Vention of crime but subject to the existence of independent safe-

guards and the test of proportionality (see Klass v. Federal Republic of

Germany (1978); Kruslin v. France (1990)). The Convention gives states

a wide margin of appreciation in relation to security matters and

confidentiality has been held to be a legitimate state interest in that it

advances the proper working of government (see Ireland v. UK (1978);

Leander v. Sweden (1987); Observer and Guardian Newspapers v. UK

(1991)). On the other hand in McQuillan (above), Sedley J pointed out

that the English approach ignores the fact that not all national security

considerations are necessarily of the same weight and importance, so

that the present approach does not satisfy the proportionality test.

566 General Principles of Constitutional and Administrative Law

The European Court has emphasised the need for safeguards against

abuse, as being necessary in a democratic society even for national

security matters (Lawless v. Ireland (1961); Klass v. Federal Republic of

Germany (1978), Malone v. UK (1984); Brogan v. UK (1988)). However,

safeguards need not necessarily be judicial. For example, in Leander v.

Sweden (1987) the applicant’s claim to see secret reports on him made

for the purpose of security vetting was denied. This was because there

were safeguards against abuse, consisting of a right of appeal to an

independent committee. In R. v. Shaylor (2001) which concerned an

absolute prohibition on disclosing information under the Official

Secrets Act 1989, the Court of Appeal held that an internal mechan-

ism for obtaining authority from a superior helped to strike a fair

balance between freedom of expression and national security (see also

Brannigan and McBride v. UK (1993)).

22.6.1 The Security and Intelligence Services

The ‘secret services’ comprise the Security Services, the Intelligence

Services and the government communications centre GCHQ. Tradi-

tionally they have operated under the general law without special

powers other than the possibility of royal prerogative power. They were

in principle accountable to ministers, ultimately to the Prime Minister,

but there was no formal mechanism for parliamentary accountability.

Their role has been primarily that of information gathering. Where

powers of arrest or interference with property were required, the assist-

ance of the police was requested. However, the ‘Spycatcher’ litigation

brought to a head recurrent concerns that security agents were out of

control and unaccountable and they have now been placed within a

statutory framework. This relies heavily on the discretionary powers of

ministers but contains certain independent safeguards, albeit judicial

review is restricted.

The Security Services (formerly MI6) deal with internal security

(Security Services Act 1989). They report to the Prime Minister. Their

responsibilities include ‘the protection of national security and, in

particular, its protection against threats from espionage, terrorism and

sabotage, from the activities of agents of foreign powers, and from

actions intended to overthrow or undermine parliamentary democ-

racy by political or violent means’ (s. 1). Section 1 (3) includes the

safeguarding of ‘the economic well-being of the UK against threats

posed by the actions or intentions of persons outside the British

Islands’. This is extremely wide and could extend to the lawful activities

of pressure groups. Moreover the Security Services Act 1996 extends

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State Secrecy

the functions of the security services to include assisting the police in

the prevention and detection of serious crime. This is vaguely defined to

include the use of violence, crimes resulting in substantial financial

gain, or conduct by a large number of persons in pursuit of a common

purpose or crimes carrying a sentence of three years or more. This is

wide enough to include political public order offences and industrial

disputes and may violate ECHR notions of clarity and proportionality.

The Director-General is responsible as both poacher and game-

keeper for the efficiency of the service, and for making ‘arrangements’

for securing that information is neither obtained nor disclosed ‘except

in so far as is necessary for the proper discharge of its functions’ or, in

the case of disclosure, for the prevention or detection of serious crime.

The service must not take action to further the interests of any political

party (s. 2 (2)). Nor can its information be used ‘in determining

whether any person should be employed or continue to be employed’

except with the consent of the Secretary of State (s. 2 (3)).

