6 handler in anticipation of help from Britain.  The report clearly demonstrated that Watson knew that Tunworth was planning terrorism and his group had already been involved in attempts on Gaddafi’s life:

“In late November 1995 [Tunworth’s identity removed]7 described plans, in which he was involved, to overthrow Colonel Gaddafi. […]  The coup is scheduled to start at around the time of the next General People’s Congress on February 14, 1996.  Coup will start with unrest in Tripoli, Misratah and Benghazi.” […]
“The coup plotters were responsible for the death of [blank -Names removed to protect security-————————blank] was about to take up the position as head of Military Intelligence when he was forced off the Tripoli-Sirte road and was killed.  The 2 coup plotters involved escaped unhurt.  In August 1995, 3 army captains who were part of the coup plot attempted to kill Colonel Gaddafi.”

The report then listed Libyan installations that would be attacked and described supporters in Libya’s principal cities and their occupations.  The start of the coup was to be signalled through coded messages on television and radio.  It also said that at least 250 British-made weapons were distributed among the plotters.

Tunworth also told his MI6 handler that:

“plotters would have cars similar to those in Gaddafi’s security entourage with fake security number plates. They would infiltrate themselves into the entourage in order to kill or arrest Gaddafi…

“One group of military personnel were being trained in the desert area near Kufra for the role of attacking Gaddafi and his entourage.  The aim was to attack Gaddafi after the GPC [General People’s Congress], but before he had returned to Sirte.  One officer and 20 men were being trained for this attack.”

David also remembers another MI6 CX report being issued about the plot in early 1996.  It was a shopping list of the group’s requirements to carry out the coup, including the supply of weapons and basics like jeeps and tents.

Around the same time, Christmas 1995, Watson told David that he had met Tunworth, in Geneva and paid him $40,000.  Jackie Barker, who had replaced Sue Thomas as G9A/15, told him that Watson had told her the same information ‘in confidence’.  During routine G9/PT16 meetings around this time, officers occasionally mentioned the plot.  Watson then met Tunworth on two further occasions early in 1996 in Geneva.  David does not know of any further details except that Watson mentioned that he had paid ‘similar sums’ to Tunworth on each occasion.  Although PT16/B never specifically mentioned it, it was tacitly understood that Watson was working with the approval of his direct line manager, PT16, Richard Bartlett.

Lack of government sanction

At some point — David can’t be sure when exactly — Watson mentioned that the ‘submission’, MI6 jargon for the letter requesting permission from the Foreign Office for otherwise illegal operations, was going to go “all the way to the top”.  In about January 1996, Watson told him that the submission had been successful, indicating that the Foreign Secretary himself had signed the document permitting the operation.9  When David briefed Paul Slim on the details of the plot, he specifically drew attention to the fact that the service only had Watson’s word for this.  He urged his boss to task senior MI5 management to raise the matter formally, to check that the operation was legal.

Then, in either February or March 1996, David read two, possibly three intelligence reports quoting independent sources — the Egyptian and Moroccan intelligence services.  They all stated that an attack had been made on Colonel Gaddafi in Sirte, Libya.  Two of the reports indicated that the attackers had tried to assassinate Gaddafi when he was part of a motorcade but had failed as they had targeted the wrong car.  As a result of the explosion and the ensuing chaos in which shots were fired, civilians and security police were maimed and killed.

“At a meeting shortly after, PT16/B ventured to me in a note of triumph that Tunworth had been responsible for the attack.  “Yes that was our man.  We did it” was how he put it.  He regarded it, curiously, as a triumph even though the objective of the operation had not been met and reporting indicated there had been civilian casualties.  Despite that, I very much got the impression that this was regarded as a coup for MI6 because it was playing up to the reputation that the real James Bonds wanted to have.  I then promptly passed the information on to my line manager, G9A/1.  Although initially reluctant, he said he would deal with the matter.  I’ve no idea whether he did.  In later months, I asked Watson several times what had happened to Tunworth, but was not given answers.”

By this time, David had already decided to leave the service and was actively looking for jobs in the private sector.  As a result of MI6 funding Al Qaeda, on top of the general ineptitude and bungling I had witnessed, I also decided I no longer wanted to work for intelligence services who had ceased to protect democracy and instead funded our terrorist enemies.  The services are supposed to protect us, not put our lives at greater risk from terrorist attack.  It was time to leave. 

The MI6/Al Qaeda conspiracy, Part 2

David had briefed the MoS with the bare bones of the plot in the summer of 1996 and again when preparing the disclosures of 24 August 1997.  However, given the controversial and sensitive nature of the material, he had always wanted to submit it to the government for investigation.  Since then, ministers and other responsible agencies like the PM’s ISC and the Cabinet Office have consistently refused to take possession of David’s evidence concerning the plot. Despite his repeatedly writing to them to inform them that elements of the services were operating outside the law.

As the authorities had shown no interest in taking his evidence, in early December 1997 David gave Mark Urban, at the time the BBC’s Defence and Diplomatic Correspondent, a full, recorded interview about the MI6/Al Qaeda plot.  Then, after he had entered into negotiations, David again tried to give his evidence to the British authorities, but they repeatedly refused to take it.  By June 1998, Urban had stood up key aspects of the story.  Although David urged Urban to submit the documentary to the authorities for immediate clearance under the injunction, BBC management appeared reluctant to face the government and the intelligence services head-on.  They sat on the programme, while they debated it internally.

By July 1998 the government had shown no real will to come to a negotiated settlement with David.  In frustration at the government’s failure to discharge its democratic duties by taking his evidence and at the same time faced with BBC inertia, in July 1997 David told the MoS that he was looking into setting up an Internet site to ensure that the crimes of the intelligence services could be properly exposed. 

“Nothing will threaten the security of MI5 agents or staff,” he said, “or compromise its working methods.  But there are vital matters that need a public airing and the Internet is the way to do it.” 

David hoped the article would prompt ministers to take his evidence.  As there was no response after a week, David again told the MoS that he intended to publish his disclosures  with due care for national security  on the Internet in the US, where it would be protected under the first amendment. 

“I don’t see how the Government can complain,” said David, “when I’ve been trying to talk to them for months.”

Three days later, his www.shayler.com site was hacked, before it was even up and running.  Verio aka Tabnet, the service provider in the US, said that the hacking was done by a professional, after the password to gain access to the site was intercepted en route to David’s computer.  There is no actual evidence to indicate that the intelligence services were responsible but they are the likeliest culprits.  Hackers do not normally attack anti-establishment websites, particularly when they are not yet up and running.

On 31 July 1998, David and I met the MoS in Paris, in an effort get the MI6/Al Qaeda conspiracy out to a wider audience.  On the strict understanding that the newspaper submitted the story to government, David gave the paper the details of the plot (without mentioning the names of intelligence officers).  Ministers refused the paper permission to publish the information in any meaningful form, while also denying the story.  David also met Nick Rufford and David Leppard of The Sunday Times and gave them a briefing on the plot, with the same caveat.  David comments:

“The denial and censorship do not add up12.  Either the disclosure is untrue, in which case the government cannot cite national security reasons for suppressing the information.  Or the disclosure is true, in which case the government has a duty to investigate exactly how British intelligence officers came to use taxpayers’ money to fund terrorism and murder innocent civilians.  The government has used the injunction and the 1989 OSA to restrain the freedom of the press, in order to protect itself from embarrassment rather than protect national security.”

David’s arrest in connection with the Plot

Unbeknown to David and me, a couple of hours after he had legally13 submitted his very serious evidence to ministers, those self-same ministers sent an urgent request to extradite David for his original disclosures which had appeared almost a year earlier in the MoS.  David says:

“In these circumstances, it is difficult to see how anyone could believe that our oversight arrangements work.  Indeed, the act of imprisoning an individual who uses a legal route to report terrorism on the part of MI6, is hardly likely to encourage other individuals to use the system.  It has all the hallmarks of despotism and tyranny.”

The next day, 1 August 1998, the French DST, the equivalent of MI5 and Special Branch, arrested David in the foyer of our hotel when he returned from watching his football team, Middlesbrough, lose 1-0 on Sky to Empoli in a pre-season friendly.  He was held for over 24 hours in the Palais de Justice — most of the time in solitary — and denied access to a lawyer.  The day after, he was transferred to La Santé prison in Paris’s 14th arrondissement.  At the instigation of the British authorities, he was held under draconian secrecy legislation and first saw a lawyer over two days after he had been arrested.  He continued to be denied access to all other visitors for most of his time in prison. 

But for David’s quick thinking, I would not have known what had happened to him.  He would have vanished.  The DST asked him for his papers.  Knowing I was waiting for his return in our hotel room, he told them his passport was in his bag upstairs (it was not).  I therefore only knew he had been arrested when the DST came knocking on my door.  I was not to see him again for over two months.

Two days after David was arrested, The Daily Telegraph splashed on disclosures he had given to its intelligence correspondent Michael Smith, a few weeks before, about security blunders concerning the IRA mainland bombing campaign.  The Telegraph included some details of the failures but was blocked by the injunction from revealing how a number of attacks could have been prevented.  Rather curiously, the paper — then edited by Charles Moore – called for David to be ‘horsewhipped’ in its leader column for providing information about security failures, which The Telegraph published in its news section.

David’s solicitor John Wadham said:

“It’s a strange coincidence that before this important story about this assassination attempt was going to break, the Government ensured that David was arrested and incommunicado.”

The New York Times breaks the story

While David languished in a prison cell, and while the disclosure had been injuncted in the British press, a public-spirited individual passed the details of the MI6/Al Qaeda conspiracy to The New York Times.  On 5 August 1998, it reported that the British media had been banned from reporting the plot.

Did the British government try to assassinate Col Mummar Gaddafi, the Libyan leader, in February 1996 by planting a bomb under his motorcade?  And did the plan go awry because agents from MI6, the foreign intelligence service, put the bomb under the wrong car, killing several Libyan bystanders?” it asked. […]

“A sweeping injunction has barred newspapers and television news programmes from publishing the embarrassing allegations about the inner workings of Britain’s security services, brought up by a disgruntled former officer.  The media have been forced to discuss the allegations without actually saying what the allegations are.  ‘I’ve known these things for something like 16 months, and I am not allowed to publish any of it,’ said Jonathan Holborow, editor of The Mail on Sunday.”

The paper added that the government had told the press it could report the allegations as long as it did not mention details, like the payment to Islamic extremists of around £100,000.

The Panorama programme

The BBC began intense negotiations with the government for permission to show David’s interview with Mark Urban.  Only after threatening to challenge the temporary injunction through the courts, did the government back down.  Two days after the publication of The New York Times article, the BBC was permitted to broadcast more details of the conspiracy in a Panorama special presented by Mark Urban.  He confirmed that the Islamic group involved was the Militant (or Fighting) Islamic Group, led by Abdullah Al-Sadiq.  Camille Tawil, an Arab journalist based in London, told the programme that shortly after the attack in February 1996, he received a fax from the group, claiming responsibility for the attack and naming the members of its team who had died in the attack: 

“I felt it was credible information given to me but I wanted to verify the story.  I contacted other Libyan groups and they gave me a similar account of what had happened.  This is why I decided to publish the story.”

Panorama also reported:

“Libya has publicly accused Britain of giving refuge to the leader of the Militant Islamic Group.  In response to our enquiry, the Foreign Office said it does not know whether Abdullah Al Sadiq is in this country”.

The programme also confirmed that MI6 did not get the vital permission from its ministers to carry out the attack — which is a legal requirement so the officers involved have immunity under English law.

“Two well-placed people have told me that the Tory ministers running the department at the time gave no such authorisation.  […]  In short, that means Britain’s intelligence service was operating completely out of control.”

Urban concluded:

“It is true of course that Shayler’s knowledge of this affair depends entirely on what the SIS man, PT16/B, told him at their meetings.  But certain pieces of this Libyan jigsaw cannot easily be argued away by SIS.  There was an assassination attempt.  Numerous Libyan sources confirm it.  Britain did have a relationship with Tunworth.  Any inquiry into David Shayler’s allegation will be able to find the key CX report which detailed the plot against Gaddafi, so showing Tunworth’s inside knowledge. […] 

“Only a thorough going inquiry would stand a chance of getting to the bottom of whether some intelligence officers played fast and loose with the rules.  David Shayler has provided Panorama with other details about the Libyan operation and the people connected with it.  Combined with our own information, it suggests that SIS have a very serious case to answer”.

The Panorama programme established that MI6 had operated outside the control of its political masters.  In other words, unaccountable intelligence operatives were deciding British foreign policy, not a democratically elected government.  When you think about it, this means that middle ranking intelligence officers have the power of life and death over an individual without being accountable for their actions16.  While that is all very well in a James Bond film, in the real world intelligence officers are now required to operate within the law.

Separate sources confirm the story

On 9 August 1998, the MoS added still further confirmation of the plot and the payments.  It reported:

“David Shayler’s revelations that MI6 tried to blow up Colonel Gaddafi were given strong credence by US intelligence sources yesterday.  They insisted that, despite claims to the contrary, the British secret service was financing the group behind the attempt on the Libyan leader’s life.  [According to the US] the British service [MI6] turned to the Fighting Islamic Group [FIG] and its leader, Abu Abdullah Sadiq, who was living in London.” 

A separate source, a former senior analyst with American intelligence, told the paper:

“I’m sure that British intelligence has all the plausible deniability that it needs.  Certainly there were contacts between MI6 and FIG.”

Yet another source in Washington told the paper that MI6 had provided ‘various kinds of support’ to FIG, including financial help.

The same day, The Sunday Times reported that it had identified one of the perpetrators of the attack as Abd Al Muhaymeen.  According to the paper, he was a Libyan ‘fundamentalist’ or Islamic extremist, to use MI5 phraseology, who had trained and fought in Afghanistan.  On the day, he also chose the timing of the attack. 

“He waited in ambush with a group of fedaydeen from a force known as the Islamic Fighting Group. […]  The group appeared to be gaining in strength and daring, mostly due to the expertise of Afghan veterans such as Al Muhaymeen. […]  As the convoy approached, Al Muhaymeeen gave the word and the sounds of battle erupted.  When it was over, Gaddafi had survived yet again.  So had Al Muhaymeen.  But several of their men lay dead on each side.  So did bystanders.”

Foreign Secretary’s comments

On 9 August 1998, Robin Cook, the then Foreign Secretary, told the BBC’s Breakfast with Frost programme:

“The tale about the MI6 plot to assassinate Gaddafi is pure fantasy.  First of all, let’s be clear about this claim that Shayler can bring down the government, [the claim appeared in The Sunday Times, but David never made it] the allegations are about something that is alleged to have happened not under this government but under our predecessor.  […] I have pursued these allegations.  I am absolutely satisfied that the previous Foreign Secretary did not authorise any such assassination attempt.  I am perfectly satisfied that SIS never put forward any such proposal for an assassination attempt, nor have I seen anything in the 15 months I have been in the job which would suggest that SIS has any interest, any role or any experience over the recent decade of any such escapade.  It is pure fantasy.

“I have already made my own enquiries.  I have satisfied my mind.  I see no basis for the reports in today’s papers about any forthcoming enquiry.  There was no SIS proposal to do it and I am fairly clear that there has never been any SIS involvement.  I do wish people would recognise that what is being said here is that there is somebody who has left another service, not SIS, was never in SIS, is making allegations no doubt for his own reasons.  We would like to see him back in Britain in order that we can pursue those charges that have been made against him.

“I am clear these allegations have no basis in fact and secondly I am quite clear that the SIS operations that I have authorised have nothing remotely to do with the kind of fantasy that has been produced over the last two days.”

Without ever bothering to take David’s evidence, Cook repeated from The Sunday Times an allegation that David had never made: that he could ‘bring down the government’17, a tactic that Straw had used in the first use of the submission process in October 1997. 

Cook also unequivocally denied the existence of any MI6 operation at all; “The tale about the MI6 plot to assassinate Colonel Gaddafi is pure fantasy.”  There is no mention here that Cook is claiming that aspects of the story may be fantasy – such as the payments, which the Foreign and Commonwealth Office (FCO) later and wrongly claimed were the subject of the ‘pure fantasy’ jibe.

Without bothering to hold a proper enquiry, he was uncritically putting out the MI6 line, adding: “I am clear these allegations have no basis in fact.”  Ministers cannot legally ban information that is fantasy.  After all, ministers had already indicated in off-the-record briefings at the time of the Israeli Embassy disclosure that disclosures on the part of former officers, which they accept to be untrue, could not harm national security.

Indeed, when Cook said: “I am absolutely satisfied that the previous Foreign Secretary did not authorise any such assassination attempt”, he merely confirmed a key aspect of the Panorama investigation; that MI6 did not have the permission of ministers to carry out the attack, making any actions by MI6 a criminal offence.  Although Cook then claimed he was ‘fairly clear’ that there had never been any MI6 involvement and ‘perfectly clear’ there was no basis in fact, he did not relate how exactly he had established this or why he was ‘perfectly clear’ of one position but only ‘fairly clear’ about another. 

Despite his claims, he obviously hadn’t had time to organise and carry out a full inquiry, even though there were officers in MI5 who had been briefed about the plot, and who could have been interviewed.  In fact, it appears that Cook – in the same way that Straw had done before him — went to the head of the agency concerned (in this case, MI6) and asked if it had been involved in terrorist funding and murder.  Not surprisingly, the latter appears to have denied it.

After the Panorama programme was shown, Mark Urban offered his evidence to Robin Cook, who refused to take possession of it, informing him that the matter was closed.  As this was an allegation of murder and terrorist funding, Cook should have discharged his legal duty and immediately referred the matter to the police to investigate. 

Libya confirms plot

On Wednesday 25 November 1998, Libyan TV broadcast footage of the assassination attempt.  It showed Gaddafi leaning out of his open-topped car to greet the crowds, then mingling with the crowd, then it showed an object flying through the air, Gaddafi looking down, then suddenly being surrounded by bodyguards, who hustled him away.  The TV zoomed in on the face of a man in the crowd, and his face was circled in red.  Libyan TV named the assailant as Abdullah Radwan, a partner of Abu Abdullah Sadiq, the leader of the Islamic Fighting Group.  According to the report:

“Abdullah Radwan succeeded in reaching the front ranks and threw a grenade when the brother leader left the car.”

Libyan TV then showed an interview with Hasan Al Sadiq Al Shahh, an alleged accomplice of Radwan:

Questioner: Who entrusted you with the mission of entering the Jamahiriya [the People’s Republic of Libya]?
Al Shahh: Abu Abdullah Al Sadiq.
Q: Did he give money?
A: Yes
Q: How much money?
A: $20,000
Q: $20,000?
A: Yes
Q: What is the total amount of money you obtained from Abu Abdullah Al Sadiq?
A: Perhaps, $40,000 or $41,000
Q: $41,000?
A: Approximately, yes
Q: Where did the money you got come from?
A: I do not know.  But there is a group in those countries
Q: What countries are these?
A: Britain
                                                                                                                                                           
Redacted text on orders of MI5                                                                                                                                                             
                                                                                                                                                                                                                                   
Our recent enquiries with Swallow Tail, a former intelligence officer who cannot be named for fear of reprisals20, have confirmed that the man caught by the Libyans in the attack, was the agent Tunworth.  This is further confirmation that an MI6 agent, whom we know was working to Watson in London, was involved in the plot.  The officer also confirmed that                was either killed during the attack that February or shortly after.  This rather undermines the claims of ministers that they banned the story in order to protect national security, since the agent was clearly no longer at risk of reprisal and was not then providing intelligence to the British services.

Other than using the submission process to inform the PM about service abuses of power, David also wrote to ministers Tony Blair, Jack Straw, Robin Cook, John Prescott and the Attorney General on several occasions, asking them to investigate his disclosures of MI6’s funding of Al Qaeda.  At no point did any minister hear his evidence.  In June 1999, David sent ministers Secrets and Lies, a document he had prepared on his case to counter the misinformation put out by government.  It provided details of the conspiracy but ministers still refused to call in the police or hold any kind of enquiry.  And that would have been that, if it hadn’t been for the public-spirited former intelligence officer who obtained the CX document issued by MI6 in December 1995, and put it on the Internet.  That officer said:
“I’ve just about had it up to here with the lies of ministers.  It is difficult to imagine a more serious abuse of power than MI6 funding our terrorist enemies with the result that innocent people are murdered in cold-blood.  If there had been a legal way of presenting that document to independent investigators, I would have used it.  As there was not, I had to resort to the Internet.  Thank God for modern technology.”

The MI6/Al Qaeda conspiracy, Part 3

In February 2000, The Sunday Times provided corroboration that MI6 had conspired with an agent in a plan to assassinate Colonel Gaddafi, when it reported that a leaked MI6 document, CX95/ 53452 had appeared on the website www.geocities.com/byanymeansnecessary2000.  When interviewed about the document, the then Foreign Secretary Robin Cook refused to confirm that it was genuine.  David can though confirm that it is the document sent by MI6’s R/ME/C to Whitehall departments and the intelligence services in December 1995.  It refuted Cook’s claims, which had caused many to believe that David had simply made the whole thing up:

“The tale about the MI6 plot to assassinate Gaddafi is pure fantasy.
“It is pure fantasy”
“I am clear these allegations have no basis in fact”
The MI6 report clearly demonstrated that an MI6 agent among the coup plotters was meeting his MI6 handler to discuss the assassination of Col Gaddafi ‘in which he was involved’:
“The coup plotters would launch a direct attack on Gaddafi and would either arrest him or kill him.”
“The military officer said that the plotters would have cars similar to those in Gaddafi’s security entourage with fake security number plates.  They would infiltrate themselves into the entourage in order to kill or arrest Gaddafi.”

Remember, Tunworth had already outlined his plans and his request for finance to the resident MI6 officer in Tunis in summer 1995.  David Watson, PT16/B, had then met Tunworth — in the full knowledge that the latter wanted to assassinate Gaddafi — to obtain details of the operation, which were published in the CX report.  If this report had been a record of a meeting between a Libyan terrorist and an IRA member planning to assassinate Tony Blair, which had fallen into MI5 or police hands, it would have been accepted in a court of law as clear evidence of a conspiracy between the two to cause terrorism.

The MI6 intelligence report also confirmed that Sirte was the site of the attack in February or March 1996, information David had told Urban who had stood it up for the Panorama investigation into the plot.  It also established that the group of coup plotters were at least looking for support from the British state.  (As a CX report going out to ministers, it could not detail the illegal payments):

“The officer was disclosing this information in the hope that if the coup was successful, the new government could enlist HMG support.”

According to the report, Tunworth also admitted contacts between the plotters and Islamic extremists, described as ‘Libyan students’ and ‘Libyan veterans who served in Afghanistan’.  As already discussed, veteran Libyan Islamic extremists who served in Afghanistan are considered by MI5 to be de facto members of Al Qaeda.

The CX report otherwise played down the agent’s contacts with Islamic extremists, presumably because the report went to ministers who would have been appalled at the prospect of Islamic terrorists toppling Gaddafi, given that the former posed a greater threat to British lives.  As we now know from the sexed-up dossier, it is not unusual for inconvenient pieces of information to be left out of official reports. 

David is adamant that, when Watson was briefing him, he told David that Tunworth was leading a ‘rag tag’ group of Islamic extremists.  David also briefed Paul Slim, his boss at the time, with this information and provided it in his sworn statement to the police.  He has not been charged with perjury.  Other media reports already quoted have established that the Islamic Fighting Group were responsible.  The Libyan TV broadcast also indicated that a leading member of the IFG might be Tunworth, as he led the attack in much the way that Tunworth outlined in the CX report.

The report also made it absolutely clear that the Permanent Under Secretary’s Department – Sir Humphrey Appleby’s equivalent in the Foreign Office — GCHQ, MI5; the Ministry of Defence; and MI6 stations in Tunis, Cairo and Washington knew of the assassination attempt at least two months in advance.  They would therefore have had copies on file.  Did none of them bother to brief Cook with this rather pertinent information before he went on the Breakfast with Frost programme on 9 August 1998?  Were our Sir Humphreys and our George Smileys deliberately keeping ministers in the dark?  Or did Cook know about Tunworth but think he could get away with branding the plot ‘pure fantasy’ in the belief that documents detailing the relationship between Tunworth and MI6 would never see the light of day? 
We also have to ask ourselves what role the PM played in all this, as the figure ultimately responsible for our services.  What did he know and when did he know it?

Julie Ann and the bullies in government

The government had always claimed it was not in the business of preventing legitimate discussion of the intelligence services.  But on 6 March 2000, that all changed when Special Branch officers arrested Julie Ann Davies, a student at Kingston University, under the 1911 and 1989 OSAs, during a lecture at the college.  She was held for several hours at Kingston Police station but was not charged.  She was later released on police bail.  The university confirmed that it had complied with a search warrant, giving police the right to access Davies’s computer at the university.  Davies had recently visited David in France and had begun to rally support for him. 

“During that meeting I became convinced that the man was genuine and so I felt the need to do something about his situation,” she said at the time. 

The day after the CX document appeared on the Internet, Davies circulated an e-mail to fellow campaigners and journalists.  In it, she stated:

“You have probably heard about the document on the web that appears to back up David Shayler’s allegations of an MI6 plot to assassinate Colonel Gaddafi.”

It is also clear from the context of the questions that police asked her that Special Branch suspected her of putting the CX document on the Internet.  Under questioning, Davies denied having anything to do with this.  After keeping her on police bail for a number of months without charging her, Special Branch eventually dropped the investigation.  As a result of the police action, she was forced to drop out of her university course.  She is currently suing police for wrongful arrest.  As a result of disclosure in this case, police have provided her with the ‘evidence’ which led to her arrest.  It consists only of three anonymous letters claiming that she put the document on the Internet.  As they are anonymous, they would not be considered admissible evidence in a court of law. 

Mr Peter Scott, Kingston University vice chancellor, said:

“The university, as an institution committed to freedom of expression, would be particularly concerned if it turned out that a discredited piece of legislation like the OSA was being used to suppress legitimate journalistic investigation and the public’s right to know about alleged abuses by the security services.”

The arrest of Julie Ann Davies proved once again that ministers were rather more concerned with intimidating David’s supporters and protecting the intelligence services from proper scrutiny, including criminal investigation, than free speech, one of the cornerstones of democracy.  It was also a clear example of bullying.  The Sunday Times, which had published the original article about the report and quoted from the document, had not been investigated, nor had any of its journalists been arrested in connection with the matter. 
This is also clear evidence that material from CX reports can be published without causing damage to national security, as the government did not prosecute the paper or its journalists under s5 of the 1989 OSA, where the Crown has to prove damage, for publishing and quoting from the report.  But the bullying was set to continue. 

The Observer taken to court

Having used the OSA to intimidate one of David’s supporters for trying to expose terrorism funded out by MI6, Blair’s government then turned its sights on the elements of the press who were bravely trying to expose the conspiracy.  Comedian and journalist Mark Thomas had agreed to deliver his evidence about the conspiracy23 to the British Embassy by hand in November 1999.  As Straw did not even bother to reply, David briefed Martin Bright of The Observer.  In February 2000, he reported that Straw had done nothing to ensure that there was a criminal investigation into PT16/B’s activities. 

The article also revealed for the first time in public that Tunworth was a senior member of Libyan intelligence, who had walked into the British Embassy in Tunis, and that reports quoting Moroccan and Egyptian intelligence sources had confirmed the assassination attempt, shortly after it took place in February 1996. 

A Foreign Office spokesman changed the official position on the conspiracy, trying to play down Robin Cook’s claim that the tale about the MI6 plot to assassinate Gaddafi was ‘pure fantasy’:

“We have never denied knowledge of coup attempts against Col Gaddafi,” he told the paper.  “We always described allegations of involvement as fantasy25.  We have nothing to add or subtract”.

If the Foreign Office and Cook had been honest when the disclosure was first made, they would have said at the time:

“We are aware of a conspiracy to assassinate Colonel Gaddafi in early 1996.  We are still making enquiries about any MI6 involvement.”

Tunworth was after all an MI6 agent who had by the time of the attack met David Watson, an MI6 officer, at least twice to discuss his plans.  On that evidence alone, we can conclude that MI6 was involved.  However, Tunworth could not have gone ahead with the plot without the backing of MI6, financial or otherwise.  As we have seen, separate sources have confirmed payments were made to the IFG, the group Tunworth belonged to. 

On 14 March 2000, both The Observer and The Guardian were taken to court by the authorities.  Special Branch sought a court order to seize any notebooks and browse through The Observer’s computer for further evidence of breaches of the OSA on David’s part.  It sought from The Guardian the original of a letter David had written, which was published in newspaper on the 17 February 2000.  As Nick Cohen, The Observer’s columnist put it:

“No one would dream of telling a newspaper about official corruption, incompetence or crime, if they thought the police – or in this case, the secret police – might read every jotting and e-mail.” 

A couple of days later, Detective Sergeant John Flynn, from the financial investigations unit of Special Branch, told The Guardian that there were ‘reasonable grounds’ for prosecuting Martin Bright and Roger Alton, the editor of The Observer, under s5 of the OSA. 

A month later, judge Martin Stephens ruled that the papers had to hand over any material, even though he admitted that the letter to The Guardian contained nothing that had not already been printed.  David said at the time:

“The government is adopting the tactics of a totalitarian state by attacking the press in this way.  If they really believe I have documents that could damage national security, why don’t they come and talk to me about them, rather than intimidate journalists.”

Even the then Foreign Secretary Robin Cook and the Foreign Office minister Peter Hain were reported to be horrified at such an attack on press freedom.  But we have to wonder why they chose to speak out at this point.  Did Cook know that if the documents were handed over then David might be prosecuted for disclosing details of the MI6/Al Qaeda conspiracy, allowing Cook’s ‘pure fantasy’ lies to be examined before a court?

On 19 July 2000, Mr Justice Igor Judge heard the case for Special Branch to access The Observer’s computer.  He overturned the decision of the lower courts in his ringing defence of press freedom:

“The Gaddafi Plot is either true or it is false, and unless there are reasons of compelling national security, the public is entitled to know the facts, and as the eyes and ears of the public, journalists are entitled to investigate and report the facts, dispassionately and fairly, without prejudgement or selectivity […]

“If true, it is difficult to overestimate its enormity: a conspiracy to murder the head of another state, resulting not in his death, but in the deaths of innocent people who were not its intended targets.[…]  Again, if true, the circumstances in which such a plan was conceived and developed, and the identity of those who were informed about and approved it, or turned a blind eye to it, and equally those who were deliberately kept in ignorance, raise critical public issues about the activities of the security services and those responsible for them” 
In the middle of all this, a new development neatly pointed to the impotence of the services and the ineffectiveness of current legislation in protecting state secrets in the age of the Internet.  Portuguese intelligence expert Frederico Duarte published the names of David Watson and Richard Bartlett, PT16/B and PT16 respectively in Tal & Qual, the Portuguese equivalent of Private Eye.  As the names were also available on the Internet, they could be accessed from Britain.  As they were now in the public domain, they could be repeated in the British media, although only the Campaign for Press and Broadcasting Freedom dared to actually publish the names of the two MI6 terrorists involved.

The delayed police investigation

In March 2000, John Wadham and I had hand-delivered a statement — which David had prepared and indicated he was prepared to swear to under oath — to the Metropolitan Police Special Branch at New Scotland Yard.  The police then refused to investigate the plot claiming that conspiracy to murder did not amount to a crime in Britain.  Again, this demonstrates what would have happened if David had violated the 1989 OSA s1 and approached the Met directly with his disclosures in 1997. 

Finally in December 2000, two and a half years after David had made the original disclosure, he was finally given permission by the authorities to give evidence to the police.  DS Gerry Mackinnon and Detective Supt Lewis Benjamin working for SO1 of the Met, interviewed him and prepared a sworn statement, which he signed in early 2001.  SO1 then undertook the first ever police investigation into the activities of MI6.  You don’t have to be a cynic to point out that by this time, MI6 had had plenty of time to destroy or tamper with the evidence.  David and I have every confidence that the police in this case did their job thoroughly and professionally but by then, we believe, it was too late.

