Executive secrecy, national security, and freedom of information in the United Kingdom

Executive Secrecy, National Security, and Freedom of Information in the United Kingdom

DAVID GOLDBERG*

This article, in general, is concerned with the relationship between executive secrecy, national security, and freedom of information in the United Kingdom. Within that context, it looks, first, at the reaction and attitude of the Campaign for Freedom of Information in the U.K. after its inception in 1984; second, it considers the issue in light of the right of the individual in the U.K. to petition the European Commission of Human Rights; and, third, it looks at a recent national court decision which, in involving the law of confidence, seems to crystallize a trend in the U.K. which makes formulating legislative reforms to the Official Secrets Acts less fruitful.

The United Kingdom is often described as a particularly secret state. Whether this is, or is not, the case is debatable.’ It is true, however, that in the U.K. there are many specific restrictions on the disclosure of information. When the 1984 Campaign for Freedom of Information was launched in January 1984, its manifesto listed almost 100 statutory provisions protecting the communication of information.* As has been pointed out, most of these laws do not provide any statutory defense to the disclosure prohibition clauses.3 Presumably, approval for these provisions can be inferred, tacitly, from their non-repeal- but by whom? The Campaign recently commissioned an opinion poll on the subject of

freedom of information. In the sample, 1,909 people, over age 15, were polled and the data was then weighted by sex, age, social class, and region in order to provide a representative profile of the population.4 Respondents were asked whether or not there should be a right to see a variety of different classes of files containing personal information. To that extent, the poll was more specific than on the general principle of freedom of information, and was directly related to the topic of subject access to personal tiles,

*Direct all correspondence to: David Goldberg, Department of Jurisprudence, The University, Glasgow. Scotland GI2 8QQ.

Government Information Quarterly, Volume 4, Number 1, pages 43-61. Copyright Q 1987 by JAI Press, Inc. All rights of reproduction in any form reserve-d. ISSN: 0740424X.

44 GOVERNMENT INFORMATION QUARTERLY Vol. ~/NO. l/1987

where a higher positive response might have been predicted. However, the poll, the first of its kind in the U.K., provided much publicity for the Campaign, as well as evidence for

its claim that a substantial proportion of U.K. citizens desire a more open society. It is not that the past 25 years have not seen a running public debate on these matters?

general investigations into public administration, a specific investigation into the Official Secrets Acts, the policy on the disclosure of public records, the rights of Ministers to publish memoirs, comparisons with other countries’ practices, evaluation of the ‘D’ notice system, and legislative forays to convince Parliament to enact statutes regulating the flow of information have come and gone.6 As a leading analyst of official secrecy in the U.K. has written, albeit in a slightly wider context, “A ghost train of lost recommen- dations travels through much of our constitutional law.“7 A separate, though connected, wagon of that train which has wended its way through British public life with depressing frequency concerns the trials under the Official Secrets Acts. The jurispurdence of those interconnected laws’ has bequeathed a legacy of defendants’ names that reads like a football team, so glibly do they roll off the tongue: Chandler;’ Fell;” Cairns, Aitken, and Roberts;” Aubrey, Berry, and Campbell;” Tisdall;i3 and Ponting.14

CAMPAIGNING ABOUT NATIONAL SECURITY The efforts of the U.K. Campaign for Freedom of Information are broadly divisible into two main strands. On the one hand, there is the consumerist effort, which tackles questions about persons’ access to tiles (whether computerized or not) which contain information relevant to their everyday lives. Topics here would include health and safety information; food labeling; or environmental secrecy. On the other hand, there are great issues of state, including the proposal to repeal the Official Secrets Act, 19 11. Its breadth, especially section 2, is notorious and there have been several proposals to replace it with a Freedom of Information statute.15 Its scope can be appreciated from two recent examples. It extends to doctors who are committee members of the Department of Health advisory committees. A Parliamentary answer has recently revealed the applica- bility of section 2 to committee members of 43 such bodiesI

Again, knowledge about safety issues arising out of the operation of nuclear power plants is affected by the Official Secrets Act. A recent report states that the contract awarded to the Department of Radiation Biology Unit at the Medical College of St. Bartholomew’s Hospital, London, by the Department of the Environment to study radioactive pollution in the atmosphere, contained a clause stipulating that the work was covered by the Official Secrets Act.i7

However, the Campaign, for reasons both of principle and tactics, does not foster Freedom of Information legislation that does or seems to compromise national security as understood in the narrow military and intelligence information sense. While the Campaign “ . . . would make the vast bulk of official information available to the public,” it would ‘I . . . retain controls on information that would endanger national security.‘* This point is underpinned by clause 12 of the Freedom of Information bill, introduced as a ten-minute rule bill by David Steele, the leader of the Liberal Party, and promoted by the Campaign.”

Part I of the bill seeks a general right of access to official information by members of the general public, subject to certain exceptions to be known as “exempt information.” Such information includes:

Executive Secrecy, National Security, and Freedom of Information in the United Kingdom 45

Information, the disclosure of which would seriously impair-

(I) the defence or security of the UK or any territory for which HMG of the UK has responsi-

bility (Clause 12 [a] [i]).

Part III of the bill, clause 53, interprets “defence” to include the following matters: the armed forces of the Crown, military weapons, stores and other equipment, and research relating thereto; defense policy and strategy and military planning and intelligence; plans and measures for the maintenance of essential supplies and services, whether in time of war or a state of emergency, or for the maintenance or restoration of public order and the defense of a foreign state, and such other matters relating to such a state as corre- spond to the matters mentioned previously in this interpretation.

“Security” or “Intelligence” is interpreted (defined) to mean:

. . . the lawful work and activities of, and in support of, the security and intelligence services, or

any part of them, and references to information relating to security and intelligence includes

references to information held or transmitted by those services or persons in support of them

or any part of them.

It is in this light that clause 1, which grants that every person “shall be entitled to obtain access. . . to an official document other than a document containing exempt

information,” should be read.” Part II of this bill, which was introduced without any serious prospect or expectation

that it would proceed further, sets out proposals for reforming section 2 of the Official Secrets Act, 1911. Clauses 41-54 create a category of protected information, the wrong- ful disclosure of which shall constitute an offense. An important innovation is created by clauses 47 and 48 which provide statutory defenses to disclosure, and thus attempt to improve the defect in British law referred to earlier.

