(back to preceding text)

    33. There are in my opinion two answers to this submission. First the court's willingness to intervene will very much depend on the nature of the material which it is sought to disclose. If the issue concerns the disclosure of documents bearing a high security classification and there is apparently credible unchallenged evidence that disclosure is liable to lead to the identification of agents or the compromise of informers, the court may very well be unwilling to intervene. If, at the other end of the spectrum, it appears that while disclosure of the material may cause embarrassment or arouse criticism, it will not damage any security or intelligence interest, the court's reaction is likely to be very different. Usually, a proposed disclosure will fall between these two extremes and the court must exercise its judgment, informed by article 10 considerations. The second answer is that in any application for judicial review alleging an alleged violation of a convention right the court will now conduct a much more rigorous and intrusive review than was once thought to be permissible. The change was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, 546 where after referring to the standards of review reflected in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence, Ex p Smith [1996] QB 517, he said:

"26. . . . There is a material difference between the Wednesbury and Smith grounds of review and the approach of proportionality applicable in respect of review where Convention rights are at stake.

27. The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three-stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:

'whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.'

Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases? Academic public lawyers have in remarkably similar terms elucidated the difference between the traditional grounds of review and the proportionality approach: see Professor Jeffrey Jowell QC, 'Beyond the Rule of Law: Towards Constitutional Judicial Review' [2000] PL 671; Professor Paul Craig, Administrative Law, 4th ed (1999), pp 561-563; Professor David Feldman, 'Proportionality and the Human Rights Act 1998', essay in The Principle of Proportionality in the Laws of Europe edited by Evelyn Ellis (1999), pp 117, 127 et seq. The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights. It will be recalled that in Smith the Court of Appeal reluctantly felt compelled to reject a limitation on homosexuals in the army. The challenge based on article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the right to respect for private and family life) foundered on the threshold required even by the anxious scrutiny test. The European Court of Human Rights came to the opposite conclusion: Smith and Grady v United Kingdom (1999) 29 EHRR 493. The court concluded, at p 543, para 138:

'the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants' rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the court's analysis of complaints under article 8 of the Convention.'

In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.

"28. The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. . . ."

This approach contrasts sharply with that adopted in the authorities on which the appellant based his submission. In Chahal, on applications for both habeas corpus and judicial review, there was no effective judicial enquiry into the legality of the applicant's detention, and this was of even greater importance where the applicant faced the risk of torture or inhuman or degrading treatment: (1996) 23 EHRR 413, paras 132, 150-151. In Tinnelly the issue of conclusive certificates had effectively prevented any judicial determination of the merits of the applicants' complaints: (1998) 27 EHRR 249, para 77.

    34. The appellant contended that even if, theoretically, judicial review offered a means of challenging an allegedly wrongful refusal of authorisation to disclose, it was in practice an unavailable means since private lawyers were not among those to whom disclosure could lawfully be made under section 7(3)(a), and a former member of the service could not be expected to initiate proceedings for judicial review without the benefit of legal advice and assistance. I would for my part accept that the fair hearing guaranteed by article 6(1) of the convention to everyone in the determination of their civil rights and obligations must ordinarily carry with it the right to seek legal advice and assistance from a lawyer outside the government service. But this is a matter to be resolved by seeking official authorisation under section 7(3)(b). The service would at that stage, depending on the nature of the material sought to be disclosed, be fully entitled to limit its authorisation to material in a redacted or anonymised or schematic form, to be specified by the service; but I cannot envisage circumstances in which it would be proper for the service to refuse its authorisation for any disclosure at all to a qualified lawyer from whom the former member wished to seek advice. If, at the hearing of an application for judicial review, it were necessary for the court to examine material said to be too sensitive to be disclosed to the former member's legal advisers, special arrangements could be made for the appointment of counsel to represent the applicant's interests as envisaged by the Court of Appeal in Secretary of State for the Home Department v Rehman [2000] 3 WLR 1240, 1250-1251, paras 31-32.

    35. There is one further safeguard which deserves mention. By section 9(1) of the OSA 1989 the consent of the Attorney General is required before any prosecution is instituted for an offence under (among other sections) sections 1(1) and 4(1) and (3). The appellant submitted that this is not an effective safeguard since there are no criteria to govern the giving of consent. Successive Directors of Public Prosecutions, acting under the general superintendence of the Attorney General, have, however, published codes for the guidance of crown prosecutors, and the practice of the Attorney General is to follow this guidance, although he may of course take a broader view of the public interest. The tests laid down comprise a merits or evidential test, requiring a realistic prospect of securing a conviction, and a public interest test. The Attorney General will not give his consent to prosecution unless he judges prosecution to be in the public interest. He is unlikely to consent if the disclosure alleged is trivial or the information disclosed stale and notorious or the facts are such as would not be thought by reasonable jurors or judges to merit the imposition of criminal sanctions. The consent of the Attorney General is required as a safeguard against ill-judged or ill-founded or improperly-motivated or unnecessary prosecutions.