In February 2001, SO1 sent a report to the Crown Prosecution Service.  Prosecution sources said the authorities had decided there was a prima facie case, meriting further investigation29.  In all, the enquiries took nine months.  In November 2001, the Metropolitan Police confirmed that the MI6/Al Qaeda conspiracy was not ‘pure fantasy’:

“As you know, the Metropolitan Police Service undertook an assessment of the available material and submitted two reports to the Crown Prosecution Service, an interim report in February 2001 and a final report in September 2001.  The police enquiry has been extremely thorough, examining all relevant material.”

This clearly confirms that the police have gathered evidence – ‘relevant material’ — about the MI6 conspiracy, which confirm there is ‘a basis in fact’ for David’s disclosures refuting Robin Cook assertion that: “The tale about the MI6 plot to assassinate Gaddafi is pure fantasy. [with] no basis in fact”.  At the same time, neither the police nor the CPS sought to arrest David or bring charges for perjury or wasting police time, indicating that detailed sworn statement was honest, reliable and true.  On these available facts, any reasonable observer can only conclude that Cook is lying and David telling the truth.  In fact, we have challenged Cook to sign a sworn statement saying that the MI6/Al Qaeda plot was ‘pure fantasy [with] no basis in fact’.

The CPS did conclude that there is not enough evidence to secure a conviction.  But it took them two months to come to this decision after the nine-month investigation.  Even then, the CPS sought to misrepresent the findings of the enquiry:

“Final advice from the Crown Prosecution Service has now been received, saying that the material does not substantiate the allegation made by David Shayler.”

The work of the police and the Crown Prosecution Service is not to ‘substantiate […] allegations’ or otherwise.  (Anyway, David made a number of allegations, not just one).  Its job is to judge whether there is enough evidence to secure a conviction in front of a jury beyond any reasonable doubt.  That is a very high standard of proof.  The usual test of proof for Parliamentary or judicial enquiries is ‘the balance of probabilities’.

At the time, David commented:

“This is the first time that the police have investigated an allegation against MI6, partly because MI6 had a de facto immunity from investigation into allegations of crime on the part of the service under the Royal Prerogative.  It demonstrates why MI6 was put on a legal footing in the 1994 Intelligence Services Act.  The investigation was not of course ideal.  The police were only looking to gather admissible evidence, which could be used to secure a conviction of the two MI6 officers who planned and carried out the plot, rather than trying to assess all relevant material, including intelligence.” 

This whole process once again calls into question the oversight arrangements for the services and the ability of ministers and officials to discharge their legal duties.  In the future, we will be seeking permission to have the recording — on which David’s sworn testimony was based — published so that the British people and, it is hoped, Parliament can see for themselves the truth of his words. 

Further confirmation of the plot

That, again, might have been that but for a book published by two French journalists, shortly before David went to trial in October 2002.  Guillaume Dasquié, publisher of Intelligence On-line, and Jean-Charles Brisard, a former adviser to French President Jacques Chirac who worked for the French intelligence services, published Forbidden Truth.  The book confirms that the Islamic Fighting group was the Libyan Al Qaeda cell responsible for the attempt on Gaddafi’s life.  The book added that the Islamic Fighting Group also included Anas al-Liby, a leading Al Qaeda member who is wanted for his involvement in the African embassy bombings and remains on the US government’s most wanted list with a reward of $25 million for his capture.  Al-Liby was with Osama bin Laden in Sudan before the Al Qaeda leader returned to Afghanistan in 199632.  Dasquie said:

“Bin Laden wanted to settle in Libya in the early 1990s but was hindered by the government of Muammar Gaddafi.  Enraged by Libya’s refusal, bin Laden organised attacks inside Libya, including assassination attempts against Gaddafi.”.

This provides yet more convincing evidence that Tunworth was involved with Al Qaeda.  At the very least, MI6 and MI5’s understanding of Al Qaeda was so limited that neither service realised the implications of Tunworth’s proposed coup in Libya: by assassinating Gaddafi the West would have lost a valuable ally in the battle with Al Qaeda and instead would have had to face the threat of an Al Qaeda in control of Libyan oil.

Given the timing of the MI6 payments– along with the close relationship between the IFG and bin Laden – it appears that British taxpayers’ money was used to fund Al Qaeda attacks in Libya.  Ashur Shamis, a Libyan expert on Islamic extremism, also added support to David’s allegation:

“There was a rise in the activities of the Islamic Fighting Group from 1995 [around the time of the first payment],” he said, “but many in Libya would be shocked if MI6 was involved.”.

Issues raised by the MI6/Al Qaeda conspiracy

Nearly all experts who work in counter-terrorism — as opposed to people on the “outside” — believe that assassinations, particularly in the case of heads of state only serve to destabilise a region.  This was a view held by the US National Security Council until George W Bush became president.  Although certain Third World leaders do not share our standards of democracy, they do provide a certain amount of stability to their country and region.  Remove such a leader from power by assassination and you will only create a vacuum, which will lead to unrest and violence as factions compete for power. 

Under international law, assassination operations are illegal.  The only moral argument for assassinating any dictator or terrorist is that such action would lead to considerably fewer deaths, than leaving him in power to continue to support violence against the West.  By 1996, Gaddafi had ceased to support the IRA or indeed any terrorism.  There were, though, a few unconfirmed reports that he had provided funds to Palestinian resistance movements in the Gaza Strip and the West Bank, territories illegally occupied by Israel and subject to UN resolutions.  In this context, Gaddafi was funding organisations fighting for their own freedom, not terrorists.

In addition, MI6 had given its blessing to an individual who was leading a group of Islamic extremists with links to the Al Qaeda network.  If Tunworth, the individual the Libyans caught in the act, had succeeded in assassinating Colonel Gaddafi, his supporters would in all probability have set up an Islamic Extremist state in North Africa, further destabilising a region already subject to violence from Islamic fundamentalists. 

Once Al Qaeda had Libya, it would have been all too easy for the group to take control of neighbouring states like Sudan, Tunisia, Algeria and Egypt, which already have their own internal problems with Al Qaeda.  In control of a state like Libya or a region like North Africa, Al Qaeda would have had:

  • Ready access to Libyan funds, running into £billions. 
  • Control of the Libyan oil industry, destabilising world oil prices.
  • The ability to launch many more attacks like September 11th, killing and maiming thousands of UK and US citizens. 
  • A land border with Israel and therefore a greatly increased capacity to attack the state of Israel. 
  • The means to destabilise world security on an enormous scale. 

In fact, we only have to look at the current problems in Iraq to see what could have happened, had the MI6/Al Qaeda conspiracy successfully led to Gaddafi’s assassination.  In the absence of Western military and security forces in a post-coup Libya, Al Qaeda would have had an even freer rein than it now has in post-war Iraq.  At the very least, MI6 failed to realise the implications of Tunworth’s admitted association with Islamic Extremists or his intentions, a coup leading to an Al Qaeda state in Libya.  That in itself would be of enormous concern, for which MI6 deserves to roundly be censured.  But, the truth is, the agent duped MI6 officers into funding that potential Al Qaeda takeover.  David explains:

“This was an act of terrorism, in which Britain became a state sponsor of Islamic extremism.  To put this in context, the Provisional IRA tries to avoid harming civilians on the basis that it produces bad publicity (although inevitably civilians are maimed and murdered when bombs go off on our streets).  Islamic extremists and Al Qaeda have no such restraint.  MI6 consciously supported terrorists who pose a greater threat to the national security of the UK than the Provisional IRA ever did.

“Although my boss, Paul Slim did not seem to want to know, I made it clear to him that it was his responsibility to take it up the management chain.  This whole operation was clearly a violation of the rule of law that my recruiter had told me the services must observe.

“I could also clearly see that the relationship between Tunworth and MI6 was flawed.  MI5 had no security record of Tunworth and MI6 had only a couple of traces or brief mentions.  Yet less than six months later, after a handful of meetings, MI6 had given him £100,000 of taxpayers’ money to assassinate a foreign head of state.  There was no way that MI6 could in that time have established a close enough relationship with him to make any realistic assessment of his character and reliability – he really could have been anybody.”

If this sort of MI6 activity only went on abroad and did not affect British citizens, it might be less frightening for us.  However, MI6 routinely operates in the UK.  In addition to IOPs35, UKG (now PT16B/OPS) ran agents in the UK and UKZ carries out surveillance.

If our elected representatives are not allowed to access MI6 documents about the conspiracy then perhaps they should try using the US Freedom of Information Act to obtain final confirmation of MI6 funding Tunworth and the IFG and Al Qaeda.

Conclusions

As David went on the record precisely because of the MI6 funding of Al Qaeda, it is worth looking at what he would have said in his defence in court, had he been allowed one:

Cover-up: There is overwhelming evidence to indicate that the then Foreign Secretary Robin Cook was ‘economical with the truth’.  His statement protected murderers in the intelligence services and ensured that David was thrown in prison with a view to extradition.  The media has been slow to put this to Cook and the head of Britain’s intelligence services, Prime Minister Tony Blair.  Once the MI6 document appeared on the Internet and the police recovered relevant material, it must have been clear to the Prime Minister that his Foreign Secretary had not told the whole truth to the British people.  In that situation, he had a simple choice under the ministerial code: either correct the statement of his minister or enter into the.  This is a cover up of monumental proportions.  Its implications for our democracy and the rule of law are enormous.

Justice: Although the deaths of a few Libyans may not carry as much weight with newspaper editors as the deaths of British citizens, they are still somebody’s sons and daughters.  They are human beings and not ‘collateral damage’ as some commentators have suggested.  British ministers have a duty to protect life.

Law and order: Any attempt to assassinate a foreign head of state is an act of terrorism, banned by international law under the Protection of Privileged Persons Act 1869.  How can we condemn Libya for bombing flight PA 103 over Lockerbie or assassinating WPC Yvonne Fletcher, if we resort to the same terrible tactics?

Terrorism: Removing Colonel Gaddafi would have led to a more extreme despot taking over in Libya, which would in all probability have led to attacks on British, US, European and Israeli citizens.  Al Qaeda members, enemies of the West then and now, carried out the attempted coup.  By this time, MI6 knew that Al Qaeda was responsible for the attack on the World Trade Centre in 1993.  At the same time, MI5 had set up a section, G9C, in 1995, specifically to investigate Islamic extremist groups, particularly Al Qaeda.  It was therefore the height of negligence (some might say stupidity) for MI6 to give up to £100,000 of taxpayers’ money to the leader of such a group.

Failure of accountability and oversight: Under the 1994 Intelligence Services Act, MI6 could have submitted the plot to the Foreign Secretary for permission.  With that permission, they would have been immune from prosecution.  By not submitting, MI6 officers were deciding British foreign policy towards Libya, not the democratically accountable Foreign Secretary.  After David’s return to the UK, we approached the police to investigate the plot.  They initially refused to take possession of David’s evidence, allowing those involved in the meantime to perhaps doctor the evidence. 

Lack of transparency: If we can only maintain our reputation for democracy through lying, cheating and obsessive secrecy then I suggest we are not really a liberal democracy at all.  If you want to live in the sort of country in which the intelligence services are allowed to work in absolute secrecy and literally get away with murder, I suggest you go and live in Iran. 
Corruption: If you want to live in a functioning democracy, you have a moral and democratic duty to ensure that the laws of the land are upheld and that they apply equally to every citizen of that country.  When the Prime Minister and the Foreign Secretary give MI6 officers a de facto immunity by refusing to take evidence of their conspiring to murder, they send a very clear message to MI6.  And that message is: “You are above the law.  You can get away with it now and can get away with it in the future.  In fact, you enjoy the same rights as KGB officers in the former Soviet Union”.

Waste of money: In the attack, MI6 wasted £100,000 of taxpayers’ money.  These funds could have been better spent on schoolbooks and medicines. 

The Israeli Embassy Two – a gross miscarriage of justice

Samar_Alami Jawad_Botmeh Over the last few years there have been a number of egregious cases of police and state cover-ups in the UK around the deaths and wrongful prosecutions of innocent people.

This brings to my mind the appalling miscarriage of justice that occurred in the 1990s when two Palestinian students, a young woman called Samar Alami and a young man called Jawad Botmeh, were both wrongfully convicted of conspiracy to bomb the Israeli embassy in London in July 1994.

In this case a highly sophisticated car bomb as detonated outside the embassy.  Thankfully nobody was killed, but a number of people suffered minor injuries.   Alami and Botmeh had connections to Palestinian political support groups based in London at the time, many of whom were rounded up during the investigation.  Botmeh had naively helped out a shadowy and never-identified figure called Reda Moghrabi, who asked for assistance in buying a second-hand car at auction.  This was the car that was used in the explosion.

Why is this case an example of establishment cover-up?  Well,  this was one of the cases that former MI5 officer David Shayler blew the whistle on during the 1990s.  He revealed the existence of two relevant documents that should have been disclosed to the defence but, for some unaccountable reason, were not.

The first, an agent report from a credible and trusted source, pointed to a non-Palestinian group planning the attack before it had even occurred.  This report was not acted upon by the MI5 officer responsible, who then tried to cover up her mistake.  She was caught out, and there was a much-discussed internal inquiry into the matter within MI5’s G Branch (international terrorism) in late 1994.

But there was another document – one written by G9/1, the senior MI5 officer who oversaw the post-incident investigation.  His view was that Mossad, the external Israeli intelligence agency, had carried out a controlled explosion outside its own embassy (the shadowy and unidentified Reda Moghrabi being the potentially crucial missing link) in order to acquire the long-demanded additional security protection around Israeli interests in the UK, and also to shatter the Palestinian support networks in London – a long-term objective of Mossad.

The government at the time tried to dismiss these disclosures.  However, the much-missed Private Eye investigative   journalist, Paul Foot, and the indefatigable lawyer, Gareth Peirce, followed them up and pursued them tirelessly through the media and the courts.

And guess what?  It turns out that these two key documents had indeed not been disclosed to the legal defence team during the trial of Alami and Botmeh – and not just by the hapless spooks.  It emerged during the appeal hearing that no fewer than seven people from a variety of police and intelligence organisations had failed to disclose the relevant documentation to the defence.  This cannot be explained away as an innocent oversight, a cock-up – it bears all the hallmarks of a deliberate, systemic establishment cover-up.

All this represented, at the very least, a need for a retrial but also a possible gross miscarriage of justice.  And yet, while acknowledging that these documents did indeed exist during the appeal hearing and beyond, the presiding m’luds decided to ignore all case law and European law and let those two innocents rot in prison.  After all, it would be terribly embarrassing to vindicate the actions of an intelligence whistleblower, wouldn’t it?

As a result, the poor pawns in this sick establishment game, Jawad Botmeh and Samar Alami, ended up serving their full sentences, despite the overwhelming body of evidence proving their innocence, and were finally released in 2008 and 2009 respectively.

For anyone interested in the detailed horror story behind this flagrant miscarriage of justice, here is the relevant chapter from my long-defunct book: Download The_Israeli_Embassy_Case

Operation Shadower – illegal MI5 bugging of left-wing UK journalist

Background

At the same time that MI5 had to deploy valuable resources to monitor Khalifa Bazelya, they were also devoting considerable funds to investigating Victoria Brittain, a Guardian journalist. Codeworded Operation Shadower, MI5 tapped Brittain’s home phone for over a year, beginning in early 1995. Although she was suspected of money laundering and financing terrorism, the service established that the funds were being used to finance a libel action on the part of Kojo Tsikata, a former official of Ghana. Not even MI5 would now argue that Brittain had ever posed a recognisable threat to national security.

At one point in the investigation, Director G, International Terrorism Branch, told officers that this was the most important investigation on the Libyan desk in ten years. David pointed out the incongruity of this statement. The bombing of flight PA103 over Lockerbie had taken place only six years previously. At the time, an extensive police and MI5 operation had led to the indictment of two Libyan intelligence officers for the attack. However, to a senior manager who had cut his teeth investigating left-wing “subversives”, targeting a Guardian journalist must have felt like a return to the good old days.

Early problems with the investigation

Victoria Brittain first came to the attention of G9 in late 1994 when the Service learned that she had received two payments into her bank account from two separate Libyan accounts based in London. A junior desk officer, Sue Thomas, G9A/15, had carried out the initial investigation. She had little experience of intelligence work as she had entered the GD1 as a GI6, after transferring from the secretarial pool. At the time, Jerry Mahoney, G9A/1 and group leader for G9A, was also an inexperienced officer, who had been in the service less than two years. When David took the case over in April 1995, Thomas had warned him that she had tried to raise her reservations about the investigation with G9 management but had been ignored. I mention this because it demonstrates how management could push around junior desk officers, particularly if they had not been recruited as part of the ‘officer class’.

In this case, Home Secretary Michael Howard had already granted the Home Office Warrant (HOW), which governs telephone intercept or tapping, before David took the case over. I mention this as off-the-record briefings have claimed that David began the investigation. It then became his responsibility to renew the HOW every six months2. Again, renewal requires rigorous justification in strictly defined circumstances.

When David came to examine the warrant, he found it was inaccurate. Some of the transfers of funds had gone through several of Brittain’s accounts, although the original flow diagram did not reflect this. David explains:

“As a result, some movements of the funds had been counted twice or even three times as further payments into her account when in fact, they were the same funds moving between Brittain’s different accounts. One of the first tasks I performed was to trace and clarify the movement of funds through all her accounts. This established that the amount in question was rather nearer £200,000 than the figure used to justify the warrant, around £500,000.”

Reasons for investigating Victoria Brittain

MI5 uses ‘recording categories’ or definitions that a target must fall within before MI5 can actively investigate them. Brittain already had a PF or personal file because she had previously come to the attention of the Service as a ‘contact of a hostile intelligence agency’ in 1991 after she met a Cuban at an Embassy function as part of her work on the foreign news section of The Guardian. Although the Cuban was an intelligence officer working under diplomatic cover, there was certainly no indication that she knew of the Cuban associate’s intelligence role.

For the purposes of the Shadower investigation, Brittain was recorded as ‘the suspected contact of a suspected contact of the Libyan intelligence service’, although there was no intelligence on her file to indicate that she had any connections with Libya at all – other than the payments to her bank accounts. Although Tsikata was also recorded as a suspected contact of the Libyan intelligence services, there was little or no hard intelligence to indicate that he was actually working for the Libyans. MI5 certainly had no record of him being involved in hostile intelligence or terrorism against UK interests.

In fact, when Kojo Tsikata had stayed in London in summer 1994, itemised billing information on the telephone in his hotel room established that it had been used to contact Brittain’s home phone. Although her subscriber details – V Brittain, 57 Gibson Square, London NW3 – had been checked against service records, Sue Thomas had failed to match them with Victoria Brittain, 57 Gibson Square, London, NW3, the subject of an MI5 file. It was only when MI5 actively began to investigate Brittain and Tsikata some six months later that this missed contact was found on his file. David comments:

When officers came to apply for the Home Office Warrant in late 1994, they justified the investigation on the grounds that Brittain was either:

  • Laundering money on behalf of the Libyans.

  • Helping the funding of terrorism in the UK.

However, I stress there was no specific intelligence to support either proposition.

Defects in the case and delays in taking action

Some will think that payments from Libyan accounts to Brittain would be enough to justify at least beginning an investigation into Brittain, even in the absence of specific intelligence stating that she was money laundering. However, there were a number of fundamental defects in the case, which were not addressed in the Warrant and therefore not communicated to the Home Secretary who authorises the tap. The payments into her account clearly came from two official Libyan accounts, one in the name of Khalifa Bazelya, the chargé d’affaires at the Libyan Interests Section, and the other in the name of the Libyan Interests Section in London. Given that the Libyans believe that the British intelligence services are as pervasive in Britain as the Libyan intelligence services are in Libya, it was risible to suggest that the overt passage of money from official accounts was sufficient reason to suspect money laundering or terrorist funding.

“If I had been the case officer when MPSB had provided the original intelligence about the movement of funds in summer 1994” David explains, “I would have recommended that they interviewed her. There would have been nothing unusual about this.”

Brittain had first come to the attention of MPSB after it had received a routine financial notification under the Prevention of Terrorism Act. This legislation requires banks to notify the police of any deposit of more than £10,000. Under the PTA, Special Branch officers could have asked Brittain directly or served her with an Explanation Order requiring her to justify the funds. This overt method of enquiry was never undertaken although senior MI5 officers did contemplate it some months into the investigation but dismissed it. It would have saved a lengthy investigation and unnecessary, expensive telephone tapping and mobile surveillance on the part of MI5, which drained the service’s resources to the tune of around £750,000.

Where laundered money has to be moved through accounts, at least some of it moves on quickly so that it can get to its destination before being intercepted by the law enforcement agencies. G9A first reacted to the existence of the funds only towards the end of 1994, well over a year after the first payment from Bazelya’s account in September 1993 and around five months after the second payment in July 1994. Ironically, if the money had been intended for the funding of terrorism, it would have been long gone before MI5 had even started to investigate the matter.

Some will argue that I am benefiting from hindsight. I dispute this. When David took over the investigation, he tried to persuade those involved, including the City of London Special Branch, that the payments were innocent. By this time, the telephone tap on Brittain’s phone had reported that she was discussing ‘the case’ and ‘the money’ with Kojo Tsikata and the lawyer Geoffrey Bindman. It was therefore very clear from very early on that the money in question was being used to fund a legal action. Although MI5 should never have begun to tap her phone, it was even more inexcusable that it continued the operation, even when all the intelligence indicated that the funds in question were payment for some kind of legal action on Tsikata’s part. It wasn’t as if Brittain and Tsikata didn’t have good enough reasons for their relationship. As she was the deputy foreign editor of The Guardian with a history of writing on Africa, and Tsikata’s native Ghana in particular, and he was a former official of the state, the two had obvious legitimate reasons to know each other.

The failure to follow procedure

In this case there can be no dispute about MI5’s failure to follow legally enshrined procedure designed to ensure that the services do not abuse human rights. Intelligence organisations must use overt, non-intrusive methods to resolve an enquiry before invading anyone’s privacy as a last resort. It cannot be ‘necessary in a democratic society’3. to invade an individual’s privacy to obtain information that could be obtained openly. The failure on the part of the services to first check open sources led directly to a human rights abuse, unnecessary invasion of privacy, and an unlawful operation.

In order to maintain the legality of its warrants, MI5 officers use a ‘tick box’ pro forma to ensure they have complied with all procedure. One box reminds officers to insert a line to the effect that they have exhausted overt methods of enquiry before applying for a warrant. There is though no box to tick off the actual enquiries carried out. In effect, the officer ticks the checklist to indicate that he has included in any warrant the line regarding the exhaustion of overt enquiries – without actually doing any enquiries. Although MI5 management assert that they play a valid role in the processing of warrants, they never ask whether — or which — enquiries have been carried out to make the warrants legal.

Failure to access public databases

Given that Brittain was a Guardian journalist, MI5 could have checked public records such as newspaper archives, now held on the Lexis-Nexis database, or in the computerised archives at the British museum. This would have shown Brittain’s and Tsikata’s activities and interests. David takes up the story:

“When I took over the case around Spring 1995, I remarked to my bosses that I was surprised that no overt enquiry had taken place, particularly in this sensitive operation. I even suggested interrogating a newspaper database to Jerry Mahoney4 and to Peter Mitchell5.

“I had also mentioned this very early on to Sue Thomas, who was responsible for the investigation before I took it over. Given that Ms Brittain was a journalist, any interrogation of a commercially available newspaper database might shed light on her actions. I stress, up to this point, the only intelligence against Brittain was that she had received money from the Libyan regime through traceable and routine transfer between bank accounts, hardly a secure method of laundering money.

“As the Service had no access in-house to commercial databases, I specifically offered to go to a library to ‘bottom’ – or resolve – the case. Remember at this time, G9 was devoting considerable resources to following Khalifa Bazelya, the Libyan charge. As MI5 only has finite resources, it was clear even at the time that the Shadower investigation was detracting from the proper investigation of an individual with an established history of aiding terrorism.

But Jerry Mahoney refused to authorise this. David did think about carrying out the public enquiries in his own time but he knew that any initiative would count against him with MI5 bosses, even if he were proved right.

In fact, the service did eventually research publicly available material. Jonathan Beaver, a clerical officer, spent many days in the MI5 library looking through copies of The Guardian to try to find articles by Victoria Brittain. But by this point, the Home Secretary had already signed the warrant, believing that overt enquiries had already been exhausted. Details of the true purpose of the funds were more likely to have emerged from coverage in The Independent newspaper, which was the target of the libel action for which Ms Brittain was receiving funds. Either way, poring over page after page of The Guardian hardly constituted an efficient use of a clerical officer’s time, when Brittain’s name could be checked in seconds using a newspaper database.

As a result, David was also prevented from using a commercial database to check the names of journalists which came up once the telephone was tapped. David explains:

“I can clearly recall that during one intercepted conversation, the name of Richard Dowden was mentioned. He was no trace in the service’s records but we have since learnt that he worked for The Independent newspaper and was involved in opposing Tsikata’s libel action. It is also a principle of phone tapping that it should continue no longer than is necessary6. Again, I maintain that if I had been allowed to research openly available material, we would have more quickly established that the money was of no concern to MI5. G9 would have therefore have been obliged to cancel the warrant sooner, restoring Brittain’s right to privacy.”

Illegality upon illegality

However, instead of cancelling the already illegal telephone intercept, MI5’s internal appetite grew. It obtained a Property Warrant from the Home Secretary to legally ‘effect a covert entry’ into Brittain’s home to search and copy her papers or to install an eavesdropping device – or bug. As covert entry is otherwise known as breaking and entering or burglary, it represented an even greater invasion of Brittain’s privacy than tapping her phone.

But the Property Warrant was based on the same flawed case as the Home Office Warrant, so it represented illegality mounted on illegality7. Under the 1989 Security Service Act, MI5 is only supposed to break into private homes to protect national security or prevent serious crime and then only where there is a strong intelligence case. Secret searches of an individual’s home – ‘sneak and peak’, as it is known in the US legislation proposing this kind of invasion of privacy — are banned in the vast majority of democracies.

At one point in a formal discussion with the Assistant Director, Peter Mitchell, the possibility of tapping the lawyer Geoffrey Bindman’s home phone was raised. The senior MI5 legal adviser, Richard Woods8, rejected the idea on the grounds that there had to be ‘a more direct threat to national security’ before the phone of a lawyer could be tapped. This was of course a tacit admission from a legal expert that the case against Brittain was ill-founded. In a later discussion when the Shadower investigation was over, the legal adviser denied that he had made any such claim, even though it had been included in the minutes of the meeting and he had not complained when he had received a copy of the minutes. Instead, he claimed that he had given advice as to the undesirability of tapping the phone of a lawyer, given that conversations between lawyers and clients are privileged.

Yet MI5 showed no ethical concerns when it recorded and transcribed conversations between Bindman and Brittain, even where they specifically mentioned ‘the case’ and might have covered privileged client-counsel discussions9. And, if MI5 really believed that the money was destined for terrorists, why should Bindman be given some sort of immunity just because he was a lawyer? The legal advisor’s position was illogical. But it went from bad to worse.

The unlawful plan to arrest Brittains daughter

Once a property warrant has been signed, the case officer sends his requirements to MI5’s A1 section, which then ‘recces’10 the target address and comes up with an operational plan to plant the bug and carry out the search. 11. In this case, A1 hatched a plot to have Thea Sharrock — Brittain’s daughter and a key holder of the Gibson Square flat — arrested on trumped-up charges, while she was holidaying in the US. The fact she was in the US should have counted as security enough. Even if she had suddenly decided to return home, her flight would have taken at the very least seven hours, more than enough time for A1 operatives to withdraw from the target premises.12

David takes up the story:

“I complained in the most vociferous terms possible but Jerry asked me to create a file on Brittain’s daughter. In the file, I recorded that I was doing it effectively under duress and that the file should be ‘destroyed’ — removed from the MI5 indices rather than actually physically burnt — as soon as the relevant action had been taken to stop the collection of even more intrusive personal material in the MI5 archives.”

Evidence of the true purpose of the money

By spring 1995, MI5 had established that Brittain had received three further payments made in December 1994, January 1995 and February 1995 of around £35,000 each. As Brittain, Bindman and Tsikata discussed the matter quite openly on her home telephone, it became even more risible to suggest that the funds were destined for the support of terrorism. No trained terrorist in this day and age uses the phone, particularly not their own, to discuss any criminal activity. When David took over the investigation shortly after, he found no references that could in any way be construed as relating to money laundering or support for terrorism. The transcribers of the tap had not noted, for example, that any of the conversations were guarded or suspicious or that word ‘case’ could be code for more underhand activity.

Before David had even taken over Operation Shadower, financial enquiries had established that the funds were being placed in a client account at the law firm of Bindman and Partners. This appeared to be conclusive proof – if any were still needed — that the funds in question were being passed through Brittain’s accounts to Geoffrey Bindman, the senior partner of the firm, to pay him for the unidentified legal ‘case’ in which he represented Tsikata. Yet, the investigation went on for nearly a year more.

It also seemed to be lost on MI5 management that no solicitor with the profile and reputation of Geoffrey Bindman would willingly allow laundered or terrorist funds to pass through his client accounts. Although Bindman had a personal file, he was recorded as a ‘?communist sympathiser’ – a category given to almost anyone who had communist friends, clients or colleagues — in the 1960s and had not come to attention in a security context since then. There was certainly no indication on his file that he had any direct connection with terrorism, money laundering or Libya.

The failure of the Commissioner

When one of the Commissioners13 came to the service in late 1995 or early 1996 to discuss the Warrant against Brittain, G9/0 Mitchell refused to allow David to attend the meeting. Instead, David had to provide an anodyne brief on the investigation for Mitchell’s meeting with the Commissioner. David was forbidden from telling the Commissioner that:

  • Contrary to information Mitchell included in the warrant, MI5 had not researched publicly available material on Brittain before tapping her phone.

  • Even after David had raised the above with Mitchell, G9/0 still included the line about overt enquiries in the six monthly applications to renew the warrant, knowing them to be untrue.

  • The intelligence was based on inaccurate and illegally obtained financial information.

As Mitchell had signed off the warrant application14, he was hardly likely to raise issues, which might land him in trouble.

David couldn’t legally take his concerns directly to ministers or the Commissioner about the Brittain warrants15. Even if he had been able to go to ministers, it is highly likely they would have consulted the Commissioner who would have told the Home Secretary that he had been to MI5 to discuss the warrant and had been assured that it was legal. Neither the Commissioner nor the Home Secretary could have known that Mitchell’s claims in the warrant that procedures had been followed were not just false but were made by Mitchell in the full knowledge they were false.

Unlawful financial enquiries

Another matter also troubled David. The police and MI5’s H1 section, which deals with external liaisons and “delicate” enquiries, had acquired detailed financial information from Brittain’s bank account without a court order16. David takes up the story:

“Although I raised the unlawful collection of financial material when I took over the case, MI5 did not make an application to a judge to invade Brittain’s privacy in this regard, although a few of the police enquiries – carried out by City of London Special Branch — may have been covered in this way. In fact, the conduct of the investigation was hindered because H1 and the police had difficulties obtaining the information from the banks concerned without the proper paperwork.

“H1 was well aware that his actions were unlawful. He insisted that Brittain’s financial details were kept hidden on a separate file from Brittain’s main PF. Ironically, if the money had been destined for the support of terrorism, illegal and slow procedures could have prevented us from either intercepting the money before it got to its intended targets or from bringing the culprits to justice, as the information was not obtained under evidential procedures17. This is further proof that the service itself did not really believe the central claim of the Warrant; that the funds were destined for the support of terrorism

“As far as I am aware, neither the IOCA Commissioner, who notionally oversaw the telephone intercept and specifically came to the service to discuss the case, nor the Home Secretary, ever asked whether the financial information was legally collected, even though they knew private financial information had been gathered to support the warrants.

“The individual in the bank who gave out Brittain’s private financial information should be investigated by the police for violating banking law. Their name will be on one of H1’s files with evidence of the information passed.”

The rest of the operation

Having made his protest where and when he could, like any other MI5 officer, David had to then ‘follow orders’ or resign. Although he personally disagreed with the situation, professionalism dictated — for the time being at least — that he did the job to the best of his ability by revalidating the warrant and continuing to co-ordinate the investigation. I shudder to imagine what would have happened to him, had he told his bosses that he was refusing on ethical grounds. At this point – autumn 1995 – despite many reservations, David still saw himself pursuing a career in MI5. David explains:

“If I wanted to continue working in MI5 and effect change from within, I was not able to question the judgment of my bosses without being labelled as someone who ‘rocked the boat’. Yet I desperately wanted to change MI5 so that it performed a useful job well and lawfully, but I did not then feel that I would have been able to do that either from outside the organisation or from a lower level job. In every potential situation, I therefore came up against a dead end. To complain would mark you out as a troublemaker18. To leave took you outside any potential ability to alter things.”