Clause 47 provides that “it shall be a defence for a person charged with an offence. . . to prove that before the time of the alleged offence the information.. . had become publicly available, whether in the UK or elsewhere;” clause 48 offers a defense against a charge under clauses 42-45 if the person so charged can prove that the disclosure “was in the public interest”on the following grounds:

l that the information tends to prove “the commission of any criminal offence, interference in, or abuse of public office or misuse or other unlawful or improper use of public funds;”

l that the information tends to “establish the unsuitability of any persons to perform or fulfil his duties as Crown servant, or agent, government contractor or holder of public office;” or

l that the disclosed information “related to a matter of justifiable public concern, and that the disclosure was made to a person having an interest in, or public duty in respect of, that matter.”

The “public interest” defense, which the foregoing paragraph elaborates, has been called for in several critiques of the scope of executive secrecy, both in the U.S. and in the U.K.21 The general premise is that disclosures, whether to the press or to other officials or Members of Parliament, tend to be made by well-motivated, but relatively powerless,


officials, who need the protection of law to save them from being prosecuted for the commission of an absolute offense or from being otherwise penalized. The political sanctions of non-promotion, transfer to another job, or worse, are well-known and may, in the long run, be more personally deleterious. Indeed, one of this decade’s better known defendants in a section 2 prosecution, Clive Ponting, has urged just this sort of reform. As he puts it, “It is. . . essential for any new Act [reforming the 1911 Act] to provide a clear public interest defence.“22

This is because, he argues, otherwise, under the present inte~re~tion of the law, there can be no “unauthorized” communication-even to an MP-of information which alleges corrupt or unlawful governmental conduct.23

Clauses 47 and 48 represent another attempt to establish some statuto~ly-provided defense to a section 2 charge, broader than the two grounds contained in the original legislation: (a) communi~tion to an authorized person or to someone whom it is in the interest of the state to so communicate, and (b) receipt contrary to the recipient’s desire.

However, the bill represents the broad claims of the Freedom of Information lobby in the U.K. and is not settled law. It is also worth bearing in mind that even the Franks Committee did not view such a defense with favor.24 Rosamund Thomas also offers several additional reasons for being skeptical about the value of a public interest defense. ”

* Most cases of disclosure could fall under its head; thus, it might not be used in exceptional cases, but indisc~minately by Crown servants and others seeking to justify authorized communications of official information.

l Constitutionally, Crown servants are not accountable to the public interest, so any such defense would be contrary to U.K. constitutional convention.

l The potential use would lead to a disparate interpretation of the public interest and an increase in executive power, “. . . the power of non-elected officials to decide what is in the ‘public interest.“’

* Such a defense would increase the role of the courts in balancing public interest factors, which is an area in which, in the U.K., the courts are not likely to intervene. 26

* And, “‘in any event such a public interest defence in the law would be a post facto method of dealing with Crown servants who leak official information (i.e., . . . after the event when possible damage to national security, or trust, has already occurred).”

So, the argument over the public interest defense is complex. It is poised between those who see problems with such a defense, not least in the light of the U.K.‘s constitutional structure, and those who advocate it, sometimes from an “insiders” perspective. In the latter camp, the question of implementation divides between those who propose a blanket statutory provision, such as the Freedom of Information bill, and those who favor the enactment of specific defenses in each statute prohibiting disclosure. However, the general view appears to be that, to the extent that a new m~hanism is at all desirable, the U.K. is lacking in providing any adequate model whereby information, including defense and security information, which was learned in the course of employment and tends to show that certain actions of government need to be evaluated by and in the

Executive Secrecy, National Security, and Freedom of information in the United Kingdom 47

wider community, can be so evaluated without adverse consequences occurring to the informant.

THE U.K. IN A EUROPEAN CONTEXT The fact that the U.K. is a signatory to the European Convention on Human Rights means that an informant could be afforded some relief by way of an appeal to the Commission, in the first instance, usually under Article 1O.27 However, a recent decision has tempered the optimism of those who place faith in this supra-national recourse.2*

The applicant, who held a senior waste management post at the Atomic Weapons Research Establishment (AWRE), was, thereby, an employee of the Ministry of Defence. He was also a County Councillor, an elected office at local government level, for the Newbury (Greenham) division of the County of Berkshire. He was invited to appear on a BBC program, “Newsnight,” which was to include an item on the levels of plutonium inhaled by workers at AWRE, Aldermaston. The applicant, Trevor Brown, was obliged by the terms of his employment to seek permission before appearing on the program. This was refused on the ground that claims on behalf of dead employees might mean that the broadcast would constitute a contempt of court. Brown went ahead with his appearance after informing the authority that legal advice had discounted the threat of a contempt. He made several comments on the level of safety standards at AWRE, Aldermaston, and the impact that secrecy had had on preventing improvements. He was charged with a disciplinary offense and was severely reprimanded. It was stated in the House of Lords that

Brown “ . . . did not disclose any official information which was not already public knowledge.” The issue here, as stated by Lord Trenchard, the Minister of State, Ministry of Defence, was that “all civil servants are not allowed to take part in public programmes involving the disclosure or the use of information obtained through their official duties without having permission; and in this case permission was not granted.“2v

The question for the Human Rights Commission, at least as far as Article 10 was concerned, was whether or not the disclosure/comment restriction was justified. The Government contended that the Ministry of Defence restriction was on a par with that imposed by any employer on employee disclosures concerning work-related matters. The argument was made that, under Article 10(2), the freedom of the informant to express views was restricted by the justification of the protection of the rights of others, in this case the Ministry of Defence as employer. The Commission found (1) that the restriction’s aim was legitimate in view of the confidential circumstances in which the information revealed by the applicant was received and the exceptions to the right of freedom of expression detailed in Article lO(2); (2) the restriction was not disproportionate or excessive; and (3) the fact of the applicant’s elected oftice did not alter the position, as the expressions of such a person on matters of public interest and concern were equally subject to the qualifications contained in Article lO(2). The responsibility of a councillor to speak out on such matters conflicted with, and could negate, the duty of non- disclosure imposed by the employment and owed to the applicant’s employers. Lord Trenchard, in the House of Lords, stated that civil servants who had been permitted to stand for elective office, and had been elected, were still expected to follow the rules of conduct as laid out in the Civil Service Pay and Conditions of Service Code and the Establishment Officers Guide. Indeed, he agreed most emphatically with the view of


Lord Paget, who said: “we hear that one of its [AWRE] servants deliberately and publicly defies its orders and he gets away with a mere reprimand. Surely that is rather alarming.“” The decision of the Commission has been described as “a surprise ruling”and one which “had surprised civil rights lawyers who feel it was a particularly strong case.“3’

Thus, as has been seen, there is no immediate prospect of legislative relief in the area of national security disclosures in the U.K., and the optimism, at least in some quarters, that recourse to the European Convention on Human Rights offered a convenient alternative, does not easily accord with the decision in the Brown case.

