25 February 2002
Earlier this month, the House of Lords in a landmark case against David Shayler, the former MI5 officer, was asked to rule that Margaret Thatcher's Official Secrets Act 1989 (OSA) was incompatible with human rights legislation guaranteeing free speech in this country. The House of Lords will have to grapple with the conflicting rights of a security and intelligence service (SIS) determined to protect its secrets against 'the public's right to know', particularly if they are acting illegally or contrary to the public interest.
The case has already broken with convention in that it is the first time the press has been allowed to intervene in the House of Lords in a criminal case to argue free speech points and how Section 1 of the OSA cannot be "proportionate" or reasonable if it prevents serving former MI5 or MI6 officers from disclosing information which may already be in the public domain.
Michael Tugendhat QC for the press argued that the OSA cannot be used to suppress information about the SIS acting illegally; also that, just as the law of confidence cannot be used to protect something seriously illegal or "iniquitous", so too the Government cannot use the OSA or the law of confidence to try to cover up illegal operations, such as the burning down of John Stevens' police headquarters in Northern Ireland by military intelligence in its determination to try to protect the anonymity of its informant Brian Nelson.
Counsel for Shayler, Geoffrey Robertson QC, went further, arguing that serving or former MI5 officers should be allowed to speak out where it was in the "public interest" in promoting "a greater good of preventing unnecessary loss of life, or serious disorder or crime" - a necessity of circumstances defence. Shayler had accused the MI5 of gross incompetence, bugging Peter Mandelson, the former Northern Ireland Secretary's phone, and MI6 of plotting to kill Colonel Gadaffi.
Nigel Sweeney QC for the prosecution saw the "public interest" defence as the thin end of the wedge, saying that it would encourage endless "unauthorised disclosures".
Much of the argument concerned who could 'authorise' disclosures and with whom a worried intelligence officer could discuss what might be wrongdoing in the security services. The Crown - together with the Government, which was also intervening in the proceedings to try to prevent the statute being referred back to the House of Commons as incompatible with the Human Rights Act 1998 (HRA) - claimed that the internal procedures at MI5 were entirely adequate to deal with this.
The prosecution pointed out how it had already conceded in the Court of Appeal that there could be "judicial review" of any refusal to allow publication of material. While the press welcomed this, it was regarded as hopelessly impractical, as few SIS officers were likely to take their employers to court over a refusal to allow them to speak out about something inherently embarrassing to the intelligence services.
The press pointed out that Section 1 of the OSA does not even allow MI5 officers to disclose secrets to legal advisers, and even less journalists, who might be able to help obtain legal advice before expensive judicial review proceedings were undertaken. The press was therefore concerned that its journalists might be prosecuted under Section 1 for inciting a breach of the act when they might be doing no more than helping an intelligence officer get legal advice before challenging a refusal to allow publication of material which might already be in the public domain and/or in no way harmful to national security.
The Crown and Government sought to maintain a rigid prohibition or 'brightline test' on any kind of disclosure, arguing that any disclosure by an SIS officer is bound, by its very nature, to be damaging to national security. Robertson and Tugendhat argued that any absolute prohibition would of its nature be arbitrary and a gross infringement of the right to free speech, which is now enshrined in our domestic legislation.
At the end of the day, a powerful and experienced House of Lords, including Lords Bingham, Hope, Hobhouse, Hutton and Scott, will effectively have to rule if the SIS is above the law and whether or not the traditional "lifelong duty of confidentiality", which has typically silenced MI5 and MI6 officers up to now, is still operable in light of the HRA.
Alastair Brett was the instructing solicitor to Michael Tugendhat QC for the press