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 régime 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 régime 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/​h​i​/​e​n​g​l​i​s​h​/​u​k​/​n​e​w​s​i​d​_​2​1​6​0​0​0​/​2​1​6​8​6​8​.​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 régime
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 régime 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 régime 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 régime 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/​r​e​g​i​o​n​s​/​e​u​r​o​p​e​/​e​f​j​/​e​n​/​e​u​s​u​r​v​e​y​.​h​tml>
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©
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/​f​a​q​s​.​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/​r​e​g​i​o​n​s​/​e​u​r​o​p​e​/​e​f​j​/​e​n​/​e​u​s​u​r​v​e​y​.​h​tml>
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/​h​i​/​e​n​g​l​i​s​h​/​u​k​/​n​e​w​s​i​d​_​2​1​6​0​0​0​/​2​1​6​7​9​5​.​stm»
76
“The spy who was snubbed” BBC News 13 May 1999
«news6​.thdo​.bbc​.co​.uk/​h​i​/​e​n​g​l​i​s​h​/​u​k​/​n​e​w​s​i​d​_​3​4​2​0​0​0​/​3​4​2​8​5​3​.​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/​f​a​q​s​.​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/​n​o​t​i​c​e​s​.​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/​a​r​t​i​c​l​e​s​.​htm»
107
“Media Art­icles and Speeches,” «www​.dnotice​.org​.uk/​a​r​t​i​c​l​e​s​.​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 régime 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/​b​i​r​w​/​j​u​s​t​i​c​e​.​h​tml»
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 régime 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 régime 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)© 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
© 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 Régime of Injunc­tions
The exist­ing régime 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.
© 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
© 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
© 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;
© 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.
© 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