    36. The special position of those employed in the security and intelligence services, and the special nature of the work they carry out, impose duties and responsibilities on them within the meaning of article 10 (2): Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 100; Hadjianastassiou v Greece (1992) 16 EHRR 219, para 46. These justify what Lord Griffiths called a bright line rule against disclosure of information of documents relating to security or intelligence obtained in the course of their duties by members or former members of those services. (While Lord Griffiths was willing to accept the theoretical possibility of a public interest defence, he made no allowance for judicial review: Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 269G). If, within this limited category of case, a defendant is prosecuted for making an unauthorised disclosure it is necessary to relieve the prosecutor of the need to prove damage (beyond the damage inherent in disclosure by a former member of these services) and to deny the defendant a defence based on the public interest; otherwise the detailed facts concerning the disclosure and the arguments for and against making it would be canvassed before the court and the cure would be even worse than the disease. But it is plain that a sweeping, blanket ban, permitting of no exceptions, would be inconsistent with the general right guaranteed by article 10(1) and would not survive the rigorous and particular scrutiny required to give effect to article 10(2). The crux of this case is whether the safeguards built into the OSA 1989 are sufficient to ensure that unlawfulness and irregularity can be reported to those with the power and duty to take effective action, that the power to withhold authorisation to publish is not abused and that proper disclosures are not stifled. In my opinion the procedures discussed above, properly applied, provide sufficient and effective safeguards. It is, however, necessary that a member or former member of a relevant service should avail himself of the procedures available to him under the Act. A former member of a relevant service, prosecuted for making an unauthorised disclosure, cannot defend himself by contending that if he had made disclosure under section 7(3)(a) no notice or action would have been taken or that if he had sought authorisation under section 7(3)(b) it would have been refused. If a person who has given a binding undertaking of confidentiality seeks to be relieved, even in part, from that undertaking he must seek authorisation and, if so advised, challenge any refusal of authorisation. If that refusal is upheld by the courts, it must, however reluctantly, be accepted. I am satisfied that sections 1(1) and 4(1) and (3) of the OSA 1989 are compatible with article 10 of the convention; no question of reading those sections conformably with the convention or making a declaration of incompatibility therefore arises. On these crucial issues I am in agreement with both the judge and the Court of Appeal. They are issues on which the House can form its own opinion. But they are also issues on which Parliament has expressed a clear democratic judgment.

    37. The House received and heard interesting submissions on behalf of the Newspaper Society, nine newspapers and two television channels. But this appeal calls for decision of no issue directly affecting the media and I think it would be undesirable to attempt to give guidance in the context of this appeal.

    38. I would dismiss the appeal. I do not think it necessary to address the specific questions certified by the Court of Appeal. When the matter returns to the judge he will direct the jury on the law, sum up the evidence as it then stands, identify the issues which the jury have to decide and invite the jury to return their verdict in the ordinary way.

LORD HOPE OF CRAIGHEAD

My Lords,

    39. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bingham of Cornhill. I gratefully adopt his narrative of the facts and of the legislative background. I respectfully agree with all that he has said about the decision of the trial judge to make a preparatory ruling and the defences of duress and necessity of circumstances. I shall concentrate on the points which lie at the heart of this case.

    40. It has been obvious ever since the publication of the government's proposals for reform in its White Paper, Reform of Section 2 of the Official Secrets Act 1911, June 1988 (Cm 408) that it was not going to be easy to reconcile its rejection of any proposal for a general defence that a disclosure of information was in the public interest with article 10 (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which allows restrictions to be imposed upon the right to freedom of expression if, but only if, the restriction is prescribed by law and is necessary in a democratic society in the interests of national security.

    41. The fact that the White Paper did not mention article 10 Convention right leaves one with the uneasy feeling that, although the right of individual petition under article 25 had been available to persons in this country since 1966, the problems which it raises were overlooked. Many attempts were made in both Houses of Parliament to introduce a public interest defence in one form or another when the Bill was being discussed there, but they were all unsuccessful. The Official Secrets Act 1989, when it finally emerged from the Parliamentary process, contained no such defence. The effect of section 1(1) of the Act, construed according to the ordinary principles of statutory interpretation, is that any unauthorised disclosure of information, documents or articles relating to security or intelligence by anyone who is or has been a member of the security and intelligence services is an offence, irrespective of whether or not its disclosure is or is likely to be harmful to the interests of national security.