The Campaign’s effort for 1987 is being directed towards making freedom of information and a commitment to reforming section 2 of the Official Secrets Act an election issue, and to hoping that a back-bench MP who comes high enough up in the Private Members Ballot can be induced to promote the Access to Personal Files bill. The Access to Personal Files proposal does not, on the face of it, seem to have much to do with the issue of disclosing information having a bearing on national security. However, that issue has several dimensions:

l the existence, or not, of a general right of gaining access to national security information and the general obligation of not divulging protected defense/security information, subject to any specific defenses;

l the right or role of the press as an agent of the public as against the scope of any restraint on publication, either by way of prior restraint or subsequent punishment;

and l the issue of subject access to files or records containing information which im-

pinges on national security.

It is in this last context that the connection lies. As it happens, in the poll referred to earlier, the question was asked: Do you think you should have the right to see government records having to do with you, involving national security? Of the unweighted base [N = 19091, 36% answered in the affirmative, although what interpretation should be placed on that figure is unclear. The sort of record envisaged by the question, though, is that which is just now the subject of a claim before the European Court of Human Rights.32

Torsten Leander is a Swedish subject, but because the U.K. is a signatory to the Convention and allows a right of individual petition, his case is of interest to U.K. citizens. Briefly, the claim revolves around the refusal of permanent employment to Leander at the Naval Museum at Karlskrona, which is beside the Karlskrona naval base, a restricted security zone. His dismissal from provisional employment came after a security check had been carried out in accordance with the Personnel Control Ordinance (1969-1983). At the hearing before the European Court of Human Rights, the Commis- sion’s delegate said that “the principal issue of the case concerns the question of whether under Article 8 of the Convention a person should have a right to know-and a possibility to contest-secret information about himself.“33

The fact of the maintenance of such a secret security register was not objected to by the parties; and, in the report of the Commission, that body accepted its existence in principle: “The Commission finds no reason to doubt that in today’s modem democratic society it is necessary with intelligence systems to protect the democratic societies from subversive activities.“34 From the point of view of the concerns of freedom of informa-


tion, the applicant’s counsel made it clear in his submission to the Court that the ground of the claim was concerned with the inability of the applicant, or his legal representative, to acquaint themselves with the reason used by the deciding authority, which led the Museum’s Director to inform Leander that he could not be employed there. Fruitless appeals were lodged with the Head of Security, the Commander-in-Chief of the Swedish Navy, and the Swedish Government. Counsel for the applicant said:

Nor have I, as Mr. Leander’s legal representative, been allowed to acquaint myself with the

grounds upon which Mr. Leander was Iabelled ‘a security risk’. That is why we are here today.35

At issue is the so-called “principle of communication” in administrative matters [especially concerning national security]. What is the scope for communicating with the subject of a security file, both in the interest of making the file more relevant from the point of view of the security authorities and in the interest of its being accurate and up-to-date from the point of view of the subject?

As of the moment, the Court has not delivered its judgment. The conclusion of the Commission was that there had been no breach of Article 8 of the Convention, albeit that there had been an interference in the private life of the applicant.36 As already noted, having accepted, in principle, the legitimacy of an intelligence system for the defense of democratic societies against subversion, the Commission recognized that it must have regard to the character of a system in the instant case. In particular, it was concerned with the problem that “such systems and registers, typical in a police state, are open to abuse and arbitrariness.“” Accordingly, it had to satisfy itself of the adequacy of the safeguard for the protection of the individual:

Where the Commission has, as in this case, found that an individual’s right or freedom as

guaranteed by the Convention has been interfered with it is not possible for the respondent

government to escape the supervision of the Convention simply by referring to the fact that the

interference was pursued in the interests of national security.‘8

In this case, so far as the Commission was concerned, the twelve safeguards pointed out by the respondent government constituted an adequate system of safeguards. In particular, three were regarded as valuable: (1) the fact that the National Police Board counts six parliamentarians, (2) the existence and functioning of the Parliamentary

Ombudsman and (3) the “watching” brief of the Parliamentary Standing Committee on Justice. It is, though, part of the system that there is a restriction on the right of access to public documents conferred by the Swedish Freedom of the Press Act, Chapter 2; the Secrecy Act, chapter 4, section 5, is the source of the restriction:

no document or other material may be disclosed, if and to the extent that with regard to any

public or private interest it is of utmost importance that secret information contained in the

material is not disclosed.

Indeed, in the Leander case, the Commission was prepared to accept that it need not be apprised of the facts or the nature of the secret information on the applicant.39 Did the non-communication to the applicant raise any issue under Article 10; does the fact, for example, that vis-&vis positions categorized as Security Class 2 (including the applicant’s position), no information is communicated to the data subject involve a breach of


the so-called right to receive information? Actually, the Commission subsumed the issue of notification under Article 8 and concluded that “the absence of notification to the person concerned of the information kept in the secret register is compatible with Article 8.“40

This finding is consistent with the view expressed by the Commission and Court in the Klass case, that where a secret surveillance or intelligence system is in being, and is not inconsistent with Article 8, there is no right to the information which is collected.4’ The reasoning of the respondent government, which the Commission appears to accept, is that 90% of the information is recorded according to the provisions of the Ordinance on Police Registers governing matter presumed to be known to the individual concerned (e.g. records of convictions), and disclosure of other information, which is “sensitive,” could have

detrimental effects on the work of the Security Police, since it could reveal sensitive sources or harm ongoing investigations or reveal their working methods. This applies especially to information recorded in accordance with the Government> secret in- structions [emphasis added].42

Finally, there is a question as to whether or not any issue arises under Article 13.43 Is there an “effective” remedy if the applicant cannot see the document upon which the deciding authority has decided not to employ him/ her and if the matter is not justiciable

before the ordinary courts? The Commission, by a narrow majority, found that there was no breach of Article 13.

If a remedy were to be set up under Article 13 which should have competence to render a

binding decision, such a decision can therefore only be one which halts at the door of access to

the tile. It would be an “artificial” remedy, because no State can accept that particulars are

being revealed which give an insight into its methods to combat threats against its national

security. And the Commission has itself recognised the sensitivity of this very area by not

asking the Government to disclose the particulars which are being held against the applicant.”