The former DG, Stella Rimington, has confirmed just how little room was given to protest within the service: “But I soon realised that people regarded you with suspicion if you asked too many questions, so I learned to keep quiet […]”I knew that open protest was not likely to be successful. If one got a reputation as a revolutionary, one would be regarded as suspect and written off.”19 However, unlike Stella Rimington, who ‘whiled away the time reading Dornford Yates novels under the desk’, David did not let serious illegality on the part of the service pass unchallenged. He did what he could while still in the service.

When it became clear by the end of that year that no one in MI5 management was prepared to end an investigation based on flouted procedures and inaccurate information, he began to think that he had no option but to resign. As we left Thames House to begin Christmas leave, David confided to me that he had had enough, not only because of the Brittain investigation but also because, shockingly, he had just learnt that MI6 had paid money to Al Qaeda associates to assassinate Colonel Gaddafi of Libya.

MI5 did not remove the tap on Brittain’s home phone until early 1996 when it reported her and Bindman discussing ‘the money [for the] legal case’.

Conclusions

Given that David’s disclosure of the Brittain case was used to prosecute him under the Official Secrets Act, the following are the arguments – based on the above evidence — he would have put before the jury had he been allowed to argue in his defence that his disclosures were in the public interest. Given the strength of the arguments, it is hard to see how a jury would have been able to convict him, had he been allowed a defence:

  • The telephone tap and the financial investigation were illegal: the Warrant was illegal because procedure designed to prevent illegal or criminal invasion of privacy had not been followed. The financial investigation was illegal because MI5 did not obtain a court order under the PTA.

  • Deliberate flouting of the law: in the Brittain operation MI5 management knowingly continued to violate the law, even when officers brought this to their attention.

  • Political expediency over legality: the service simply did not dare inform the Home Secretary that it had obtained a Warrant and started an intrusive investigation on the back of a warrant application based on untruths.

  • MI5 paranoia: senior MI5 officers who had cut their intelligence teeth in an era obsessed with ‘reds under the bed’, were still pre-occupied with Guardian journalists and libertarian lawyers. If Victoria Brittain had been a housewife living in East Cheam, I do not believe MI5 would have launched such an extensive and intrusive investigation into her and her family. Her real crime was to be a Guardian journalist with unusual friends.

  • Sexed up and flawed intelligence case: Even if procedure had been followed, there was still no real basis for investigating Brittain. She and the Libyan intelligence services would hardly have been likely to use official Libyan accounts in London to launder or move money to fund terrorist activity in the UK. Even then MI5 got its sums wrong.

  • Operational ineffectiveness: Ironically, MI5 was so slow to start the investigation that, if the funds had been destined for terrorists, they would have been long gone before the service began its investigation.

  • Bad judgement: Operation Shadower was a waste of MI5’s time and effort, as resources needed to prevent actual terrorist planning and attacks were taken away from those areas, putting the public at greater but unnecessary risk. MI5’s budget would have been better spent on other targets which posed a clearer and more direct threat to national security.

  • Lack of on-going justification: nothing emerged from the year-long telephone tap to show that Victoria Brittain was involved in money laundering or any other illegal activity. In fact, Brittain was exonerated by the telephone intercept very early in the investigation when it provided intelligence about ‘the case’ and ‘the money’.

  • Justification for whistleblowing: even MI5 now accepts that her actions were entirely legitimate. If David had not gone on the record, she would never have known that her privacy had been unlawfully invaded and her daughter nearly been arrested on trumped-up charges so that MI5 could plant a bug in her house.

  • Deliberate misrepresentation of the truth: the investigation clearly demonstrates that MI5 management can quite easily mislead ministers and Commissioners. As there is no need for MI5 to swear its case to the Home Secretary under oath, it can misrepresent or use facts selectively or simply lie to government, without sanction.

1 General Duties group. The General Intelligence Duties group, or the officer class”, and the admin group were merged at around this time. Grade GI6 became GD6 etc

2 In accordance with the 1985 Interception of Communications Act

3 Article 8(2) of the European Convention states There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society.

4 G9A/1, his group leader and direct boss

5 G9/0, the head of G9, Counter-Middle Eastern Terrorism. He also took the stand as witness C in Davids court case but Judge Moses refused to let David cross-examine Mitchell about the legality of the intercept.

6 The necessary in a democracy test under HRA, Article 8, ECHR

7 The 1989 Security Service Act contains the same caveat as the 1985 Interception of Communications Act. Other methods of enquiry must be exhausted before the Service interferes with a targets property.

8 Name changed on orders of MI5

9 Now protected by the HRA, Article 6, ECtHR, the right to a fair trial

10 Reconnaissance.

11 Information removed on the orders of MI5, although it concerns official policy which hampers the operational effectiveness of MI5, not secret intelligence

12 If MI5 had gone ahead with the plan, Ms Sharrock would have had excellent grounds for remedy under the HRA, Article 5, the right to liberty and security: Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law. None of the exhaustive list of exceptions from Article 5(1)(a) to (f) apply in this case

13 Under the Interceptions of Communications Act and the Security Service Act, Commissioners have a responsibility for ensuring that Warrants are legally obtained

14 As Warrant applications are not sworn under oath, MI5 officers like Mitchell can lie or misrepresent the truth in them without fear of perjuring themselves.

15 A criminal offence under section 1 (and section 7(1)) of the 1989 Official Secrets Act (OSA) –

16 The Prevention of Terrorism Act (PTA) allows investigators to gather private financial information to prevent terrorism but a judge must grant a formal court order for the authorities to gather this material under the Act. Again, this procedure is designed to protect the right to a private life, in this case, with regard to the privacy of an honest individuals financial affairs.

17 In this day and age, MI5 does use evidential procedures in its investigations into genuine terrorism

18 True to form, MI5 did brief against David saying just that

19 Open Secret, pp 98 and 121

GMC Determinations about the Steven Lomax case

Here are the three formal rulings recently made by the British General Medical Council about the Steven Lomax, a British psychiatrist recently struck off the register of doctors for:

  • conducting an inappropriate emotional and sexual relationship with a patient;
  • apparently destroying her medical records;
  • bringing the medical profession into disprepute.