The Intelligence Services (formerly MI5 and GCHQ, Intelligence

Services Act 1994) deal with threats from outside the United King-

dom. They are under the control of the Foreign Office but also report

to the Prime Minister. Their functions are widely defined as being ‘to

obtain and provide information relating to the actions and intentions

of persons outside the British Islands’ and ‘to perform other tasks

relating to the actions and intentions of such persons’. Reflecting the

language of the European Convention on Human Rights, the powers

of the intelligence servives are limited to national security with particu-

lar reference to defence and foreign policies, the economic well-being

of the United Kingdom in relation to the actions and intentions of

persons outside the British islands and the prevention and detection

of serious crime (ss. 1 (2), 3 (2)). GCHQ can monitor and interfere with

electronic communications and ‘other emissions’ and can provide

advice and information to the armed forces and other organisations

specified by the Prime Minister.

22.6.2 Surveillance Powers

The exercise of surveillance powers involves the Art. 8 right of privacy

against clear public interests in national security and the prevention

and detection of serious crime. The absence of a distinctive privacy law

meant that UK law lacked sufficient safeguards to comply with Art. 8

of the European Convention on Human Rights (see Malone v. UK

(1985), Klass v. Federal Republic of Germany (1978), Kruslin v. France

568 General Principles of Constitutional and Administrative Law

(1990)). There is now a range of statutory provisions which authorise

surveillance. The main powers are as follows.

The Interception of Communications Act 1985 empowers the Secre-

tary of State to issue warrants to the police and to certain other public

authorities authorising them to intercept public telecommunication

systems on prescribed grounds such as serious crime or national

security. It is an offence, knowingly to intercept without a warrant.

Information must be used only for the authorised purpose and must be

destroyed after use. Complaints relating to whether a warrant has been

lawfully issued can be made to a tribunal and a commissioner who

is a senior judge reviews the arrangements, reporting to the prime min-

ister. The tribunal is limited to applying judicial review standards. The

decisions of these persons cannot be challenged in the courts (s. 7(8)).

Moreover, except in relation to a prosecution under the Act, and in

certain employment cases, neither evidence obtained by tapping nor

the fact of tapping, nor the question whether a warrant has been

obtained can be used in legal proceedings (s. 9). The 1985 Act has been

overtaken by technology. It does not apply to private telephone sys-

tems (Halford v. UK (1997)), nor apparently to cordless or mobile

telephones. It does not protect the metering of calls, which is lawful for

the purpose of investigating crime (see Telecommunications Act 1985

s. 45). Moreover the tribunal’s powers are limited. It cannot investi-

gate claims concerning interception without a warrant nor the use of

information after interception. In R. v. Preston (1993) Lord Mustill

remarked that the 1985 Act seemed to violate basic principles of fair-

ness relying heavily on the good faith of the officials involved (see also

Justice, 1998).

Part 2 of the Police Act 1997 gives the police additional power in

connection with bugging devices. Section 92 makes it lawful to enter or

interfere with property normally with the authorisation of the Chief

Officer of Police (s. 93). The use of surveillance devices can be author-

ised only where the matter concerns a serious crime, and the action is

necessary. A commissioner (below) must be immediately notified, who

can quash the warrant. However, information already obtained does

not have to be destroyed if it is to be used in court. Except in cases of

urgency, prior consultation with a commissioner is required in the case

of residences, hotel bedrooms, specified confidential information and

personal or journalistic information.

The Regulation of Investigatory Powers Act (RIPA) 2000 is more

comprehensive. It sets out to ensure that surveillance and the use of

secretly obtained information by all public authorities including the

security services complies with the European Convention on Human

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State Secrecy

Rights by controlling the interception, acquisition and use of infor-

mation in relation both to public and private telecommunication sys-

tems. This includes telephone tapping, including mobile phones and

intercepting electronic data. It also authorises the interception of

‘communications data’, this being information about the use made

of communication systems, billing, websites etc. as opposed to content.

RIPA creates significant new powers of surveillance by making clear

that certain forms of surveillance are lawful and also by imposing

duties on communication providers such as Internet service providers

to co-operate with the authorities by providing surveillance facilities.