By an “effective” remedy, the Commission meant only whether or not an authority. is obliged to hear a complaint, is “sufficiently independent,” has the power to fully examine the issue, and has the power to “render a binding decision, affording redress, where appropriate.” That the applicant might not succeed before such an authority does not mean that the remedy is thereby, “ineffective.” And, as the Government maintained in the instant case under the Swedish system of access to secret files, a data subject could have applied to the National Police Board to have access to his/ her personal file held by the Security Police; a negative decision could have been appealed to the Administrative Court of Appeal and, if necessary, finally, to the Supreme Administrative Court. The fact that there is no real chance that the application would succeed did not mean that there is no “effective remedy.“45

The Commission concluded, unanimously, that there had been no breach of Article 8 and that no separate issue arose in this case under Article 10. It also concluded, but only by seven votes to five, that there had been no breach of Article 13. A decision of the Court is awaited imminently, as of this writing. However, there is little in the dicta of the Commission to afford any citizen of a state signatory to the Convention any real ground

fxecutive secrecy, Nationai Security, and freedom of Information in the United Kingdom 51

for challenging the policy of not permitting subjects access to files containing information about them when that information is held to relate to matters or agencies concerned with the security of the state.

FROM THE OFFICIAL SECRFB ACT TO THE LAW OF CONFIDENCE

Recent information cases in the U.K. which have become notorious and much com- mented upon have revolved around the scope and interpretation of the Official Secrets Act. Prosecutions continue to take place under its aegis, at least in relatively non- controversial cases. However, an impression is being created that, in the words of the Campaign for Freedom of Information, “There is now a complete consensus that S.2 is unenforceable as well as unsatisfactory” (emphasis added].46 This, supposedly, is the reason that Catherine Massiter, the ex-ML5 operative who provided info~ation to the makers of a television documentary alleging that M.I.5 had systematically tapped, bugged, and penetrated perfectly lawful political organizations in the U.K. in breach of its guidelines, was not prosecuted under the Official Secrets Act. This may be so; David Caute, in his admirable book, 7&e Espionage of the Sairzrs: 7kvo &says on Silence and the State, quotes Clive Ponting as saying, regarding the Massiter affair, “They can’t face another acquittal. Whether we’ve finished off S.2 is another matter.“47 In Caute’s view though, “It’s not merely another acquittal they can’t face: even more damaging is the capacity of a~g~fi~g defendant to drag the murky activities of anonymous operatives into the daylight” [emphasis added].48 Given that the use of the Act is always at the discretion of the Attorney-General, it may just be, then, that slightly changed criteria have entered the decisionmaking process.

What is notewo~hy, though, is the use being made, perhaps as an alternative to charges framed, in terms of offenses under the Official Secrets Act of the equitable doctrine of breach of confidence. This is a non-statutory branch of law, developed by the judges and capable of wide-ranging application. To some extent, its operation is different from that of the Secrets Act, in that it can operate by way of prior restraint rather than by subsequent punishment. It may be, on that account alone, thought to be an undesira- ble development. It is not suggested that criticizing or debating the scope of the secrecy laws is redundant, but that the ground of contention does seem to have moved somewhat. A recent case shows the breadth of the new terrain which relates to a previously mentioned context of the freedom of information/national security debate: the right of the press in bringing information to the general public about such matters.

The case involves the publi~tion of material alleging misdeeds by M.I.5. Peter Wright, a retired senior Security Service officer, decided to write a book describing certain activities of M.1.5 between the mid-1950s and the mid-1970s. It contains material which alleges unlawful and unconstitutional conduct by that organization. The book came to be written after Wright had sought, unsuccessfully, to have a House of Com- mons select committee hold an inquiry into the allegations. Wright retired to Tasmania and arranged publication with the Australian subsidiary of a U.K. publisher (Heine- mann). The fact that it was going to be published became known to British authorities, and a temporary injunction prohibiting production was sought in the Australian courts in September 1985. The ground of the U.K. Government’s claim was that the defendant

52 GOVERNMENT INFORMATION QUARTERLY Vof. ~/NO. ‘i/1967

was in breach of contract, and had breached his obhgation of confidence to the Govern- ment as his ex-employer. Sir Robert Armstrong, the Head of the Home Civil Service, the Secretary of the Cabinet, and “the Prime Minister? principal official adviser in relation to matters of security and intelligence in the U.K.,“as Sir John Donaldson put it in the Court of Appeal, deposed an affidavit. This attested to the fact that the book’s publication would shatter the confidence of other agencies in M.I.Ys capacity to protect classi- fied and sensitive material. The injunction was granted, pending a full hearing and the defense gave an undertaking in respect of non-publication until the result of that litiga- tion has been decided. Reports were printed in the ~~~~~~~~ and the ~ff~r~j~~ describing developments in the Australian court action, and confining a selection of the more spectacular allegations made in the book against M.I.5.“’ When these reports were read out in the Australian Court, not only did Mr. Justice PoweII in the New South Wales Supreme Court not regard them as constituting a contempt, but he also was quite critical of the U.K. Government for not detailing which items, precisely, were confidential, and for paying no regard to the ‘*legitimate claim of the public to know what was going on.”

The newspapers received a letter from the Treasury Solicitor, seeking assurances that they would not, in the future, publish material “purporting” to be derived from the book, or derived from knowledge acquired by Wright during his period of service with M.1.5. The Guardian’s editor replied in terms indicating his surprise that there was an attempt to prevent publication of matters and that the paper had not indicated it was intending to publish; the U&~er refused to give a general assurance that it would not subsequently publish any of Wright~s information about M.I.5. The following day--only four days after the reports appeared-the Government sought and obtained an ex parte injunction which restrained the papers from:

1” disclosing or publishing or causing or permitting to bc disclosed or published to any person all or any of the information obtained by Peter Maurice Wright in his capacity as a member of the British Security Service; and

2. disclosing or publishing or causing or permitting to be disclosed or published to any person or assisting in or taking any step to further the publication to or by any other person of a book concerning the British Security Service written by Peter Mauriee Wright or including information provided by him, or any ~nformatjon, copies, extracts, excerpts from the said book or manuscript thereof.

Not surprisingly, an appeal was lodged and a three-day hearing followed. The Government% counsel argued:

l that publi~tion would “be likely to give rise to UnQuant~~ab~e injury to the security of the nation;”

@ that, in any event, the defendant would be in breach of the obligation of confidence owed by him to the Crown, arising out of their relationship of former employer and retired employee;

L that even if pub~i~tio~ was not ultimately prevented in Australia, that did not mean that it would be in the pubfic interest for publication to be lawful in the U.K. (i.e., what was in the Aust~lian national interest and the U.K. national interest was not coinciden~l~; and

Executive Secrecy, National Security, and freedom of Information in the United Kingdom 53

l that the integrity of the Security Service was paramount: “The Security Service has really got to be Ieakproof.”

