Select Committee on Public Administration Memoranda


Submitted by David Bickford, Bickford Associates


  Ten years ago a policy decision was made by the Security Service to use intelligence information to assist the law enforcement agencies to prosecute terrorists. That policy has recently been extended to include organised crime.

  In 1991 the United Kingdom intelligence agencies gained evidential procedures in the case of Johnson, Davis and Rowe to allow them to give evidence in Court. The evidence is given after the trial judge has reviewed ex parte all their secret information and operations in respect of the trial. This was an immensely important gain, which, for the first time, opened the books of the intelligence agencies to the courts and allowed their operations to support the law enforcement agencies to prosecute serious criminals.

  Carefully, over the years, the intelligence agencies worked closely with the law enforcement agencies and the prosecutors to establish the credibility of their evidence before the courts in terms that either no secrets were kept from the defence which might help them or, alternatively, the prosecution was dropped.

  Their most delicate operations have been involved. The agencies, their Ministerial departments, the police, Customs and Excise, the Director of Public Prosecutions and the trial judge have all sifted what secrets should or should not be disclosed at trial. The judges have made the final decisions. The trials have proceeded on the basis that more information may have to be disclosed. Convictions of major serious criminals have been secured.

  This series of disclosures has not undermined the agencies. The number of court proceedings relying on their evidence has not diminished because information hitherto secret has been released.

  It is elementary that if terrorism and organised crime is to be fought by law enforcement and judicial process, justice must be seen to be done.

  It is also elementary that if, as is the case, secret intelligence is used to support law enforcement, all means must be used to prevent abuse in the gathering, use and dissemination of that intelligence.

  These points argue for as much openness as possible about the security and intelligence agencies, consistent with protecting secret sources and operational methods, so as to prevent abuse of power.

  The Freedom of Information Bill excludes the security and intelligence agencies from its provisions.

  There are two reasons which have been quoted.

  First, that the information might help criminals.

  Second, that information given to the UK by foreign agencies might dry up.

  The logic of this position founders alone on the agencies' policy to create and give evidence in judicial proceedings to aid law enforcement.

  The agencies have created procedures to disseminate large amounts of information about their operations, administration, policy and effectiveness whilst keeping secrets too sensitive to disclose.

  In addition, the particular reasons given for excluding the agencies are flawed.

  The credibility rating of agencies must be higher than normal because of the secrecy surrounding the gathering and production of information which becomes evidence. That credibility rating is put at risk by the refusal to produce the same information under freedom of information legislation.

  Countries with freedom of information legislation, which includes their agencies, will no doubt question the value of information given to them by the UK.

  Moreover, the UK's mistrust of freedom of information legislation will tempt the courts of countries with freedom of information legislation which covers their agencies to question the credibility of evidence given by UK agencies.

  It is axiomatic that, if information gathered in secret can be given at trial, the decision has been made by the authorities that secrets not relevant to the trial can be protected and that the defendants and others, including criminals, may be informed without damaging the site.

  There is no real difference in the operation of a Freedom of Information Act which recognizes the same principles.

  In reality the decision to exclude the intelligence agencies from the provisions of a Freedom of Information Act is redolent of an attitude of the cold war mode of paramount secrecy. And, worse, seduction by the corruptive message from terrorists and organized criminals that any information gained by them can be turned to advantage.

  As a result a major plank in preventing the subversion of democracy, namely a crucial provision of a Freedom of Information Act aimed at controlling the abuse of democratic power, has been thrown into the river of lost causes.

  The fight against terrorism and organized crime has to be in the judicial arena, relying on secretly gathered information.

  It is essential therefore that every effort is made to create a proper balance of rights and freedom of information to ensure that that judicial arena is fair.

  There is a further weakness in the security and intelligence agencies' position both in the courts and outside. That is by the access of third parties to information about the agencies under foreign freedom of information legislation.