GMC Determination of Facts: Download GMC_Determination_on_facts

GMC Determnination of Impairment: Download Determination_on_impairment

GMC Determination of Sanction: Download Lomax_GMC_sanction

Freedom of Expression in the UK – Article 19 and Liberty

SECRETS, SPIES AND WHISTLEBLOWERS
Freedom of Expression and National Security in the United Kingdom
by ARTICLE 19 and Liberty
November 2000
Printed by The Guardian
ACKNOWLEDGEMENTS
This report was researched by Steven Warner, with assistance from John Wadham,
Director of Liberty and Selina Chen, ARTICLE 19 Policy Researcher. It was edited
by Toby Mendel, Head of ARTICLE 19 Law Programme and Ilana Cravitz, Head of
Communications at ARTICLE 19. It was copyedited by Katherine Huxtable,
ARTICLE 19 Press Officer and designed by Mark Jordan of The Guardian.
Liberty and ARTICLE 19 gratefully acknowledge the generous support received from
the Scott Trust and the Joseph Rowntree Charitable Trust for the research, editing and
publication of this report. Many thanks also to The Guardian production team.
CONTENTS
Executive Summary
Summary of recommendations
Glossary of abbreviations
Preface
CHAPTER 1 International law and principles on free expression
1.1 Striking the balance: the three part test
1.2 The Johannesburg Principles
1.3 Conclusion
CHAPTER 2 “National security”: who decides? The lack of effective judicial scrutiny
2.1 National security exemptions
2.2 Encouraging changes: the Special Immigration Appeals Commission
2.3 Conclusion
CHAPTER 3 Legal restrictions on public employees’ freedom of expression:
restricting Primary Disclosure
3.1 The Official Secrets Act
3.1.1 Disclosures by members of the Security and Intelligence Services (SIS)
3.1.2 Disclosures by other civil servants
3.1.3 Comments and conclusions
3.2 Civil remedies backed by criminal penalties
3.2.1 Injunctions
3.2.2 The law of confidence
3.3 Recent prosecutions of former Security and Intelligence officers
David Shayler; Richard Tomlinson; Nigel Wylde; “Martin Ingrams”
3.4 Concluding observations
CHAPTER 4 Restricting Secondary Disclosure: Gagging the media and others
4.1 Secondary disclosure under s. 5 OSA
4.2 The Defence Advisory notice system (DA-Notice system)
4.3 Recent prosecutions brought under s. 5 OSA
Tony Geraghty; Liam Clarke; Julie-Ann Davies
4.4 Use of injunctions to prevent publication
4.5 Conclusion
CHAPTER 5 Protection of sources
5.1 International standards on protection of journalists’ sources
5.2 Legal mechanisms for compelling source disclosure in the UK
5.2.1 Criminal procedures (PACE, PTA, OSA, RIP)
5.2.2 Civil orders
5.3 Recent history of production orders
5.3.1 Ex-parte Bright – the use of PACE
5.3.2 Ex-parte Moloney – use of the PTA
5.4 Conclusion
CHAPTER 6 Chilling the watchdogs and silencing the whistleblowers
6.1 Whistleblowers deterred
6.2 Press self-censorship
6.2.1 Slate – a case of Internet self-censorship
6.3 Conclusion
CHAPTER 7 A culture of greater openness?
7.1 Public Interest Disclosure Act 1998
7.2 The Freedom of Information Bill
7.3 Lack of democratic accountability of the Security and Intelligence Services
7.4 Conclusion
CHAPTER 8 The Future of Secrecy under the Human Rights Act 1998
8.1 Freedom bred in the bone of common law?
8.2 An end to judicial deference
8.3 The HRA and injunctions
8.4 An ECHR-compliant OSA
8.5 The HRA and civil claims
8.6 Conclusion
CHAPTER 9 Recommendations
Appendix 1 The Johannesburg Principles: National Security, Freedom of Expression
and Access to Information
Appendix 2 Summary of The Public’s Right to Know: Principles on Freedom of
Information Legislation
ENDNOTES
EXECUTIVE SUMMARY
This joint publication by ARTICLE 19, the Global Campaign for Free Expression and
Liberty is a critical analysis of UK laws and mechanisms which ostensibly safeguard
national security but which have, in practice, been used by successive governments to
suppress embarrassing or controversial revelations and to undermine the public’s right
to know.
Freedom of expression in the UK has been described by some as “bred in the bone of
common law” and the UK media are said to enjoy enviable freedom in most matters.
Yet, at the same time, UK governments have a record on secrecy which few other
western democracies can match. Consequently the British media’s ability to function
as a “watchdog” of certain areas of official activity is severely and deliberately
impeded by legislation and official practice.
It is widely recognised in international law that freedom of expression is not an
absolute right and can legitimately be restricted if it harms national security.
However, all such exemptions must be accompanied by adequate safeguards to
protect against their misuse by governments and to ensure that the balance between
national security and freedom of expression is properly struck. Such safeguards are
absent from the UK’s legislative framework. The pattern seen in the courts has been
less a careful balancing of freedom of expression and national security than judgments
that damage free expression and suppress revelations of incompetence, illegality and
other wrongdoing by members of the security and intelligence services and the armed
forces.
The UK Government has a battery of means at its disposal to ensure that a veil of
official secrecy is maintained and the activities of the Security and Intelligence
Services (SIS) remain unexamined. Chief among these is the draconian Official
Secrets Act (OSA), which prohibits the disclosure of a huge range of information by
government employees and the media. Those breaching the OSA face imprisonment
and fines.
The OSA makes it a crime for current and ex-members of the Security and
Intelligence Services to reveal any security-related information, even if such
information is not damaging to national security, putting the UK out of step with
many other democracies. Further, in many other democratic states such as Germany
and the Netherlands, publication of official secrets and information harmful to
national security can be excused if it serves the public interest. No such defences for
whistleblowers or the recipients and publishers of their information exist under UK
law.
A raft of other mechanisms is also used in the UK to suppress information, obtain
documents, compel disclosure of sources and trace and punish those responsible for
disclosures of national security related information. Injunctions, production orders,
confidentiality clauses and contempt of court laws are just some of the civil and
criminal mechanisms at the Government’s disposal. All have been invoked in recent
years in the executive’s readiness to seek gagging orders, fines and prison sentences
for public servants and journalists who use protected information to publicise
documents and allegations relating to official incompetence, illegality or wrongdoing.
Other powers, such as search and seizure by police, are also used to obtain
information. In the use of injunctions as a preferred means of suppressing
information, the British authorities are unfettered by the constitutional, statutory or
judicial safeguards governing prior restraint in countries such as Austria, France,
Sweden and the US. Nor do UK journalists enjoy the same right as their counterparts
in many other European countries to protect the confidentiality of their sources.
The report identifies the alarming tendency of the UK judiciary to defer to the
Government in these matters and its failure to observe the necessity to balance
national security considerations against the public interest and the right to freedom of
expression.
Among the recommendations we make are:
• that the Government conducts a review of all law and practice relating to
   national security, including ongoing prosecutions;
• introduction of mechanisms for proper democratic scrutiny of the activities of
   the security and intelligence services;
• establishment of a narrow definition of national security;
• specific inclusion of a substantial harm test for disclosures relating to national
   security offences and a public interest defence for those accused of breaching
  official secrecy; and
• legal protection for Security and Intelligence Services “whistleblowers”.
This report further provides an analysis of how the UK Government uses the law to
prevent disclosures of security-related information by government employees, the
media and members of the public. The legislative framework is measured against
international legal standards and found wanting. The report also analyses the role of
the judiciary and its failure to subject government claims about national security to
close scrutiny. It sets out the laws and mechanisms which restrict disclosure of
national security-related information, and details the ways in which this matrix of
civil and criminal legislation has been used by the Government in the last three years
against former security service employees, members of the public, and the media.
The report also considers the Human Rights Act 1998, which incorporates the
European Convention of Human Rights into domestic law, and its implications for
reforming the UK regime of freedom of expression in the context of national security.
The report discusses the options open for reform, and concludes with a list of fourteen
recommendations that would ensure that the UK regime governing freedom of
expression and national security conforms to the standards and practices befitting a
modern, open and healthy democratic society.
Summary of Recommendations
Recommendation 1: The government should immediately review all national
security laws for compliance with these recommendations.
Recommendation 2: All ongoing prosecutions and other legal measures, as well as
any sanctions already imposed, should be reviewed for compliance with these
recommendations and remedial measures taken where necessary.
Recommendation 3: All national security restrictions should be subject to a full
appeal on the merits by the courts.
Recommendation 4: All national security legislation should include a clear and
narrow statutory definition of national security.
Recommendation 5: Those seeking to restrict expression should bear the burden of
proving that the restriction complies with these recommendations.
Recommendation 6: No restriction on expression or information should be
considered legitimate unless it meets the three-part test under the European
Convention.
Recommendation 7: No one should be subject to criminal penalty for disclosure of
information unless that disclosure poses a real risk of substantial harm to a legitimate
national security interest and there was a specific intention to cause harm of that sort.
Recommendation 8: All restrictions on expression and information should be subject
to a public interest defence.
Recommendation 9: Any sanctions for breach of laws restricting expression or
information should be proportionate to the offence.
Recommendation 10: A series of limitations should be imposed on the granting of
injunctions to bring them into line with international standards on freedom of
expression.
Recommendation 11: Journalists should not be required to reveal confidential
sources or information unless this is justified by an overriding public interest.
Recommendation 12: The DA-Notice system as presently constituted should be
dismantled.
Recommendation 13: The protections of the Public Interest Disclosure Act 1998
should apply to security and intelligence personnel.
Recommendation 14: The Intelligence and Security Committee should be given full
Select Committee status.
Abbreviations
DA
ECHR
FOI
GCHQ
ICCPR
MI5
MI6
MoD
OAS
OSA
OSCE
PACE
PIDA
PTA
RIP
SAS
SIAC
Notice System Defence Advisory notice system
European Convention on Human Rights
Bill Freedom of Information Bill FRU Force Research Unit
Government Communications Headquarters
International Covenant on Civil and Political Rights
Intelligence service governing security in the UK
Service governing foreign security
Ministry of Defence
Organisation of American States
Official Secrets Act
Organisation for Security and Co-operation in Europe
Police and Criminal Evidence Act 1984
Public Interest Disclosure Act 1998
Prevention of Terrorism Act
Regulation of Investigatory Powers Act 2000
Special Air Service
Special Immigration Appeals Commission UN United Nations Preface
Preface
In the last few years, the issues surrounding whistleblowing, freedom of expression
and national security in the UK have been attracting high levels of attention. The
British government’s singleminded pursuit of various ex-intelligence officials,
journalists and media outlets has generated much controversy. Not since Clive
Ponting was acquitted by a jury acting against the instructions of the judge,1 and
Sarah Tisdall was convicted and imprisoned in order to deter other civil servants from
leaking information to the media,2 have offences under the Official Secrets Acts been
the subject of such debate. Not since Peter Wright was pursued through the civil
courts of several countries for years on end – at a cost to the taxpayer of some £3
million – in a failed attempt to prevent publication of his memoirs, have injunctions
enjoyed such a high media profile.3
The British Government “has an appalling record of attempting to classify as ‘top
secret’ mere political embarrassment.”4 Only recently, the Government’s record in
this area attracted criticism from the UN Special Rapporteur on Freedom of Opinion
and Expression.5 But if the recent disclosures have substance, it is not mere
embarrassment that the government has shown itself keen to avoid through its actions,
but also the exposure of, and need to take action on, illegal and dangerous activities
1
R v Ponting [1985] Crim. L.R. 318
R v Tisdall (Sarah) (1984) 6 Cr.App.R.(S.) 155. Court of Appeal, Criminal Division
3
“Troubled history of Official Secrets Act”, BBC News 18 November 1998,
<<news.bbc.co.uk/hi/english/uk/newsid_216000/216868.stm>>
4
Nigel West, “Lifting the veil on [the] Security Service”, Letters to the Editor, The Times, 5 June 2000
5
Civil and Political Rights, including the Question of Freedom of Expression, Report submitted by Mr.
Abid Hussein, Special Rapporteur on his visit to the United Kingdom of Great Britain and Northern
Ireland to the Commission on Human Rights, E/CN.4/2000/63/Add.3, 11 February 2000
2
by a branch of the Secret Intelligence Services (MI6)6 and the Force Research Unit
(FRU), a disbanded branch of army intelligence.7
This report was commissioned by Liberty and ARTICLE 19 as a response to the
increased – and increasingly oppressive – use of national security laws by the UK
Government to gag and punish whistleblowers and the media. The UK legal regime
currently permits no way of protecting whistleblowers who work within the Security
and Intelligence Services, and instead provides a battery of legal mechanisms to
punish and deter them. Rather than investigating whistleblowers’ claims and making
public any evidence it may have that the allegations are false, the Government has
made use of these mechanisms to try and limit their dissemination. David Shayler,
Richard Tomlinson, “Martin Ingrams”, Nigel Wylde, Liam Clarke, Tony Geraghty,
Martin Bright, Julie-Ann Davies, Ed Moloney and James Steen are currently or have
recently been subject to injunctions and/or threats of imprisonment.
The UK regime governing national security and freedom of expression fails to meet
internationally accepted standards of freedom of expression and compares
unfavourably in this respect with other established democracies. Whereas many other
countries have long had declassification and disclosure procedures which give
substance to the public’s right to know about their governments’ activities, UK
governments have to date resisted attempts to introduce effective freedom of
information legislation. The draft law on freedom of information currently going
through Parliament is a great deal less progressive than those published by transitional
democracies such as Bulgaria and Moldova, and includes broader exemptions than
those felt to be necessary in the laws of Australia, Canada, Ireland and New Zealand.8
One place from which to begin to understand the deficiencies of the UK regime is the
lack of judicial scrutiny. In the US, the Netherlands and Germany, the courts exercise
the power to examine government claims that national security is harmed.9 In France
an independent commission which has access to classified information decides
whether the courts can have similar access. By contrast, the judicial standard in
British courts appears to be a virtually unquestioning acceptance of the Government’s
claims of national security, with no body independent of the executive to hold the
Government’s claims to account.
Now is an apposite time to reconsider the UK regime governing freedom of
expression and official secrecy. The European Convention on Human Rights has been
incorporated into domestic law via the Human Rights Act 1998, which came into
force in October 2000. It will fundamentally change the legal landscape. The right to
freedom of expression will cease to be defined purely by common law rules, as a
residual freedom occupying the space left by statutory restrictions. It will itself be
established by statute – a statute, moreover, against which all others must be assessed
for compatibility. This offers a rare opportunity for UK law and practice to be
6
David Shayler has alleged that MI6 was involved in a plot to assassinate Colonel Muammar Gaddafi,
the Libyan Head of State
7
The pseudonymous “Martin Ingrams” has alleged that the FRU sought to destroy evidence of crimes
committed by one of its informers by lighting a fire in the offices occupied by the Stevens Inquiry team
8
Submission to the UK Government on the Freedom of Information Bill, July 1999 ARTICLE 19,
Censorship News: Issue 53
9
Sandra Coliver (ed), Secrecy and Liberty: National Security, Freedom of Expression and Access to
Information, Kluwer Law, 1999, Freedom of Information: An Unrecognised Right – The Right to know
and the EU, An EFJ Briefing Document <www.ifj.org/regions/europe/efj/en/eusurvey.html>
assessed for their compatibility with the requirements of the European Convention
and to be reformed to provide more robust protection of freedom of expression
against misuse of national security exemptions. ARTICLE 19 and Liberty present this
report in the hope that its recommendations will provide a useful starting point for the
discussion which must take place, and for the reform process to begin.
Liberty and ARTICLE 19, November 2000
1 International law and principles of free expression
The right to free expression is of fundamental value to society. It is a right that lies at
the heart of democratic society, because it makes possible the meaningful exercise of
citizens’ democratic rights. For this reason, it has been described as “the touchstone of
all the freedoms to which the United Nations is consecrated”.10 The guarantee of free
expression is a key means of holding government to account and of protecting citizens
against abuses of their rights. The press, as the conduit through which individuals can
disseminate and obtain information, has a “pre-eminent role … in a State governed by
the rule of law”.11
The right to freedom of expression is enshrined in a range of international and
regional treaties and instruments which bind the United Kingdom. These include
Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which
codifies the Universal Declaration of Human Rights, and Article 10 of the European
Convention on Human Rights (ECHR). Freedom of expression also enjoys
recognition in the African Charter on Human and Peoples’ Rights and the American
Convention on Human Rights.
Article 19 of the ICCPR and Article 10 of the ECHR encompass the right both to
receive and to impart information. If an individual or a journalist is prevented from
making a certain piece of information public, or reporting a particular story, that
infringes the individual’s or journalist’s right to impart information and the reader’s
right to receive information.
ICCPR:
Article 19(2) Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print?
Article 19(3) [Freedom of expression] may … be subject to certain restrictions, but
these shall only be such as are provided by law and are necessary:
a) For respect of the rights or reputations of others
b) For the protection of national security or of public order, or of public health or
morals
ECHR:
Article 10: Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers?
Article 10(2) The exercise of these freedoms?may be subject to such formalities,
conditions, restrictions or penalities as are prescribed by law and are necessary in a
10
UN General Assembly Resolution 59(1), 14 December 1946, cited in written comments submitted by
ARTICLE 19 in the case of Leader Publications (Pvt) Limited v Rubasinghe and Ors, 30 June 2000,
S.C. (F/R) No. 362/2000
11
Thorgeirson v Iceland, 25 June 1992, 14 EHRR 843, para.63
democratic society, in the interests of national security?[or] for preventing the
disclosure of information received in confidence.
1.1 Striking the right balance: the three-part test
Ensuring the free flow of information is paramount in a democratic society, but at the
same time, it is accepted that the right to free expression is not absolute and that it
may legitimately be curtailed when trumped by competing considerations of sufficient
weight. This is recognised in both the ICCPR and the ECHR, which allow for limited
restrictions on freedom of expression. For example, it is acknowledged that
expression may be restricted in certain cases where it harms the reputation of
individuals. Similarly, national security considerations justify certain restrictions on
freedom of expression.
However, any restriction must satisfy certain stringent criteria in order that they do
not encroach upon the legitimate scope of free expression. There is a well-founded
danger that governments will misuse exemptions to prevent speech for reasons other
than that stated, particularly where it involves national security. It is not sufficient for
a government simply to assert that national security is in issue. Rather, international
and national jurisprudence, as well as the clear language of the treaties, requires that
any restrictions meet the following three-part test, as set out by the ECHR and other
courts:
The first requirement is that the restriction be prescribed by law. The idea of
lawfulness which flows from this encompasses several distinct components. It means,
first, that the restriction must be set clearly in law, for example, in the statutes enacted
by Parliament, through the common law articulated by judges, in secondary
legislation, or in professional rules. Second, the restriction must be articulated with
sufficient precision to meet the tests of legal certainty and foreseeability; it is
important for citizens and the press to be able to understand their obligations and
predict when a certain disclosure is likely to be unlawful. Laws which are excessively
vague or which allow for excessive discretion in their application fail to protect
individuals against arbitrary interference and do not constitute adequate safeguards
against abuse. They “exert an unacceptable chilling effect on freedom of expression as
citizens steer well clear of the potential zone of application to avoid censure.”12
The second criterion that a restriction on freedom of expression must meet is that it be
genuinely directed towards achieving one of the legitimate aims specified in the
treaties. If an individual’s freedom of expression is to be curtailed in the interests of
national security, the restrictions imposed must actually protect national security.
Restrictions that prevent the public from learning of illegality and wrongdoing from
whistleblowers in our state institutions fail this part of the test.
Even where a restriction can satisfy the first and second criteria, it will be a legitimate
limitation on the right to free expression only if it is necessary in a democratic society.
This criterion will be met only where the restriction fulfils a pressing social need.13
The notion of necessity requires, in addition, the key element of proportionality.14
12
Written comments submitted by ARTICLE 19 in the case of Leader Publications (Pvt) Limited v
Rubasinghe and Ors, 30 June 2000, p.9
13
Sunday Times v United Kingdom, 26 April 1979, No 30, 2 EHRR 245
14
Handyside v United Kingdom, 7 December 1976, No 24, 1 EHRR 737
Where national security does require that freedom of expression be curtailed, the
restrictions imposed must impair that right as little as possible, or at least not to an
extent disproportionate with the importance of the legitimate aim being pursued.
These criteria establish a general presumption in favour of free expression. Free
expression is the basic default position from which any departure must be justified.
The exceptions in Article 10(2) must be construed narrowly.15 Only where these
criteria are fulfilled will it be legitimate to curtail the right to free expression in the
name of national security. The burden of demonstrating the validity of the restriction
should rest with the authorities. Moreover, claims to have satisfied the criteria for a
legitimate restriction must be subject to proper independent scrutiny.16 The judiciary
has a crucial role to play in ensuring that freedom of expression is impeded no more
than is strictly required in the public interest.
1.2 The Johannesburg Principles
The aim of the Johannesburg Principles17 (see Appendix 1) is to spell out more clearly
what these standards require of governments in relation to national security. Drawing
on international and regional case law, the Johannesburg Principles were defined by a
group of experts convened by ARTICLE 19 in October 1995. Their aim is to clarify
the meaning of – and the scope of justifiable limitations upon – the right to free
expression as contained in various international conventions and covenants, including
the ECHR. This “fleshing out” has received positive comment from the UN Special
Rapporteur for Freedom of Expression and the UN Special Rapporteur on the
Independence of Judges and Lawyers.18
The Principles recognise that national security is a valid reason for imposing
restrictions on the free flow of information.19 However, if the presumption in favour
of freedom of expression and of access to information is to be respected, the scope of
the exception needs to be defined as strictly and as narrowly as possible. To this end
the Principles include a clear definition of what constitutes legitimate national
security interest. A restriction on the right to free expression is justified in the
interests of national security only if its effect is to “protect a country’s existence or its
territorial integrity against the use or threat of force, or its capacity to respond to the
use or threat of force.”20 Moreover, the presumption in favour of freedom of
expression requires governments to demonstrate that the expression will actually harm
national security; the mere assertion of this by the executive will be insufficient.
The principles also state explicitly that the public’s right to information must be given
due weight. A state may not categorically deny access to all information related to
national security, but designate in law only those specific and narrow categories of
information necessary to protect legitimate national security interests (Principles 11,
15
Sunday Times v United Kingdom, 1979, 2 EHRR 245
Silver and Others v United Kingdom, 25 March 1983, No 61, 5 EHRR 347; Handyside v United
Kingdom 7 December 1976, No 24, 1 EHRR 737
17
The Johannesburg Principles:National Security, Freedom of Expression and Access toInformation,
ARTICLE 19, Media Law and Practice Series, 1996
18
Sandra Coliver, ?Commentary on the Johannesburg Principles,’ in Sandra Coliver et al, Secrecy and
Liberty: National Security, Freedom of Expression and Access to Information, Kluwer Law, 1999,
pp.80-81
19
Principle 1(c)
20
Principle 2(a)
16
12). As a result, once a piece of information is in the public domain no threat to
national security is posed by further disclosure, and these cannot legitimately be
prevented. Such actions do not meet the legitimate aim of restricting free expression
to protect national security, as the Spycatcher case established.21
In addition, the Principles state the widely accepted view that there is a fundamental
public interest in knowing about wrongdoing and illegalities. National security cannot
be used to prevent disclosures exposing illegalities or wrongdoing, no matter how
embarrassing to the government.22 There is no justification for punishing
whistleblowers when they reveal information that is embarrassing or that exposes
wrongdoing. This aspect of the public interest remains fundamental even when such
disclosures harm national security. No person may be punished for making
disclosures that damage national security if the public interest in knowing the
information outweighs the harm from disclosure.23 Whistleblowers’ freedom of
expression should therefore be recognised to be worthy of protection, even when
legitimate national security considerations are in play.
1.3 Conclusion
Preserving free expression and the interests of national security is not just a question
of finding the appropriate balance in situations where the two appear to conflict. It is
also necessary that ultimately this balance should be struck by bodies, particularly the
courts, that are not open to abuse by government. Those who wield executive power
may act in their own political interest, rather than the broader public interest, and
abuse restrictions to avoid embarrassing revelations, and the exposure of
incompetence, illegality and other forms of wrongful action. As we shall see, ensuring
that the procedures and mechanisms work to safeguard freedom of expression
requires, among other things, a clear definition of national security that is subject to
critical judicial oversight.
21
The Observer and Guardian v. United Kingdom, (Spycatcher case), 26 November 1991, No 216, 14
EHRR 153
22
Principle 2(b)
23
Principle 15 and Principle 16
2 “National security”: who decides? The lack of
effective judicial scrutiny
2.1 National security exemptions
It is essential that restrictions on freedom of expression, including for reasons of
national security, be subject to effective oversight by the courts. To fulfil this
function, it is necessary for the judiciary to be able decide whether, in fact, national
security is threatened. In Britain, the right to effective review is undermined by the
limited scope of judicial oversight and the lack of any clear statutory guidelines for
examining what national security covers.
The extent of supervision by the courts of national security restrictions is presently
limited to the standard of judicial review. This is satisfied if the government can
persuade the court that national security was considered as a relevant factor when the
contested decision was made. Under this approach, judges do not evaluate whether the
decision-maker came to a correct decision, in other words, whether national security
actually does justify the restriction.24
The potential for misuse of national security exemptions is exacerbated by a tendency
towards judicial deference in issues involving national security. For example, Richard
Tomlinson, an ex-MI5 officer, was denied recourse to an employment tribunal simply
on the grounds that the government would have to divulge information relating to
national security.25 Similar deference tends to prevail when the government seeks
injunctions to prevent disclosures of purportedly sensitive information.26 It has been
observed that “courts in countries around the world tend to demonstrate the least
independence and greatest deference to the claims of government when national
security is invoked.”27 The European Court of Human Rights has tended in the past to
regard a state’s “margin of appreciation” – its discretion to determine for itself the
compatibility of restrictions on rights with the ECHR28 – as being widest where
national security considerations are involved.29 At the very point where domestic
courts become most deferential and least inquisitive, the European Court appeared to
be more willing to take governments’ claims at face value.
Misuse of the legitimate national security exemption in the UK to avoid
embarrassment and gag whistleblowers has been facilitated by the fact that the
concept of national security is often left undefined. It is defined neither in the ECHR
nor anywhere in UK legislation. National security has been described as a protean
24
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. Court of Appeal
Philip Willan, “Renegade spy to give himself up in return for tribunal hearing” The Guardian, 3 June,
2000
26
Laurence Lustgarten, “Freedom of Expression, Dissent, and National Security in the United
Kingdom,” in Sandra Coliver et al, Secrecy and Liberty: National Security, Freedom of Expression and
Access to Information, Kluwer Law, 1999, pp.467-468
27
Sandra Coliver, “Commentary on the Johannesburg Principles,” in Sandra Coliver et al, Secrecy and
Liberty: National Security, Freedom of Expression and Access to Information, Kluwer Law, 1999, p.13
28
A doctrine first articulated in Handyside v United Kingdom, 7 December 1976, No 24, 1 EHRR 737
29
Paul Mahoney and Lawrence Early, “Freedom of Expression and National Security,” in Sandra
Coliver et al, Secrecy and Liberty: National Security, Freedom of Expression and Access to
Information, Kluwer Law, 1999, p.123
25
idea,30 and an ambulatory concept31 to be construed in light of the circumstances of
each case. However the need for flexibility should not preclude both reasonable
certainty of what it covers and sufficient scrutiny by others of whether in fact it is
harmed.
2.2 Encouraging changes: the Special Immigration Appeals
Commission (SIAC)
The European Court has indicated that national decision-makers have a margin of
appreciation in matters concerning national security. The margin of appreciation is a
highly contested doctrine but in any case, the Court has established that this margin of
appreciation is far from infinite. In certain rulings, it has shown itself to have teeth,
able to tear at the veil of national security that governments draw around their actions.
In so doing, it has indicated that the ECHR requires our domestic judiciary to subject
governmental claims regarding national security to a deeper and more critical scrutiny
than is generally the case.
As described in section 1.1, judges too often leave the definition of national security
largely in the hands of the executive, which effectively gives those with an interest in
suppressing embarrassing or inconvenient information carte blanche to define national
security for their own convenience. This has been recognised to be unacceptable by
the European Court of Human Rights, which has held that judicial review in the UK
fails to provide an effective remedy to the applicant, as required by Article 13 of the
ECHR.32 In the case of an Egyptian cleric’s appeal against deportation, the Court
found that the UK Government’s invocation of national security concerns was
unsatisfactory grounds for refusing to divulge information justifying the deportation
decision. Excessive judicial deference to the executive on the definition of national
security could, therefore, similarly be regarded as contrary to the ECHR.
In response to the judgment in the Chahal case above, the government established the
Special Immigration Appeals Commission (SIAC) to which immigration appeals
could be referred. In a recent hearing, SIAC rejected suggestions that what constitutes
a danger to national security is a matter for the government to determine and not
within the competence of the courts to assess, save insofar as was necessary for
judicial review purposes. Rather, SIAC took the view that the Special Immigration
Appeals Commission Act 1997 had conferred on it the jurisdiction to determine for
itself both the meaning of a “danger to national security” and whether that definition
was satisfied on the facts in issue. Whilst the views of the executive – based on
privileged access to information and expertise – were to be accorded considerable
weight, the ultimate assessment of whether national security was under threat was felt
to be squarely within SIAC’s own remit. The Home Secretary was required to prove
to a high civil balance of probabilities that, on the facts of the case, the individual was
a danger to national security, as defined by SIAC.
30
Secretary of State for the Home Department v Shafiq Ur Rehman, 23 May 2000, No. 1999/1268/C,
para.35. Court of Appeal, Civil Division
31
<<www.dnotice.org.uk/faqs.htm>>
32
Chahal v United Kingdom [1997] 23 EHRR 413
The Court of Appeal has confirmed that SIAC was entitled to take this approach,33
although in its view the SIAC had erred in framing too narrow a definition of national
security. Lord Woolf MR supplied a wider definition for use by SIAC in
reconsidering the case. The core of this definition is that a danger to national security
exists where there is at least a “real possibility” of direct or indirect “adverse
repercussions” on the security of the UK.34
This is the closest we have yet come to a definition of national security for the
purposes of UK law. It is still a wider definition than desirable, and its application is
confined to the issues of terrorism and immigration. The important point for present
purposes, however, is not so much the content of the definitions offered by SIAC and
the Court of Appeal, but rather the fact that SIAC has unambiguously been confirmed
as the arbiter of national security for cases within its jurisdiction. The judicial
deference found in judicial review proceedings was rejected in favour of a full critical
scrutiny of executive claims regarding national security.
SIAC is not a typical court: its three members are drawn not only from the judiciary,
but also from the Immigration Appeal Tribunal and from amongst those with
“experience of national security measures”. 35 In confirming that SIAC did have
authority to “pierce the veil” of national security, Lord Woolf MR appears to have
been impressed by this unusual composition. He noted that “[w]ithout statutory
intervention, this is not a role which a court readily adopts. But SIAC’s membership
meant that it was more appropriate for SIAC to perform this role.”36
2.3 Conclusion
It is unclear to what extent this approach will be regarded as ?transferable? from the
context of SIAC. The fact that SIAC’s statutory authority to scrutinise the executive
was conferred because the European Court found excessive judicial deference to be in
breach of the ECHR lends substance to beliefs that such willingness to subject claims
regarding national security to proper scrutiny may travel across the court system more
generally. In addition, the Human Rights Act 1998 requires public authorities,
including the courts, to comply with the ECHR. As such, it is able to provide courts
with the requisite authority to examine the substance of executive claims to national
security along the lines of the SIAC.37
The lack of effective and independent judicial scrutiny on national security issues
undermines the right to independent review, and makes it impossible to independently
ascertain what constitutes harm in the government’s application of certain laws
governing official secrecy. Effective scrutiny is also crucial when the Government is
granted injunctions based on a claim that the disclosure of information would be
prejudicial to national security.
33
Secretary of State for the Home Department v Shafiq Ur Rehman, 23 May 2000, No. 1999/1268/C,
Court of Appeal, Civil Division
34
Ibid., para.39
35
Ibid., para.11; and s. 1 Special Immigration Appeals Commission Act 1997
36
Ibid., para.42
37
However, it is worth noting that Article 13 ? on which the Chahal decision was based ? is not
incorporated by the Human Rights Act 1998. Consequently, there must be some danger that the courts
might not recognise the Act as supplying them with the requisite authority
3 Legal restrictions on public employees? freedom of
expression: restricting Primary Disclosure
There are various legal mechanisms in place for policing the boundaries between free
expression and national security. The Official Secrets Act 1989 (OSA) is the most
important of these. It imposes various criminal penalties for unauthorised disclosures
by current and former public employees as well as for non-employees (see Chapter 4).
Of at least equal importance in suppressing certain kinds of disclosure is the nexus of
civil injunctions to restrain disclosures on the basis of obligations of confidence,
combined with the use of contempt of court penalties for any subsequent breach of
those injunctions. Whichever route is taken, the ultimate sanction for making
disclosures is the threat of being fined and/or incarcerated by the state.
Moreover, the penalties imposed on those public employees or ex-employees who
make unauthorised disclosures are often explicitly intended to have deterrent effects
on others. Sarah Tisdall, a civil servant, was sentenced to six months imprisonment
for leaking documents to the press, a sentence which the Court of Appeal held to be
appropriate in reflecting an element of deterrence.38 The punishment meted out to
whistleblowers will not necessarily be proportionate to the crime they commit. This
conflicts with Principle 24 of the Johannesburg Principles,39 and contravenes the
proportionality test inherent in the ECHR requirement that any restriction on free
expression be “necessary in a democratic society”, which applies to penalties as well
as to the nature of the restrictions.40 When breaches are punished in this way, the civil
and criminal law relating to national security can be used intentionally to seek a
chilling effect that cannot be construed merely as the unintended unfortunate by-
product of diligently protecting the public interest in national security.
3.1 The Official Secrets Act
There has been an Official Secrets Act (OSA) in force since the first Act was passed
in 1911. Offences of espionage from the original Act survive in the 1911 Act but it is
the Official Secrets Act 1989 which is relevant for present purposes. The OSA
contains a range of offences relating to primary disclosure – that is, disclosure by
current and former members of the civil service, security services or armed forces – of
various types of information. It also creates an offence relating to secondary
disclosure – that is, the further dissemination, by journalists and others, of information
obtained as a result of a primary disclosure. All the major offences under the OSA
are punishable with a maximum term of two years imprisonment and/or an unlimited
fine.41
38
R v Tisdall (Sarah) (1984) 6 Cr.App.R.(S.). Court of Appeal, Criminal Division
“A person, media outlet, political or other organization may not be subject to such sanctions,
restraints or penalties for a security-related crime involving freedom of expression or information that
are disproportionate to the seriousness of the actual crime.”
40
See Tolstoy Miloslavsky v. United Kingdom, 13 July 1995, No 323, 20 EHRR 442
41
S. 10(1) OSA 1989
39
3.1.1 Disclosures by members of the Security and Intelligence
Services
The United Kingdom has three intelligence and security services, known here
collectively as the Security and Intelligence Services: the Secret Intelligence Service,
also known as MI6; Government Communications Headquarters (GCHQ); and the
Security Service, more popularly known as MI5. MI6 is responsible for security
intelligence relating to defence, foreign and economic policy, while MI5 is
responsible for domestic security intelligence. GCHQ is the Government’s
“eavesdropping” centre and monitors communications.
Primary disclosures are disclosures of security-related information by current and
former members of the security and intelligence services. These public employees are
subject to a much more stringent obligation of secrecy than are other civil servants or
members of the armed forces. The latter are liable only where the disclosures they
make are “damaging”, but disclosures made by the former may be penalised without
proof of damage. Anyone who works or has worked for MI5 or MI6 is guilty of a
criminal offence if they disclose any information relating to security or intelligence
gleaned as a result of their employment.42 Present and ex-Security and Intelligence
personnel are subject to a blanket ban on revealing any security-related information.
As such, current and former members of MI5, MI6 and GCHQ may be imprisoned for
making harmless revelations that have no impact on genuine national security
interests.
Moreover, in these cases the OSA does not provide for a public interest defence.43
That is, the OSA does not allow for the idea that it may be in the public interest for a
disclosure to be made. Under the Act, genuine whistleblowers are not distinguished
from those who make malicious or mischievous disclosures. In Germany and the
Netherlands, publication of official secrets and information harmful to national
security can be excused if it serves the public interest. There is no such defence for
whistleblowers under UK law.
No harm test whatsoever is applied in determining whether that person’s actions are
deserving of criminal punishment. The ban on disclosures covers not only legitimately
secret material, but also material that has entirely ceased to be confidential because it
has already been brought, by whatever means, into the public domain. It also covers
material that causes no damage and that which is in the public interest.44
The same offence is committed regardless of the truth or falsity of the disclosure, as
the s. 1(1) offence does not distinguish between them.45 This is unique to security-
related information and does not, for example, apply in respect of defence-related
material. In the White Paper on the OSA of 1989,46 the Conservative Government
then in power stated that this “special treatment” – proscribing disclosure by those in
42
S. 1(1) OSA 1989
A point noted and deplored by the Labour Party when opposing the introduction of the OSA 1989.
Roy Hattersley, as Shadow Home Secretary, argued that “those who expose wrongdoing [should] be
given the right to argue the defence that they did what they did in the public interest.” Hansard, 21
December 1988, 477
44
See the comments of Lord Nicholls of Birkenhead, Attorney-General v Blake and Another, 27 July
2000
45
S. 1(2) OSA 1989
46
Reform of Section 2 of the Official Secrets Act 1911, Cm 408
43
Security and Intelligence Services of all security-related information whether it is true
or false – was justified on the basis that:
(1) as a matter of policy, governments do not comment on the veracity of assertions
about security or intelligence; and
(2) statements by current or former members of the security and intelligence services
have a “particular credibility” that allows false disclosures to cause as much damage
as genuine revelations.47
These provisions can also be applied to civil servants in certain positions by
notification procedure.
3.1.2 Disclosures by other civil servants
It is also an offence under the OSA for civil servants48 other than those employed in
the Security and Intelligence Services to disclose information relating to security or
intelligence obtained as a result of their employment.49 However, such disclosure is
subject to a harm test, so that a civil servant will commit an offence only when
making a “damaging disclosure”. Consequently, disclosure of document X by a
former member of one of the Security Services might be an offence, whilst disclosure
of the same document by a former civil servant in the Home Office might not.
Nevertheless, the test of “damage” is not strict and a disclosure is considered
damaging if it falls within a class or description of information the disclosure of
which is likely to damage the work of MI5 or MI6.50 Thus, it is not necessary that the
particular information disclosed is itself damaging.
It is also an offence to disclose information which is likely to damage defence,51 but
in this instance the notion of damage is more clearly defined to include, inter alia,
material likely to damage the capability of the armed forces to carry out their tasks,
lead to loss of life or injury, or endanger the interests of the United Kingdom
abroad.52 In this case, the actual information disclosed must satisfy this test. There is
no repetition of the “class or description” provision that applies in relation to security
and intelligence information.