That principle, which gave force to the confidential relationship asserted, was threat- ened, uniquely in this case, because the book contained matter published by a former senior officer without consent. In that circumstance, argued the Government, lay the difference between the instant case and the disclosures by such authors as Chapman Pincher or Nigel West, or even the allegations of Ms. Massiter. Failure to take action against such disclosures, it was contended, would resuh in grave consequences for the workings, bath internally and externally, of the Security Service.

The editor of the Guardian submitted an affidavit urging that the state of the present law and the extent of its enactment were too vague, and that restraint should be confined to instances of clearly compelling and demonstrable state interest. Otherwise, the uncer- tainty created the notorious “chilling” effect. Anthony Lester, counsel for the newspapers, argued that the court should approach the matter in accord with the U.K.‘s obligations under the European Commission on Human Rights. He argued that prior restraint should only be ordered when the court was “satisfied by the plaintiff.. . that there was a substantial risk of serious harm to a compelling public interest.“’ Further, con~dentiality, he contended, was not an absolute standard-it was a principle of relative weight. The Government could not just argue that the material was confidentiat; it aIso had to show that there was a public interest in maintaining that confidentiality. Finally, “where the restraint related to government ‘iniquity’ there was a particularly heavy burden upon the government to justify the restraint.“” Nonetheless, after a three- day hearing, Mr. Justice Miliett did not lift the injunction, although he did vary its terms somewhat so that now the two papers were restrained from:

(I) disclosing or publishing or causing or permitting fo be disclosed or published to any

person any information obtained by Peter Maurice Wright in his capacity as a member of

the British Security Service and which they know, or have reasonable grounds to believe,

to have come or been obtained, whether directly or indirectly. from the said Peter

Maurice Wright;

$2) attributing, in any disclosure or publication made by them to any person, any informa-

tion concerning the British Security Service to the said Peter Maurice Wright whether by

name or otherwise. PROVIDED THAT:

(i) this order shall not prohibit direct quotation of attributes to Peter Maurice Wright

already made by Mr. Chapman Pincher in published works, or in a TV programme

or programmes broadcast by Granada Television;

(ii) no breach of this Order shaff be constituted by the disclosure in Open Court in the

Supreme Court of New South Wales unless prohibited by the Judge there sitting or

which. after the trial there in action no. 4382 of 1985, is not prohibited from

publication. Liberty to apply to vary or discharge this Order on giving 24 hours”

notice to the Treasury Solicitor.

Thii result occasioned the comment from the Observer that it “turned the generally accepted Iaw of confidence upside down” insofar as it seemed to deny the force of the defense, long established, against claims for breach of confidence, that there can be no confidence where the disclosure relates to an ‘iniquity.” On the other hand, it is not clear if the court took this aspect into consideration, but ruled out its force in this case. Also noteworthy is that the order only related to the two newspapers concerned. Therefore, it

54 GOVERNMENT INFORMATION QUARTERLY Vol. ~/NO. l/1%7

was argued, other papers in the U.K. could report the matter complained of. This point, however, was clarified on appeal: “If the original pubii~t~ons were unlawful, other publishers are not free to republish.” Still, the offending articles are available to be read as back-copies in libraries and, when the allegations were published elsewhere, only the two papers in the action could not report what was said or written. Thus, matter referred to in an article in the Australian Financial Review and on a radiocast on CBS national radio could not be reported by the newspapers subject to the injunction. 52 Presumably this is the sort of issue that Clause 47 of the Freedom of ~nfo~ation bill, referred to earlier, contemplated. But, the notion that, because something is published-whether it be in the U.K. or anywhere-it is, therefore, in the public domain, and is “fair game” for republication, is not a claim that meets with the approval of the Court of Appeal. First, the matter is not in the public domain unless publication is authorized, even though it may be known to the public. Second, if the first publication was not lawful, then no subsequent publication can be.

The Observer described the varied injunction as an “affront to common sense” and asserted that it “sets a dangerous precedent for future erosion of the fundamental right of a democratic society to a free press.1’53 But, in the Court of Appeal, to which the newspapers subsequently appealed, that ‘Yundamental right” was not given much cre- dence by counsel for the Government. He said that it was a “magic nostrum” on which much “ringing reliance” was placed. The point was not whether or not M.I.5 had committed any illegalities, but whether or not the public interest demanded that they be disclosed. There was no overriding right of the press to express themselves on any subject. What was vital was that the Security Service be seen to be “leak-proof,” partly to maintain its own credibility and partly to ensure that other agencies cooperated with it. A former senior officer making unautho~zed disclosures put in jeopardy those considerations which it was in the public interest in the security of the state to maintain.

The newspapers argued that:54

l the injunction needed to be analyzed in terms of the principle of free speech, and the criteria for its restriction, as indicated by the European Court of Human Rights had not been met by the government;

o the law of confidence could not be used to affect the publication of information, already in the public domain, about issues of legitimate public concern;

l the Attorney-General had not shown that the publication by the newspapers was a breach of confidence, or a publication not in the public interest; and

l the acknowledged context of the work of the Security Service in the modern era-terrorism and subversion-did not justify it using unla~ul means, or the suppression of information about those means to the general public;

l thus, if an agent of the Service had employed unlawful means to carry out a task, or the task went beyond the acknowledged guidelines for the work of the Service, it could not be claimed that disclosure of such acts was against the public interest in national security.5s

The Court delivered its reserved judgment on July 21, 1986.56 It dismissed the appeals on the ground that it had no reason for holding that the judge at first instance had exercised his discretion on an erroneous basis. Sir John Donaldson said that he would

fxecutive Secrecy, Nationai Security, and freedom of information in the United Kingdom 55

have

“mundane matters which, in any context, wo~~dh~e no c~~~dent~~~ty * (emphasis added). Such items include the fact that an officer is so employed, the location of the employment, and the nature of the employment. For officers, present or past, “their duty of confidentiality extends to making and keeping it ‘the service that ever it was’.” In the context of the flow of isolation about the institutions which exist to protect national security, these remarks reinforce the proposition that only authorized disclosures would not constitute a prima facie breach of confidence. But, who is so authorized? The Maxwell-Fyfe directive states that the Director-General “will be responsible to the Home Secretary personally. The Security Service is not, however, a part of the Home Oftice.” The Prime Minister answers questions, such as there are, which are raised in Parliament about security matters and the Prime Minister is advised by the Secretary to the Cabinet. While the Home Secretary is supposed to be responsible for discipline, pay, and or~ni~tion of the Service, the Prime Minister is ultimately responsible for its activities. So, presumably, authorization would have to come from that office. But, “in any event, responsibility for the Security Service is, as a constitutional device, subject to the same limitations as departmental responsibility for security. It always depends on how much the government is prepared to disclose on a particular matter.“” Second, the force of the aflidavit from the Secretary to the Cabinet to the Australian court as evidence in the interlocutory proceedings should be noted. The affidavit deposes that publication by Peter Wright would “be likely to cause unquantifiable damage by reason of the disclosures involved. Additionally, it wilI clearly damage the work of the British Security Service and thereby the national security of the U.K. in the following further respects”-( I) loss of confidence in the British Security Service’s ability to protect confidential information; (2) confidence and cooperation of other organizations and persons, needed for the work of the British Security Service, would be damaged; and (3) publication wouId increase the risk that others, similarly, might seek to publish.