Government funding is available for this. It is an offence deliberately

and without lawful authority to intercept a public telecommunication

system and a private telecommunication system without the consent of

the person in control of the system (s. 1). It is a tort, actionable in

private law, to intercept communications in a private telephone system

without the consent of the person in control of the system (s. 1(3)).

Lawful authority is provided by a warrant issued by the Secretary

of State (s. 5). There are also cases where a warrant is not required

(ss. 3, 4). In particular the Secretary of State can make regulations

legitimating interception for the purpose of co-operating with overseas

interception requests, monitoring or recording business activities and

in prisons, and secure hospitals (s. 4). Under the Telecommunications

(Lawful Business Practices) (Interception of Communications) Reg-

ulations 2000, (SI 2000, No. 2699), employers and service providers

can intercept data on their own systems for the purposes of their busi-

ness and in relation to certain crimes and public concerns (cf. Directive

97/666, EC).

A warrant can be issued by the Secretary of State on the application

of the chief of the security, or intelligence services, a chief of police or

the senior officers of the customs and excise or defence services (s. 3).

‘Interception’ includes modifying the system or its operation or mon-

itoring its transmissions (s. 2(1)). Independent judicial supervision is

not required, although this might arguably violate the ECHR. The Act

also requires service providers to maintain an interception capa-

bility (s. 12). Government funding is available for this. Specific author-

isation is required for intercepted information to be shared with other

persons including public authorities.

The obtaining and use of ‘communications data’ (above) can be

authorised by a wide range of senior police and other officials. Chapter II

empowers the disclosure of communications or ‘traffic’ data, such as

subscriber details, telephone bills and e-mail addresses. Authorisation

can be given on wider grounds, including tax collection. Moreover

570 General Principles of Constitutional and Administrative Law

authorisation does not require a warrant and can be internal from the

head of the public authority concerned. This may also be questionable

under the ECHR (see Kopp v. Switzerland (1998)). The Anti-Terrorism,

Crime and Security Act Part 11 extends this power in order to require

communications providers such as Internet service providers to make

archived communications data available which can be trawled through

at leisure.

Controversially, RIPA empowers anyone in lawful possession of

intercepted information to require the disclosure of the key to pro-

tected (encryptified) data on the grounds of national security, serious

crime and, more dubiously, that it is necessary for the performance of a

public function (s. 49). The UK is the only leading democracy to allow

this. A disclosure notice must be authorised by a circuit judge who must

be satisfied that there is no other means of obtaining the required

information and that the direction is proportionate to what is sought to

be achieved. In the case of a company the notice must be served on a

senior officer or employee (s. 49(5)) and the Secretary of State must

contribute to the cost of compliance (s. 51). A disclosure notice re-

quested by the police, the security services or the customs and excise

commissioners can also contain ‘tipping-off ’ provisions imposing life-

long secrecy requirements as to the existence of the notice (s. 54).

Part II of RIPA provides for the authorisation of covert surveillance

including bugging devices and ‘covert human intelligence sources’. The

latter are informers who form a personal relationship with a person for

the purpose of obtaining information (s. 26). The Act provides that

such activities are lawful for all purposes if authorised under the Act.

This kind of surveillance is not otherwise unlawful and the Act does

not make it so. However, without authorisation it is vulnerable to

challenge under the Human Rights Act 1998 because of the absence of

safeguards (see Teixeira de Castro v. Portugal (1999)). In J.H. Ltd v.

UK (2001), the European Court held that bugging in a police station

without safeguards was a violation of the right to privacy.

Intrusive surveillance is covert surveillance on or in relation to resi-

dential premises or in a private vehicle which involves either presence

on the premises or in the vehicle, or use of a bugging device. However,

if the device is not on the premises or vehicle, it is ‘intrusive’ only if the

quality of information is as good as if it were (s. 26(5)).