An equivalent offence covers unauthorised damaging disclosures by civil servants of
information relating to international relations. 53 This category is clearly defined, but
excessively broad: a “damaging” disclosure for these purposes is one that is likely to
endanger UK interests (or their promotion) abroad.54 A disclosure will be deemed
damaging in this way if it consists of information received in confidence from a
foreign power or international non-governmental organisation.55 It is also an offence
47
Ibid., para.43
Throughout this discussion, “civil servants” is used to refer to both Crown servants and government
contractors
49
S. 1(3) OSA 1989
50
S. 1(4)(b) OSA 1989
51
S. 2(1) OSA 1989
52
S. 2(2)(a)-(b) OSA 1989
53
S. 3(1) OSA 1989
54
S. 3(2) OSA 1989
55
S. 3(3) OSA 1989
48
for a civil servant to make disclosures that are likely56 to result in the commission of
an offence, facilitate an escape from legal custody or impede criminal
investigations.57 This offence also applies where the unauthorised disclosure is of
information obtained by legal interceptions and actions performed by the Security
Service under warrant.58 There is no public interest defence or consideration for any
of these offences.
3.1.3 Comments and conclusions
Current and ex-government employees in the Security and Intelligence Services are
prohibited from revealing any security-related information, regardless of whether it is
harmful and whether it serves the public interest. The only defence available to
Security and Intelligence personnel is to prove that they did not know and had no
reason to believe that the information they disclosed related to security and
intelligence. It is difficult to imagine a defendant successfully invoking this defence.
For other public employees, the OSA does incorporate a harm test but this is often
weak and easy to satisfy, requiring simply that the disclosure be likely to fall within
certain circumstances. As Roy Hattersley, speaking for the Labour Party when the
Official Secrets Bill was debated in 1989, noted, the “definition of harm is so wide
and so weak that it is difficult to imagine any revelation, which is followed by a
prosecution, not resulting in a conviction.”59
The lack of a harm test and the failure to consider the public interest element in the
disclosure makes the OSA incompatible with international standards of protection for
freedom of expression. Principle 15 of the Johannesburg Principles states:
No person may be punished on national security grounds for disclosure of information
if (1) the disclosure does not actually harm and is not likely to harm a legitimate
national security interest, or (2) the public interest in knowing the information
outweighs the harm from disclosure.60
ARTICLE 19 and Liberty recognise that government employees in a position to gain
access to sensitive information can rightly be placed under a duty not to divulge
certain types of information harmful to national security and it is possible that even
false revelations may harm national security. However, we believe those OSA
provisions which fail to incorporate a harm test or public interest defence for any kind
of information, and regardless of whether it is true or false, have deleterious
consequences for freedom of expression and the public interest. Moreover, the active
criminalisation of whistleblowers and the curtailment of expression which has a claim
to some protection in its service to the public interest detracts from the credibility of
the official bodies offered protection by such measures.
When the Official Secrets Act was first proposed in 1988, Roy Hattersley, on behalf
of the Labour Party, then in opposition, took the view that it was “a bad Bill. Its
application is likely to be worse because ? the Government will manage and
56
S. 4(2)(b) OSA 1989
S. 4(2)(a) OSA 1989
58
S. 4(3) OSA 1989
59
Hansard, 21 December 1988
60
See Appendix 1
57
manipulate it.”61 Frank Dobson hoped that “[s]urely we as a Parliament have not sunk
so low that we want to introduce new laws to protect official wrongdoing.”62 The
current Labour government has apparently found the OSA rather more acceptable
than its position in 1988?89 would have suggested.63
3.2 Civil remedies backed by criminal penalties
Prosecutions under the OSA have been relatively rare, not least because they tend to
be embarrassing and inconvenient for the security and intelligence services. A rather
more popular means of preventing both primary and secondary disclosures is the use
of the civil remedy of an injunction. Rather than calling in the police to investigate
what they regard as a criminal offence, the government department concerned litigates
the matter directly using civil law backed by the threat of criminal penalties.
Injunctions
The injunction is one of the most powerful means open to government for controlling
the flow of information. A form of prior restraint, it is also one of the most intrusive
instruments available to government for denying freedom of expression. For this
reason, Liberty and ARTICLE 19 believe there should be a presumption against the
use of prior restraint. In their willingness to use injunctions, the UK authorities are
unfettered by constitutional, statutory or judicial safeguards governing the issuing of
prior restraint orders which exist in countries such as Austria, France, Sweden and the
US.64 For example, in the US, the courts have yet to uphold a single injunction
against free speech on national security grounds, whereas injunctions have been
sought and obtained with alarming ease and frequency in the UK. They may be
sought on the basis of breach of contractual duties, of duties of confidence, fiduciary
duties of confidence or copyright, or the need to prevent the commission of OSA
offences.
Injunctions can be interim, permanent or for a specified period of time, and they can
be obtained at a hearing where the target of the injunction is represented, or, through
an ex parte application, where the target is absent.65 Applications for injunctions to
prevent disclosures of security-related information have several clear advantages for
the Government over criminal prosecution. These include:
Speed. An interim injunction can be obtained via an ex parte application. The target of
an injunction need not be put on notice of the application, and may not even be aware
of the injunction until it is granted and served. Indeed, the government need not even
61
Hansard, 21 December 1988, 478
Hansard, 13 February 1989, 79
63
See §§5-6 below
64
Freedom of Information: An Unrecognised Right—The Right to know and the EU, An EFJ Briefing
Document <www.ifj.org/regions/europe/efj/en/eusurvey.html>
65
An ex parte application is one that proceeds in the absence of the respondent. The respondent, e.g., a
newspaper planning to publish a story about the Security Service, is given no notice of the application
for an injunction and is not represented at the hearing
62
attend a court to obtain the interim order, but can obtain “pyjama justice” at any time
of the day or night by asking a judge to grant an injunction over the telephone.66
Onus of proof. In order to obtain an interim injunction, the government needs to
establish simply that it has an arguable case in law; that damages would be an
inadequate remedy; and that the balance of convenience tells in favour of granting the
injunction.67 With the traditional judicial deference to executive assessments of
national security, it is not as difficult as it should be to persuade a judge that the
balance of convenience favours granting the order.
Burden of proof. In making its application, the government need simply establish
those matters referred to at (ii) to the civil standard of proof; namely, on the balance
of probabilities, rather than beyond all reasonable doubt.
Minimal controversy. Invoking the Official Secrets Act against a person who has
caught the public imagination with revelations of illegalities or incompetence in the
security and intelligence community will always generate political controversy.
Injunctions will typically, although not always, be politically less sensitive. Such
orders carry no immediate threat of imprisonment and are obtained via a technical
procedure with which few citizens are familiar.68 In addition, since injunctions are
typically obtained prior to publication and, in the absence of full information, the
public would tend to assume that the injunction serves a legitimate need. Indeed, it is
possible to obtain injunctions that prevent those to whom they apply from revealing
even the fact that the injunction exists, let alone the precise terms of the order.69
Applications for permanent injunctions do not share all of these advantages. Indeed, it
is not uncommon for the government to fail at the final application having succeeded
at the interim stage. This was the result in the Spycatcher saga.70 However, the
interim injunction is a critical instrument. It can last for months or even years and is
sufficient to suppress the intended disclosure. Eventual failure at trial to transform
interim injunctions into permanent injunctions need cause no great concern to the
government if the disclosures in question are by that time old news, or if a successful
prosecution under the OSA has already occurred. Current procedures for injunction
applications however, will be tightened up considerably under the Human Rights Act
1989 (see Chapter 10).
66
Laurence Lustgarten, “Freedom of Expression, Dissent, and National Security in the United
Kingdom,” in Sandra Coliver et al, Secrecy and Liberty: National Security, Freedom of Expression and
Access to Information, Kluwer Law, 1999, p.467
67
American Cyanamid Co. v Ethicon Ltd [1975] AC 396. House of Lords
68
Laurence Lustgarten, “Freedom of Expression, Dissent, and National Security in the United
Kingdom,” in Sandra Coliver et al, Secrecy and Liberty: National Security, Freedom of Expression and
Access to Information, Kluwer Law, 1999, p.469
69
The injunction granted against “Martin Ingrams” and The Sunday Times in November 1999 “initially
barred [the paper] from revealing that it had been gagged or repeating what had already been
published,” although this term of the order was relaxed on appeal. See Liam Clarke, “Gagging order
protects army’s dirty tricks unit,” The Sunday Times, 28 November 1999
70
Compare Attorney-General v Guardian Newspapers Ltd (No.1) [1987] 1 WLR 1248 House of Lords
(interim injunction upheld despite publication of the book in America) with Attorney-General v
Guardian Newspapers Ltd (No.2) [1988] 3 WLR 776 House of Lords (application for permanent
injunctions refused because widespread publication had destroyed the confidential nature of the
information disclosed in the book)
Injunctions are a civil remedy. However, they are backed up by the threat of criminal
proceedings for contempt of court in the event that the terms of the injunction are
breached. Prosecutions under the OSA are also criminal, so the effective outcome is
the same – to criminalise the dissemination of information, regardless of whether or
not this is in the overall public interest. Indeed, it could be argued that injunctions
pose the greater threat to freedom of expression since trials for criminal contempt are
not conducted in the presence of a jury. The fact that a judge alone presides at such
hearings is of particular concern given the tendency of the judiciary to defer to the
executive in matters of national security, as outlined previously in this report.
The law of confidence
The usual grounds for injunction applications against current or ex-public employees
is breach of laws, conventions and regulations regarding confidence. Members of the
security and intelligence services are deemed to owe the state a lifelong duty of
confidence. 71 Former spies remain under an obligation not to disclose any security-
related information until the day they die. There are several sources of this obligation
of confidence. In David Shayler?s case, the Attorney-General based his claim for an
injunction on:
(i) an express contractual term requiring lifelong non-disclosure;
(ii) an implied contractual term of good faith which would be breached by any
    disclosure;
(iii) a fiduciary duty requiring lifelong non-disclosure;
(iv) a fiduciary duty of good faith which would be breached by any disclosure; and
(v) infringement of Crown copyright in documents containing confidential
   information.
These alleged terms and duties purport to create an enduring obligation not to disclose
any security-related material whatsoever and are reinforced by the blanket terms of s.
1(1) OSA 1989, relating to primary disclosure by present and former members of the
security and intelligence services (see section 3.1).
The law of confidence does require that the government, in seeking to impose an
injunction, establish inter alia that there is a legitimate interest to be protected.
Moreover, where an injunction is sought on these grounds, the public interest in
knowing the information must be considered. However, pleading “national security”
as that legitimate interest in this sphere attracts similar deference by the courts to that
observed during judicial review processes. Once that legitimate interest has been
identified, it is relatively easy to show that the balance of convenience favours an
injunction, since at present the law will find defendants in breach of their obligations
of confidence unless those defendants can show that disclosure served a greater public
interest. Where the application is made ex parte, the defendant can have no
opportunity even to attempt to make such an argument before the remedy is granted.
71
Attorney-General v Guardian Newspapers Ltd (No.2) [1988] 3 WLR 776. House of Lords
In addition to injunctions, a number of remedies may be applied for breach of
confidence and other civil obligations relating to the disclosure of information. These
include:
• Delivery-up. An order may be sought for the delivery-up of documents on the
   basis that the Crown holds copyright in those documents.
• Damages. The government can argue for an award of damages to compensate
   it for loss incurred as a result of breach of contract, infringement of copyright
  and/or breach of fiduciary duties of confidence.
• Account of profits. An order requiring the defendant to account to the Crown
   for all profits made as a result of disclosures may be available on the basis of
  breach of fiduciary duty and breach of copyright. Moreover, the House of
 Lords has recently decided that account of profits may be available for breach
of contract where that breach consists in a disclosure by a former member of
the security and intelligence services that contravenes s. 1(1) OSA 1989.72
3.3 Recent prosecutions of former Security and Intelligence
officers
The OSA 1989 has been deployed frequently in the last few years to counteract
disclosures of security-related material.73
David Shayler
Perhaps the most well-known recent case under the Official Secrets Act is that of
David Shayler. An ex-MI5 officer who left the Intelligence Service in 1997, he is
currently facing three charges of breach of the OSA. In August 1997, the Mail on
Sunday was supplied with security-related information, including the allegation that
the government kept secret files on certain Labour politicians. In July 1998, after he
had left the UK for France, David Shayler allegedly accused MI5 of failing to react on
prior knowledge of a terrorist attack on the Israeli Embassy, and alleged that MI6
officers had plotted to assassinate the Libyan leader, Colonel Gaddafi. A month later
he was arrested in France and held without charge for four months while the UK
Government attempted without success to extradite him. In July 2000, in an article in
Punch magazine, he claimed that MI5, GCHQ and the Metropolitan Police could have
prevented IRA’s bombing of Bishopsgate, in London, but that they failed to do so. In
addition to placing an injunction on Shayler in August 1997, which forbade him from
revealing any further information unless formally authorised, the Government issued
a statement of claim against him on 22 December 1999 for breaching copyright laws
on files held by MI5 and MI6, and breaches of confidence and contract.
The perception of the need for a comprehensive gag on serving and former spies is
not universally shared among members of the judiciary. Judge LJ stated that David
Shayler’s allegation of MI6 participation in a plot to assassinate Colonel Gaddafi “is
either true or it is false, and unless there are compelling reasons of national security,
72
Attorney-General v Blake and Another, House of Lords 27 July 2000
The last OSA prosecution for a security-related disclosure occurred in October 1998. See Richard
Norton-Taylor, “’Blunder’ over naval vetting,” The Guardian, 19 February 2000
73
the public is entitled to know the facts.”74 Despite this entitlement, the combined
effect of s. 1(1) and s. 1(2) OSA 1989 is to expose Shayler to prosecution for making
those disclosures. Given the extraordinary scope of the OSA offences – and the s. 1(1)
offence in particular – it is perhaps unsurprising that the French courts refused the
UK’s request for extradition of Shayler in 1998 on the basis that the charges were
“political” in nature.75 David Shayler returned to the UK voluntarily in August 2000
to face charges of breach of the OSA, and intends to invoke the Human Rights Act in
his defence.
Richard Tomlinson
Richard Tomlinson is an ex-MI6 employee. In 1995 he was denied an industrial
tribunal at which to contest his dismissal on grounds that it would require disclosure
of information harmful to national security. He was sentenced to one year’s
imprisonment in 1997 for offences under the OSA for having sent an Australian
publisher a synopsis of a planned memoir-cum-exposé of his work. Released on
parole in April 1998 after nine months in prison, he was barred from talking to
journalists and his passport was confiscated. However, Tomlinson left Britain and
went to France where he made public allegations that MI6 had been involved in
wrongdoing, one such claim being that there had been an MI6 plot to assassinate
Slobodan Milosevic, then President of Yugoslavia.76
Tomlinson was re-arrested under an international warrant on 31 July 1998 in France,
by officers from Scotland Yard and members of the Direction de la Surveillance du
Territoire (DST), the French equivalent of MI5. The warrant was issued on the basis
of suspicions that Tomlinson was intending to make damaging disclosures regarding
the security and intelligence services. However, the DST personnel quickly
determined that there was insufficient evidence to justify an extradition and, as in the
case of David Shayler, the UK Government’s attempt to extradite him failed and
Tomlinson was released after some 30 hours’ questioning.77 He then travelled to New
Zealand in August 1998, where he was greeted with an injunction obtained by the UK
Government which prevented him from making any security-related disclosures and
complemented the injunction already in place in the UK.78 After the names of spies
were placed on the Internet on 12 May 1999 government suspicion fell on Tomlinson
despite his denial, and he was expelled from Switzerland where he was then living.
The Government continues to believe that he intends to publish damaging revelations
and in May 2000, Italian police accompanied by British Special Branch officers
raided his apartment in Italy and took away personal papers and computer
equipment.79
74
R v Central Criminal Court, ex parte The Guardian, The Observer & Martin Bright, Divisional Court
of Queen’s Bench Division 21 July 2000, draft judgment, p.2
75
“Officials study Shayler ruling,” BBC News, 19 November 1998,
<<news.bbc.co.uk/hi/english/uk/newsid_216000/216795.stm>>
76
“The spy who was snubbed” BBC News 13 May 1999
<<news6.thdo.bbc.co.uk/hi/english/uk/newsid_342000/342853.stm>>
77
David Leppard and Nicholas Rutherford, “The spies dragged in from the cold,” The Sunday Times, 9
August 1998
78
Michael Evans, “Cook gags former MI6 spy in New Zealand,” The Times, 6 August 1998
79
Philip Wilan “Renegade spy to give himself up in return for tribunal hearing”, The Guardian, 3 June
2000
Nigel Wylde
Shayler and Tomlinson may be the most widely-known individuals pursued via the
OSA in recent years, but they are not the only ones. Nigel Wylde, a former army
colonel, has been arrested and charged with making damaging defence-related
disclosures under s. 2 of the OSA. This prosecution has been brought against Wylde
as the alleged source of information published in The Irish War by Tony Geraghty, a
book which includes details of the extent to which the population in Northern Ireland
is kept under computerised surveillance by the state.80 Wylde was identified through
a search of Geraghty’s house under the OSA. No attempt was made to prevent
publication of Geraghty’s book. Indeed, the Ministry of Defence has conceded that
the book was “embarrassing rather than damaging.”81 In October 2000, however, the
MoD lawyers were reported to be seeking to try Wylde in secret, since the MoD is
now claiming that the information in the book was damaging. 82 One obvious reason
for these charges is the hope of exercising a deterrent effect on any further disclosures
of this kind.
“Martin Ingrams”
Also facing prosecution under s.1 of the OSA is the pseudonymous “Martin Ingrams”,
former member of the Force Research Unit (FRU), a now disbanded “clandestine
cell” within army intelligence which handled informants within the IRA and loyalist
paramilitary groups.83 “Ingrams” has made various disclosures to Liam Clarke of The
Sunday Times regarding the activities of the FRU and other security forces operating
in Northern Ireland. He has alleged that the security forces elected not to confiscate or
disable terrorist weapons which were subsequently used in sectarian killings in the
interests of protecting their informers within the paramilitary groups.84 Additionally,
“Ingrams” has claimed that listening devices used by the security forces to gather
information facilitated two SAS ambushes that resulted in the deaths of eleven IRA
members.85
The most notorious of “Ingrams’s” disclosures concerns attempts by the FRU to
disrupt an inquiry conducted by John Stevens (now Commissioner of the
Metropolitan Police) into alleged links between the police and security forces and
loyalist murders. According to “Ingrams”, these efforts reached their peak with an
“illegal burgle-and-burn assault”86 on the offices used by the Stevens Inquiry team.
The fire was intended to sabotage the inquiry in order to prevent or at least delay the
arrest for murder of a FRU informer named Brian Nelson. The attempt failed because
Stevens had fortuitously kept back-up copies of all files elsewhere. Nelson was
convicted.
80
“A pointless prosecution,” The Guardian, 26 February 2000
Richard Norton-Taylor, “Secrets charges against Ulster spy author dropped,” The Guardian, 23
December 1999
82
Richard Norton-Taylor, “MoD wants former officer tried secretly over book revelations”, The
Guardian, 23 October 2000
83
Richard Norton-Taylor, “Secrets and Spies,” The Guardian, 18 May 2000
84
Liam Clarke, “Agents ?stole papers? to nail whistleblower,” The Sunday Times, 2 April 2000
85
Liam Clarke, “Listening devices take the place of agents,” The Sunday Times, 21 November 1999
86
Liam Clarke, “Secret army unit burnt police files,” The Sunday Times, 21 November 1999
81
Certain of “Ingrams’s” claims have been described as “absolutely on the knuckle” by
one RUC officer87 and his allegations regarding interference with the Stevens Inquiry
are being taken seriously by police.88 The issue of concern here is not the legality or
appropriateness of FRU actions but rather the clear public interest in knowing that
such decisions were made and in having access to information regarding the conduct
of security operations in those circumstances. Provided that no current genuine
national security interests are threatened and no lives put at risk, it is important that
such matters be brought into the public domain.
The OSA does not allow “Ingrams” to argue that the public interest justified his
disclosures. The official response to those disclosures has not been to investigate his
allegations of illegal and dangerous acts by the FRU, but rather to make efforts to
identify and prosecute him for breach of the OSA. The hunt for him led to at least one
other arrest under the OSA, that of a former soldier accused of being “Ingrams”. On 1
February 2000, prior to his arrest, the individual’s house was burgled. Amongst the
items stolen was the draft of a memoir.89 Extraordinarily, this manuscript “turned up
a few days later in the hands of the prosecution at a court hearing” for an injunction
preventing publication of the work90 and was used to confront the alleged “Ingrams”
in questioning.91 The MOD claimed that these papers had been received in a
mysterious letter drop. If one has doubts about the justifiability of the OSA offences
themselves, this series of events gives independent cause for concern regarding how
alleged breaches of the OSA are investigated.
3.4 Concluding observations
The Government’s pursuit of the above cases highlights three tendencies, active
criminalisation of whistleblowers; the use of far-reaching injunctions; and increasing
inventiveness in the grounds on which injunctions are sought.
There can be no doubt that there is a powerful public interest in at least some of the
disclosures made by Shayler, Tomlinson, Wylde and “Ingrams”. Yet the OSA makes
criminals of those “insiders?” who would expose illegal and/or dangerous behaviour
by the Security and Intelligence Services. There are at present few, if any, means by
which wrongdoing within these services can be exposed, and the overall public
interest properly assessed. In particular, there is no independent means for balancing
the public interest in disclosure against any genuine national security considerations.
The experiences of Shayler, Tomlinson, Wylde and “Ingrams” highlight the extensive
use of the generally preferred means of gagging state servants, namely the civil
injunction. Experience suggests that when the Government claims “national security”
as the legitimate interest to be protected in applications for far-reaching injunctions,
the desired interim order will be obtained from the courts without great difficulty. The
Government has no hesitation in trying to extend the scope of injunctions as far as
possible. For example, in respect of “Martin Ingrams” and The Sunday Times, the
government requested and initially received an order that prevented repetition of
87
Henry McDonald, “Police in hunt for British agent,” The Observer (Irish edition), 21 May 2000
Liam Clarke, “Met chief blames arson on army,” The Sunday Times, 19 March 2000
89
Liam Clarke, “Agents ‘stole papers’ to nail whistleblower,” The Sunday Times, 2 April 2000
90
Richard Norton-Taylor, “Secrets and Spies,” The Guardian, 18 May 2000
91
Liam Clarke, “Agents ‘stole papers’ to nail whistleblower,” The Sunday Times, 2 April 2000
88
previously published allegations and even mention of the fact that the injunction
existed.92 These conditions were removed on appeal.
In an apparent attempt to counter adverse publicity, the UK Government has denied
that a wide interim injunction relating to David Shayler, in place since September
1997, is a “blanket” injunction, since it allows for the repetition of information
already in the public domain and for new disclosures “if formal authority is obtained
beforehand.”93 In seeking this injunction, the government relied upon a wide range of
claims, including the triumvirate of claims described above, as well as a claim for
breach of Crown copyright.94
92
Richard Norton-Taylor, “Softly, softly,” The Guardian, 10 April 2000
Lord Williams of Mostyn, letter to The Guardian, 6 August 1998
94
This can also constitute a criminal offence. See s. 107 Copyright Designs and Patents Act 1988
93
4 Restricting Secondary Disclosure – Gagging the
Media and others
Democracy requires citizens to be informed so that they can meaningfully exercise
their right to participate in the democratic process. The media play an essential role in
facilitating the process of providing information to citizens. This is particularly
important in regard to information about official wrongdoing. Experience shows that
when wrongdoing does take place, investigative journalists are among those best
placed to expose it. Indeed, because of the great public interest in the conduct of
government, including corruption and other kinds of misuse of public office, the
European Court of Human Rights has frequently noted the important ‘watchdog’ role
of the media.
However, as Chapters 4 and 5 show, formidable barriers are placed in the way of
investigative journalists in the form of laws preventing secondary disclosure of
information relating to national security, and the relative ease with which the
Government is able to pry confidential sources and information from journalists. With
regard to security information, the law in relation to the media, allows the government
to employ a wide range of criminal and civil law to prevent disclosures. In so far as
publication is frequently the primary means by which the public are alerted to such
disclosures, mechanisms invoked against the press are the most effective way for the
government to prevent information from reaching the public.
4.1 Secondary disclosure under s. 5 OSA
The main legal mechanism for preventing secondary disclosure is contained in s. 5 of
the OSA, which makes it a criminal offence for anyone to disseminate information
deemed to be damaging to national security. The principal target of this provision has
always been the media. Although there is a harm test, there is no public interest
defence.
Under s. 5, anyone will commit an offence if:
(i) they receive information from an “insider” by way of a primary disclosure;95
(ii) they make a secondary disclosure without obtaining lawful authority knowing
    (or having reason to believe) that the primary disclosure was unlawful under
   the OSA;96
(iii) they know or have reason to believe that their secondary disclosure would be
     damaging;97 and
(iv) their secondary disclosure is damaging.98
It does not matter whether the target of this provision – normally a journalist or media
outlet – received the information directly or indirectly from the original (insider)
95
S. 5(1)(a)(i) OSA 1989
S. 5(2) OSA 1989
97
S. 5(3)(b) OSA 1989
98
S. 5(3)(a) OSA 1989
96
source. On the other hand, the journalist must have at least reasonable cause to believe
both that the disclosure was unlawful and that it would be damaging to national
security. This may be harder for the prosecution to establish in the case of “outsiders”
than for civil servants and spies, since the latter may be generally assumed to be more
familiar with these matters. Moreover, in respect of this offence, it is for the
prosecution to prove beyond reasonable doubt the presence of all elements of the
offence. Indeed, having the requisite knowledge is a key element of the s. 5 offence.
While it is more difficult to prosecute a journalist under the OSA than a civil servant
or member of the security and intelligence services, the lack of any public interest
defence remains a notable and disturbing feature of the legislation.
4.2 The Defence Advisory notice system (DA-Notice system)
In addition to the media’s important role as a watchdog of government on behalf of
society, they also have a responsibility, as do government employees and the general
public, to exercise their right to freedom of expression so that genuine national
security interests are protected. The DA-Notice system, formerly the D-Notice
system, was set up to prevent disclosures by journalists unsure or unaware of whether
a particular disclosure would be regarded as damaging to national security. However,
Liberty and ARTICLE 19 are of the view that this system represents a seriously
flawed attempt to negotiate the boundaries between press publication of security
information and freedom of expression through an “informal?” system.
The Defence, Press and Broadcasting Advisory Committee was conceived as a
voluntary arrangement between government and the press with the aim of preventing
inadvertent breaches of s. 5 OSA 1989.99 Chaired by the Permanent Under-Secretary
of State for Defence, it has seventeen members, thirteen of which are nominated by
media organisations. The Committee, established in 1912, issues general guidance
notices and specific “Private and Confidential” notices, on categories of information
where secrecy id deemed to be essential to protect national security. Editors or
journalists can, if they wish, consult the Secretary of the Committee, currently Rear-
Admiral Nick Wilkinson, to find out in advance whether any details contained in a
planned story fall within the scope of the five standing DA-Notices which cover
different areas of possible threat to national security. The Secretary’s role is officially
described as that of a confidential mediator between the journalist wishing to publish
and the government department or security service concerned to protect national
security.100 Under the Committee’s rules, any officials whom the Secretary consults
about a particular story must be able to convince the Secretary of the need for secrecy
and cannot initiate police action or legal proceedings unless they have the requisite
information from another source.101
The DA-Notice system is unique – no other country in the world maintains such an
arrangement.102 Some editors are convinced that the system is outdated, a relic of the
Cold War,103 although others concede the value of an “advisory pipeline” of this
99
See §4.2 and §6 below
<<www.dnotice.org.uk/faqs.htm>>
101
Ibid
102
Ibid
103
“What is remarkable about [DA-Notices] is that editors still obey them.” Roy Greenslade, quoted in
The Independent, 18 May 1999
100
nature.104 Regardless of ones’ position on the value of the Committee’s advice, the
DA-Notice system suffers from at least two key flaws. First, existing as it does under
the shadow of the draconian provisions of s. 5 of the OSA, it is hardly voluntary in
any true sense of that word. Absent the threat of OSA prosecutions and other forms of
legal harassment, it may be assumed that few journalists would bother with the DA-
Notice system.
Second, “compliance [with the DA-Notice system] does not relieve the editor of
responsibilities under the Official Secrets Act.”105 Thus, the fact that the Secretary
has raised no objection to a planned story does not necessarily mean that the applicant
editor or journalist is immune from prosecution in respect of any disclosures they then
go on to publish. Given this, the claim by the Secretary that the DA-Notice system
operates on a more stringent and narrower understanding of “national security” than
the OSA and other statutes106 is of scant comfort. The current Secretary maintains that
“negotiation by me between the media and the officials must be preferable to
litigation, especially as litigation tends to be slow and expensive and to end in blanket
suppression of a story or source, rather than removal of just a few details.”107 Many
in the media world, on the other hand, feel that one does not necessarily preclude the
other.
Of at least equal concern is the growing perception amongst journalists that the DA-
Notice system is in fact being used to facilitate censorship of the press by the
government, despite the Secretary’s insistence that it is “independent and media-
dominated.”108 Journalists have expressed the fear that seeking “confidential”
mediation will merely invite early receipt of an injunction and/or investigation for
breach of s. 5 OSA, and this is not helped by the tradition of appointing an ex-Armed
Services person to the post of Secretary. The Secretary offers guidance in consultation
with members of the affected services, and this necessarily gives them advance
warning that a story is about to emerge. Even if the Secretary does not disclose the
identity of the party, it is not difficult for professional intelligence officers to discover
the relevant information in short order. The experience of Tony Geraghty has greatly
reinforced this suspicion (see box below) although the Secretary of the DA-Notice
Committee “denied any collusion between himself and the MoD police”.109
Tony Geraghty
Tony Geraghty was accused of disclosing information regarding the extensive use of
computerised surveillance by intelligence agencies in Northern Ireland in his book,
The Irish War. Prior to publication of his book, Rear Admiral David Pulvertaft
contacted Geraghty’s publishers, inviting the author to submit the manuscript for
evaluation. Geraghty declined, believing that the only reason for the request was to
facilitate the identification of his sources within the SAS.110 Geraghty has reported
that the Secretary responded to his refusal by expressing his hope that Geraghty
104
Cal McCrystal, “Secret stories,” The Guardian, 5 July 1999
“General Introduction to DA-Notices”, <<www.dnotice.org.uk/notices.htm>>.
106
This claim was made by Rear Admiral Nick Wilkinson in the course of a speech to the Society of
Editors on 3 May 2000, See “Media Articles and Speeches,” <<www.dnotice.org.uk/articles.htm>>
107
“Media Articles and Speeches,” <<www.dnotice.org.uk/articles.htm>>
108
Rear Admiral Nick Wilkinson, “Open Secrets,” letter to The Observer, 30 July 2000
109
John Davison, The Independent, 18 May 1999
110
Stephen Glover, “Where’s freedom of information if this journalist is charged next Thursday?” The
Spectator, 6 March 1999
105
“would not come to regret” his non-co-operation.111 No attempt was made to prevent
publication of the book; but Geraghty’s house was raided by Ministry of Defence
police on 3 December 1998 and the author was subsequently charged with the
secondary disclosure offence under s. 5 OSA 1989.112
4.3 Recent prosecutions brought under s. 5 OSA
Tony Geraghty
As outlined above, former Sunday Times defence correspondent Tony Geraghty was
arrested some three months after publication of his book, The Irish War. No
injunction was sought at the time of publication, perhaps because, as the Ministry of
Defence has subsequently conceded, its revelations regarding the extensive
surveillance conducted on the population of Northern Ireland were “embarrassing
rather than damaging.”113 Nevertheless, the publishers came under pressure from
Ministry of Defence police to refrain from issuing a paperback version of the work.114
Geraghty was arrested after a dawn raid of his home on 3 December 1998 for breach
of s. 5 OSA 1989.115 The charge was dropped in December 1999 on the advice of the
Attorney General. Significantly, this change of heart occurred shortly before the case
would have reached committal proceedings, that is, the first point at which the
prosecution case would have been subjected to judicial examination. Geraghty is not
alone in being “surprised that they [the military police] believe that they have lawful
jurisdiction over a civilian author owing no legal duty to the MoD.”116 The charges
against Nigel Wylde, Geraghty’s alleged source, are still being pursued.
Liam Clarke
In 1999, the Northern Ireland Editor of The Sunday Times was threatened with
prosecution for breach of s. 5 of the OSA.117 Clarke published a series of articles
detailing disclosures made by agents, including “Martin Ingrams” (see 3.3), of the
activities of the undercover Force Research Unit (FRU) in Northern Ireland. The
articles contained serious allegations of wrongdoing by the FRU, including claims
that they committed arson to destroy evidence in an official investigation and spied on
and tapped the phones of opposition Members of Parliament. Following a complaint
by the UK Ministry of Defence, Clarke was detained by the Metropolitan Police for
questioning regarding breach of s 5 of the OSA. It remains unclear whether he will be
charged.
111
Cal MacCrystal, “Spying secrets spark ‘abuse’ of the D-notice”, Evening Standard, 12 March 1999
Stephen Glover, “Where’s freedom of information if this journalist is charged next Thursday?” The
Spectator, 6 March 1999
113
Richard Norton-Taylor, “Secrets charges against Ulster spy author dropped,” The Guardian, 23
December 1999
114
Richard Palmer, “Anger at book ban on Ulster spy secrets,” The Express, 26 July 1999
115
Richard Norton-Taylor, “Secrets charges against Ulster spy author dropped,” The Guardian, 23
December 1999
116
Tony Geraghty, “I am censored too,” letter to The Sunday Telegraph, 7 March 1999
117
Letter from Detective Inspector Alan Learner to Liam Clarke, 5 May 2000
112
Julie-Ann Davies
Perhaps the most astonishing case of the use of s. 5 OSA is that of Julie-Ann Davies,
a mature student and volunteer researcher for the satirical programme, the Mark
Thomas Comedy Product. She was arrested and questioned for possible breach of s. 5
OSA on the basis that she had been in communication with David Shayler. Yet the
OSA only prohibits disclosures and it is unclear which disclosures she herself was
alleged to have made. Her university – “an institution committed to freedom of
expression” – was equally perturbed by the development. The Vice Chancellor stated
that Kingston University “would be particularly concerned if it turned out that a
discredited piece of legislation … was being used to suppress journalistic
investigation and the public’s right to know about alleged abuse by the security
services.”118 Although it has since been decided that Julie-Ann Davies should not be
prosecuted, her arrest gives cause for concern, since it shows a determination to
extend the impact of chilling effects beyond prospective whistleblowers and the
media, to encompass anyone inclined to assist – or even to correspond with – a
whistleblower.
4.4 Use of injunctions to prevent publication
As well as being used to gag whistleblowers, injunctions are also brought heavily to
bear on press attempts to publish “damaging information.” Indeed, the government’s
preferred means of gagging the press still seems to be prior restraint via an injunction,
notwithstanding the recent increase in criminal proceedings under s. 5 OSA. Once an
injunction is granted, it can be served not only on the defendant, but also on any
media outlet likely to disclose the information in question. Injunctions can also be
served directly on journalists and their employers.
Significantly for the media, injunctions may be imposed for breach of confidence
even in the absence of any contractual relationship. A newspaper or journalist that
receives security-related information as the result of a primary disclosure may be held
to owe a duty of confidence to the state in equity where they know that the primary
disclosure by the whistleblower occurred in breach of confidence.119 As such, the
government can seek an injunction against the media directly, even if not (yet) able to
identify the primary source of the information concerned and independently of any
legal action against the source.
Injunctions abound at present in relation to the publication of security-related
information by “Martin Ingrams”, Shayler and Tomlinson.
The Sunday Times received an injunction in respect of revelations by “Martin
Ingrams” relating to the Force Research Unit. Newspapers have also been banned
from publishing any disclosure he makes about the 1973 “Bloody Sunday” killings of
civilians by UK security forces in Northern Ireland. Initially, the injunction on
information about the FRU not only covered facts already published, but also
prevented any disclosure of the existence of the injunction. These conditions were
118
Vice Chancellor Peter Scott, quoted in “Student arrested over Shayler link,” The Guardian, 7 March
2000
119
Attorney-General v Guardian Newspapers Ltd (No.2) [1988] 3 WLR 776, House of Lords
relaxed on appeal, but the precise terms of the injunction still may not be disclosed.120
The press has thus been prevented from disclosing any further information relating to
allegations of illegal and dangerous activities, including interference with an
independent police inquiry. 121 It appears that the interests of national security demand
that a willingness to endanger life and impede the course of justice by those in the
employ of the army’s intelligence units be kept secret. The Ministry of Defence
apparently “cannot identify any ‘public interest which demands publication of such
material’”.122
Injunctions also exist to prevent any publication of further allegations from Shayler.
On 6 October 2000 James Steen, editor of Punch magazine, was found guilty of
contempt of court in relation to publication of an article written by David Shayler,
even though the judge found no evidence to believe that it had harmed national
security.123 The article was found to be in breach of the 1997 injunction “which bans
publication of any information David Shayler acquired by virtue of employment for
the security service”,124 although government lawyers admitted that it had been
broken many times before. In accordance with the magazine’s practice, Punch
submitted Shayler’s article to the Government Law Officers before publication for
confirmation that it would not infringe the injunction. When the Treasury Solicitor
was unable to deliver a final verdict on the article in good time, Steen decided to
publish an abridged version of the original. He is currently appealing the guilty
verdict.
4.5 Conclusion
Despite the unacceptability of attempting to chill free expression by criminalising
journalists carrying out their job of investigating alleged government wrongdoings,
the Labour Government currently in power has displayed an increased willingness to
deploy s. 5 OSA, and has sought to exploit additional remedies against those who
have made secondary disclosures in matters touching on national security. ARTICLE
19 and Liberty believe that the UK Government makes excessive use of both civil and
criminal procedures to prevent embarrassing information from reaching the public at
large and that the penalties it seeks to impose have generally been disproportionate to
actual damage caused when balanced against the public interest in knowing the
information.
120
Liam Clarke, “Gagging order protects army’s dirty tricks unit,” The Sunday Times, 28 November
1999
121
See 4.4 below for further detail on “Ingrams’s” disclosures
122
Liam Clarke, “Undercover arsonists promoted by army,” The Sunday Times, 16 April 2000
123
Richard Norton Tayler, “Punch ruled guilty of contempt of court” The Guardian, 7 October 2000
124
Spokesman for the Attorney-General’s office, quoted in Paul Lashmar, “Editor of Punch to face
court for Shayler contempt,” The Independent, 28 July 2000
5 Protection of sources
Journalists’ ability to expose wrongdoing, and hence to exercise their proper function
in a democracy, is often heavily dependent on their ability to receive and hold
information in confidence, and their capacity to make credible promises of confidence
to their sources of information. Further, in many cases, protection of confidential
sources is essential not only to maintain the free flow of information to journalists,
and from them to the public, but also for the personal security of journalists.
Under the current legal regime in the UK, a public interest defence holds no weight
and insiders risk criminal prosecution if they decide to blow the whistle on illegality
and incompetence in matters touching on national security, regardless of how
peripheral or important they may be. Their willingness to do so thus often depends
directly on assurances that their identities will be concealed. If journalists can be
compelled to divulge their sources – or to grant access to documents that could enable
the source to be traced and identified – their promises of confidence will ring hollow.
Across the world, journalists have too frequently and too readily been required to
divulge their sources, and there is a widely felt consensus that the UK courts have
systematically failed to accord due weight to the importance of permitting journalists
to keep their sources confidential. It may be true that “[a]ny rule of professional
conduct enjoining a journalist to protect his confidential sources is subject to whatever
exception is necessary to enable the journalist to obey the orders of a court of
competent jurisdiction.”125 However, this can be regarded as an acceptable statement
of principle only if the court of competent jurisdiction is required to recognise and
give special weight to the public interest in journalists’ ability and interest in keeping
