Judgments - Regina v Shayler (On Appeal From The Court of Appeal (Criminal Division))

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    56. The principle of legality requires the court to address itself to three distinct questions. The first is whether there is a legal basis in domestic law for the restriction. The second is whether the law or rule in question is sufficiently accessible to the individual who is affected by the restriction, and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law. The third is whether, assuming that these two requirements are satisfied, it is nevertheless open to the criticism on the Convention ground that it was applied in a way that is arbitrary because, for example, it has been resorted to in bad faith or in a way that is not proportionate. I derive these principles, which have been mentioned many times in subsequent cases, from The Sunday Times v United Kingdom (1979-1980) 2 EHRR 245, para 49 and also from Winterwerp v The Netherlands (1979) 2 EHRR 387, 402-403, para 39 and Engel v The Netherlands (No 1) (1976) 1 EHRR 647, 669, paras 58-59 which were concerned with the principle of legality in the context of article 5(1): see also A v The Scottish Ministers 2001 SLT 1331, 1336L-1337B (PC).

    57. The phrase "necessary … in the interests of national security" has to be read in the light of article 18, which provides that the restrictions permitted under the Convention must not be applied for any purpose other than those for which they have been prescribed. The word "necessary" in article 10(2) introduces the principle of proportionality, although the word as such does not appear anywhere in the Convention: see Handyside v United Kingdom (1976) 1 EHRR 737, 753-755, paras 48-49. In para 49 of its judgment the court said:

    "The court's supervisory functions oblige it to pay the utmost attention to the principles characterising a 'democratic society'. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man…. This means, amongst other things, that every 'formality', 'condition', 'restriction' or 'penalty' imposed in this sphere must be proportionate to the legitimate aim pursued."

    58. Applied to the circumstances of this case, this means that a restriction on the disclosure of information cannot be said to be "necessary" in the interests of national security unless (a) "relevant and sufficient reasons" are given by the national authority to justify the restriction, (b) the restriction on disclosure corresponds to a "pressing social need" and (c) it is "proportionate to the legitimate aim pursued": The Sunday Times v United Kingdom (1979) 2 EHRR 245, para 62.

    59. The principle involves a question of balance between competing interests. But it is important to appreciate that there is a process of analysis that must be carried through. The starting point is that an authority which seeks to justify a restriction on a fundamental right on the ground of a pressing social need has a burden to discharge. There is a burden on the state to show that the legislative means adopted were no greater than necessary: R v Lambert [2001] 3 WLR 203, 220H per Lord Steyn. As Sir Sydney Kentridge QC observed in his Tanner Lecture at Oxford, "Human Rights: A Sense of Proportion", 26 February 2001:

    " 'Necessary' does not mean indispensable, but it does connote the existence of a pressing social need. . . . It is only on the showing of such need that the question of proportionality or 'balancing' should arise."

    60. The European Court has not identified a consistent or uniform set of principles when considering the doctrine of proportionality: see Richard Clayton, "Regaining a Sense of Proportion: The Human Rights Act and the Proportionality Principle" [2001] EHRLR 504, 510. But there is a general international understanding as to the matters which should be considered where a question is raised as to whether an interference with a fundamental right is proportionate.

    61. These matters were identified in the Privy Council case of de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 by Lord Clyde. He adopted the three stage test which is to be found in the analysis of Gubbay CJ in Nyamirai v National Social Security Authority [1996] 1 LRC 64, where he drew on jurisprudence from South Africa and Canada: see also R (Daly) v Secretary of State for the Home Department [2001] 2 WLR 1622, 1634H-1635A, per Lord Steyn; R (Pretty) v Director of Public Prosecutions [2001 ] 3 WLR 1598, 1637A-C. The first is whether the objective which is sought to be achieved - the pressing social need - is sufficiently important to justify limiting the fundamental right. The second is whether the means chosen to limit that right are rational, fair and not arbitrary. The third is whether the means used impair the right as minimally as is reasonably possible. As these propositions indicate, it is not enough to assert that the decision that was taken was a reasonable one. A close and penetrating examination of the factual justification for the restriction is needed if the fundamental rights enshrined in the Convention are to remain practical and effective for everyone who wishes to exercise them.