In a second affidavit, Sir Robert deposes further in relation to the claim of the “unquantifiable”damage likely to occur from the disclosures. Counsel for the newspapers was particularly concerned about the generality and vagueness of the deposition, which it was claimed that in the affidavit was necessary, because “the Plaintiff is not.. . in a position. . . to particularise the damage that will be caused by specific disclosures of fact.. . without himself making further disclosures of material that is confidential.” This seemed to counsel to open the door to a “novel and severe abridgement of the constitutional right to freedom of expression.” It would mean “that a vague and general assertion by a senior public official of the national interest or the interests of national security, wholly unrelated to the particular information whose suppression is sought by the Crown would be sufficient to persuade the courts to ban publication.“” It is true that neither party chose to treat the affidavits as part of the material relied on by the judge at first instance;


nonetheless, they remained “untested,“as the Court of Appeal put it. How much concern should there be that the government can depose an affidavit, in general terms, attesting

some grave but unspecifiable danger to national security and have that relied on, deciding whether or not to sustain a claim of prior restraint albeit in terms of an interlocutory injunction?

However, in the view of counsel for the newspapers, the scope of the precedent in the instant case must not be overestimated: “The only area where it may be precedent is in the publication of information which has come from past or present members of the Security Service. . . Even there . . . I have no doubt that in an appropriate case, and regardless of the consequences, the court would allow publication.” This latter dictum is, obviously, interesting, as it seems to open a fast-closed door. But, equally, it is tantalizing in leaving unspecified just what “appropriate” would mean in this context, given the very stringent description of the obligation of confidence given by Donaldson. The answer may lie in the meaning of the term “publication,” to which attention will now be turned as a final point.

In general parlance, “publication” has, at least, the connotation to publish via the media, whether by book or newspaper, radio or television. However, it seems clear that the Court of Appeal uses the term as synonymous with “disclosure.” In that sense, there is no necessary equation between “to publish”and “to publish via the media.” The Court could agree with counsel for the newspapers that, since the allegations were of “iniquity,” there should be publication. The difference lay, as between the newspapers and the Court, in the method or the mode ofpublication. Sir John Donaldson accepted that the Security Service was subject to the law of the land (per the Maxwell-Fyfe directive); that if it departed from its lawful obligations, that would “constitute a major and quite unacceptable threat to democratic freedoms as we know them;” that there is a public interest in ensuring that such allegations are investigated, the perpetrators, if any, are punished, and that repetitions are avoided. He did not accept that publication, even if justified, necessarily meant “wholesale publication in a national newspaper.. . the widest and most indiscriminate form of publication.” The principle of proportionality, “the restraint or lack of restraint proportionate to the overall assessment of the public interest,” and the nature and circumstances of the proposed publication must be weighed in each case. Just because the allegations are of iniquity does not mean that, should publication be in the public interest, it is the press to whom and by whom the material should be published. The Court suggested that the appellants might have sought freedom to publish “to the Prime Minister, the Security Commission,. . Privy Councillors, the Director of Public Prosecutions, or even [sic] the police.“The Court was merely following precedent when it opined that, even if there was justification to communicate material in the interests of exposing wrongdoing, it did not follow that the publication to the general public in any “indiscriminate” and “wholesale” way, through the medium of the press. was the way that things ought to be done.60 The Security Commission, the Court said. had been set up to deal with allegations of wrongdoing by the Security Service, so that investigations and remedial action can be “taken without danger to the national interest.” Whether what the Times once described as a “lightning conductor to deflect any danger that may arise from a repetition of one of the resounding security scandals that have disfigured the public scene in recent years” is there primarily to investigate wrongdoing, as opposed to breaches of security, or security failures, is a moot point6’ For example, in 1982, the Commission reported on security procedures in the public service, and, in 1983,


it reported after an employee of GCHQ was convicted of spying, and, in 1984, it reported on another prosecution under the Official Secrets Act.62

CONCLUSION We all recognise that the opinion-forming and informing media like the Press must not be muzzled. The warning bark you may think is necessary to help in maintaining a free society. If

the Press is the watchdog of freedom, and if the fangs of the watchdogs are withdrawn, all that will ensue is a whimpering, possibly a whine, but no bite.*’

It may be thought that the foregoing case permits the press in the U.K. not even a whine, far less than a bite, when it comes to cases with a national security interest. However, as has been suggested in this brief survey of some recent developments in this field, the structure of national security is well-nigh impregnable even from the assaults both by the Campaign for Freedom of Information and the European Commission, to which U.K. citizens may have recourse. Why should this be so? The reasons are partly universal, in the sense of being common to all states,64 and partly specific to the administrative and constitutional structure of the U.K.65 From a legalistic point of view, there is a twofold problem. First, the problem of “line-drawing” in any statutory formulation designed to regulate the balance between the proper scope of protection from disclosure of information relating to the security of the nation and the opportunity of citizens, or specific interest groups such as the press, to ascertain security-related information, or to pene- trate the national security defense in the interests of other concerns. The problem, in the U.K., is the lack of status, in general, accorded by the courts to the media, which might, were it otherwise, permit, even occasionally, the media to tip the balance in its favor because of its special role and duty.

The courts have apparently not been disposed, ultimately, to challenge the view that certain matters are extra-judicial, being, it is said, more “political” or “administrative”in nature. The Franks Committee, for example, said that national security issues were “essentially political, in the broadest sense of the term, not judicial.“66 And the Commit- tee which reported after the case in which the Attorney-General had, unsuccessfully, sought an injunction against the publication of the Crossman Diaries, on the ground that their publication would be a breach of the confidentiality necessary to the conduct of Cabinet affairs, concluded similarly. It urged that certain areas of governmental activity were not appropriate for judicial arbitration: “The relevant considerations are political and administrative and if enforcement is to be looked for at all they must either be applied according to a generally received rule, such as an arbitrary time limit, or according to the opinions of persons whose experience has made them more intimately familiar with the field.“67

Ultimately, then, an effective change in the state of affairs in the U.K. may be depen- dent more on a change in the political/constitutional culture than the successful passage of a Freedom of Information Act, especially if its provisions on access to national security information are as minimal as those contained in the bill referred to earlier. On the other hand, the symbolic, as opposed to the instrumental, value of such legislation could be significant. It would be a neat balancing act, given the promise of the opposition parties on Freedom of Information, and the possibility (only) of a change of government at the next general election, if the passage of the first Official Secrets Act 1889 was offset,


almost exactly 100 years later, by the passage of a Freedom of Information Act. How- ever, even then, more might hinge on the degree of activism manifested in general, and at high levels, by the judges.68

I.