their sources confidential.
5.1 International standards on protection of journalists’
sources
The UN, OSCE and OAS rapporteurs on freedom of expression asserted in February
2000 that: “Journalists should never be required to reveal their sources unless this is
necessary for a criminal investigation or the defence of a person accused of a criminal
offence and they are ordered to do so by a court, after a full opportunity to present
their case.”126
The European Court of Human Rights has emphasised the fact that orders for source
disclosure have the potential to produce a substantial chilling effect, significantly
impairing the capacity of the press to act as public watchdog. One important ruling in
the landmark judgment of Goodwin v UK,127 was that, “[l]imitations on the
confidentiality of journalistic sources called for the most careful scrutiny by the
125
X Ltd v Morgan Grampian (Publishers) Ltd and others [1991] 1 AC 1, House of Lords per Lord
Bridge
126
Statement regarding key issues and challenges to freedom of expression, agreed by: Santiago
Canton, OAS Special Rapporteur on Freedom of Expression. Freimut Duve, OSCE Representative on
Freedom of the Media and Abid Hussain, UN Special Rapporteur on Freedom of Opinion and
Expression, ARTICLE 19, February 2000
127
Goodwin v UK, 27 March 1996, 22 EHRR 123
Court.”128 This requires courts to take their own watchdog responsibilities seriously
and subject any applications for source disclosure to substantive analysis. As the
European Court put it:
“Protection of journalistic sources is one of the basic conditions for press freedom …
Without such protection, sources may be deterred from assisting the press in
informing the public on matters of public interest. As a result, the vital public
watchdog role of the press may be undermined and the ability of the press to provide
accurate and reliable information may be adversely affected. Having regard to the
importance of the protection of journalistic sources for press freedom in a democratic
society and the potentially chilling effect an order of source disclosure has on the
exercise of that freedom, such a measure cannot be compatible with Article 10 of the
Convention unless it is justified by an overriding requirement in the public
interest.”129
Most established democracies – including, for example, Austria, Denmark, Finland,
France, Germany, Italy and Sweden – provide explicit protection for journalists’
confidentiality of sources. It is the view of Liberty and ARTICLE 19 that journalists
should not be compelled to disclose their sources, except under “exceptional
circumstances”, where “vital interests” are at stake.130
5.2 Legal mechanisms for compelling source disclosure in
the UK
There are both criminal and civil mechanisms available to the government to use in
pursuit of journalists either for direct disclosure of their sources, or else for access to
notes and papers which may enable the informant to be identified and traced.
It has been argued that s.10 Contempt of Court Act 1981 provides some degree of
protection to journalists by holding that:
No court may require a person to disclose … the source of information contained in a
publication for which he is responsible, unless it be established to the satisfaction of
the court that disclosure is necessary in the interests of justice or national security or
for the prevention of disorder or crime
This section has been described as requiring the judge to engage in a balancing
exercise, weighing the importance of non-disclosure and the need for disclosure in the
interests of, for example, national security.131 However it fails to give due weight to
the presumption in favour of non-disclosure. S. 10 states that the court must be
persuaded that an order for source disclosure is necessary in the interests of, for
example, national security.
It would appear that the application of s. 10 by judicial authorities within the UK falls
short of the standard set out in Article 10 of the European Convention. In 1996 the
128
Michael Allen & Brian Thompson, Cases & Materials on Constitutional & Administrative Law, 5th
edition, 1998: Blackstone Press, p.565
129
Goodwin v United Kingdom, 27 March 1996, 22 EHRR 123. European Court of Human Rights
130
Protection of Journalists’ Sources: Comparative Law and Jurisprudence, written comments
submitted to the ECHR in the case of Goodwin v UK by ARTICLE 19 and Interights (April 1995)
131
X Ltd v Morgan Grampian (Publishers) Ltd and Others [1991] 1 AC 1, House of Lords per Lord
Bridge
European Court of Human Rights ruled in the case of Goodwin v United Kingdom
that the application of s. 10 of the Contempt of Court Act 1981 by the UK House of
Lords in fining a journalist for refusing to disclose his source violated Article 10 of
the ECHR. The European Court disagreed with the House of Lords regarding the
application of the necessity test, finding that on balance the interest of a democratic
society in a free press outweighed any countervailing interests.132 Significantly, in a
more recent case, striking for its similarity to the facts of Goodwin, UK courts again
ordered source disclosure.133
Orders for disclosure of sources often take the form of the statutory production orders.
These allow the police to access journalistic material that is likely to assist in a
criminal investigation, including investigations into alleged breaches of the Official
Secrets Act.134 There is also common-law power to order similar disclosure to enable
“wrongdoers” to be prosecuted, including those allegedly responsible for a breach of
confidence. 135
Criminal procedures
a) The Police and Criminal Evidence Act 1984 (PACE)
S. 9 of the Police and Criminal Evidence Act 1984 allows for production orders to be
made by a judge if persuaded by the police that certain “access conditions” contained
in schedule 1 are satisfied. The orders are designed to allow the police to pierce the
veil of journalists’ professional confidence in the event that this will assist with a
criminal investigation. The investigation in question could, of course, concern an
alleged breach of the OSA, but only “serious arrestable offences” are covered by the
provisions of s. 9 and sch. 1. Neither s. 9 nor sch. 1 of PACE contain statutory
requirements to weigh press freedom against the interests of facilitating a terrorist
investigation.
b) Prevention of Terrorism Acts (PTA)
Similar powers to those described above (based on less stringent access conditions)
have been conferred on judges by the Prevention of Terrorism (Temporary
Provisions) Acts. Although these powers apply solely in respect of “terrorist”
investigations, they have been placed on a permanent footing in the Terrorism Act
2000, in which the definition of terrorism has been considerably widened.
c) S. 8(4) of the Official Secrets Act 1989
The OSA contains a mechanism to facilitate access to journalists’ papers. S. 8(4) OSA
1989 makes it an offence for a journalist to fail to comply with an “official direction”
for the return or disposal of information subject to s. 5 OSA which is in their
possession or control. This may be punished with three months’ imprisonment and/or
an unlimited fine.136
132
Goodwin v UK , 27 March 1996, 22 EHRR 123
Camelot Group plc v Centaur Communications Ltd [1998] 2 WLR 379, Court of Appeal
134
e.g., s. 9 Police and Criminal Evidence Act 1984
135
Norwich Pharmacal v Customs & Excise Commissioners [1974] AC 133, House of Lords, as
subsequently fettered by s. 10 Contempt of Court Act 1981
136
S. 10(2) OSA 1989
133
d) The Regulation of Investigatory Powers Act 2000
The Regulation of Investigatory Powers Act, passed in July 2000, authorises the
executive to undertake interception of electronic communication on the vague and
undefined grounds of national security and economic well-being, and to compel
access to decryption keys. This legislation legitimises official surveillance of e-mail
correspondence and Internet use by private individuals. Had the RIP Act been in place
at the time, there would have been no need for the Government to take out a
production order against The Guardian to compel surrender of David Shayler’s email
(see section 5.3 below). The surveillance can be carried out covertly on the orders of
the executive without prior judicial authorisation.
Civil orders
Where no criminal offence is being investigated, the government can still rely on
courts to order journalists (and others) to disclose their sources – or grant access to
their papers – in order to identify “wrongdoers”.137 Civil orders can compel
disclosure of the identities of those who have acted in breach of confidence, and who
thus constitute “wrongdoers”. As such, where the Government is able, as it frequently
is, to argue that a disclosure has occurred in breach of confidence, it has grounds upon
which to apply for an order requiring journalists to disclose their sources. These
mechanisms allow the Government to compel journalists to disclose their sources
irrespective of whether the primary and secondary disclosures themselves are being
pursued via the criminal or civil law.
5.3 Recent history of production orders
The recent history of production orders in cases of whistleblowers suggests that the
police find it relatively easy to convince the judge at first instance to make the order,
but that applications for judicial review of that decision are often successful,
frequently on the basis that procedural errors have been committed. This has been the
result in both ex parte Bright138 and ex parte Moloney.139
5.3.1 Ex parte Bright – the use of PACE
In March 2000, Judge Stephens approved production orders against The Guardian and
The Observer under s. 9 and sch. 1, para. 2 Police and Criminal Evidence Act 1984.
These production orders were issued at the request of Special Branch for material held
by The Observer and The Guardian newspapers relating to David Shayler. In
particular Special Branch sought the original of a letter Mr Shayler wrote to The
Guardian containing his email address. They also wanted the notes of Martin Bright, a
journalist on The Observer who reported that Mr Shayler had named two MI6 officers
involved in the alleged plot to kill Gaddafi.
137
Norwich Pharmacal v Customs & Excise Commissioners [1974] AC 133, House of Lords
R v Central Criminal Court, ex parte The Guardian, The Observer & Martin Bright, 21 July 2000
139
R v Belfast County Court, ex parte Moloney, 27 October 1999
138
The orders were sought on the basis that they would advance police investigations
into alleged breaches of the Official Secrets Act.140 An appeal for judicial review of
the decision against the Observer, ex parte Bright, was decided in July 2000. By a
majority of two to one, the court quashed all the orders bar one. In each case, the basis
for the decision was that the grounds for granting a production order (or access
conditions) had not been met. Judge LJ emphasised the need for the presiding judge to
be personally persuaded that each element of those conditions had been properly
made out by the applicant police force.
In particular, the Court held that the evidence did not disclose a “serious arrestable
offence” under the OSA. While s. 1(1) and s. 1(2) offences are always “arrestable”,
they become “serious arrestable” offences only if the disclosure in question has
caused, was intended to cause, or was likely to cause serious harm to state security, or
death or serious injury to any person.141 In respect of the order sought against The
Guardian, there was no credible claim that “serious” harm had been done (or was
threatened) to national security. A more cogent case argument was presented in
relation to The Observer, but again the access conditions were found not to have been
properly made out.
Procedural errors in ex parte Bright
The appeal court found that the original grant of production orders against The
Guardian and The Observer,142 was marred by serious procedural errors. Amongst the
most significant flaws were the following:
(i) All parties to the proceedings, including the judge, had assumed that any
   breach of the OSA amounted to a “serious arrestable” offence as defined by
      the Police and Criminal Evidence Act. In fact, OSA offences, whilst
     “arrestable”, are not “serious arrestable” offences unless the disclosures have
            certain consequences (see above). The police were not put to proof on this
           crucial element of the application.
(ii) The task of giving evidence in support of the application was assigned to DS
    Flynn, a “qualified financial investigator”, as required by police policy.
       However, DS Flynn had not been involved in the relevant investigation prior
      to this point. “In reality he knew nothing, or virtually nothing, about the
     case”143 and was in no position to give an informed assessment of the value to
    the investigation of the materials in respect of which the orders were sought.
(iii) As a result of DS Flynn’s lack of involvement with the investigation, all the
       evidence he produced for the court was hearsay. As such, it should have been
140
Whether the Attorney-General would have consented to such a prosecution may never be known.
Judge LJ expressed “considerable reservations whether there is any evidence at all that Mr. Bright can
be said to have “disclosed” anything to anyone for the purposes of s. 5. On the other hand, Judge LJ
suggested that he might legitimately have been pursued for inciting David Shayler to commit offences
under s. 1 OSA R v Central Criminal Court, ex parte The Guardian, The Observer & Martin Bright,
Divisional Court of Queen’s Bench Division 21 July, draft judgment, p.16
141
S. 116(6) PACE 1984
142
The orders were granted on 17 March 2000 by His Honour Judge Martin Stephens QC at the Central
Criminal Court
143
R v Central Criminal Court, ex parte The Guardian, The Observer & Martin Bright, 21 July 2000,
Divisional Court of Queen’s Bench Division, draft judgment, p.12, per Judge LJ.
accorded less weight than it would have attracted if presented by a person with
first-hand knowledge of the matters in question and capable of being fully
cross-examined on the evidence.
(iv)
Inspector Lerner – an officer more intimately involved in the case – attended
the court throughout the hearing, but counsel for the defendants was not
informed of this fact and so was not given the opportunity to cross-examine
him. Counsel stated that he would, given the opportunity, wish to question
Inspector Lerner. As the appeal court noted, “It is unfortunate that these
observations did not lead to the obvious response that Mr. Lerner was indeed
present and available at court.”144
Comments on ex parte Bright
The judgment on appeal in the case was welcomed as “a ringing defence of press
freedom and the newspapers’ right to publish allegations by whistleblowers.”145
Closer examination of the judgment suggests that such enthusiasm is not warranted.
In fact, the basis of the decision was primarily procedural errors, not the balancing of
freedom of expression in the context of a national security interest. Indeed, “the police
did not claim that either newspaper had in any way threatened national security.”146
However, the judgment is promising in that it contains a recognition that government
claims of national security need to be open to scrutiny. Judge LJ stated that judges
“generally … cannot proceed on the basis of bare assertion by a police officer.”147
However, he also suggested that a “careful summary of the relevant factors” delivered
in open court would suffice, unless even this level of disclosure would itself threaten
national security, in which case “a procedure similar to that used in [Public Interest
Immunity] applications” would be more appropriate.148 It is arguable whether either
of these two approaches can guarantee that the judge will be able to make a truly
independent assessment of the claim that national security was under threat. However,
Judge LJ emphasised that the presiding judge must be personally convinced that the
relevant sch.1 factors are all satisfied and that he/she found unconvincing the Crown’s
assertion that it was “absolutely vital” for the police to get their hands on the material
to facilitate prosecution of the case against David Shayler.
5.3.2 Ex parte Moloney – use of the PTA
In October 1999, a production order against Ed Moloney, a Northern Ireland
journalist was quashed by the High Court in Belfast. A County Court order had been
served on him directing him to surrender notes of interviews he carried out nearly ten
years previously with William Stobie. The latter was a self-confessed police informer
and alleged quartermaster of the Ulster Defence Association, a paramilitary
organisation, who was being investigated for the 1989 murder of Pat Finucane, a
Catholic solicitor. As in ex parte Bright, the judge found the access orders, in this case
based on sch.7, para. 3(5) of the Prevention of Terrorism (Temporary Provisions) Act
144
Ibid., p.13
Richard Norton-Taylor, “Papers win Shayler MI5 case,” The Guardian, 22 July 2000
146
“A court comes to the rescue of free speech,” The Guardian, 22 July 2000
147
Draft judgment, p.13
148
Ibid
145
1989 (which survive in sch. 5, para. 5 of the Terrorism Act 2000) were not made out,
in particular as the police had not proved that there was a possibility that the notes
would be of help in the investigation.149
Comment on ex parte Moloney
Despite this judgment, there is little reason to think that the agenda protecting
freedom of expression has been significantly furthered as regards use of the PTA. As
with s. 9 and sch. 1 PACE, there is no statutory requirement to weigh press freedom
against the interests of facilitating a terrorist investigation, although the judge at first
instance stated that he took the importance of a free press into account in making the
order and this was accepted in judicial review by the High Court. Carswell LCJ took
the view that – despite not being included as a statutory criterion – press freedom was
a material factor to be considered, but the weight to be accorded to that factor was for
the individual judge to determine.150
5.4 Conclusion
Even if the UK courts do consider there to be a presumption against making an order
for disclosure, their historical reluctance to subject claims of national security to
substantive scrutiny weakens its strength. Indeed, it continues to be disproportionately
easy for an applicant able to plead national security to obtain an order for disclosure
of sources. This concern is enhanced by recent legislative developments which further
undermine protection for confidential sources. For example, the Terrorism Act 2000 ?
which preserves the production order provisions from the Prevention of Terrorism
(Temporary Provisions) Act 1989 – greatly extends the definitions of “terrorist” and
“terrorism”151 and the Regulation of Investigatory Powers Act 2000 provides a basis
for email interception, a growing form of communication between journalists and
their sources. In Liberty and ARTICLE 19’s view, there is a clear need for stronger
judicial scrutiny in the UK.
The traditional reluctance of the judiciary to pierce the veil of national security is
unlikely to evaporate overnight, but these judgments may signal a change in attitude
as the courts allocate more importance to protecting press freedom. It is notable for its
insistence that even once access conditions have been made out, the decision to grant
a production order is within the judge’s discretion. In ex parte Bright, the Court held
149
For detail on the background to this judgment, see Justice Delayed … Alleged State Collusion in the
Murder of Patrick Finucane and Others, §6, British Irish Rights Watch, February 2000.
<<http://www.fhit.org/birw/justice.html>>
150
ex parte Moloney, draft judgment, p.15. The production order against Moloney was again quashed
on the narrow ground that the statutory access conditions had not been properly satisfied by the
applicant police force.
151
S. 1 of the new Act defines terrorism in such a broad manner that it might encompass campaigning
bodies, protesters and even workers involved in industrial disputes. The Act covers those who use or
threaten action involving serious violence, serious property damage, endangerment of life, serious risks
to public health and safety or serious interference with an electronic system. (s. 1(2) Terrorism Act
2000) The use or threat of such action becomes “terrorism” if designed to influence the government or
intimidate (a section of) the public in the interests of a political, religious or ideological cause. (s. 1(1)
Terrorism Act 2000) The Act also imposes a duty of disclosure on those – including journalists – who,
in the course of their profession, obtain information relating to terrorist offences. (s. 19 Terrorism Act
2000) Those who, without reasonable excuse, fail to pass on such information to the police commit an
offence
that in deciding how to exercise this discretion, the presiding judge should bear in
mind that:
“[i]nconvenient or embarrassing revelations, whether for the Security Services or for
public authorities, should not be suppressed. Legal proceedings [for production
orders], or the threat of such proceedings, tends to inhibit discussion. … [C]ompelling
evidence would normally be needed to demonstrate that the public interest would be
served by such proceedings.”152
In addition, the incorporation of the ECHR under the Human Rights Act 1998 will
mean that courts are compelled to explicitly balance freedom of expression as a
human right against claims in favour of disclosure. A presumption in favour of
freedom of expression should mean that even where a source falls at the least
protected end of the spectrum, the applicant seeking disclosure should be required to
make a compelling case on the facts, to rebut a presumption that his application ought
to fail.
Given that in the UK both criminal and civil forms of orders compelling source
disclosure are discretionary, in all cases, the public interest in press freedom should be
given considerable weight and a presumption against making the order should be
observed. Judges should exercise their discretion to refuse such orders, save in
exceptional cases, and only when they can be persuaded that the principle of
journalistic confidence has genuinely to be abandoned in the public interest.
Applicants claiming national security to be at stake should be put to proof on that
matter. It is incumbent upon judges to question invocations of national security in
support of those applications; to ensure that the applications are dealt with in a
procedurally proper manner; to insist upon being furnished with carefully prepared
and adequate evidence; and, ultimately, to accord free expression and the principle of
journalistic confidence the weight they deserve.
152
Draft judgment, p.27
6 Chilling the watchdogs and silencing the
whistleblowers
The laws preventing primary and secondary disclosures of security-related
information – whether through prosecution under the Official Secrets Act or through
ex parte applications for interim injunctions – clearly affect those against whom they
are deployed. They may ultimately lose their liberty and/or face substantial financial
penalties. Similar consequences may be visited upon those who refuse to comply with
statutory production orders or equitable disclosure orders under contempt of court
provisions.
However, in addition to such “local” effects on those who disclose information and
those who publish it, these mechanisms also produce wider or global chilling effects.
Given the flawed DA-Notice system, the lack of adequate protection of sources, lack
of clarity as to what national security covers and the lack of effective judicial
oversight, the current regime is well poised to produce chilling effects on free
expression.
There are two ways in which chilling effects dampen the free flow of information:
(i) confidential sources cease to make that information available for fear of the
   personal consequences of doing so; and
(ii) journalists and newspapers are reluctant to make secondary disclosures for
    fear of the personal and/or corporate consequences that may follow
   publication.
The greater the chilling effects at either level, the less the media are able to perform
their vital role as watchdog of the democratic process, and the less informed the
public are about matters they have an interest in knowing, and about which they have
a right to know.
The European Court has stated that such chilling effects must be taken into account in
determining whether a production order is compatible with Article 10 of the European
Convention on Human Rights.153 Individual cases can have indirect and wider
consequences; and these should impact upon whether granting a given order can be
regarded as “proportionate” in the sense demanded by the Article 10(2) requirement
that any restriction on free expression be necessary in a democratic society. Given that
democracy needs its watchdogs to be effective, the danger of producing such chilling
effects must be given due weight in determining what the outcome of a given
application ought to be.
6.1 Whistleblowers deterred
There can be little doubt that UK Governments have pursued a deliberate policy of
seeking to chill at the first level, to make whistleblowers reluctant to come forward.
This is supported by the judiciary’s willingness to impose sentences under the OSA
which signal a clear intention to exert a deterrent effect.154 Given the extensive scope
153
154
Goodwin v United Kingdom, 27 March 1996, 22 EHRR 123
R v Tisdall (Sarah) (1984) 6 Cr.App.R.(S.) 155, Court of Appeal, Criminal Division
of the OSA offences and the lack of any public interest defence thereto, such deterrent
effects must work to discourage the majority of disclosures which would otherwise be
made in the public interest, as much as those who might seek to reveal information
with malicious intent. For example, Jestyn Thirkell-White, a former colleague of
David Shayler’s who has recently come forward to endorse some of the latter’s
disclosures, “had always agreed with Shayler’s analysis of MI5’s failings … but was
originally deterred, as well as appalled, by the harassment and the imprisonment of
his former colleague.”155
In the civil arena, the courts have recently expressed a willingness to treat breaches of
contractual obligations of confidence by former members of the security and
intelligence services as deserving of special treatment, in the form of particularly
harsh and disproportionate penalties. In such cases, the courts have, for example,
abandoned the general rule that the proper remedy for breach of contract is
compensatory damages. Instead, they will at least consider awarding an account of
profits, even where the disclosures in question cannot be regarded as having
contravened any fiduciary duty of confidence.156 At least part of the justification for
this move is that the breach of contract in question in such cases will necessarily also
constitute an offence under s. 1 OSA.157 As such, this may be read as a further means
of deterring acts in contravention of the OSA.
6.2 Media self-censorship
The recent trend of threatening journalists with prosecution under s. 5 OSA 1989 is
being supplemented by a growing willingness to put financial pressure on newspapers
via civil claims for damages.158 If individual journalists cannot be made to fear for
their liberty, then perhaps their employers can be made to fear for their wallets. Civil
actions such as applications for interim injunctions and production orders often have
indirect chilling effects as contesting such orders can be extremely expensive and
time-consuming. In addition, failure to comply with their terms can result in fines
and/or imprisonment. The authorities have some incentive in initiating proceedings –
whether in the criminal or civil courts – because even a prosecution or suit that
eventually fails can help reinforce the chill.
6.2.1 Slate – a case of Internet self-censorship
When David Shayler’s allegations regarding MI6 involvement in a plot to assassinate
Colonel Gaddafi were first circulated in 1998, the British newspapers hesitated in
publishing the story for fear of being in breach of the standing injunction against
disclosing any security-related information obtained from Shayler.159
Given the initial reluctance of British newspapers to publish Shayler’s allegations
about MI6 involvement in the Gaddafi plot, one UK-based journalist e-mailed an
article about the allegation to Slate, an Internet news site. His suggestion was that
Slate – being an American site – could publish the story which, given the global
155
Mark Hollingsworth, “Opening the floodgates,” The Guardian, 25 July 2000
Attorney-General v Blake and Another, House of Lords, 27 July 2000
157
Ibid., per Lord Nicholls of Birkenhead
158
See §§4§6 for details regarding the range of claims brought against David Shayler and Associated
Newspapers
159
This was issued on 4 September 1997
156
nature of the Internet, would then be available in the UK.160 Legal advice convinced
Slate and its parent company, Microsoft, that the site would not necessarily escape
sanction under the OSA and Slate therefore declined the invitation to publish. Shortly
thereafter, The Sunday Times took the risk of mentioning Shayler’s allegations and
then other newspapers took up the story, reporting the fact that the allegations had
been reported.161 Had The Sunday Times not taken this step, the initial chill might
have persisted. This illustrates how the threat of prosecution under the OSA can create
chilling effects that reach beyond the borders of the UK.
On the other hand, if Slate had not been a subsidiary of a global corporation with a
UK presence, it is unlikely that its editor would have felt the intended chill. “Our
British friend instantly and effortlessly e-mailed us the rogue spy’s article, and if we
hadn’t been worried about British law we would have made it as instantly and
effortlessly available in Britain as if he’d published it himself.”162 This perhaps
underlines the view expressed by Rear Admiral David Pulvertaft, former DA-Notice
Secretary, that the Internet is “unpredictable and uncontrollable.”163 The government
has sought to limit the impact of Internet publication by refusing to recognise
dissemination over the Internet as putting the material in the public domain. 164 This
view would mean that it was still prohibited to publish material from the Internet in
newspapers, contrary to the general rule that once material is in the public domain,
further publication does not threaten national security.
In the end it was the New York Times, which was not covered by the injunction,
which published the details of the allegations in August 1998. The Guardian and then
other British papers followed suit. The allegations were also the subject of an episode
of the current affairs programme Panorama.
6.3 Conclusion
The chilling effect of UK legislation and practice extends far beyond those directly
affected. Whether chilling effects are deliberately sought or whether instead they are
the unintended by-products of actions taken for other reasons is to some extent
irrelevant. As long as genuine whistleblowers are prosecuted alongside those who
make genuinely damaging disclosures, and the media are actively prevented from
publishing revelations of wrongdoing in the public interest, this chilling effect will be
widely felt. The public interest demands a substantial thaw.
160
Michael Kinsley, “How we lost that story,” 8 August 1998 <<slate.msn.com/Readme/98-08-
08/Readme.asp>>
161
Ibid
162
Ibid
163
Quoted in “Internet exposure sparks fears for safety of spies,” Financial Times, 13 May 1999
164
David Pallister, “World web war worries censors,” The Guardian, 13 May 1999
7 A culture of greater openness?
The British State has long been criticised for its culture of secrecy and lack of
openness. The operation of the parliamentary system has been described as an elective
dictatorship, and the stranglehold that the executive exercises on information and on
decision-making was only tempered in the 1980s by the establishment of a select
committee system.
The Labour Party, before its election in 1997, pledged that it would introduce a new
culture of openness and transparency and broaden the processes of political
accountability. Since it took office it has enacted one piece of legislation and has
another in the pipeline, both of which – if they met international standards – would
encourage and facilitate the dissemination of information to the media and the public.
The Public Interest Disclosure Act 1998 provides protection for leaks concerning
unlawful or otherwise damaging activities, and its effects are already beginning to be
felt. The Government is still attempting to steer its Freedom of Information Bill,
providing for a right to access information held by public authorities, through the
legislative process. However, it has come up against stiff resistance from many
quarters, and it still falls far short of international standards165 – in particular in
relation to the excessive regime of exemptions included in the Bill.
While such legislation is welcome, neither piece of legislation applies to the Security
and Intelligence services, illustrating the utter lack of willingness on the part of
Government to tackle the veil of secrecy on matters of national security. It is precisely
where other mechanisms of holding government and state to account are weakest that
this new legislation is most feeble. The lack of accountability on matters concerning
national security is further reinforced by inadequate parliamentary oversight on these
matters.
7.1 Public Interest Disclosure Act 1998
The Public Interest Disclosure Act 1998 (PIDA) amends the Employment Rights Act
1996 to provide statutory protection for those who, in the public interest, breach
duties of confidence and make disclosures regarding inter alia illegalities and
wrongdoing.166 Under certain conditions, PIDA will protect disclosures made to the
press, although the preferred recipients of such disclosures are employers or those
appointed to hear grievances.167 Where individuals have made disclosures that fall
within the scope of PIDA, they are entitled not to be subject to any adverse
consequences as a result.168 If they are dismissed as a result of making such
disclosures, this will constitute unfair dismissal.169
The restricted scope of PIDA, however, highlights the limited way in which the
Government is prepared to be open. None of these protections extends to those
165
See Appendix 2
S. 1 PIDA 1998, adding s. 43B ERA 1996
167
S. 1 PIDA 1998, adding ss. 43C-43H ERA 1996
168
S. 2 PIDA 1998, adding s. 47B ERA 1996
169
S. 5 PIDA 1998, adding s. 103A ERA 1996
166
employed by the security and intelligence services,170 even where they expose
illegalities and incompetence. In light of the fact that the public interest may favour
the disclosure of some secret information, this failure to offer protection would not
appear to serve the public interest. Parliament ought to consider afresh the question of
whether whistleblowers from within MI5 and MI6 should be given some protection
against adverse consequences arising as a result of their disclosures. This is
particularly important where, due to the lack of effective internal and external
accountability structures, whistle-blowing may be the only way in which attention can
be brought to bear on wrongdoing.
It might be said that the ability of those services to discharge their functions is
peculiarly sensitive to the perceived loyalty and integrity of its officers. The courts
have held that: “It is of paramount importance that members of the [Secret
Intelligence Service] should have complete confidence in all their dealings with each
other, and that those recruited as informers should have the like confidence.”171
However, it is surely going too far to suggest that this factor is of paramount
importance. It may be that members of the Security and Intelligence Services should
not benefit from exactly the same remedies as others, for example in relation to a right
to reinstatement, but there can be little justification for denying such whistleblowers
any protection from sanction.
7.2 The Freedom of Information Bill
The Government claims to honour a manifesto commitment by introducing a draft law
on freedom of information. However, the Freedom of Information Bill currently going
through Parliament fails to provide any alternative systematic means of disseminating
security-related information which is in the public interest and so leaves the press-as-
watchdog reliant on unauthorised disclosures.
The provisions in the Bill relating to security bodies effectively impose a blanket ban
on any information about their operation.172 MI5, MI6, GCHQ and the special forces,
are completely excluded from the obligations of disclosure set out in the Bill.
In addition, all information “directly or indirectly supplied to the public authority by,
or [which] relates to the work of” security bodies is also exempt (s. 21(1)). Moreover,
a certificate signed by a Minister of the Crown will stand as conclusive evidence that
any information requested falls within this blanket exemption.173 A similar exemption
applies in respect of other information to be withheld from the public in the interests
of safeguarding national security. Again, a ministerial certificate will suffice as
conclusive evidence that information falls within this category.174 The provision for
ministerial certificates to constitute conclusive evidence of a legitimate exemption
offers scant comfort to those who regard the executive’s ability to deflect proper
scrutiny through claims of national security as a vital tool for maintaining the current
imbalance between free expression and other elements of the public interest. Further
170
S. 11 PIDA 1998, adding s. 193(4) ERA 1996
Attorney-General v Blake and Another, 27 July 2000, House of Lords per Lord Nicholls of
Birkenhead
172
Submission to the UK Government on the Freedom of Information Bill, Censorship News No. 53,
ARTICLE 19, July 1999
173
cl.21(2) FOIB 2000
174
cl.22 FOIB 2000
171
exemptions apply in respect of information that would be likely to prejudice defence,
international relations, or the economic interests of the UK.175
Although s. 14 of the Bill allows authorities to disclose exempt information where this
is in the public interest, the blanket nature of the security exemption is exacerbated by
the fact it is one of only two exemptions to which s. 14 does not apply. Thus, s. 21
precludes disclosure of information even where this is clearly in the public interest. In
effect, s. 21 completely negates any public access to the very broad range of
information it covers. The Freedom of Information Bill therefore provides little more
by access to information about national security than existed before.
7.3 Lack of democratic accountability of the Security and
Intelligence Services
The need for greater accountability has led to some change in the way that the
Security and Intelligence Services function. However, the extent to which they can be
said to be subject to adequate parliamentary oversight is questionable. Yet
parliamentary oversight is of key importance to ensuring that the security and
intelligence services are accountable for their activities to the same degree as other
public bodies. Judging by the number of whistleblowers that have come forth over
time, and the support that they have attracted from some of their ex-colleagues, there
appears to be a need for Parliament to scrutinise more closely the work of the security
and intelligence services, particularly as internal mechanisms dealing with
wrongdoing do not appear to be working.
Given the view of some ex-security and intelligence services officers that there is “no
mechanism for internal dissent” and that members of MI5 have “no confidence in the
so-called staff counsellor,” a former permanent secretary,176 whistle-blowing appears
to some employees within the security and intelligence services as the only way to
draw attention to wrongdoing. But relying on whistleblowing to expose wrongdoing is
unsatisfactory and a poor substitute for properly effective structures of accountability,
both internal and external.
In 1989 and again in 1994 there was some movement towards making the Security
and Intelligence Services more accountable to elected representatives. In the wake of
various leaks and controversies, and a case resulting from MI5?s surveillance of
Liberty, the Government passed the 1989 Security Services Act which provides for
statutory regulation of the activities of MI5.177 GCHQ and MI6 were also formally
established by the Intelligence Services Act 1994. However, the system of
commissioners and tribunals empowered to “check the legality of warrants issued by
ministers”178 has yet to uphold a single complaint.
In 1994, the Intelligence Services Act was passed providing for limited Parliamentary
oversight through the establishment of the Intelligence and Security Committee.
However, limitations in its mandate have led many to conclude that the security and
intelligence services are still not subject to a satisfactory level of Parliamentary
175
cll.24, 25 & 27 FOIB 2000
David Shayler and Jestyn Thirkell-White make these claims. See Mark Hollingsworth, “Opening the
floodgates,” The Guardian, 25 July 2000
177
Hewitt and Harman vs. UK(1) (1991) 14 EHRR 657) European Court of Human Rights
178
Ian Leigh, “Have you logged on to the MI5 website?” The Times, 29 August 2000
176
oversight. 179 In particular, as a statutory, rather than a Parliamentary Committee, it
enjoys none of the formal powers of a Select Committee. Members are appointed by
the Prime Minister, to whom it reports. Its remit is to examine expenditure,
administration and policy of the security agencies, but it is restrained from examining
operations. It can compel evidence from heads of agencies but has no power to
summon witnesses or demand information from the public at large. Perhaps the most
limiting feature of the Committee is the fact that it has to operate within the “ring of
secrecy” – “the Committee cannot itself control the extent to which its conclusions are
made public … the Prime Minister may – after consultation with the Committee –
exclude material which he considers to be prejudicial to the continued discharge of
the functions of the Agencies …”180 This once again reinforces the executive’s
monopoly over defining what constitutes national security.
The view that the Intelligence and Security Committee should be given full Select
Committee status was endorsed by the Home Affairs Select Committee last year and
many other senior politicians before that.181 This status would give the Committee a
status independent of the executive in national security matters and would extend its
ability to investigate wrongdoings and to maintain effective oversight over the
Security and Intelligence Services. In proposing such a scheme in 1989, Roy
Hattersley said:
“One of the advantages of a Select Committee in comparison with other institutions is
that under our scheme it would write its reports after listening to the Government’s
advice about the need for security. That difference is crucial. It demonstrates the
weakness of one and the strength of the other. It is the difference between keeping the
supervision of the security services within the family of the establishment or
extending it to a responsible but essentially independent oversight.”182
Making the Security and Intelligence Services answerable to Parliament, in part by
conferring full Select Committee status upon the Intelligence and Security
Committee, would go some way to addressing the Security and Intelligence Services’
current lack of accountability.
7.4 Conclusion
The lack of accountability and openness about the security forces makes
whistleblowers from within the security and intelligence services particularly
valuable. In the absence of any substantial alternative means by which Parliament can
scrutinise the conduct of those services, unauthorised disclosures by those within the
intelligence community constitutes a vital source of information on illegalities and
wrongdoing. Yet the government has shown that it is not only unwilling to protect
whistleblowers, but actually pursues them instead. Its commitment to openness is
therefore open to question.
179
“Our spies must answer to Parliament for their actions” Donald MacIntyre, The Independent, 22
August 2000
180
Third Report: Accountability of the Security Services, Select Committee on Home Affairs, House of
Commons, 21 June 1999
181
Ibid
182
Official Report 16 January 1989 col 37
ARTICLE 19 and Liberty believe that the Government can do much more to fulfil its
commitment to openness. It should extend the protection offered by PIDA to its
employees in the Security and Intelligence Services, and amend the current FOI Bill
to remove the blanket exemption of security information and generally to meet the
standards of openness of many other established democracies. Lastly, it should
subject the Security and Intelligence Services to greater Parliamentary scrutiny than
currently exists.
8 The Future of Secrecy under the Human Rights Act
1998
The most significant recent piece of legislation in relation to the laws on security and
freedom of expression is the Human Rights Act 1998 (HRA) which came into force
on 2 October 2000. The HRA finally incorporates the ECHR into UK law.183 UK
citizens are now able to rely on their ECHR rights before domestic courts, both as a
defence to civil action and criminal prosecution and as a cause of action against public
authorities in civil actions and judicial review.184 The government regards the HRA
as “a considerable achievement” and has “urged people to make the most of their new
rights.”185
For those facing prosecution and civil suits for making security-related disclosures
such as David Shayler, Nigel Wylde, “Martin Ingrams”, the HRA will be a welcome
means of defending their right to free expression.
Under the HRA all legislation is to be construed, where possible, so as to render it
compatible with the ECHR rights incorporated by this Act.186 The HRA for the first
time gives the courts in Scotland, Northern Ireland and England and Wales the power
to strike out secondary legislation, such as statutory instruments and Orders in
Council, where it does not admit of a compatible interpretation.187 Similarly, the
courts may invalidate administrative actions, including those conducted under the
Royal Prerogative.188 The courts cannot, however, strike out primary legislation –
that is, Acts of Parliament.189 Rather, in the name of parliamentary sovereignty, the
courts will only be able to declare them incompatible with the ECHR190 and it will
then be for Parliament to amend the offending statute (the Act provides for a special
“fast-track” procedure for this).191 In the meantime, the incompatible statute will
continue to apply, so a declaration of incompatibility has no impact on the
proceedings within which it is issued.192
8.1 Freedom bred in the bone of common law?
It is sometimes claimed by the courts that the provisions of Article 10 of the ECHR
are reflected in the common law of England and Wales,193 and that freedom of
183
The HRA does not incorporate Article 13, which confers the right to an effective remedy to correct
infringements of the “substantive” ECHR rights
184
Provided the individuals in question are “victims” of a breach of ECHR rights. See s. 7 Human
Rights Act 1998
185
Robert Verkaik, “Human rights claimants will be able to get instant justice,” The Independent, 12
August 2000
186
S. 3 HRA 1998
187
Ibid
188
S. 6 HRA 1998
189
S. 3(2)(c) and s. 6(2)(a) HRA 1998
190
S. 4 HRA 1998
191
S. 10 HRA 1998
192
S. 4(6) HRA 1998
193
Derbyshire County Council v Times Newspapers Ltd [1993] AC 534; Attorney-General v Guardian
Newspapers Ltd (No.2) [1988] 3 WLR 776
expression is “bred in the bone” of the common law.194 However, ARTICLE 19 and
Liberty believe that many aspects of British law and practice are not currently
compatible with the ECHR. As a respected commentator has observed, “[the] British
system precisely does not put the onus on government to justify interference with
fundamental political rights. Parliamentary sovereignty in practice raises the executive
above any systematic legal or political restraint. … Moreover, the judiciary imposes
further restraints on itself, most notably in cases involving national security.”195 The
HRA should, therefore, provide an opportunity for a significant review of British law