Further analysis: legality

    62. It is plain that the first requirement of the principle of legality is satisfied in this case, because the restrictions on the fundamental right are set out in sections 1 and 4 of the 1989 Act. We are dealing here with a statutory scheme for the protection of information relating to the security and intelligence services. In order to see whether the second and third requirements relating to accessibility, precision and lack of arbitrariness are satisfied it is necessary to look more closely at that scheme.

    63. Although there is no general public interest defence, the restriction on disclosure is certainly not a blanket restriction. The offences which are created by section 1(1) and section 4(1) of the 1989 Act both relate only to the disclosure of information, documents or other articles to which those sections apply "without lawful authority". The meaning of the phrase "lawful authority" is explained by section 7, which defines the circumstances in which the disclosure of any information to which the Act applies may be made with lawful authority. The relevant provision in the case of someone in Mr Shayler's position, who is no longer a Crown servant as he is no longer a member of the security or intelligence services, is section 7(3). It provides:

    "For the purposes of this Act a disclosure made by any other person is made with lawful authority if, and only if, it is made -

    (a) to a Crown servant for the purposes of his functions as such; or

    (b) in accordance with an official authorisation."

    64. The expression "Crown servant" is defined in section 12(1). It includes a Minster of the Crown, any person employed in the civil service of the Crown, any constable and any person who is a member or employee of a prescribed body or a body of a prescribed class or is the holder of a prescribed office. The word "prescribed" means prescribed by an order made for the purposes of that subsection: see section 12(3). Opportunities also exist for disclosure through their civil service staff to the Security Service Commissioner appointed under section 4 of the Security Service Act 1989, the Commissioner for the Secret Intelligence Service under section 8 of the Intelligence Services Act 1994, the Commissioner appointed under section 7 of the Interception of Communications Act 1985 and the Intelligence and Security Committee. I do not think that a person who has read the relevant provisions of these statutes and the orders made under them can be said to have been left in any doubt as to wide range of persons to whom an authorised disclosure may be made for the purposes of their respective functions without having first obtained an official authorisation. Section 2(2)(b) of the Security Service Act 1989 imposes a duty on the Director General of the Security Service to secure that disclosures are made for the discharge of the service's functions. In Esbester v United Kingdom (1994) 18 EHRR CD 72, 74 the Commission rejected an argument that the fact that the guidelines relating to the Director-General's supervision of information obtained by the Security Service were unpublished meant that they were not sufficiently accessible to the individual.

    65. In this connection it should be noted that Mr Shayler signed a declaration on leaving the service in which he acknowledged that his attention had been drawn to the Official Secrets Acts and the consequences that might follow any breach, and that he understood he was liable to be prosecuted if he disclosed either orally or in writing any information or material which had come into his possession as a result of his employment as a Crown servant on terms requiring it to be held in confidence unless he had previously obtained the official sanction in writing of the service by which he was appointed. He also acknowledged that to obtain such sanction "two copies of the manuscript of any article, book, play, film, speech or broadcast, intended for publication, which contains such information or material shall be submitted to the Director General." In fact, the class of person from whom official authorisation may be obtained in terms of section 7(5) of the Official Secrets Act 1989 is very wide.

    66. Whether making use of the opportunities of disclosure to Crown servants would have been a practical and effective means of addressing the points which Mr Shayler wished to raise is another matter. The alternative, which requires the seeking of an official authorisation duly given by a Crown servant, is not further explained in the Act. It too requires more careful examination. I shall have to return to these points once I have set the scene for their examination more precisely.

Further analysis: proportionality

    67. The objective which is sought to be achieved by the Act is to safeguard national security by preventing the disclosure to unauthorised persons of information relating to the work of the security and intelligence services. Long before the horrific events of 11 September 2001 in New York and Washington it was recognised by the European Court of Human Rights that democratic societies are threatened by highly sophisticated forms of espionage and by terrorism. The court held that they have to be able to take measures which will enable them to counter such threats effectively: Klass v Germany (1978) 2 EHRR 214, para 48. But it stressed in the same case that it must be satisfied that there exist adequate and effective guarantees that such measures will not be abused: para 50. An assessment of their adequacy and effectiveness depends on all the circumstances of the case, such as the scope and duration of the possible measures, the grounds required for ordering such measures, the authorities competent to permit, carry out and supervise such measures, and the kind of remedy provided by the national law.

