Submitted by David Bickford, Bickford
THE SECURITY AND INTELLIGENCE AGENCIES
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
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
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
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
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
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
". . . 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
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
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
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
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
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
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
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
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
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
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.