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Secrets, Spies and Whistleblowers: Freedom of Expression in the UK by Article 19 and Liberty

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Secrets, Spies and Whistleblowers: Freedom of Expression in the UK by Article 19 and Liberty Secrets, Spies and Whistleblowers: Freedom of Expression in the UK by Article 19 and Liberty SECRETS, SPIES AND WHISTLEBLOWERS Freedom of Expression and National Security in the United Kingdom ARTICLE 19 and Liberty November 2000 Printed by The Guardian ACKNOWLEDGEMENTS This report was researched by Steven Warner, with assistance from John Wadham, Director of Liberty and Selina Chen, ARTICLE 19 Policy Researcher. It was edited by Toby Mendel, Head of ARTICLE 19 Law Programme and Ilana Cravitz, Head of Communications at ARTICLE 19. It was copyedited by Katherine Huxtable, ARTICLE 19 Press Officer and designed by Mark Jordan of The Guardian. Liberty and ARTICLE 19 gratefully acknowledge the generous support received from the Scott Trust and the Joseph Rowntree Charitable Trust for the research, editing and publication of this report. Many thanks also to The Guardian production team. CONTENTS Executive Summary Summary of recommendations Glossary of abbreviations Preface CHAPTER 1 International law and principles on free expression 1.1 Striking the balance: the three part test 1.2 The Johannesburg Principles 1.3 Conclusion CHAPTER 2 "National security": who decides? The lack of effective judicial scrutiny 2.1 National security exemptions 2.2 Encouraging changes: the Special Immigration Appeals Commission 2.3 Conclusion CHAPTER 3 Legal restrictions on public employees' freedom of expression: restricting Primary Disclosure 3.1 The Official Secrets Act 3.1.1 Disclosures by members of the Security and Intelligence Services (SIS) 3.1.2 Disclosures by other civil servants 3.1.3 Comments and conclusions 3.2 Civil remedies backed by criminal penalties 3.2.1 Injunctions 3.2.2 The law of confidence 3.3 Recent prosecutions of former Security and Intelligence officers David Shayler; Richard Tomlinson; Nigel Wylde; “Martin Ingrams” 3.4 Concluding observations CHAPTER 4 Restricting Secondary Disclosure: Gagging the media and others 4.1 Secondary disclosure under s. 5 OSA 4.2 The Defence Advisory notice system (DA-Notice system) 4.3 Recent prosecutions brought under s. 5 OSA Tony Geraghty; Liam Clarke; Julie-Ann Davies 4.4 Use of injunctions to prevent publication 4.5 Conclusion CHAPTER 5 Protection of sources 5.1 International standards on protection of journalists' sources 5.2 Legal mechanisms for compelling source disclosure in the UK 5.2.1 Criminal procedures (PACE, PTA, OSA, RIP) 5.2.2 Civil orders 5.3 Recent history of production orders 5.3.1 Ex-parte Bright - the use of PACE 5.3.2 Ex-parte Moloney - use of the PTA 5.4 Conclusion CHAPTER 6 Chilling the watchdogs and silencing the whistleblowers 6.1 Whistleblowers deterred 6.2 Press self-censorship 6.2.1 Slate - a case of Internet self-censorship 6.3 Conclusion CHAPTER 7 A culture of greater openness? 7.1 Public Interest Disclosure Act 1998 7.2 The Freedom of Information Bill 7.3 Lack of democratic accountability of the Security and Intelligence Services 7.4 Conclusion CHAPTER 8 The Future of Secrecy under the Human Rights Act 1998 8.1 Freedom bred in the bone of common law? 8.2 An end to judicial deference 8.3 The HRA and injunctions 8.4 An ECHR-compliant OSA 8.5 The HRA and civil claims 8.6 Conclusion CHAPTER 9 Recommendations Appendix 1 The Johannesburg Principles: National Security, Freedom of Expression and Access to Information Appendix 2 Summary of The Public's Right to Know: Principles on Freedom of Information Legislation ENDNOTES EXECUTIVE SUMMARY This joint publication by ARTICLE 19, the Global Campaign for Free Expression and Liberty is a critical analysis of UK laws and mechanisms which ostensibly safeguard national security but which have, in practice, been used by successive governments to suppress embarrassing or controversial revelations and to undermine the public’s right to know. Freedom of expression in the UK has been described by some as "bred in the bone of common law" and the UK media are said to enjoy enviable freedom in most matters. Yet, at the same time, UK governments have a record on secrecy which few other western democracies can match. Consequently the British media’s ability to function as a “watchdog” of certain areas of official activity is severely and deliberately impeded by legislation and official practice . It is widely recognised in international law that freedom of expression is not an absolute right and can legitimately be restricted if it harms national security. However, all such exemptions must be accompanied by adequate safeguards to protect against their misuse by governments and to ensure that the balance between national security and freedom of expression is properly struck. Such safeguards are absent from the