    68. So it is not enough for the authorities to show in general terms that a restriction on disclosure is needed in the interests of national security. There is, of course, an obvious risk that unauthorised disclosures will impair the efficiency of the work done by the security and intelligence services. Lives may be put at risk, sources of information compromised, operations undermined and vital contacts with friendly foreign intelligence agencies terminated. These points need not be elaborated. It is clear that the state is entitled to impose restrictions on the disclosure of information by members or former members of those services who have had access to information relating to national security, having regard to their specific duties and responsibilities and the obligation of discretion by which they are bound: Leander v Sweden (1987) 9 EHRR 433, para 59; Hadjianastassiou v Greece (1993) 16 EHRR 219, paras 45-47. The margin of appreciation which is available to the contracting states in assessing the pressing social need and choosing the means of achieving the legitimate aim is a wide one: Leander v Sweden, para 59; Esbester v United Kingdom (1994) 18 EHRR CD 72, 74. The special nature of terrorist crime, the threat which it presents to a democratic society and the exigencies of dealing with it must also be brought into account: Murray v United Kingdom (1994) 19 EHRR 193, para 47.

    69. The problem is that, if they are to be compatible with the Convention right, the nature of the restrictions must be sensitive to the facts of each case if they are to satisfy the second and third requirements of proportionality. The restrictions must be rational, fair and not arbitrary, and they must impair the fundamental right no more than is necessary.

    70. As I see it, the scheme of the Act is vulnerable to criticism on the ground that it lacks the necessary degree of sensitivity. There must, as I have said, be some doubt as to whether a whistle-blower who believes that he has good grounds for asserting that abuses are being perpetrated by the security or intelligence services will be able to persuade those to whom he can make disclosures to take his allegations seriously, to persevere with them and to effect the changes which, if there is substance in them, are necessary. The integrity and energy of Crown servants, as defined in section 12(1) of the Official Secrets Act 1989, of the commissioners and members of the Intelligence and Security Committee is not in question. But one must be realistic, as the Court of Appeal recognised. Institutions tend to protect their own and to resist criticism from wherever it may come. Where this occurs it may require the injection of a breath of fresh air from outside before institutional defects are recognised and rectified. On the other hand, the sensitivity and effectiveness of this system has not been tested, as Mr Shayler chose not to make use of any of these opportunities.

    71. The official authorisation system provides the final opportunity. It too has not been tested by Mr Shayler. But it must be effective, if the restrictions are not to be regarded as arbitrary and as having impaired the fundamental right to an extent that is more than necessary. Here too there must be some doubt as to its adequacy. I do not regard the fact that the Act does not define the process of official authorisation beyond referring in section 7(5) to the persons by or on behalf of whom it is to be given as a serious defect. The European Court of Justice has held that article 17 of the Staff Regulations, which requires an official of the Commission of the European Communities to obtain prior permission for the publication of material dealing with the work of the Commission, is compatible with the right of freedom of expression in article 10: Connolly v Commission of the European Communities (Case C-274/99), 6 March 2001. Members and former members of the security and intelligence services are unlikely to be in doubt as to whom they should turn for this purpose, and common sense suggests that no further formalities require to be laid down: see paras 64-65 above. The defect lies in the fact that the Act does not identify the criteria that officials should bear in mind when taking decisions as to whether or not a disclosure should be authorised.

    72. But the scheme of the Act does not stand alone. Any decision to decline an official authorisation will be subject to judicial review. The European Court of Human Rights has recognised, in the context of a complaint of lack of impartiality in breach of the article 6(1) Convention right, the value which is to be attached to a process of review by a judicial body that has full jurisdiction and provides the guarantees of that article: Bryan v United Kingdom (1995) 21 EHRR 342, 360-361, paras 44 and 46; Kingsley v United Kingdom The Times, 9 January 2001 (Application No 35605/97), 7 November 2000; Porter v Magill [2002] 2 WLR 37, 80A-F. I would apply that reasoning to the present case. An effective system of judicial review can provide the guarantees that appear to be lacking in the statute. Two question then arise. First, there is a procedural point. The list of Crown servants in section 12(1), to whom disclosures may be made under section 7(3)(a) without an official authorisation, does not include those to whom the applicant may wish to turn for legal assistance. The second is a point of substance. Is the process of judicial review capable of providing the intensity of review that is needed to satisfy the requirements of the Convention right?