  The non-exposure of the agencies under UK legislation will tempt greater efforts to exposure in foreign jurisdictions, if only to ridicule the UK position.

  Another weakness lies in the policy which governs publication of material by the agencies' members or former members. This is contained in Hansard, 21 December 1998, paragraph 538.

  ". . . the sole criterion for authorising publication [by a member or former member] is whether publication of a particular piece of information will jeopardise national security directly or indirectly. It is a judgement about considerations which are relevant today, not about past history or former embarrassments".

  The mere fact that officers and former officers may publicise material, particularly historical material whether embarrassing or not, runs counter to the total ban imposed on seeking information under the Freedom of Information Bill.

  Moreover, a third party requiring information barred by the Bill may be successful through the medium of a former officer. And by the way of a limitation standard of "direct or indirect jeopardy" to national security rather than the standard of "prejudice" which is higher as a barrier.

  The policy banning the search for information also flies in the face of the briefing policy of the agencies. They brief media editors and personnel, senior academics and businessmen. The object is to promote a better understanding of the agencies. A policy that is both desirable and sound.

  However, the recipients of the agencies' secrets are the elite. The man in the street is denied similar education. Yet it is the agencies duty to protect the state, which includes all its inhabitants. And to do so without unreasonably discriminating in favour of one group or another.

  These principles may also be called into question in relation to joint agency/law enforcement operations. Information available from a law enforcement agency under freedom of information provisions may well be denied because of security or intelligence agency's joint participation or alleged joint participation.

  The above demonstrates the illogicality of excluding the agencies from the provisions of the Freedom of Information Bill.

  Nevertheless, the question arises as to whether there are overriding reasons for excluding the agencies.

  The question revolves around abuse by the agencies and damage or prejudice to the agencies' operations.

  As for allegations of abuse by the agencies these are currently dealt with by the complaints system and oversight under the agencies' legislation.

  Whatever the adequacy of that system and oversight they are not relevant to the question of the application of freedom of information legislation to the agencies. The Complaints Tribunal and Commission are better able to sift information relevant to a complaint than a judge in a criminal or civil trial. They are bound to accept and investigate a complaint, however sparse the supporting information.

  Obtaining or not obtaining information under freedom of information legislation should neither enhance nor hinder a complaint.

  Clearly, information concerning the ongoing operations, identities of informants, techniques employed in electronic surveillance and the identities of some members of the agencies must be protected.

  However, there is a quantity of information that may be made available and is being made available that does not damage or prejudice the agencies' operations.

  That being the case the Bill should, prima facie, encompass that information.

  Unless another reason can be found for it not doing so.

  One reason can be found in the case of Leander v Sweden in the European Court of Human Rights. In that case, and in following cases such as Hewitt and Harman v UK, the Court found that the security and intelligence agencies need not tell anyone that they had been investigating them. Moreover, in any complaint by any person against the agencies that person need not be told anything about the agencies activities other than the simple fact, if found, that the complaint is upheld.

  Following that logic, it is questionable as to whether there is a right under the European Convention on Human Rights to include the agencies in freedom of information legislation.

  However, that surmise has not been tested. Moreover, it has not been tested in relation to a jurisdiction which does otherwise disseminate their security and intelligence agencies' information to the advantage of the state.

  It is, therefore, difficult to assess what the Court's conclusion would be.

  Much would depend on the "necessity in a democracy" to do so.

  In the days when democracy was fighting for its life against communism, strict and wide secrecy was recognised as being necessary to defend democracy. The hostile intelligence agencies had a common purpose and agenda and were extremely cunning and effective. The Leander Case was decided in those days.

  Nowadays, the threats to the state are diverse. The security and intelligence agencies' work is multifarious. Political work to aid foreign policy; defence work against state terrorism and in support of peace keeping; economic information to protect the state's economic well being; information and evidence to protect the state against organised crime including terrorism and money laundering.