These forms of surveillance can be authorised on a lower level than is

the case with telephone interception (above), (see Regulation of Investi-

gatory Powers (Prescription of Offices, Ranks and Positions) Order

2000 (SI. 2000 no. 2417)). Intrusive surveillance requires a higher level

of authorisation (s. 32(1)).

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State Secrecy

The circumstances in which these powers can be exercised reflects

the European Convention on Human Rights, in particular the concept

of proportionality and the overrides affecting the right to privacy (see

e.g. ss. 5, 15, 32, 49, 74). These include national security, the preven-

tion and detection of serious crime, the safeguarding of the economic

well-being of the country and, in the case of conduct other than inter-

ception, the safeguarding of public health, public safety, tax collection,

emergencies protecting life and health and ‘other purposes specified by

the Secretary of State’ (s. 22).

22.6.3 Safeguards

Commissioners for intelligence services, interception of communica-

tions, and police surveillance operations review the exercise of the

various powers of investigation and use of material under the legisla-

tion (Regulation of Investigatory Powers Act 2000, s. 59, Police Act

1997). The commissioners who are senior judges can report to the Prime

Minister at any time. The Prime Minister must lay their annual reports

before Parliament. There is also a Joint Intelligence and Security

Committee of Parliament which examines the spending, administra-

tion and policy of the intelligence services (Intelligence Services Act

1994 s. 11).

RIPA creates a unified Tribunal to hear allegations of misuse of

power by the security and intelligence services and also in relation to

the interference with property, interception of communications, covert

surveillance or misuse of information by the police and armed forces

(s. 65). The Tribunal is also concerned with claims based on human

rights for which it is made the only forum for actions against a public

body under s. 7 of the Human Rights Act 1998. The tribunal is

required to apply judicial review principles review (s. 67). In view of

the wide powers involved this affords only a low level of review

although this is likely to be enough to conform to the ECHR. The

tribunal may award compensation, and make other orders including

quashing warrants or authorisations and ordering records to be

destroyed (ibid). In the case of a complaint about interference with

property by the security services the tribunal must refer the matter to

the Commissioner who must then investigate (Intelligence Services Act

1994 Schedule 1 (4) (1)). If a warrant has been issued, the Commis-

sioner is banned from probing any deeper than would a court applying

judicial review principles (ibid.). The Commissioner reports back to

the tribunal (Schedule 1 (4) (2)).

572 General Principles of Constitutional and Administrative Law

In the case of the intelligence services the tribunal has power where

they do not decide in favour of the complainant, to refer a matter to

the Commissioner where they think it appropriate that there should be

an investigation into ‘whether the service has in any other respect

acted unreasonably in relation to the complainant or his property’.

The Commissioner may then report to the Secretary of State who can

make an award of compensation (Schedule 1 (7)). It is doubtful how-

ever whether a single commissioner has the resources adequately to

investigate complaints. The decisions of the Tribunal and the Commis-

sioner cannot be questioned in the courts even on jurisdictional

grounds (Intelligence Services Act 1994 s. 5 (4), RIPA s. 67 (8)), a pro-

vision that might violate the ECHR.

Summary

22.1 There is no general right to the disclosure of governmental information. There

is a voluntary code subject to many exceptions, and the government proposes

to introduce a freedom of information bill where information must be

disclosed unless to do so would be harmful. Again there are exceptions.

22.2 There are certain statutory rights to the disclosure of specified information,

but these are outnumbered by many statutes prohibiting the disclosure of

particular information.

22.3 The Freedom of Information Act 2000 confers a right to ‘request’ the dis-

closure of documents held by public authorities. However, this can be

overridden by the government and is subject to many exceptions particularly

in relation to central government policy. The Act is not yet in force.

22.4 Under the Official Secrets Act 1989 certain categories of information are

protected by criminal penalties. Except in the case of national security, the

information must be damaging. There is also a defence of ignorance.