and practice in the area of secrecy and national security.
One significant difference under the HRA is that courts will no longer be restricted to
the standard of judicial review when assessing legislation and administrative actions.
We believe that the courts should apply the three-part test set out above to any
restrictions on freedom of expression, in particular to require any restriction to be
“necessary in a democratic society”. This means that the traditional deference courts
have shown in the face of executive claims regarding national security is no longer
acceptable; instead, courts should now see themselves as under a duty to subject
attempts to limit free expression to proper scrutiny.
Another difference is that courts must now take account of the jurisprudence of the
European Court and Commission of Human Rights.196 Compliance with this
requirement will demand that the UK courts interpret the “rights and freedoms
guaranteed … consistent with the general spirit of the Convention.”197 This means that
the courts should give a broad construction to the basic freedoms – as the right to free
expression in Article 10(1) – construe the legitimate exceptions to those freedoms,
such as the national security exemption in Article 10(2), in a narrow manner.
In this respect, it is worth citing statements made by the Lord Chancellor in a lecture
delivered on 16 December 1997.198 Discussing the likely impact of incorporating the
ECHR, Lord Irvine of Lairg stated that from incorporation, judicial scrutiny:
will not be limited to seeing if the words of an exception can be satisfied.
The Court will need to be satisfied that the spirit of this exception is made
out. It will need to be satisfied that the interference with the protected right
is justified in the public interests in a free democratic society [and will] have
to apply the Convention principle of proportionality.
8.2 An end to judicial deference
As noted above, the HRA should bring about a significant change in the way UK
courts assess restrictions on freedom of expression on grounds of national security. It
could be argued that the HRA requires courts to adopt an approach closer to that of
194
R v Central Criminal Court, ex parte The Guardian, The Observer & Martin Bright, 21 July 2000,
draft judgment, p.24
195
F. Klug, K. Starmer and S. Weir, The Three Pillars of Liberty: Political Rights and Freedoms in the
United Kingdom (1996), quoted in Michael Allen and Brian Thompson, Cases & Materials on
Constitutional & Administrative Law, 5th edition, Blackstone Press, 1998, pp.507-508
196
S. 2 HRA 1998
197
Soering v United Kingdom (1989) 11 EHRR 439
198
Lord Irvine of Lairg, “The Development of Human Rights in Britain under and Incorporated
Convention on Human Rights,” partially reprinted in Michael Allen and Brian Thompson, Cases &
Materials on Constitutional & Administrative Law, 5th edition, Blackstone Press, 1998, pp.539-541
the Special Immigration Appeals Commission, which was itself a response to a case
in which the European Court concluded that, where questions of national security
were at issue, the UK’s immigration and deportation procedures were not ECHR-
compliant.199 As Lord Woolf MR has observed, subjecting claims regarding national
security to proper scrutiny is not a role that the courts readily adopt in the absence of
statutory intervention.200 The HRA now provides that statutory basis and, as Lord
Irvine of Lairg has concluded, “a more rigorous scrutiny than traditional judicial
review will be required.”201
The implications of a revised judicial approach could be wide-ranging. The HRA
allows the courts to substantially reinterpret legislation, including the Official Secrets
Act, and to issue declarations of incompatibility where this fails to render laws ECHR
complaint. It also allows courts to re-evaluate the traditional approach towards the
exercise of their discretion, for example in awarding production orders, interim
injunctions and other civil remedies. Similarly, the deterrent effect of penalties can be
taken into account by assessing whether a particular claim violates the requirement of
proportionality.
8.3 The HRA and injunctions
The HRA contains specific provisions relating to interim injunctions which will
significantly impede the Government’s ability to secure gagging orders of this nature.
Such injunctions are often obtained through an ex parte application, that is, in the
absence of the respondent. Under the HRA, no ex parte relief can be granted unless
either the government has taken all practicable steps to put the respondent on notice or
there are compelling reasons for the proceedings to be conducted on this basis.202
Moreover, an interim injunction will be justifiable only if the government can show
that a permanent injunction is likely to be obtained at trial.203 This is quite different
from present requirements, under which the applicant only needs to show that there is
an “arguable” case where the balance of convenience favours an injunction. Courts
are now explicitly required to take into account the extent to which the material in
question has entered or is about to enter the public domain and, significantly, the
extent to which it would be in the public interest for the material to be published.204
These changes – inspired by media concern that the judiciary might give too little
weight to freedom of expression as against individuals’ right to privacy under Article
8 of the ECHR205 – mean that ex parte interim injunctions to prevent security-related
disclosures should now be far more difficult to obtain. They are much-needed
safeguards against a remedy frequently abused by the Government to prevent the
dissemination of a wide range of information.
199
Chahal v United Kingdom (1997) 23 EHRR 413
Secretary of State for the Home Department v Shafiq Ur Rehman, 23 May 2000
201
Lord Irvine of Lairg, “The Development of Human Rights in Britain under and Incorporated
Convention on Human Rights,” partially reprinted in Michael Allen and Brian Thompson, Cases &
Materials on Constitutional & Administrative Law, 5th edition, Blackstone Press, 1998, p.557
202
S. 12(2) HRA 1998
203
S. 12(3) HRA 1998
204
S. 12(4)(a) HRA 1998
205
Brian MacArthur, “Farewell kiss-and-tell,” The Times, 18 August 2000
200
Section 12 Human Rights Act 1998 and Freedom of Expression
Section 12 (2) If the person against whom the application for relief is made (“the
respondent”) is neither present nor represented, no such relief is to be granted unless
the court is satisfied-
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.
(3) No such relief is to be granted so as to restrain publication before trial unless the
court is satisfied that the applicant is likely to establish that publication should not be
allowed.
(4) The court must have particular regard to the importance of the Convention right to
freedom of expression and, where the proceedings relate to material which the
respondent claims, or which appears to the court, to be journalistic, literary or artistic
material (or to conduct connected with such material), to-
(a) the extent to which-
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.
8.4 An ECHR-compliant OSA
The HRA should also significantly affect application of the Official Secrets Act. On
the face of it, the OSA is clearly incompatible with the ECHR and is widely
recognised to be so, although it remains to be seen as to whether the judiciary will
necessarily agree with this view. The key issues here are whether it is possible to read
the OSA in such a way that the various offences established by that Act are
compatible with the ECHR; whether, if not, the courts will be willing to issue
declarations of incompatibility; and finally, whether, in this case, the Government will
be prepared to amend or repeal the offending provisions.
A disclosure under ss. 2-5 OSA 1989 is criminal only if it is “damaging”. In the view
of Liberty and ARTICLE 19 this requirement can easily be read as including a broad
public interest test. Under such an interpretation, damage would be construed broadly,
so that it would refer not only to direct harm to national security but also to any
benefits from a particular disclosure, for example in exposing wrongdoing. This
interpretation is supported by s. 12(4)(a) HRA, dealing with injunctions, which
explicitly requires that the broader public interest be taken into account, and by cases
in which the ECHR has held that further dissemination of information already in the
public zone may not be sanctioned.
A more difficult question is whether s. 1 OSA – the provision under which former
members of the security and intelligence services may be prosecuted – can also be
read in such a way as to be compatible with the ECHR. This offence does not contain
any requirement of damage. However, it could be argued that by incorporating
Article 10 into UK law, the HRA has implicitly amended the OSA so as to include
harm and public interest tests. Despite this, it may be worth noting that under the
doctrine of the margin of appreciation, the European Court has always allowed States
some latitude in protecting national security, and it remains unclear how the British
courts will apply this doctrine.
Even if the courts do not read harm and public interest tests into s. 1 OSA, they still
could, and indeed should, issue a declaration of incompatibility under the HRA,
placing the onus on government to correct that incompatibility. However, since such a
declaration does not affect the proceedings in which it is issued,206 in theory the courts
could jail a whistleblower under the OSA while at the same time recognising its
incompatibility with the ECHR.
8.5 The HRA and civil claims
The HRA could also provide assistance to a genuine whistleblower facing the full
range of civil claims that the government habitually deploys against those who make
disclosures of security-related information. A public authority will only to be able
benefit from civil remedies – including damages, account of profits and permanent
injunctions – where they are ECHR-compliant, in the sense that they are necessary in
a democratic society. Where the applicant is a true public actor, as opposed to a
private one where the rules might be different, the same requirements of harm and
public interest should apply. This should apply, for example, to claims by the Security
and Intelligence Services for breach of confidence or contract. Unless these conditions
are satisfied, granting the government a civil law remedy would not be a proportionate
response to the disclosure.
8.6 Conclusion
The HRA requires UK courts to be more active in their scrutiny of restrictions on
freedom of expression, including those justified in the name of national security. They
should now assess whether such restrictions are necessary in a democratic society,
rather than simply apply the weak standard of judicial review. This should mean that
injunctions and other civil law remedies will be harder to obtain; production orders
more difficult to justify; and convictions under the OSA restricted to a narrow range
of genuinely damaging disclosures. ARTICLE 19 and Liberty see the incorporation of
the ECHR into UK law through the HRA as an extremely positive development which
provides an opportunity to redress the current striking imbalance between the right to
freedom of expression and national security. We sincerely hope that the courts
embrace this opportunity to bring about significant changes in the law.
206
Laurence Lustgarten, “Freedom of Expression, Dissent, and National Security in the United
Kingdom,” in Sandra Coliver et al, Secrecy and Liberty: National Security, Freedom of Expression and
Access to Information, Kluwer Law, 1999, p. 470
9 Recommendations
The protection of national security is a genuine and legitimate interest, not simply of
the state or the government of the day, but of the public at large. However, as this
report has shown, current law and practice in the UK signally fails to provide a proper
balance between the public’s right to freedom of expression and freedom of
information and these national security interests. The law is overly restrictive,
effectively precludes proper judicial oversight and encourages abuse.
Correcting the flaws of current law and practice – designing a structure able to deliver
an appropriate balance between free expression and national security – demands a
recognition of the fact that this is not a matter of weighing the interests of the state
against the interests of its citizens. Ultimately, proper protection of the right to free
expression will lead to more open, accountable and better government, as well as
more appropriately-run, effective security services. This is in the overall interest of
the State, as well as individuals, since both freedom of expression and national
security are, ultimately, interests of the public. Balancing the two is a matter of
determining how best to serve the overall public interest.
To the extent that judges in Britain have tended to adopt a “statist view of the public
interest,”207 they have failed to strike an appropriate balance between these two
interests. Taking better account of citizens and their rights and of the corrective
function of open government would aid in striking a better balance. The starting point
for this balancing exercise has to be a presumption in favour of free expression,
subject to narrowly-drawn restrictions which the authorities can justify as necessary to
protect a legitimate aim. By explicitly incorporating a test of this sort, the Human
Rights Act 1998 provides a unique opportunity to redress the imbalance that currently
applies under British law and practice.208
To help provide a better balance between freedom of expression and national security
in the United Kingdom, compatible with international standards in this area, Liberty
and ARTICLE 19 make the following recommendations to the UK authorities:
Recommendation 1: Comprehensive Review of Existing Law
The government should immediately put in place a comprehensive process, including
broad public consultations, to review all legislation and common law rules which
restrict expression and information on grounds of national security. All such rules
should be brought into line with the following recommendations.
Recommendation 2: Review of Ongoing Prosecutions and Convictions
The relevant authorities should immediately review all ongoing prosecutions and
other legal measures which seek to justify restrictions on expression or information on
207
Sydney Kentridge QC, “The Incorporation of the European Convention on Human Rights,” quoted
in Michael Allen and Brian Thompson, Cases & Materials on Constitutional & Administrative Law,
5th edition, Blackstone Press, 1998, p. 554
208
Indeed, the change of perspective encouraged by the HRA may already be making itself felt, since
“senior judges have been protecting free speech more strongly on the eve of the coming into force of
the Human Rights Act 1998″. Anthony Lester, “Finding common purpose,” The Observer, 23 July
2000
grounds of national security. Where the applicable standards do not conform to these
recommendations, the prosecution or other measure should be dropped. A similar
review should be conducted in relation to any legal sanctions already applied, and
redress should be provided as appropriate where either the sanctions themselves or the
legal provisions under which they were imposed do not conform to these
recommendations.
Recommendation 3: Judicial Scrutiny of all National Security Restrictions
Any restriction on expression or information on grounds of national security should
be subject to a full appeal on the merits, and not just to judicial review, by the courts.
Where the authorities claim that information cannot be revealed in open court, the
remedy should be for the judicial authorities to review that information in camera, and
not to deny effective access to the courts.
Recommendation 4: Clear Statutory Definition of National Security
All legislation posing restrictions on expression or information on grounds of national
security should include a clear and narrow statutory definition of national security.
Guidance in relation to such a definition can be found in Principle 2(a) of
Johannesburg Principles, which reads as follows:
A restriction sought to be justified on the ground of national security is not
legitimate unless its genuine purpose and demonstrable effect is to protect a
country’s existence or its territorial integrity against the use or threat of
force, or its capacity to respond to the use or threat of force, whether from
an external source, such as a military threat, or an internal source, such as
incitement to violent overthrow of the government.
Recommendation 5: Burden of Proof to Rest with the Authorities
In all cases involving restrictions on expression or information on grounds of national
security, those seeking to apply the restriction should bear the burden of proving that
the restriction meets the standards outlined in these recommendations.
Recommendation 6: Three-part Test in European Convention to Apply
No restriction on expression or information on grounds of national security is
legitimate unless it meets the following three-part test:
• it must be prescribed by law, in the sense that the law is accessible,
   unambiguous and narrowly and precisely drawn, and that individuals may
  foresee in advance whether a particular action is unlawful;
• its genuine purpose and demonstrable effect is to protect a legitimate national
   security interest; and
• it is necessary in a democratic society and, in particular:
(a) the expression or information at issue poses a serious threat to a legitimate
national security interest;
(b) the restriction imposed is the least restrictive means possible for
protecting that interest; and
(c) the harm to freedom of expression is not disproportionate to the benefits
of the restriction in terms of protecting national security.
Recommendation 7: No Punishment without Damage: The Substantial Harm Test
No one should be subject to criminal penalty, including under the Official Secrets
Act, for either a primary or a secondary disclosure of information unless that
disclosure poses a real risk of substantial harm to a legitimate national security
interest and there was a specific intention to cause harm of that sort. The following
factors should be taken into account in assessing whether a particular disclosure meets
this standard:
• whether the information has already entered, or is likely soon to enter, the
   public domain, including via the Internet; and
• whether there is an direct and immediate connection – a causal link – between
       the disclosure and the risk of harm.
Recommendation 8: A Public Interest Defence to Apply
All restrictions on expression and information on grounds of national security,
whether criminal or civil, should be subject to a public interest defence so that
sanction or liability should ensue only where any damage to national security is not
outweighed by a corresponding public interest in disclosure.
Recommendation 9: Sanctions should not be Disproportionate
Any legal sanctions, criminal or civil, for breach of laws restricting expression or
information on grounds of national security should not be so severe as to have a
disproportionate effect on freedom of expression and information. In particular, in
imposing sanctions, decision-makers should take account not only of the effect on the
individual in breach, but also the wider chilling effect.
Recommendation 10: Limiting the Regime of Injunctions
The existing regime of injunctions should be limited in the following ways:
• ex parte interim injunctions should not be granted where they are not
   absolutely necessary and the applicant has not taken all practical steps to put
  the respondent on notice;
• the court should appoint a “special advocate” in all proceedings where an ex
       parte interim injunction is being sought;
• no interim injunction should be granted unless the applicant can show that he
   or she is likely, at trial on the merits, to succeed in obtaining an order
  restraining publication;
• in deciding whether to grant an injunction, judges should take into account the
   presumption in favour of the right to freedom of expression and information,
  and the severe impact of an injunction, as a form of prior restraint, on these
 rights;
• the grant of an injunction should be subject to a public interest test and, in
   particular, no injunction should be granted unless the benefits, in terms of
  avoiding harm to a legitimate national security interest, significantly and
 clearly outweigh the harm to freedom of expression;
• no injunction should be granted in respect of information already in the public
   domain, regardless of the means by which the information was disseminated,
  including via the Internet; and
• any decision to award an interim injunction should be subject to speedy review
   and there should be an opportunity for regular re-appraisal of any on-going
  injunction, interim or final.
Recommendation 11: Protection for Confidential Sources and Information
Journalists should not be required to reveal confidential sources or information unless
there are exceptional circumstances, including an overriding public interest, in such a
requirement. In particular, journalists should be able to withhold confidential sources
or information unless the party seeking disclosure can show that it is necessary for the
conduct of the defence of an accused person in a criminal trial or to the interest of
society in criminal investigations. Necessity, in this context, implies the following:
• the material in question will materially assist the defence or criminal
   investigation;
• there is no alternative means by which the information might be obtained; and
• the public interest in disclosure significantly outweighs the harm to freedom of
   expression from disclosure.
Recommendation 12: The DA-Notice System should be Dismantled
The system as presently constituted should be dismantled. Any future security
advisory system must be strictly voluntary and not a response to oppressive secrecy or
other security laws. Where the press makes use of this system and receives an
indication that no damage to national security is threatened by a given story, this
outcome should be able to guarantee that there will be no subsequent adverse
consequences as a result of publication.
Recommendation 13: Extension of statutory protection for whistleblowers
The Public Interest Disclosure Act 1998 should be amended so that it includes within
its ambit security and intelligence personnel.
Recommendation 14: Accountability Mechanisms for the Security and Intelligence
Services should be Enhanced
The Intelligence and Security Committee should be given full Select Committee
status, including the right to review the operations of bodies falling within its mandate
and the ability to decide on its own whether or not to publish its decisions.
——————————————————————————–
APPENDIX 1
THE JOHANNESBURG PRINCIPLES ON NATIONAL SECURITY,
FREEDOM OF EXPRESSION AND ACCESS TO INFORMATION
INTRODUCTION
These Principles were adopted on 1 October 1995 by a group of experts in
international law, national security, and human rights convened by ARTICLE 19, the
International Centre Against Censorship, in collaboration with the Centre for Applied
Legal Studies of the University of the Witwatersrand, in Johannesburg.
The Principles are based on international and regional law and standards relating to
the protection of human rights, evolving state practice (as reflected, inter alia, in
judgments of national courts), and the general principles of law recognized by the
community of nations.
These Principles acknowledge the enduring applicability of the Siracusa Principles on
the Limitation and Derogation Provisions in the International Covenant on Civil and
Political Rights and the Paris Minimum Standards of Human Rights Norms In a State
of Emergency.209
PREAMBLE
The participants involved in drafting the present Principles:
Considering that, in accordance with the principles proclaimed in the Charter of the
United Nations, recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of freedom, justice and
peace in the world;
Convinced that it is essential, if people are not to be compelled to have recourse, as a
last resort, to rebellion against tyranny and oppression, that human rights should be
protected by the rule of law;
Reaffirming their belief that freedom of expression and freedom of information are
vital to a democratic society and are essential for its progress and welfare and for the
enjoyment of other human rights and fundamental freedoms;
Taking into account relevant provisions of the Universal Declaration of Human
Rights, the International Covenant on Civil and Political Rights, the UN Convention
on the Rights of the Child, the UN Basic Principles on the Independence of the
Judiciary, the African Charter on Human and Peoples’ Rights, the American
Convention on Human Rights and the European Convention on Human Rights;
209
The Siracusa Principles were adopted in May 1984 by a group of experts convened by the
International Commission of Jurists, the International Association of Penal Law, the American
Association for the International Commission of Jurists, the Urban Morgan Institute for Human Rights,
and the International Institute of Higher Studies in Criminal Sciences. The Paris Minimum Standards
were adopted in April 1984 by a group of experts under the auspices of the International Law
Association
Keenly aware that some of the most serious violations of human rights and
fundamental freedoms are justified by governments as necessary to protect national
security;
Bearing in mind that it is imperative, if people are to be able to monitor the conduct of
their government and to participate fully in a democratic society, that they have access
to government-held information;
Desiring to promote a clear recognition of the limited scope of restrictions on freedom
of expression and freedom of information that may be imposed in the interest of
national security, so as to discourage governments from using the pretext of national
security to place unjustified restrictions on the exercise of these freedoms;
Recognizing the necessity for legal protection of these freedoms by the enactment of
laws drawn narrowly and with precision, and which ensure the essential requirements
of the rule of law; and
Reiterating the need for judicial protection of these freedoms by independent courts;
Agree upon the following Principles, and recommend that appropriate bodies at the
national, regional and international levels undertake steps to promote their widespread
dissemination, acceptance and implementation:
I. GENERAL PRINCIPLES
Principle 1: Freedom of Opinion, Expression and Information
(a) Everyone has the right to hold opinions without interference.
(b) Everyone has the right to freedom of expression, which includes the freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any other media of
his or her choice.
(c) The exercise of the rights provided for in paragraph (b) may be subject to
restrictions on specific grounds, as established in international law, including for the
protection of national security.
(d) No restriction on freedom of expression or information on the ground of national
security may be imposed unless the government can demonstrate that the restriction is
prescribed by law and is necessary in a democratic society to protect a legitimate
national security interest.210 The burden of demonstrating the validity of the
restriction rests with the government.
Principle 1.1: Prescribed by Law
210
For the purposes of these Principles, a democratic society is one which has a government that is
genuinely accountable to an entity or organ distinct from itself; genuine, periodic elections by universal
and equal suffrage held by secret ballot that guarantee the free expression of the will of the electors;
political groups that are free to organize in opposition to the government in office; and effective legal
guarantees of fundamental rights enforced by an independent judiciary. This formulation is based on a
definition of constitutionalism provided by Professor S A de Smith in The Commonwealth and its
Constitution (London: Stevens & Sons, 1964), 106, augmented by reference to Article 25 of the
International Covenant on Civil and Political Rights.
(a) Any restriction on expression or information must be prescribed by law. The law
must be accessible, unambiguous, drawn narrowly and with precision so as to enable
individuals to foresee whether a particular action is unlawful.
(b) The law should provide for adequate safeguards against abuse, including prompt,
full and effective judicial scrutiny of the validity of the restriction by an independent
court or tribunal.
Principle 1.2: Protection of a Legitimate National Security Interest
Any restriction on expression or information that a government seeks to justify on
grounds of national security must have the genuine purpose and demonstrable effect
of protecting a legitimate national security interest.
Principle 1.3: Necessary in a Democratic Society
To establish that a restriction on freedom of expression or information is necessary to
protect a legitimate national security interest, a government must demonstrate that:
(a) the expression or information at issue poses a serious threat to a legitimate
national security interest;
(b) the restriction imposed is the least restrictive means possible for protecting that
interest; and
(c) the restriction is compatible with democratic principles.
Principle 2: Legitimate National Security Interest
(a) A restriction sought to be justified on the ground of national security is not
legitimate unless its genuine purpose and demonstrable effect is to protect a country’s
existence or its territorial integrity against the use or threat of force, or its capacity to
respond to the use or threat of force, whether from an external source, such as a
military threat, or an internal source, such as incitement to violent overthrow of the
government.
(b) In particular, a restriction sought to be justified on the ground of national security
is not legitimate if its genuine purpose or demonstrable effect is to protect interests
unrelated to national security, including, for example, to protect a government from
embarrassment or exposure of wrongdoing, or to conceal information about the
functioning of its public institutions, or to entrench a particular ideology, or to
suppress industrial unrest.
Principle 3: States of Emergency
In time of public emergency which threatens the life of the country and the existence
of which is officially and lawfully proclaimed in accordance with both national and
international law, a state may impose restrictions on freedom of expression and
information but only to the extent strictly required by the exigencies of the situation
and only when and for so long as they are not inconsistent with the government’s
other obligations under international law.
Principle 4: Prohibition of Discrimination
In no case may a restriction on freedom of expression or information, including on the
ground of national security, involve discrimination based on race, colour, sex,
language, religion, political or other opinion, national or social origin, nationality,
property, birth or other status.
II. RESTRICTIONS ON FREEDOM OF EXPRESSION
Principle 5: Protection of Opinion
No one may be subjected to any sort of restraint, disadvantage or sanction because of
his or her opinions or beliefs.
Principle 6: Expression That May Threaten National Security
Subject to Principles 15 and 16, expression may be punished as a threat to national
security only if a government can demonstrate that:
(a) the expression is intended to incite imminent violence;
(b) it is likely to incite such violence; and
(c) there is a direct and immediate connection between the expression and the
likelihood or occurrence of such violence.
Principle 7: Protected Expression
(a) Subject to Principles 15 and 16, the peaceful exercise of the right to freedom of
expression shall not be considered a threat to national security or subjected to any
restrictions or penalties. Expression which shall not constitute a threat to national
security includes, but is not limited to, expression that:
(i) advocates non-violent change of government policy or the government itself;
(ii) constitutes criticism of, or insult to, the nation, the state or its symbols, the
government, its agencies, or public officials,211 or a foreign nation, state or its
symbols, government, agencies or public officials;
(iii) constitutes objection, or advocacy of objection, on grounds of religion,
conscience or belief, to military conscription or service, a particular conflict, or the
threat or use of force to settle international disputes;
(iv) is directed at communicating information about alleged violations of
international human rights standards or international humanitarian law.
(b) No one may be punished for criticizing or insulting the nation, the state or its
symbols, the government, its agencies, or public officials, or a foreign nation, state or
its symbols, government, agency or public official unless the criticism or insult was
intended and likely to incite imminent violence.
Principle 8: Mere Publicity of Activities That May Threaten National Security
211
“Public officials”, for the purpose of these Principles, include the Head of State; the Head of
Government; all government officials including Ministers; all officers of the military, security forces
and police; and all people who hold elected office.
Expression may not be prevented or punished merely because it transmits information
issued by or about an organization that a government has declared threatens national
security or a related interest.
Principle 9: Use of a Minority or Other Language
Expression, whether written or oral, can never be prohibited on the ground that it is in
a particular language, especially the language of a national minority.
Principle 10: Unlawful Interference With Expression by Third Parties
Governments are obliged to take reasonable measures to prevent private groups or
individuals from interfering unlawfully with the peaceful exercise of freedom of
expression, even where the expression is critical of the government or its policies. In
particular, governments are obliged to condemn unlawful actions aimed at silencing
freedom of expression, and to investigate and bring to justice those responsible.
III. RESTRICTIONS ON FREEDOM OF INFORMATION
Principle 11: General Rule on Access to Information
Everyone has the right to obtain information from public authorities, including
information relating to national security. No restriction on this right may be imposed
on the ground of national security unless the government can demonstrate that the
restriction is prescribed by law and is necessary in a democratic society to protect a
legitimate national security interest.
Principle 12: Narrow Designation of Security Exemption
A state may not categorically deny access to all information related to national
security, but must designate in law only those specific and narrow categories of
information that it is necessary to withhold in order to protect a legitimate national
security interest.
Principle 13: Public Interest in Disclosure
In all laws and decisions concerning the right to obtain information, the public interest
in knowing the information shall be a primary consideration.
Principle 14: Right to Independent Review of Denial of Information
The state is obliged to adopt appropriate measures to give effect to the right to obtain
information. These measures shall require the authorities, if they deny a request for
information, to specify their reasons for doing so in writing and as soon as reasonably
possible; and shall provide for a right of review of the merits and the validity of the
denial by an independent authority, including some form of judicial review of the
legality of the denial. The reviewing authority must have the right to examine the
information withheld.212
Principle 15: General Rule on Disclosure of Secret Information
212
Additional grounds for obtaining and correcting personal information in files about oneself, such as
the right to privacy, lie beyond the scope of these Principles.
No person may be punished on national security grounds for disclosure of information
if (1) the disclosure does not actually harm and is not likely to harm a legitimate
national security interest, or (2) the public interest in knowing the information
outweighs the harm from disclosure.
Principle 16: Information Obtained Through Public Service
No person may be subjected to any detriment on national security grounds for
disclosing information that he or she learned by virtue of government service if the
public interest in knowing the information outweighs the harm from disclosure.
Principle 17: Information in the Public Domain
Once information has been made generally available, by whatever means, whether or
not lawful, any justification for trying to stop further publication will be overridden by
the public’s right to know.
Principle 18: Protection of Journalists’ Sources
Protection of national security may not be used as a reason to compel a journalist to
reveal a confidential source.
Principle 19: Access to Restricted Areas
Any restriction on the free flow of information may not be of such a nature as to
thwart the purposes of human rights and humanitarian law. In particular, governments
may not prevent journalists or representatives of intergovernmental or non-
governmental organizations with a mandate to monitor adherence to human rights or
humanitarian standards from entering areas where there are reasonable grounds to
believe that violations of human rights or humanitarian law are being, or have been,
committed. Governments may not exclude journalists or representatives of such
organizations from areas that are experiencing violence or armed conflict except
where their presence would pose a clear risk to the safety of others.
IV. RULE OF LAW AND OTHER MATTERS
Principle 20: General Rule of Law Protections
Any person accused of a security-related crime213 involving expression or information
is entitled to all of the rule of law protections that are part of international law. These
include, but are not limited to, the following rights:
(a) the right to be presumed innocent;
(b) the right not to be arbitrarily detained;
(c) the right to be informed promptly in a language the person can understand of
the charges and the supporting evidence against him or her;
(d) the right to prompt access to counsel of choice;
(e) the right to a trial within a reasonable time;
213
For the purposes of these Principles, a “security-related crime” is an act or omission which the
government claims must be punished in order to protect national security or a closely related interest.
(f) the right to have adequate time to prepare his or her defence;
(g) the right to a fair and public trial by an independent and impartial court or
tribunal;
(h) the right to examine prosecution witnesses;
(i) the right not to have evidence introduced at trial unless it has been disclosed to
the accused and he or she has had an opportunity to rebut it; and
(j) the right to appeal to an independent court or tribunal with power to review the
decision on law and facts and set it aside.
Principle 21: Remedies
All remedies, including special ones, such as habeas corpus or amparo, shall be
available to persons charged with security-related crimes, including during public
emergencies which threaten the life of the country, as defined in Principle 3.
Principle 22: Right to Trial by an Independent Tribunal
(a) At the option of the accused, a criminal prosecution of a security-related crime
should be tried by a jury where that institution exists or else by judges who are
genuinely independent. The trial of persons accused of security-related crimes by
judges without security of tenure constitutes a prima facie violation of the right to be
tried by an independent tribunal.
(b) In no case may a civilian be tried for a security-related crime by a military court or
tribunal.
(c) In no case may a civilian or member of the military be tried by an ad hoc or
specially constituted national court or tribunal.
Principle 23: Prior Censorship
Expression shall not be subject to prior censorship in the interest of protecting
national security, except in time of public emergency which threatens the life of the
country under the conditions stated in Principle 3.
Principle 24: Disproportionate Punishments
A person, media outlet, political or other organization may not be subject to such
sanctions, restraints or penalties for a security-related crime involving freedom of
expression or information that are disproportionate to the seriousness of the actual
crime.
Principle 25: Relation of These Principles to Other Standards
Nothing in these Principles may be interpreted as restricting or limiting any human
rights or freedoms recognized in international, regional or national law or standards.
The following experts participated in the Consultation that drafted these Principles in
their personal capacity. Organizations and affiliations are listed for purposes of
identification only.
Laurel Angus, Executive Director, Centre for Applied Legal Studies, University of the
Witwatersrand, South Africa
Lawrence W Beer, Professor of Civil Rights, Department of Government and Law,
Lafayette College, USA
Geoffrey Bindman, solicitor, Bindman and Partners, London, UK
Dana Briskman, Legal Director, Association for Civil Rights, Israel
Richard Carver, Africa Programme Consultant, ARTICLE 19, London, UK
Yong-Whan Cho, Duksu Law Offices, Seoul, South Korea
Sandra Coliver, Law Programme Director, ARTICLE 19, Washington DC, USA
Peter Danowsky, Danowsky & Partners, Stockholm, Sweden
Emmanuel Derieux, Professor of Media Law, University of Paris 2, and Co-editor,
Legipresse, Paris, France
Frances D’Souza, Executive Director, ARTICLE 19, London, UK
Elizabeth Evatt AC, member, UN Human Rights Committee and legal consultant,
Sydney, Australia
Felipe Gonzalez, Professor of Law, Diego Portales University, Santiago, Chile and
Legal Officer for Latin America, International Human Rights Law Group,
Washington DC
Paul Hoffman (Conference Chair), media lawyer, Los Angeles, USA
Gitobu Imanyara, Advocate of the High Court of Kenya, and Editor-in-Chief, Nairobi
Law Monthly, Kenya
Lene Johannessen, Media Project, Centre for Applied Legal Studies, University of the
Witwatersrand, Johannesburg, South Africa
Raymond Louw, Chairman, Freedom of Expression Institute, Johannesburg, South
Africa
Laurence Lustgarten, Professor of Law, University of Southampton, UK
Paul Mahoney, Deputy Registrar, European Court of Human Rights, Council of
Europe214
Gilbert Marcus, Advocate of the Supreme Court of South Africa, Johannesburg, South
Africa
Kate Martin, Executive Director, Center for National Security Studies, Washington
DC, USA
Juan E Mendez, General Counsel, Human Rights Watch, New York, USA
214
Because of his position as an international civil servant, Mr Mahoney did not endorse or oppose
these Principles
Branislav Milinkovic, editor, Review of International Affairs, Belgrade, Federal
Republic of Yugoslavia
Etienne Mureinik, Professor of Law, University of the Witwatersrand, Johannesburg,
South Africa
Ann Naughton, Publications Director, ARTICLE 19, London, UK
Mamadou N’Dao, human rights lawyer and consultant, Panos Institute, Dakar,
Senegal
Andrew Nicol, QC, Doughty Street Chambers, London, UK
David Petrasek, Mandate and Legal Policy Adviser, Amnesty International, London,
UK
Laura Pollecut, Executive Director, Lawyers for Human Rights, Pretoria, South
Africa
John Sangwa, Simeza, Sangwa & Associates, Lusaka, and member, Faculty of Law,
University of Zambia
Sergei Sirotkin, Human Rights Commission, Moscow, Russia
Malcolm Smart, Deputy Executive Director, ARTICLE 19, London, UK
Tanya Smith, UN Centre for Human Rights, Geneva, Switzerland
Soli Sorabjee, Senior Advocate, Supreme Court of India, New Delhi, India
K S Venkateswaran, advocate, Indian Bar, and member, Law Faculty, University of
Ulster, Northern Ireland
Kerim Yildiz, Executive Director, Kurdish Human Rights Project, London, UK
Kyu Ho Youm, Professor, Cronkite School of Journalism and Telecommunication,
Arizona State University, USA
APPENDIX 2
Summary of recommendations in ARTICLE 19’s publication,
The Public’s Right to Know: Principles on Freedom of
Information Legislation (ARTICLE 19, June 1999).
PREFACE
Information is the oxygen of democracy. If people do not know what is happening in
their society, if the actions of those who rule them are hidden, then they cannot take a
meaningful part in the affairs of that society. But information is not just a necessity
for people, it is an essential part of good government. Bad government needs secrecy
to survive. It allows inefficiency, wastefulness and corruption to thrive. As Amartya
Sen, the Nobel Prize-winning economist has observed, there has never been a
substantial famine in a country with a democratic form of government and a relatively
free press. Information allows people to scrutinise the actions of a government and is
the basis for proper, informed debate of those actions.
Most governments, however, prefer to conduct their business in secret. In Swahili,
one of the words for government means “fierce secret”. Even democratic governments
would rather conduct the bulk of their business away from the eyes of the public. And
governments can always find reasons for maintaining secrecy – the interests of
national security, public order and the wider public interest are a few examples. Too
often governments treat official information as their property, rather than something
which they hold and maintain on behalf of the people.
That is why ARTICLE 19 has produced this set of international principles – to set a
standard against which anyone can measure whether domestic laws genuinely permit
access to official information. They set out clearly and precisely the ways in which
governments can achieve maximum openness, in line with the best international
standards and practice.
Principles are important as standards but on their own they are not enough. They need
to be used – by campaigners, by lawyers, by elected representatives and by public
officials. They need applying in the particular circumstances that face each society, by
people who understand their importance and are committed to transparency in
government. We publish these principles as a contribution to improving governance
and accountability and strengthening democracy across the world.
BACKGROUND
These Principles set out standards for national and international regimes which give
effect to the right to freedom of information. They are designed primarily for national
legislation on freedom of information or access to official information but are equally
applicable to information held by inter-governmental bodies such as the United
Nations and the European Union.
The Principles are based on international and regional law and standards, evolving
state practice (as reflected, inter alia, in national laws and judgments of national
courts) and the general principles of law recognised by the community of nations.
They are the product of a long process of study, analysis and consultation overseen by
ARTICLE 19, drawing on extensive experience and work with partner organisations
in many countries around the world.
PRINCIPLE 1. MAXIMUM DISCLOSURE
Freedom of information legislation should by guided by the principle of maximum
disclosure
PRINCIPLE 2. OBLIGATION TO PUBLISH
Public bodies should be under an obligation to publish key information
PRINCIPLE 3. PROMOTION OF OPEN GOVERNMENT
Public bodies must actively promote open government
PRINCIPLE 4. LIMITED SCOPE OF EXCEPTIONS
Exceptions should be clearly and narrowly drawn and subject to strict “harm” and
“public interest” tests
PRINCIPLE 5. PROCESSES TO FACILITATE ACCESS
Requests for information should be processed rapidly and fairly and an independent
review of any refusals should be available
PRINCIPLE 6. COSTS
Individuals should not be deterred from making requests for information by excessive
costs
PRINCIPLE 7. OPEN MEETINGS
Meetings of public bodies should be open to the public
PRINCIPLE 8. DISCLOSURE TAKES PRECEDENCE
Laws which are inconsistent with the principle of maximum disclosure should be
amended or repealed
PRINCIPLE 9. PROTECTION FOR WHISTLEBLOWERS
Individuals who release information on wrongdoing – whistleblowers – must be
protected