    73. The procedural point can, I think, be met by the authorisation system itself with judicial review with regard to it as the ultimate safeguard. Each case will have to be taken on its own facts, but the basic principle is that everyone is entitled to a lawyer of his own choosing in the determination of his civil rights and obligations or of any criminal charge against him. This is a matter of express provision in article 6(3)(c) in the case of a person who has been charged with a criminal offence. At the stage when authorisation is being sought the matter to be determined still lies within the scope of the person's civil rights and obligations. But he is nevertheless entitled to a fair hearing under article 6(1). I think that it follows that he has an implied right to legal assistance of his own choosing, especially if his dispute is with the state. Access to legal advice is one of the fundamental rights enjoyed by every citizen under the common law.

    74. It was suggested to your Lordships that, if the matter was particularly sensitive, authorisation could be given on condition that the person who is to provide legal assistance agrees to be notified under section 1(6) of the Act that he is subject to the provisions of section 1(1). That solution carries with it the risk of criminal sanctions in the event of any breach of the statutory restriction, and it would be open to objection on Convention grounds if freedom of choice was at risk of being inhibited. But the same objection is unlikely to be present if all that is sought is the giving of undertakings sufficient to ensure that any information is properly safeguarded.

    75. As for the point of substance, it has now been recognised that, although there is an overlap between them, a greater intensity of review is available under the proportionality approach to issues relating to alleged breaches of Convention rights than is the case where the review is conducted on the traditional Wednesbury grounds: see R (Daly) v Secretary of State for the Home Department [2001] 2 WLR 1622, per Lord Bingham of Cornhill at p 1634A and Lord Steyn at p 1635D. As Lord Steyn explained in that case at p 1635D-H, 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. It may also require attention to be directed to the relative weight which is to be accorded to different interests and considerations. It is, above all, important that cases involving Convention rights are analysed in the right way.

    76. As Lord Steyn acknowledged in his judgment in Daly [2001] 2 AC 532, 546, much useful guidance on the difference between the traditional grounds of judicial review and the proportionality approach can be found in the work of academic public lawyers on this subject. Professor David Feldman points out in his essay, "Proportionality and the Human Rights Act 1998", in The Principle of Proportionality in the Laws of Europe edited by Evelyn Ellis (1999), pp 123-124 that it is necessary first clearly to understand the place which the doctrine of proportionality occupies in the structure of analysis under the Human Rights Act 1998: see also David Feldman, Civil Liberties and Human Rights in England and Wales 2nd ed (2002), pp 55-57. As Professor Feldman explains, the principle is relevant only at a very late stage in the analysis of a case, when the court has decided that that a Convention right has been interfered with and that the justification offered by the State has a basis in domestic law and was or may have been for a legitimate purpose. At the end of the process of reasoning, where there is doubt about the justifiability of an established infringement of a Convention right, the principle allows the Court to balance the reasons for and against regarding the infringement as justifiable. At p 134 of his essay he made these points which have a particular bearing on the present case:

    "In some cases, then, no balancing of rights against security will be permitted. Even where non-absolute rights are in issue, the careful balancing required by a doctrine of proportionality should become a major check on the acceptability of claims to the shield of national security, both in relation to the existence of threats to national security and their significance in relation to the interference with rights in the particular case. There will be some cases in which the national security considerations are so sensitive and important that the courts will still decline to intervene, but the doctrine of proportionality should be able to operate (giving appropriate but not unquestioning weight to national security) whenever the court is not satisfied that it ought to treat the particular type of national security consideration as being of such overriding sensitivity and importance as to make the decision in respect of it essentially non-justiciable."

    77. Professor Jeffrey Jowell QC has also emphasised the importance of the carefully constructed set of criteria which the process of analysis involves. In "Beyond the Rule of Law: Towards Constitutional Judicial Review" [2000] PL 671, 679 he explains that a test for proportionality is more sophisticated than that undertaken in English administrative law. As he puts it, the administrative law test is not rooted in any particular criteria but is, by and large, a test as to whether relevant considerations have been properly weighed or balanced. As for proportionality, it is a test of constitutionality. It is both too simple and wrong to equate it with a merits test, but it involves more than a heightened scrutiny of the decision in question:

    "It starts by asking whether the breach is justifiable in terms of the aims it seeks. Some Convention rights can only be violated for a specific purpose (such as national security) and therefore other aims would not be legitimate, whatever their rationale. It then proceeds to consider whether in reality those aims are capable of being achieved. Spurious or impractical aims will not suffice. It then goes on to consider whether less restrictive means could have been employed. The breach must be the minimum necessary. Finally it asks whether the breach is necessary (not merely desirable or reasonable) in the interest of democracy. Only a 'pressing social need' can justify the breach of a fundamental right."