22.5 The law of confidence requires the court to balance the public interest in

‘openness’ against the public interest in effective government. The balance is

struck differently according to context. The courts have endorsed the impor-

tance of freedom of expression and a public body is required to show a public

interest in secrecy. The main remedy is an injunction. Third parties such as

the press are not directly bound by an injunction but might be liable for

contempt of court if they knowingly frustrate its purpose.

22.6 Public interest immunity allows the government to withhold evidence. The

court makes the decision on the basis of balancing the public interest in

the administration of justice against the public interest in effective govern-

ment. The courts’ approach to public interest immunity is affected by the

Human Rights Act 1998 which requires that any claim satisfy the propor-

tionality principle.

22.7 The Security and Intelligence Services are subject a certain degree of control

largely through non-judicial mechanisms. There is detailed regulation of

573

State Secrecy

electronic surveillance. This gives the government wide powers of intercep-

tion subject to the requirement for safeguards in respect of the obtaining and

handling of information in particular proportionality and limitations on pur-

poses. The courts give the executive a wide margin of discretion in relation to

security matters.

Further Reading

Akdeniz et al. (2001) ‘Regulations of Investigatory Powers Act 2000 (1): Big Brother.

gov.UK: State Surveillance in the Age of Informatiion and Rights,’ Criminal Law

Review 73.

Leigh, I. and Lustgarten, L. (1991) ‘The Security Commission: constitutional

achievement or curiosity?’, Public Law, 215–32.

Oliver, D. (1998) ‘Freedom of information and ministerial accountability’, Public Law,

171.

Palmer, S. (1990) ‘Tightening secrecy law’, Public Law, 243.

Scott, Sir R. (1996) ‘The acceptable and unacceptable uses of public interest

immunity’, Public Law, 427.

Simon Brown, LJ (1994) ‘Public Interest Immunity’, Public Law, 579.

Uglow, S. (1999) ‘Covert surveillance and the European Convention on Human

Rights’, Criminal Law Review, 287.

White Paper, Your Right to Know: Freedom of Information (1997) Cm 3818.

Whitty, Murphy, Livingstone, Civil Liberties Law: The Human Rights Act Era, Ch. 7.

Exercises

22.1 To what extent is the law relating to government secrecy affected by the

Human Rights Act 1998?

22.2 ‘We have moved from a discretionary open government regime under a

voluntary Code of Practice to a statutory open government regime in which

the power to decide what is to be disclosed lies within the discretion of

government and is denied to independent bodies’, Nigel Johnson ((2001) 151

New Law Journal at 1031). Explain and discuss critically.

22.3 Sam is a member of the Intelligence Services. In connection with his work, he

hears a rumour that terrorists are planning to infect certain television studios

with a substance capable of infecting people with the disease anthrax.

However, it is not clear which studios will be targeted. Sam’s daughter Jill is a

presenter at a local television studio in the north of England. Without con-

sulting anybody, Sam informs Jill of the rumour. The rumour is subse-

quently revealed on the local television news broadcast from the studio in

question. Sam and Jill are prosecuted under the Official Secrets Act 1989.

Advise them.

22.4 Derek, a director of a company that supplies rail catering services, is prose-

cuted for insider dealing in the shares of an associated company that recently

entered into a contract to provide travel facilities and ‘entertainment’ for the

government. Derek claims that, when he dealt with the shares, the govern-

ment‘s plans involved a different company altogether but were later vetoed by

a special advisor to the Secretary of State and a cover-up put in place. Derek

574 General Principles of Constitutional and Administrative Law

requests the production of letters between civil servants and the Secretary of

State (the existence of which he learned of from an anonymous e-mail), which

he claims would support his version of events. The government issues a PII

certificate on the ground that the information is in a category the disclosure of

which would inhibit free and frank discussion within the government. The

minister who signed the certificate did not examine the information personally

but relied on advice from the Attorney-General that the ‘certificate is good for

all cabinet level documents’. Advise Derek.