2.

3.

4.

5.

6.

7.

8.

9.

10.

I I.

12.

13.

14.

15.

NOTES AND REFERENCES

See Nils Gleditsch, A Reporr on Freedom ojhtfortnarion and Secrecy in the U.K. (Oslo: International

Peace Research Institute [PRIO], 1985) which concludes, surprisingly, that, in the words of an explana-

tory letter to this author, “Britain in some ways is ahead of Scandinavia with respect to openness.”

See The 1984 Campaign for Freedom of Information, Our Right to Know (London: The 1984 Cam-

paign for Freedom of Information, 1984). p. 38, which lists 89 statutes (now thought to be around 100)

making the disclosure of information a criminal offense apart from section 2 of the Official Secrets Act,

1911.

Yvonne Cripps, “Disclosure in the Public Interest: The Predicament of the Public Sector Employee,”

Public Law (Winter 1983): 269 (hereafter cited as “Disclosure in the Public Interest”).

See Secrets [the newspaper of the Campaign for Freedom of Information] (No. 10): 5 (hereafter cited as

Secrets). The results, as published therein, were as follows:

Unweighted base 1,909 total

Your personal medical records held by your GP 73% Your own children’s school records 67% Any records kept on you by banks, building societies, and other financial institutions 64%

Your personnel records, kept by your employer 57% Your national insurance/social security records 55% Government records to do with you, not having to do with national security 54% Government records to do with you. involving national security 36% None of these 4% Don? know/no opinion 6%

A convenient, if partial, history can be found in Des Wilson, ed., 7he Secrefs File (London: Campaign

for Freedom of Information, 1984) chapter 7, p. 124; also, generally, see James Michael, 77re PO/irks of

Secrecy (Hammondsworth: Penguin Books, 1982).

See D.G.T. Williams, “Civil Liberties and the Protection of Statute,” Current Legul Problems, 34 (1981): 25.

Ibid.

There have been, and are, several distinct statutes on this topic, but they are usually collected and cited

as the Official Secrets Acts, 191 I-1939. The first of these was enacted in 1889, after the short-term

failure of the Breach of Official Trust Act, 1887. See, generally, David G. T. Williams, Nof in fhe Public

Interest (Cambridge: Hutchinson, 1965). chapter I, pp. 15-39 (hereafter cited as Not in fhe Public Interest); also Ronald Wraith, Open Govemmenr: The British Inrerprefation (London: Royal Institute

of Public Administration, 1977).

Chandler v. Director of Public Prosecutions [ 196413 All E.R. 142.

Fell, [ 19631, Grim. L. R. 207. Unreported; see Jonathan Aitken, Q/j%-iu/~~~ Secret (London: Weidenfeld and Nicholson, 1971). See C. Aubrey, Who’s Watching You (Hammondsworth: Penguin Books, 1981). R. Pyper, “Sarah Tisdall, Ian Withmore and the Civil Servant’s ‘Right to Know’,” Political Quarrerly, 56 (No. 1. 1985): 72-81 (hereafter cited as “Tisdall, Withmore and Civil Servant’s’Right to Know’“). Ponting, [1985], Grim. L. R. 318. See, generally, R. M. Thomas, “The British Official Secrets Acts,

19 I 1-39 and the Ponting Case,” Criminal Law Review (1986): 491ff (hereafter cited as “British Official

Secrets Acts”); also Clive Ponting, The Righr to Know: The Inside Sfory of the Belgruno Affair (London: Sphere Books, 1985) (hereafter cited as The Righr ro Know). Departmental Committee on Section 2 of the Official Secrets Act, 191 I, Report ofthe Committee, Vol.

I (London: Her Majesty’s Stationery Office, 1972). p. 14 (Cmmd. 5104) (hereafter cited as Report ofthe Committee).

Executive Secrecy, National Security, and freedom of information in the United Kingdom 59

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.

35.

36.

37.

38.

39. 40. 41.

42.

43.

See House of Commons Debates, 97 (May 16,1986): cob. 587 and 588.

Secrers (No. 10): 2.

Ibid., p. 12.

Freedom of Information bill, No. 205 (_luly 1984).

An “official document” means *. . . a document in the possession of any government department or

other authority to which this Act applies,” (clause l(2)) and a separate definition is provided for “a

document” (clause 56). See, for example, Cripps, “Disclosure in the Public Interest”; Mary M. Cheh, “Judicial Supervision of

Executive Secrecy: Rethinking Freedom of Expression for Government Employees and the Public Right of

Access to Government Information,” Come// Law Review, 69 (April 1984): 690-734; James A. Goldston,

Jennifer M. Granholm, and Robert J. Robinson, “A Nation Less Secure: Diminished Public Access to

Information,” Harvard Civil Righrs-Civil Liberties Law Review, 409 (Summer 1986): 409-491; Evan J.

Wallach, ‘Executive Powers of Prior Restraint over Publication of National Security Information: The UK

and USA Compared,” Inremational and Compararive Low Quarterly, 32 (April 1983): 424-45 1. Ponting, The Right IO Know, p. 213.

Ibid., p. 212.

Report of the Committee, p. 55.

Thomas, “British Official Secrets Acts,” note 14, p. 506, citing R. Pyper, “Tisdall, Withmore and Civil

Servant’s ‘Right to Know,‘” pp. 72-87.

Thomas, “British Official Secrets Acts” citing D.G.T. Williams, “Public Interest and the Courts,” in

Staatkurding Jaarboek, ed. A. W. Heringa et al. (1983).

Article 10( 1) states, in part: “Everyone has the right to freedom of expression. This right shall include

freedom to hold opinions and to receive and impart information without interference by public author-

ity and regardless of frontiers” [emphasis added]. Of course, this must be read in conjunction with the

exceptions contained in Article 10(2), which includes an “in the interests of national security” restriction.

European Commission of Human Rights, Application 10293/83 v. United Kingdom. The details of

Trevor Brown’s case, though not referring to the Commission’s decision because of the time scale

involved, are described in Cripps, “Disclosure in the Public Interest,” p. 602.