  The threat comes not in a single packet but in many parcels. There is no single all-pervading intelligence attack. The greatest threats are terrorism and organised crime.

  In the past the UK population understood the communist threat and the UK defences against that threat. The super secrecy that went with it, the D Notices, the Official Secrets Act, were very largely accepted.

  Now, on the Internet, people can learn about current threats. They can also learn how to assemble a bomb; how to defraud a bank; how to launder money; the names of intelligence agents; the details of intelligence operations.

  Via CNN they can watch a peacekeeping operation from start to finish.

  Secrets sought to be protected in one state are read by international travellers in newspapers of another state.

  Information that was once secret is no more.

  As a result secrecy is much more limited than in the past. The populace asks questions and demands answers. They want to know about the threats, how they will affect them, how they can be protected and how much it will cost.

  Spokesmen are as important now as the planners and executors of policy.

  Internationalisation and the information explosion has led to a revision of the norms of secrecy in a democracy.

  As for the intelligence agencies those norms now demand that the populace is told about the new threats they face. They also demand that to the greatest extent possible the defences against those threats are explained both in terms of policy and operation.

  That being the case, there is no room in a democracy for excluding those agencies from freedom of information legislation.

  The only question that remains is the extent to which such legislation should encompass the agencies.

  The answer could be dictated by cost and the administrative burden.

  The United States' experience is mixed. On the one hand the inclusion of the agencies in their freedom of information legislation has had benefits. On the other the administrative burden and cost has been huge.

  However, the burden of administration and cost does not serve to counter the burgeoning demand for information or serve as the reason to reject any application to the European Court of Human Rights.

  A clue to the answer may lie in the current complaints procedure under the agencies' legislation.

  First, any application for information that serves as a complaint or is ancillary to a complaint should be excluded from the compass of freedom of information legislation. As discussed earlier, the complaints procedure may not be perfect, but it is acceptable enough to avoid any need for duplication.

  Second, it is interesting to note that 98 per cent of complaints made against the agencies are found by the security and intelligence agencies' Tribunal and Commissioner to be vexatious or frivolous. Intelligence nuisances, as this 98 per cent are collectively called, cause unnecessary administrative burden and cost.

  Any application under the freedom of information legislation should be screened to exclude applications from such intelligence nuisances.

  Moreover, any appllication that seeks the names of informants or members or ex members of the agencies should be excluded. So too should applications that purport to relate to current operations or to techniques employed in electronic surveillance.

  Otherwise the response to any application for information should be judged on whether the release of that information would directly or indirectly damage national security.

  This screening process could well be carried out by the complaints Tribunal and Commissioner. They are used to the work and are able to create the balance required for the work.

  And for the same reasons, it is logical for freedom of information work for the agencies to be given to the same bodies. This avoids establishing new administration and lines of communication between the authority and the agencies.

  The inclusion of the agencies in freedom of information legislation on these terms should meet the needs of democracy in the information age.

  A final question arises as to whether there is a genuine practical need for information about the agencies.

  In my experience as Legal Adviser to the agencies, I found them to be of the highest calibre. The are professionally brilliant; admired all over the world. They are also of the highest integrity. Let down only on the rare occasion, with any large organisation, by the greedy or vengeful, such as Bettany, Shayler and Tomlinson.

  On the whole they are trusted by the populace to protect them.

  In principle, there is nothing much wrong with the argument in those circumstances to exclude the agencies from freedom of information legislation.

  But, the UK is an advanced democracy, seeking to lead the way in ensuring democracy for all. Many states claim to be democratic but, in various degrees, are not. And they rely on their secret agencies to act in secret to protect their non democratic institutions.

  The UK must, therefore, ensure, to the greatest extent possible, that its security and intelligence agencies and their policies are open to scrutiny.

  Otherwise, the example of democracy the UK seeks to set, and with it the integrity of its security and intelligence agencies, is open to challenge and dismissal.

June 1999

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Prepared 16 August 1999