“Spies, Lies, and Whistleblowers” – Subversion chapter

Background to subversion

At this time MI5 was still using the same criteria for recording individual subversives and their sympathisers as was set out by Home Secretary David Maxwell-Fyfe in 1952.  He called on the services to identify any individual engaged in undermining Parliamentary democracy, national security and/or the economic well-being of the UK by violent, industrial or political means.  In fact, many would argue that groups who used only political means to get their point across were merely exercising their democratic rights.  In fact, MI5 used photos of demonstrations, copies of election lists and even lists of subscribers to radical left-wing book clubs as indicators of subversive sympathy and membership.  Of course, the world was a very different place when I joined the section, almost 40 years after Maxwell-Fyfe’s declaration, not least because of the disintegration of the Soviet Union and its Eastern bloc allies.  

From Maxwell-Fyfe’s statement to Parliament, which was never made law, MI5 and subsequent governments used to argue that all members of certain parties –such as the Communist Party of Great Britain (CPGB) or later the bewildering array of Trotskyists, with names like the International Marxist Group (IMG), Workers’ Revolutionary Party (WRP) Major and Minor, Revolutionary Communist Party (RCP) and Revolutionary Communist Group (RCG), anarchists and the extreme right — were threats to the security of the state or our democratic system.  This in itself is a contentious proposition.  None of these Trotskyist groups was cultivating Eastern bloc finance or building bombs in smoky back rooms, but were instead using legitimate democratic methods to make their case, such as standing in elections, organising demonstrations and ‘educating’ the workers.  They certainly had no allegiance to a foreign power, the primary raison d’etre for the investigation of subversion, because, unlike the Communist Party, they abhorred the Eastern bloc.

Since MI5 was effectively investigating individuals for holding opinions the government did not like — a very un-British position — it was always at pains to point out that it took its responsibilities with regard to human rights very seriously, although not seriously enough to ensure that these activities were regulated by a legal framework.  All the service’s phone taps prior to the passing of the Interception of Communications Act (IOCA) in 1985 were unlawful because there was no legislation governing the interception of communications1.  In fact, the Home Office Warrants (HOWs) used to justify phone tapping and covert entry were so vague as to be meaningless.  There was certainly not enough information for the minister signing a warrant to make an informed decision about letting the service break into an individual’s home or bug their phone.

During publicity interviews for her book, Open Secret, the former head of MI5 Dame Stella Rimington demonstrated that she at least was far from sensitive to the illegality of the activities of the service:

“I still thought the essence of the Cold War and spies and stuff was fun,’ she said.  ‘You know, going around listening to people’s telephones and opening their mail and stuff.”

The Human Rights Act (HRA) provides a number of reasons why a security service is allowed to invade the privacy of an individual.  The standard is ‘necessary in a democracy’.  It does not include ‘fun’.  Dame Stella also admitted that files were opened on individuals who posed no threat to the state, undermining the authorities’ previous assurances that files were only opened on members of subversive organisations or their sympathisers.  This means that MI5 monitoring included legitimate political activists: 

“You can say from the position of 2001 that files were opened on people who were not actively threatening the state, but nevertheless, in the context of those days, I think the files that were opened fitted that definition of subversion.  I think, in the past, some of our predecessors may have been a bit over enthusiastic (in opening files), but by the time I got there we were very focused on this definition and what we were doing.”

She tries to wriggle off the hook by referring to ‘that definition of subversion’ as if it somehow changed over the years.  The truth is, it did not.  In August 1997 David disclosed in The Mail on Sunday that files were opened on such individuals as Jack Straw and Peter Mandelson.  Either they were innocent victims of MI5’s over-zealous investigation of subversives, in which case they should demand an explanation from the service and should establish how many others were wrongfully investigated, or they really were a threat to our national security, in which case the British people have a right to know.

In fact, MI5 devoted such significant resources to subversive groups from the 1940s to 1993, when subversion was finally downgraded, that F2 claimed to know more about the finances of the Communist Party of Great Britain (CPGB) than the Party did itself!  In communism’s heyday from the 1950s to the 1970s, around 60 desk officers – each with a number of support staff – spied on the CPGB alone, although F Branch had dwindled to around nine or ten desk officers and agent runners, plus around 20-30 support and secretarial staff by the time I arrived in 1991.  

As public support for communism began to fade during the 1970s and 80s, F2 had become increasingly concerned with Militant Tendency (MT) because of its entryist or ‘False Flag’ tactics, in which MT members who had infiltrated the Labour party stood as candidates for Parliament and other bodies without declaring their association with Militant.  However, by the early 1990s the Soviet bloc had collapsed; the ageing CPGB had become the Democratic Left, and MT was on the point of abandoning entryism.  As a result, everyone in F2 believed that there was no justification to continue the investigation of subversion– with the exception of Director F, the man in charge of the Branch.  He seemed to have no idea that the work of MI5 should be in defence of democratic values.  He was rather more concerned about his standing in the service pecking order alongside other MI5 directors.  He saw any reduction in his branch’s resources as an attack on his power base in MI5, so he fiercely resisted any attempts to transfer his staff to other branches.  

In addition, MI5 management wanted to retain personnel so it would not need to take on extra staff, in the event of it winning the lead in the investigation of the Provisional IRA (PIRA) from the Metropolitan Police Special Branch (MPSB).  That was where the Socialist Workers Party (SWP) came in.

My role against the SWP

To my dismay, as I had always been completely apolitical, my first posting after the induction course was to F Branch, the counter-subversion section.  During my recruitment, I had been told that MI5 no longer took much interest in subversion, instead focussing increasingly on threats such as terrorism.  I had therefore hoped to go straight to a counter-terrorism branch or, failing that, to K Branch (counter-espionage) where I could use my Russian.  It was some consolation to find out subsequently that MI5 had a policy of posting those deemed to be “clear thinkers” to this section, because of the political sensitivity of its work.  Perhaps we should infer that the counter-terrorism branches were staffed by muddled thinkers?

In February 1991 I joined F2.  The section was tucked away in a little-known MI5 building in Bolton Street, Mayfair.  The office was a classic, run-down civil service affair, with battered old wooden desks, lime green wall paint and threadbare carpets.  The section when I joined had no computer system; all its records were on paper, a fact which surprised me, as easily accessible information is essential to an intelligence service.  This also meant that all my work had to be written out in longhand and passed to my secretary for typing, before coming back to me for corrections.  Having worked in other offices with computers, I found this all painfully slow.

My ‘job title’ was F2B/5, and I was in charge of a small team investigating the SWP.  David joined F Branch a year later as F2C/7, to study anarchists, communists and extreme right-wingers.  David and I met in F2 but we didn’t start going out with each other until spring 1993.  Our eyes met across a crowded operations room, he always likes to joke.

All new MI5 officers are ‘mentored’ by a more experienced officer, usually of the same grade, over a period of six months.  Some new recruits are lucky.  David had Glyn Michaels, my boss at the time, who took his mentoring duties very seriously.  I was unlucky.  I had Alison Pomdeterre, who appeared completely uninterested in the mentoring process.  After only a month of mentoring, I took over the desk and the management of three clerical workers who did the painstaking work of formally identifying “subversives”.  

Like any other job, the MI5 desk officer has an IN tray and an OUT tray and processes information.  (Officers always also made great use of the PENDING tray for anything that might look difficult.)  The difference between MI5 and a normal job is that the information comes in the form of reports from agents in the field or GCHQ ‘sigint’.  

As well as routinely processing vast quantities of Linen (product from telephone taps), CHALIS (letters), and source (agent) reports, in my first year in F2 I was tasked to research each area of the SWP’s activities: finance, membership, student numbers, and industrial relations among others, in order to assess whether the party was a threat to national security.  It was a moot point whether the SWP had ever posed a realistic threat to the state.  But after I’d carried out months of painstaking research, I was in no doubt.  Although individual members of the party were committed, the SWP was small, relatively poor, and their politics fell outside MI5’s criteria for investigation – they neither had links to a foreign power, like the Communists, nor did they practice entryism, like Militant Tendency.  Their policies advocated educating people so that they could take part in a democratic movement to replace the existing political system.  This was hardly the stuff of revolutionary nightmare.  

Despite my assessments, senior management in F2 ensured that the SWP assumed an increasingly prominent role in the work of the branch.  MI5 management unremittingly applied pressure to me to beef up the case for the study of the SWP, particularly after its (legitimate) support for a number of industrial disputes in the early nineties, which of course posed no threat to national security or Parliamentary democracy.  Despite the pressure, I still succeeded in terminating the last remaining telephone tap targeted against an individual subversive in the UK – Tony Cliff, the SWP’s founder – and drastically reducing the number of agents who for decades had been run against the SWP at great cost to the taxpayer.  However, senior managers still insisted that a telephone tap stay in place on the party’s HQ.

Even then, F2 policy dictated that any individual who attended six or more meetings of the Socialist Workers’ Party was recordable as a ‘member: Trotskyist organisation’, even where the service knew that many individuals attended these meetings to protest against specific issues such as the NHS cuts or the poll tax, subjects of legitimate dissent. 

Failure to transcribe telephone taps

When MI5 took over primacy for the IRA in October 1992, a number of telephone intercept transcribers were transferred to the new T Branch section from F Branch work.  English-speaking transcribers were at a premium in T Branch in the service’s work against PIRA.  As a result, F2 simply did not have the resources to transcribe the vast amount of intelligence gathered from the intercepts on the Socialist Workers’ Party and Militant Tendency HQs.  Therefore a backlog of untranscribed tapes built up over several months.  Although F2 claimed in its HOW applications that these intercepts were absolutely necessary to protect national security and other democratic rights, in 1993 Director F ordered that the untranscribed tapes be destroyed without ever being listened to, even though he had insisted on the phone lines being tapped.

If the SWP and MT really had been in the process of undermining the state, then MI5 would have lost vital intelligence and put the security of the state at risk.  This was confirmation, if any were needed, that the intercepts on the SWP and MT were not ‘necessary in a democracy’ – they could only be destroyed precisely because they were unnecessary — and were therefore unlawful under the European Convention of Human Rights (ECHR).  

But the problem was compounded when MT abolished its policy of entryism in late 1992.  Since MT’s membership had dwindled to less than a thousand and entryism within the Labour movement was MI5’s only legitimate reason for investigating MT, the desk officer, F2B/4, Sarah Knight, recommended that there was no longer a case to justify the telephone and letter intercept on the party’s HQ.  Her minute went through the management chain.  In each case, the line manager agreed with her assessment until it reached Director F.  He ordered the desk officer to go and ‘make a case’.  Under mild protest, she went off to seek out any nuggets of intelligence from the material that had been transcribed.  She then squeezed a case for revalidation of the intercept warrant out of it, even where this meant exaggerating the importance of facts and taking them out of context or ‘sexing up’, as it is now known.

The Home Secretary approved the warrant in ignorance because he simply did not know of the desk officer’s reservations or, I suspect, that months of untranscribed tapes had been destroyed.

The illegal and unjustified files

On our TC101 induction courses, David and I were told that MI5 has opened more than a million Personal Files (PFs).  We were also exhaustively taken through case studies of incorrect identification.  If MI5 were 99.9% accurate in its work that would still mean that there would be over ten thousand files containing information that is factually incorrect.  Of course, no organisation is 99.9% accurate and the inaccuracies would be spread across a much greater number of files.  As we had seen on TC101, this was remarkably easy to do.  This means that there must be tens of thousands of files in the MI5 archives which contain inaccuracies about British citizens.  Even where the information is accurate, its collection and retention is clearly unlawful under the HRA.  After all, the difference between a democratic and non-democratic or totalitarian state is that legitimate political dissent and the privacy of those involved is protected in the former and not in the latter.  Dame Stella Rimington has — we have already seen — admitted that she thought MI5 was ‘over-enthusiastic’ in its targeting of left-wing activists.  David and I can confirm that this is the case.  

On one occasion, for example, a schoolboy had written to the Communist Party asking for information for a topic he was preparing at school.  His letter was copied (all mail to the CPGB was copied by MI5) and used to create a Personal File (PF), where he was identified before being recorded as a ‘?communist sympathiser’.  On another occasion, a man divorcing his wife had written to MI5 claiming she was involved in communism.  For that, his wife got a PF again as a ‘?communist sympathiser’.  In both cases, the suspect only came to the attention of the service on that one occasion.  So why was this information still available to desk officers some twenty years after these individuals had first come to attention, in less than suspicious circumstances?

It is also of enormous concern in a democracy that MI5 continues to hold private information about our elected representatives, which could be used to influence ministers and MPs in secret.  In October 2002, The Mail on Sunday reported that Jack Straw had leaked information in connection with the Jeremy Thorpe/Norman Scott affair when he was PPS to Barbara Castle.  As this information also features in his PF, we have to ask whether it was used to influence the then Home Secretary’s policy towards hearing David’s evidence, which he has declined to do, and seeing him prosecuted, which he has endorsed.

Even where MI5 was justified in holding files — as in the case of Vladimir Ilych Lenin (PF2) or Leon Trotsky (PF3) who actively worked to undermine this country — it cannot reasonably argue that it must still keep these files and their contents secret.  However, the intelligence services are so resistant to scrutiny that these files remain in the registry of MI5’s new HQ, Thames House, even though the their subjects have all been dead for years.  MI5 has claimed that opening up these files will reveal sensitive operational techniques.  The use of carrier pigeons perhaps?

In fact, the intelligence agencies are in the peculiar position of not just holding files on individuals who no longer pose a notional ‘threat’ but holding files even though the actual threat itself, such as state communism, no longer even exists.  

It cannot be therefore ‘necessary in a democracy’ for the services to continue to hold private information about individuals on outdated files, which are still accessible to intelligence operatives.  The gravity of this abuse of power is compounded by the fact that the material was unlawfully gathered in the first place.  

To comply with the conditions of the HRA, MI5 should notify every individual, on whom a file was created before the passing of the 1989 Security Service Act, that they have a right to remedy, and therefore compensation, for: 

  • MI5’s initial unlawful invasion of their privacy;
  • any interference with their freedoms, such as being blacklisted because of alleged subversive sympathies.  There are a number of BBC applicants who were affected by this;
  • the service’s continued invasion of their privacy by retaining personal information which could be used against them.

Files on public figures

In the course of my work in F2, I came across many files on media figures, celebrities and prominent politicians, particularly when we were asked to research candidates standing in the 1992 General Election.  Our job was to summarise MI5’s security history of an individual and assess the threat they might pose to national security.  F2 management then passed the assessment and summary — but not the original material or file — to the Prime Minister and the leader of the opposition.  They would use them when deciding on the suitability of a particular candidate for government or the shadow cabinet.  Because the PM or the leader of the opposition did not see the raw intelligence or the detail of the security case against the individual concerned, they were in no real position to make an informed assessment of that individual.  It was all too easy for the services to cherry pick intelligence or ‘sex up’ a case by omission, if they didn’t like a prospective minister or thought that his presence in government might mean that MI5 was more closely scrutinised or held to account.

F2, being tucked away in the little-known MI5 building on Bolton Street off Piccadilly, was a relaxed section, with quite an esprit de corps.  Consequently, during our time there David and I either personally reviewed or were shown by our colleagues the following PFs.  Few of those listed actually belong or belonged to subversive organisations.  According to MI5, they have or had ‘sympathies’ with these or other groups and are therefore worthy of MI5 investigation: 

John Lennon, Jack Straw MP, Ted Heath MP, Tam Dalyell MP, Gareth Peirce (solicitor), Jeremy Corbyn MP, Mike Mansfield (barrister), Geoffrey Robertson (barrister), Patricia Hewitt MP, Harriet Harman MP,  Garry Bushell (journalist), Peter Mandelson (European commissioner), Peter Hain MP, Clare Short MP, Mark Thomas (comedian), Mo Mowlam (politician), Arthur Scargill (NUM leader, who famously had his own recording category: unaffiliated subversive), Neil Kinnock (politician), Bruce Kent (peace campaigner, )Joan Ruddock MP, Owen Oyston (businessman), Cherie Booth aka Blair, Tony Blair MP, David Steel (politician), Teddy Taylor MP, Ronnie Scott (jazz musician), Robin Cook MP, John Prescott MP, Mark Steel (comedian), Jack Cunningham MP, Mohammed Al Fayed (businessman), Mick McGahey (former union leader), Ken Gill (former union leader), Michael Foot (politician), Jack Jones (former union leader), Ray Buxton (former union leader), Hugh Scanlon (former union leader), Harold Wilson (politician), James Callaghan (politician), Richard Norton-Taylor (Guardian journalist).

David and I also came across a file called: ‘Subversion in contemporary music’, which consisted of press clippings about Crass, then a well-known, self-styled ‘anarchist’ band; the Sex Pistols; and, rather surprisingly, UB40.  You can almost imagine the what’s-the-country-coming-to? Colonel Blimp type, opening the file because the Sex Pistols performed shocking songs like ‘Anarchy in the UK’ – the lyrics of the song were on the file after being snipped from Time Out magazine — and (their version of) ‘God Save the Queen’.  But does any reasonable person believe that the Sex Pistols were actively trying to damage national security?  

Unlawful investigation of non-subversives

The ‘subversion’ of cabinet ministers Harriet Harman and Patricia Hewitt was to have been leading members of the National Council for Civil Liberties (NCCL — now Liberty), the very organisation designed to protect us from such unwarranted abuses of our liberties.  At one point, David came across a series of minutes on a file dating from the early 1980s.  They were written by Charles Elwell, a publicly named and notoriously paranoid former head of F2 who saw a red under every bed, and who had successfully argued that members of the executive of the NCCL were recordable as ‘suspected sympathiser: Communist’, simply for being members of the executive.  He based this assumption on the fact that, as one or two leading members of the NCCL had Communist sympathies, the organisation was therefore by definition a Communist front organisation.  

This went beyond MI5’s own rules.  It justified its work against legitimate non-subversive organisations such as trade unions, CND, the NCCL and the Greenham Common women by saying that it was not investigating these organisations or their members per se but was investigating subversive penetration of these groups.  

As a result, MI5 gathered ten thick volumes on both the Greenham women and the Campaign for Nuclear Disarmament.  Inevitably, as a result of this, F2 gathered personal information on and details of legitimate political activists, which were passed to ministers in official Security Service reports – then known as Box 500 reports — under the guise of revealing subversive penetration of these organisations.  The service also had a history of gathering information on trade union activity and industrial disputes on the same basis.  However, it again went beyond a strict study of subversive activity, and passed information relating to legitimate industrial protest to ministers and the police.

The decision regarding the Executive of the NCCL meant that MI5 could investigate an individual — that means tap their phones, follow their movements, break into their houses, place a bug in their homes — simply for being a member of the Executive of the NCCL, without having to establish any other connections to communism.  This was clearly a breach of democratic rights.  

It cannot be ‘necessary in a democracy’ to investigate the leading members of an organisation charged with upholding democratic rights, in the absence of other security information.  Harriet Harman and Patricia Hewitt learnt of the infringement of their rights when former MI5 officer Cathy Massiter blew the whistle on the services in 1984.  As a result, they took their case to the European Court of Human Rights (ECtHR) and won because MI5 was not a legally constituted and democratically accountable organisation, the minimum standard in a democracy.  It was only as a result of this ruling that Parliament finally put MI5 on a legal footing for the first time and made it accountable to ministers in the 1989 Security Service Act.

F2/URG

While in F2, I also came across files detailing the activities of the Universities Research Group.  Although it referred to ‘universities’ it was only concerned with the activities of alleged communists at Cambridge and Oxford.  As late as the mid-1980s, MI5 officers were still interviewing individuals who had been — or were alleged to have been — members of the Cambridge University Communist Party and the Cambridge University Socialist Party in the 1930s and 1940s, the time that Burgess, Philby, Maclean et al were there.  

If the individual could establish he had belonged to the Socialist Party, he was cleared of subversive suspicion.  Those deemed to have been members of the Communist Party were interviewed and recorded as ‘member: subversive; communist’ and, if they were still working in public service or the BBC, had their vetting clearance secretly withdrawn.  They were then moved to other positions, where they had little or no access to sensitive material.  

Considering the damage the Cambridge spy ring did to our national security, it is not surprising that MI5 had an interest in any possible ‘fellow travellers’.  However, you would have thought that, given the potential gravity of the situation, the service would have treated as a high priority the rapid identification of any further spies from that era.  Instead, MI5 was still investigating potential suspects, many of them retired, in the 1980s.  They were at the end of their careers, and if any had been spies, the damage would have been done.  

How MI5 vetoed Wilson’s choice of a Cabinet minister

Another example of MI5’s abuse of its powers is the case of Judith Hart, a minister in Harold Wilson’s government in the 1970s.  She was refused a particular ministerial post because MI5 alleged that she had connections with Communists.  Hart denied this and the case became a cause célèbre for the left.  Many believed she had been mixed up with another Judith Hart who was a well-known member of the Communist Party.  In fact, that is what many assert to the present day.

However, the truth is stranger still.  Wilson, ever suspicious of MI5, asked for further details of the ‘secret and reliable source’ which had reported Hart’s connections to Communism.  MI5 refused, so Wilson told them he was not prepared to infringe a minister’s right to pursue her career in politics without further evidence.  After a stand-off, the service reluctantly agreed to furnish Wilson with the raw intelligence in its original form.  This was one of the first and only times that a prime minister had seen actual MI5 intelligence.  (The little which ministers are usually allowed to see is always summarised, with sources disguised).  The intelligence consisted of a couple of transcripts of telephone taps on the Communist Party HQ in King Street.  It established that Hart had indeed been in contact with the CP but only to talk to a friend who worked there.  As Wilson pointed out to MI5, this was hardly evidence of communist sympathy or connections.  He nevertheless agreed to post Hart to a less sensitive area of government.

Creating bureaucracy: the ‘Traffic Light’ system

As part of our work in F2, David and I had to review the ‘traffic light’ status of Personal Files (PFs).  In the late 1980s, the service set up a system for its files, giving them a green, amber or red card, which dictated whether the service would carry out enquiries.  It was largely a bureaucratic exercise, which did nothing to protect civil liberties.  In fact, it allowed the service to maintain all its files, rather than destroying them or opening them up to public scrutiny, after their targets had ceased to be of security interest.  Red-carded files remained open for inspection by any officer requesting the file, even though red-carding was supposed to mean that the file was closed and the target had not come to attention for twenty or thirty years, in some cases.  

The retention of these files also slowed down counter-terrorist investigations because, if officers were trying to identify, say, Patrick Jones, registry would send them files concerning every Patrick Jones or P Jones the service had ever come across.  The desk officer then had to look through these files to ‘clear the trace’ or confirm that the subject of the file was not identical with the suspect in the investigation.  The last thing an officer facing tight investigative deadlines needed was to have to plough through files made in the 1940s on the off chance that one of these communist targets was the same person as an IRA suspect, who had recently come to attention.  Interestingly, Jan Taylor and Patrick Hayes, the two Provisional IRA members convicted of the 1992 bombing of Harrods, were both well-known to MI5 for their membership of Red Action, a ‘subversive’ group which campaigned on Irish Republican issues.  MI5 never considered them as suspects for the bombing.  They were convicted on the basis of evidence gathered by the Metropolitan Police Anti-Terrorist Squad.  I am not criticising MI5 with the benefit of hindsight for failing to apprehend them.  I am merely pointing out that a subversive record means nothing in the context of terrorism and is not therefore a reason for retaining files on individuals with ‘subversive’ records, as some officers in MI5 tried to argue.

As part of review the traffic lighting of files, F2B officers saw some frighteningly anachronistic files.  David came across a minute on the minute sheet, which recommended that the target of the file be placed on a certain list because she had been promoted to district organiser of the CPGB.  In the event of a state of emergency being declared, anyone holding the office of district organiser or above in the Communist Party was to be detained without trial.  We also saw vetting files where individuals were denied promotion or dismissed because they were not “the right sort”, or because they had what MI5 called “character defects”.  As late as 1994, MI5 considered homosexuality, debt and promiscuity as evidence of a defective character.

Failure with IT

Despite the massive reduction in the perceived threat from subversion at this time, MI5 persisted in developing a new national database of ‘subversives’ in the UK.  The computer system, Hawk, had been under development for a number of years by the time I joined F2.  As with all MI5 systems, it was an in-house development designed at vast expense by technicians who could not find employment in the more lucrative commercial sector and overseen by an intelligence officer who resented being posted away from a more mainstream line of work.  It was anachronistic before it even came online in 1992.  However, F2 management still insisted that clerical workers spend valuable man-hours inputting irrelevant data to justify Hawk’s development.  

Of course, when the study of subversion was eventually shut down in 1996 it became apparent that the technology of Hawk was too out of date to be transferred to other sections in MI5.  This was a pattern which could be seen in MI5’s IT strategy across the service.  

Class War and the Communist Party

David’s main area of responsibility in F2 was for the anarchist group Class War and the rump of the Communist Party, which had decided to plug on with Marxism-Leninism, after the rest of the CPGB had renounced it and become the Democratic Left.  He was surprised that MI5 still devoted such extensive resources to these groups.  During recruitment, he had been told that MI5 was no longer looking in any great depth at subversives.  MI5 lore had it that the study of Class War was beefed up in the wake of the Poll Tax riot in London in 1990, after the group’s posters and banners were seen on the news coverage.  However, according to Special Branch officers, the violence in Trafalgar Square had started when front-line anti-riot police had lost control and turned on the demonstrators.

By early 1992, Class War was a disorganised collection of around 200 anarchist individuals.  As such, it posed no real threat to Parliamentary democracy or national security.  F2 had no phone intercept on Class War because it did not have an HQ.  However, the authorities did devote considerable resources to the group.  

Some years before David had joined F2, a Metropolitan Police Special Duties Section (SDS) agent, codenamed M2589, had penetrated Class War.  Unlike the vast majority of agents recruited by MI5, he was not a member of an organisation who had been ‘turned’ by the service.  He was a full-time policeman from Special Branch under deep cover.  For six days a week, he lived, ate and breathed the life of a class warrior before returning to his normal life with friends and family for a day. Whether Class War merited this kind of resource intensive coverage is open to debate.  I quote David:

“When I met M2589 in February 1992, at a safe house in London, it was quite obvious that this peculiar arrangement had affected the agent psychologically.  After around four years of pretending to be an anarchist, he had clearly become one.  To use the service jargon, he had gone native.  He drank about six cans of Special Brew during the debrief, and regaled us with stories about beating up uniformed officers as part of his ‘cover’.  Partly as a result, he was ‘terminated’ after the 1992 General Election.  Without his organisational skills, Class War fell apart.”  

Did the agent make Class War more effective while he was there?  In other words, did the state actually provide resources, which contributed to the spread of anarchism?

Another anarchist source was run by Daphne.  It is doubtful whether any useful information ever came from him, as Daphne spent most of her time acting as his counsellor cum therapist, sorting out problems with his rent, his girlfriends and even having to get worm pills for his dog.  

After the 1992 General Election, David carried out two research projects into Class War and the Communist Party of Britain (CPB), which I read after he had left the section because I had taken over the study of the former group.  David’s research had clearly established that Class War was moribund and recommended that M2589 was not replaced.  In practice, this meant that MI5 kept only a ‘watching brief’ over the group.  David came to the same conclusions regarding the CPB.  It had fewer than 1,000 members, half of whom were over 65.  He recommended the termination of agent M148, who had been reporting on communists for thirty years.  M148 had spent nearly his entire working life as an agent.  

F2/0, Paul Slough praised David for this work after he left the section, accepting all his recommendations, although I later found that a colleague still in F2, Sarah Knight, had been tasked to copy out his assessments word for word.  She explained that although David’s work was a thorough, accurate and pertinent research project — and his recommendations had been accepted — it was felt that he was too new to the service to command the necessary authority in his assessments.  His work was therefore copied, but presented as her work as she had been in the service longer.

David says:

“It was extremely frustrating not being credited for good work.  The Class War research paper did though have a funny side.  When I first read the typed draft of the paper I came across the line: ‘Class War sees the women’s movement as clitist’.  Thinking I had take leave of my senses, I checked it against my handwritten version, which said: ‘Class War sees the women’s movement as élitist’.  God knows what my secretary, an innocent 18-year-old from Essex, thought I was trying to say.”

Just before David left F2, he played an anarchist in a police agent running exercise.  He was so convincing that a uniformed police officer outside Charing Cross station moved him on, making the exercise more of a challenge to the trainee.  On his return to his Bolton Street office, one of the older officers remarked that he had “now seen everything – a member of the officer class wearing an ear-ring” after catching sight of David’s ear-ring which had been re-inserted purely for the role play.

Preparations for Provisional IRA (PIRA) primacy

In 1991 and early 1992 expectations had been high within the service that it would be given the lead responsibility for the investigation of the Provisional IRA (PIRA) on the UK mainland.  Traditionally the Metropolitan Police Special Branch (MPSB) had the lead and MI5 merely acted in support.  In order to ensure that enough officers would be available to form the new section, T2, when primacy was handed to MI5, other sections of MI5 had their staff quotas artificially inflated, particularly in the counter-espionage K branch and counter-subversion F branch.  

However, directors’ and assistant directors’ prestige within the service relied on their staff numbers.  So when the call came from the newly formed T2, some senior managers refused to allow their staff to be posted elsewhere.  Even though T2 was desperately stretched, directors of other branches regularly turned down requests for help even in the form of temporary secondments.  

In May 1992, Home Secretary Kenneth Clarke finally announced to Parliament that MI5 was taking over PIRA investigations in Britain, bringing to an end MPSB’s 106-year lead responsibility for Irish Republican matters.  MI5 officers were informed of the decision over the office tannoy, as part of an office13 security announcement.  Journalists looking for a quote, it told us, might doorstep us as we left the building because MI5 had been awarded primacy.  

As the Provisional IRA were at this time regularly carrying out bombings and endangering the lives of British citizens, it was no longer a proportional – or, indeed, sane – response to continue to deploy vital resources like telephone tapping against Trotskyists rather than terrorists.  The service conveniently decided that that subversion no longer posed the same serious threat as it had less than a year before – exactly what we desk officers had been arguing.  In August 1992, just nine months after joining the service, David was posted to T2A.  

Even though my two years as F2B/5 were up by February 1993, and I had received a performance related bonus and promotion, Director F turned down a request for my transfer from one of T2’s senior managers because he had already seen his empire shrink too much.  I finally joined T5E, studying Irish terrorist logistics, in August 1993.

David’s and my experiences in F2 had opened our eyes to state abuses of power, which most recruits in the 1990s just did not see.  These ranged from the continuing and unlawful existence of files made before 1989, through the absurd files made on the basis of little security information, to the retention of deeply embarrassing personal material on influential figures.  Both David and I hoped that this work now belonged to another era and that MI5 was finally ceasing such contentious operations.  In the context of subversion, it all begged the question: 

“In the 1980s, who really was the Enemy Within?”  

Was it the miners struggling to protect their jobs and communities?  Or political activists holding meetings, peace demonstrations and standing in elections?  Or was it the state, with its undemocratic, unaccountable, law-breaking secret spies?