UK’s legislative framework. The pattern seen in the courts has been less a careful balancing of freedom of expression and national security than judgments that damage free expression and suppress revelations of incompetence, illegality and other wrongdoing by members of the security and intelligence services and the armed forces. The UK Government has a battery of means at its disposal to ensure that a veil of official secrecy is maintained and the activities of the Security and Intelligence Services (SIS) remain unexamined. Chief among these is the draconian Official Secrets Act (OSA), which prohibits the disclosure of a huge range of information by government employees and the media. Those breaching the OSA face imprisonment and fines. The OSA makes it a crime for current and ex-members of the Security and Intelligence Services to reveal any security-related information, even if such information is not damaging to national security, putting the UK out of step with many other democracies. Further, in many other democratic states such as Germany and the Netherlands, publication of official secrets and information harmful to national security can be excused if it serves the public interest. No such defences for whistleblowers or the recipients and publishers of their information exist under UK law. A raft of other mechanisms is also used in the UK to suppress information, obtain documents, compel disclosure of sources and trace and punish those responsible for disclosures of national security related information. Injunctions, production orders, confidentiality clauses and contempt of court laws are just some of the civil and criminal mechanisms at the Government’s disposal. All have been invoked in recent years in the executive’s readiness to seek gagging orders, fines and prison sentences for public servants and journalists who use protected information to publicise documents and allegations relating to official incompetence, illegality or wrongdoing. Other powers, such as search and seizure by police, are also used to obtain information. In the use of injunctions as a preferred means of suppressing information, the British authorities are unfettered by the constitutional, statutory or judicial safeguards governing prior restraint in countries such as Austria, France, Sweden and the US. Nor do UK journalists enjoy the same right as their counterparts in many other European countries to protect the confidentiality of their sources. The report identifies the alarming tendency of the UK judiciary to defer to the Government in these matters and its failure to observe the necessity to balance national security considerations against the public interest and the right to freedom of expression. Among the recommendations we make are: • that the Government conducts a review of all law and practice relating to national security, including ongoing prosecutions; • introduction of mechanisms for proper democratic scrutiny of the activities of the security and intelligence services; • establishment of a narrow definition of national security; • specific inclusion of a substantial harm test for disclosures relating to national security offences and a public interest defence for those accused of breaching official secrecy; and • legal protection for Security and Intelligence Services “whistleblowers”. This report further provides an analysis of how the UK Government uses the law to prevent disclosures of security-related information by government employees, the media and members of the public. The legislative framework is measured against international legal standards and found wanting. The report also analyses the role of the judiciary and its failure to subject government claims about national security to close scrutiny. It sets out the laws and mechanisms which restrict disclosure of national security-related information, and details the ways in which this matrix of civil and criminal legislation has been used by the Government in the last three years against former security service employees, members of the public, and the media. The report also considers the Human Rights Act 1998, which incorporates the European Convention of Human Rights into domestic law, and its implications for reforming the UK regime of freedom of expression in the context of national security. The report discusses the options open for reform, and concludes with a list of fourteen recommendations that would ensure that the UK regime governing freedom of expression and national security conforms to the standards and practices befitting a modern, open and healthy democratic society. Summary of Recommendations Recommendation 1: The government should immediately review all national security laws for compliance with these recommendations. Recommendation 2: All ongoing prosecutions and other legal measures, as well as any sanctions already imposed, should be reviewed for compliance
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