House of Lords Debates, 417 (February 26, 1987): cob. 1145-l 147.

Ibid., col. 1147.

‘Scientist ‘justly punished’ for TV Interviews,” 7’he Guardian (August 26, 1986): 2. See European Commission of Human Rights, Torsren L.eander v. Sweden, Application 9248/ 8 I, Leander Case, Cour/ Mist (86) 109, p. 2 (hereafter cited as Leander Case).

European Commission of Human Rights, report (adopted May 17, 1985): para. 68 (herafter cited as

European Commission of Human Rights, report).

Leander case, p. 9.

Article 8(l) of the European Convention of Human Rights reads: “Everyone has the right to respect for

his private and family life, his home and his correspondence.” This right is qualified by Article 8(2):

“There shall be no interference by a public authority. . except such as is in accordance with the law and

is necessary, in a democratic society in the interests of national security.” The relevance of Article 8 arose

in connection with a principal point at issue between the parties: “Does the existence of the police

register with information on the applicant, which is not disclosed to him, and the personnel control

procedure to which he was subjected, constitute an interference with the applicant’s right to respect for

private life as guaranteed by Article 8(I) and, if so, is such interference justified under Article 8(2) as

being in accordance with the law and necessary in a democratic society in the interests of national

security?” See European Commission of Human Rights, report, pan+. 52.

European Commission of Human Rights, report, para. 69. Ibid.

Ibid., para. 58. Ibid., para. 86. European Court of Human Rights, H. R. Klass case (September 6, 1978): para. 81ff (Series A, No. 28).

European Commission of Human Rights, report, para. 42.

Article 13 reads: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been

committed by persons acting in an offtcial capacity.”


44.

45.

46.

47.

48.

49.

50.

51.

52.

53.

54.

55.

56.

57.

58.

59. 60.

61.

62.

63.

64.

65.

66.

67.

68.

European Commission of Human Rights, report, para. 93

Ibid.. para. 90.

Secrers, p. 12.

See, generally, David Caute, 7he Espionage of the Saints: Two .&says on Silence and the Stare (London: Hamish Hamilton, 1986).

Ibid., p. 196.

“Ml5 Memoirs to Be Revealed in Courtroom,” The Observer (June 22, 1986): “Ml5 Disclosures in the

Public Interest Author Claims,” me Guardian (June 23, 1986). Much of the material for the discussion

of this case is drawn from reports of proceedings in Sydney and London as published in The Observer.

The Guardian, and 7he Times (of London).

Banned Report ‘Could Injure Nation.“’ fie Guardian (July IO, 1986).

Ibid.

“Court Gags Reports on Ml5 Law-breaking,” 7he Observer (July 13, 1986).

“Kafka Gags for Press,” 7&e Observer (July 13, 1986).

“MI5 Reports ‘in Public Interest’.” The Observer (July 17. 1986).

Sir David Maxwell-Fyfe issued a directive concerning the Security Service in September 1952 to its

Director-General. This directive was published in an appendix to Lord Denning’s 1963 report (Cmmd.

2152), which provided the only significant public scrutiny of the Security Service. Sir John Donaldson,

M.R.. in confirming that the Service is subject to the law of the land as is any citizen, stated that

Maxwell-Fyfe’s directive is “still in force.”

Attorney-General v. The Observer Ltd. and Others; Attorney-General v. Guardian Newspapers Ltd.

and Others, 136 NLJ799; The 7imes (of London) (July 17, 1986).

The quoted remarks are from the judgment of Sir John Donaldson, M.R.

See note 55.

“MI5 Reports ‘in the public interest’,” The Guardian (July 17, 1986). Francome v. Mirror Group Newspapers Ltd. [ 19841.2 All ER 408; I WLR 892.

The Times (of London) (January 24. 1964). as quoted in Williams, Not in the Public Interest, note 8, p.

169. Presumably, its line of authority to the Prime Minister again raises the question of independent

disclosure-if investigating wrongdoing should be within its ambit.

(Cmmd. 8540). 1982; (Cmmd. 8876). 1983; (Cmmd. 9212). 1984.

Justice Caulfield in the Sunday Telegraph Case. as quoted in D.G.T. Williams, “Official Secrecy and the

Courts,“in Reshaping the Criminal Tim, ed. P.R. Glazebrook (Cambridge [U.K. ed.], 1978): 164.

See, for example, Sissela Bok, Secrets (New York: Pantheon Books, 1983).

See K. G. Robertson, Public Secrets (New York: St. Martin’s Press, 1982).

Report of the Committee, p. 54.

Committee of Privy Councillors on Ministerial Memoirs, Report of the Committee (London: Her

Majesty’s Stationery Office, 1976). para. 66 (Cmmd. 6386); the case referred to is Artorneys-General v. Jonathan Cape Ltd. [ 19761 QB 752. The extremity of view can also be seen in the dicta of Lord Denning

(who has made tranchant statements in defense of press freedom ) in R. v. Secrerary of State.for the Home Department. exparte HosenbaN[ 197713 All ER 452: “when the national security is at stake even

the rules of natural justice may have to be modified to meet the position”(lbid., p. 457). “Great as is the

public interest in the freedom of the individual and the doing of justice to him, nevertheless in the last

resort it must take second place to the security of the country itself’(Ibid., p, 460). “There is a conflict

here [sic] between the interests of national security on the one hand and the freedom of the individual on the other. 77re balance between these IWO is not.for a court oflavv. It is,for the Home Secretary. He is the person enrrusred by Parliament with the task” (Ibid.. p. 461 [emphasis added]). Also, generally, see

Michael, supra. note 5. pp. 100-103: and Hugo Young, 77re Crossman Affair (London: Hamish Hamilton and Jonathan Cape. 1976).

The change in the culture by which judges might change depends, in the author’s view, on the acceptance

of good arguments as to why there should be a change. That is, the matter can be. but need not be. seen

solely as an issue of relative weight between contending social interests, for example, the government

vis-a-vis the judiciary. See Frederick Schauer, Free Speech: A Philosophical Enquiry (Cambridge [U.K. ed.], 1982): chapter 13. especially pp. 197-199. Schauer seeks to explicate “just what it is that is thought

to demand such extreme deference,” to the alleged “trump card” of the interest in the security of the

nation. His discussion of the exfent of harm (caused by speech), its probable effect. and the immediacy,

Executive Secrecy, National Security, and Freedom of Information in the United Kingdom 61

of the effect as some criteria to take into account, should be read against the affidavit of Sir Robert Armstrong-and the judicial reaction to it-in the case analyzed in the third section of this article.

Executive secrecy, national security, and freedom of information in the United Kingdom

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