    42. The coming into force of the Human Rights Act 1998 has revived interest in the apparent lack of harmony between section 1(1) of the 1989 Act and article 10(2) of the Convention. There appears to be general agreement among those writers who have commented on the issue that it is likely to be difficult to reconcile them. For example, Clayton and Tomlinson, The Law of Human Rights (2000), p 1105, paras 15.261 and 15.262 state:

"The Official Secrets Act 1989 is also difficult to reconcile with Article 10. In particular, where restrictions on freedom of expression are permissible without the need to prove damage, it is arguable that such restrictions are unnecessary. Under section 1 the defendant could be liable for disclosing information which is already in the public domain.

The 1989 Act does not include a 'public interest defence'. This contrasts with proceedings for breach of confidence in which such a defence is available. As Feldman points out, this means that:

under all provisions of the 1989 Act criminal liability may be imposed in circumstances when no injunction could have been obtained to restrain publication. (D Feldman, Civil Liberties and Human Rights in England and Wales (1993), p 669)

The result of these considerations is that:

It seems likely… that… the restraints on freedom of expression resulting from the [Official Secrets Act 1989] go … further than is necessary in a democratic society. (R Stone, Textbook on Civil Liberties ( 2nd ed, Blackstone 1997), p 184)"

    43. The White Paper noted that it had been difficult to find agreement on the precise nature of the reform: para 13. It acknowledged that there was a case for a public interest defence, but it rejected it: para 61. It did so for two main reasons. The first was that a central objective of the reform was to achieve maximum clarity in the law and its application. The view was taken that a general public interest would make it impossible to achieve such clarity. The second was that its proposals were designed to concentrate the protection of the criminal law on information which demonstrably required its protection in the public interest. It was recognised that what justifies the application of the criminal law is the degree of harm to the public interest which may result: para 14. But the proposed test of harm was not regarded as appropriate in the case of unauthorised disclosure of information by members or former members of the security and intelligence services: para 41. The view was taken that all such disclosures are harmful to the public interest and ought to be criminal. This was because they reduce public confidence in the services' ability to carry out their duties effectively and loyally, and because they betray the members' duty of secrecy about their work and the trust placed in them by people who give information to these services. Under its proposals it would be for the courts to decide whether the disclosure of particular information was criminal, and it was to be left to the jury to safeguard the public interest: para 79.

    44. These are powerful arguments. But they do not meet the points on which the measure has been criticised, and there is no discussion in the White Paper of the system under which the disclosure of information which it was in the public interest to know about by former members of the security and intelligence services might be officially authorised. Professor Stone points out that those who support a public interest defence do not argue that it should permit disclosures that are harmful, and he finds it hard to accept that there could be no circumstances in which a public interest in disclosure would outweigh the possible damage that might be caused by it: Civil Liberties and Human Rights 3rd ed (2000), para 5.6.6.3. He concludes that the lack of any public interest defence must make the 1989 Act vulnerable.

    45. Against this background I would approach the question which lies at the heart of this case from a position of considerable doubt as to whether the problems which it raises have really been faced up to by the legislature. I would place the onus firmly on those who seek to rely on article 10(2) to show that sections 1(1) and 4(1) are compatible with the Convention right.

    46. Two points in particular must be made at the outset. The first is that the construction that must be put on Mr Shayler's explanation for making the unauthorised disclosures with which he has been charged must be the most favourable to him, as he has not yet had an opportunity of giving evidence. The context is that of a preparatory hearing under section 29 of the Criminal Procedure and Investigations Act 1996, one of the purposes of which is to identify the issues that are likely to be material at the trial. At this stage he is entitled under article 6(2) of the Convention, as well as under the common law, to the presumption of innocence. The second point is indicated by the jurisprudence of the Strasbourg Court. The provisions of section 1(1) and 4(1) of the 1989 Act under which Mr Shayler has been charged must be subjected to very close scrutiny in order to determine whether or not they are compatible.

    47. When he was charged at Charing Cross police station after his arrest on 21 August 2000 Mr Shayler replied that he did not admit to making any disclosures which were contrary to the criminal law, that any disclosures made by him were made in the public and national interests and that in his defence he would rely on his right of freedom of expression as guaranteed by the common law, the Human Rights Act 1998 and article 10 of the Convention. He had not previously been interviewed, and he has made no other statement to the police.

    48. It is agreed in the statement of facts and issues that the bulk of the documents which he disclosed to the "Mail on Sunday" newspaper appeared to relate to security and defence matters and that they were classified at levels ranging from "Classified" to "Top Secret". It is also agreed that certain of these documents included material obtained by or relating to the interception of communications in obedience to warrants issued by the Secretary of State under section 2 of the Interception of Communications Act 1985. But Mr Shayler does not admit that the disclosure of any of these documents was or would be likely to be damaging. It must be assumed in his favour at this stage, for the purposes of the public interest argument, that none of them was of that character. It is alleged that he was paid a substantial sum of money for his activities. But this fact also is not admitted, and I would regard it too as something that has yet to be proved.

