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