    78. In Smith and Grady v United Kingdom (1999) 29 EHRR 493, 543, para 138 the European Court said that the threshold of review had been placed so high in that case by the High Court and the Court of Appeal that it effectively excluded any consideration by the domestic courts of the question whether the interference with the applicants' rights answered a pressing social need or was proportionate to the national security and public order claims pursued by the Ministry of Defence policy which placed a limitation on homosexuals in the army. It is now clear that, if the approach which was explained and approved in Daly [2001] 2 AC 532 is adopted, the more precise method of analysis which is provided by the test of proportionality will be a much more effective safeguard.

    79. So I would hold that, where a refusal of official authorisation under section 7(3)(b) to disclose information is in issue, the court should address the following questions: (1) what, with respect to that information, was the justification for the interference with the Convention right? (2) if the justification was that this was in the interests of national security, was there was a pressing social need for that information not to be disclosed? and (3) if there was such a need, was the interference with the Convention right which was involved in withholding authorisation for the disclosure of that information no more than was necessary. This structured approach to judicial control of the question whether official authorisation should or should not be given will enable the court to give proper weight to the public interest considerations in favour of disclosure, while taking into account at the same time the informed view of the primary decision maker. By adopting this approach the court will be giving effect to its duty under section 6(1) of the Human Rights Act 1998 to act in a way that is compatible with the Convention rights: see para 58 above.

Where the balance lies

    80. The question is whether the scheme of the Act, safeguarded by a system of judicial review which applies the test of proportionality, falls within the wide margin of discretion which is to be accorded to the legislature in matters relating to national security especially where the Convention rights of others such as the right to life may be put in jeopardy: Leander v Sweden (1987) 9 EHRR 433, para 59; Chassagnou v France (2000) 29 EHRR 615, paras 112-113. I do not think that it can be answered without taking into account the alternatives.

    81. It has not been suggested that the disclosure of information relating to the work of the security and intelligence services should be unrestricted. The European Court has held that a democratic state is entitled to impose a duty of discretion on civil servants, on account of their status provided that a fair balance is struck between their fundamental right to freedom of expression and the legitimate interests of the state: Vogt v Germany (1995) 21 EHRR 205, para 53. On the one hand there is the system of control laid down by section 7(3) the Act, which permits disclosure to Crown servants as defined in section 12(1) for the purposes of their functions as such but not otherwise unless the disclosure is officially authorised. As part of this system undertakings to abide by it are given by members of the security and intelligence services on taking up their employment, so that they are left in no doubt about the restrictions. On the other there is a system of individual decision as to what it is in the public interest to disclose. This is subject to control of wider publication by the court on the grounds discussed in Attorney General v Guardian Newspapers (No 2) [1990] 1 AC 109. It would be subject also to the imposition of the criminal sanction, if there was a general defence to an unauthorised disclosure on public interest grounds and the prosecution could prove that there was no public interest to be served by the disclosure.

    82. It was suggested in the course of the argument that a contrast should be drawn between judicial review of a decision to withhold authorisation and the factors to be taken into account where an injunction is sought to prevent the publication of disclosed material. Reference was made to Lord Griffiths' speech in Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 273A-B where he said that, while the court cannot brush aside claims that publication will imperil national security, it must examine and weigh against the countervailing public interest of freedom of speech and the right of people in a democracy to be informed by a free press. The suggestion was that judicial review on traditional Wednesbury grounds would fall short of the degree of scrutiny which the court can bring to bear in injunction cases. But once the full scope and intensity of judicial review of individual decisions to withhold official authorisation on proportionality grounds is recognised, there is parity on this point between the two systems. The essential difference between the two systems is between the taking of decisions on public interest grounds before disclosure on the one hand and taking those decisions after disclosure on the other.

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