    49. The public interest which Mr Shayler seeks to assert is the right of the public to be provided with information which will enable it to assess whether the powers given to the security and intelligence services are being abused and whether the services are being run properly. He seeks to draw attention to past incidents of misconduct. His point is that, unless the services are reformed, they will continue to be operated in a manner which creates a danger to the public in respect of life, limb and property. At the heart of the matter is the right of the public to make informed decisions about behaviour on the part of those who are responsible for these services. It is the right of the public to call the government to account wherever there is dishonesty, malpractice or inefficiency.

    50. The disclosures were made by Mr Shayler to the press. I narrate that simply as a fact, not as a ground for criticism. As Black J said in New York Times v United States (1971) 403 US 713, 739, only a free and unrestrained press can effectively expose deception in government. Its role is to act as the eyes and ears of the people. Facts should not be withheld from it simply on the ground that they are inconvenient or embarrassing. It is not suggested that Mr Shayler attempted to obtain official authorisation before making the disclosures. His position is that there were no effective steps that he could have taken through official channels to address his concerns, or that would have resulted in his being authorised to make the disclosures to the press. As the Court of Appeal said, there must be some doubt as to whether authorisation would have been given by the authorities if he had asked for it: [2001] 1 WLR 2206, 2216D, para 23. I think that it is equally doubtful whether all the ends which he was seeking to achieve could have been achieved by addressing his concerns to those to whom he could address them without being officially authorised.

    51. I would approach this case therefore on the basis that Mr Shayler may have good grounds for arguing that it was in the public interest that the matters which were of concern to him should be disclosed, and that the fact that he decided to disclose his concerns to the press is not in itself a ground for criticism.

    52. The context for the discussion about the compatibility of sections 1(1) and 4(1) of the 1989 Act with article 10 of the Convention can be stated quite simply. So far as it is possible to do so, these provisions must be read and given effect in a way that is compatible with Convention rights: Human Rights Act 1998, section 3(1). The word "must" indicates, as Lord Steyn said in R v A (No 2) [2001] 2 WLR 1546, that the court must strive to read the statute in a way that is compatible. But the same word is also qualified by the phrase "so far as it is possible to do so". The obligation, powerful as it is, is not to be performed without regard to its limitations: R v Lambert [2001] 3 WLR 203, 233H-234A, para 79. The techniques of judicial interpretation on the one hand and of legislation on the other are different, and this fact must be respected. If compatibility cannot be achieved without overruling decisions which have already been taken on the very point at issue by the legislator, or if to do so would make the statute unintelligible or unworkable, it will be necessary to leave it to Parliament to amend the statute. The only option left to the court will be to make a declaration of incompatibility under section 4(2) of the Act.

    53. Mr Robertson QC for Mr Shayler did not suggest that a public interest defence as such could be read in to section 1(1) and 4(1) of the 1989 Act. He did suggest that the word "lawful" should be inserted into sections 1(9) and 4(3)(a) in a way which might achieve this result. But Moses J said that it was not possible to interpret the 1989 Act in this way: see paras 78-81 of his judgment. Mr Crow for the Secretary of State joined with the respondent in submitting that, if the Act is incompatible with Mr Shayler's Convention rights, it cannot be interpreted compatibly with those rights by virtue of section 3 of the 1998 Act. I agree that, if the legislation is incompatible with Mr Shayler's Convention rights, the position whether it should be amended so as to remove the incompatibility must be left to Parliament. This means that the issue of incompatibility can be addressed directly in this case, without the distraction of trying to resolve the issue by means of the technique of judicial interpretation.

    54. Article 10(1) of the Convention states that the right to freedom of expression includes the right to impart information and ideas without interference by public authorities. Article 10(2) states, by way of qualification, that the exercise of this right,

"…since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary … in the interests of national security…"

    55. The wording of article 10(2) as applied to this case indicates that any such restriction, if it is to be compatible with the Convention right, must satisfy two basic requirements. First, the restriction must be "prescribed by law". So it must satisfy the principle of legality. The second is that it must be such as is "necessary" in the interests of national security. This raises the question of proportionality. The jurisprudence of the European Court of Human Rights explains how these principles are to be understood and applied in the context of the facts of this case. As any restriction with the right to freedom of expression must be subjected to very close scrutiny, it is important to identify the requirements of that jurisprudence before undertaking that exercise.