State security
Introduction
- Without a state which is secure from attack from internal or external forces, no citizen can enjoy rights and freedoms.
- The nature of threats to state – or national – security vary over time.
- In former centuries the perceived dangers were military and naval attacks from hostile nations intent on assuming power.
- Following World War II came a new ideological threat from communism, hostile to Western capitalism and seeking to infiltrate and undermine its economic and political structures.
- The demise of communism removed an ideological threat, but with the opening up of the former Eastern bloc countries came the increased problem of international trafficking in people and drugs.
- Terrorism also became an international phenomenon. As 11 September 2001 demonstrated so starkly, there is now also the danger posed by fundamentalist fanatics intent on subverting the stability of nations through terrorist attacks. In this chapter we examine the role of the security forces and the legal framework within which they operate. We also consider the law relating to terrorism and to official secrets. .
Defining state security
- While it is necessary that the state has sufficient powers to counter threats to the security of the nation, it is also important that the powers granted are confined to real threats to the state and do not impinge more than necessary on individual freedoms and rights.
- In order to be able to evaluate the work of the security forces it is therefore necessary to have a definition of state or national security.
- In a stable democratic state, national security cannot justify, as is the case in totalitarian regimes, anything that the government wishes to do to guarantee order; powers must be limited to the extent strictly necessary to achieve legitimate objectives.
- As will be seen there is a patchwork of statutes which regulate this area of the law and it is important to be clear as to which Act governs a particular aspect of state security.
The security services
- The security services include the internal service (MI5), and the external service (MI6 or the Secret Intelligence Service – SIS). The Special Branch of the police forces assists MI5 in operational matters.
- There are also the National Intelligence Service and National Crime Squad which complement the work of the other services. In addition there is the government’s Communications Headquarters, GCHQ, which receives and analyses signals intelligence from around the world.
- In order to carry out their functions, the security services require powers, inter alia, to enter into premises, search and seize material and to intercept communications.
- It is important to understand the scope of the powers granted under statute and the controls which exist over the use of these powers.
The legal framework
ü The security services were established under the royal prerogative. It was not to be until 1989 that statute – the Security Services Act 1989 – recognised MI5, providing a definition of the functions ofthe service and authorisation for warrants for operations. MI6 and GCHQ remained outside of statutory control until 1994 when the Intelligence Services Act was passed.
ü The Regulation of Investigatory Powers Act 2000 (RIPA) now regulates the issuing of warrants and controls over operational matters, including the use of agents (see below).
Authorisations
ü Part II of RIPA regulates surveillance operations and the use of agents.
ü The Act defines surveillance (section 26). Where authorisation has been given and action taken within the scope of the authorisation, the conduct is lawful.
Complaints
- The RIPA, Part IV, provides for a tribunal to hear complaints against action taken by or on behalf of the intelligence services.
Accountability
- The security services, MI5 and MI6, are under the authority of the Home Secretary and the Foreign Secretary respectively, although ultimate control lies with the Prime Minister.
- There is a Joint Intelligence Committee which oversees the work of the services and coordinates operations. Data from GCHQ are analysed by the Committee.
- There is quasi-parliamentary oversight through the Intelligence and Security Committee, which makes an annual report to the Prime Minister.
terrorism
- Terrorism may be defined as the use of force and violence directed towards undermining the authority of the state and its agents.
- It is to be distinguished from peaceful protest which is aimed at raising public awareness about a particular cause and seeking a change in the relevant law.
- The most sustained campaign of terrorism experienced in the United Kingdom was related to Northern Ireland, and it is against the background of this situation that the law developed. Significantly, with the cessation of the Cold War and the collapse of communism, the resources of the security forces have been diverted in large measure away from the focus on intelligence and counter intelligence operations against hostile regimes and are increasingly devoted to the international campaign against terrorism.
The Terrorism Act 2000 provides a statutory definition, namely:
1(1) Terrorism means the use or threat of action where –
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public,. and, (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause, and if it –
1(2) … involves serious violence against a person, … involves serious damage to property
… endangers a person’s life, other than that of the person committing the action
… creates a serious risk to the health or safety of the public or a section of the public, or
…is designed seriously to interfere with or seriously to disrupt an electronic system.
1(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1) (b) is satisfied.
The legal framework
- The law relating to terrorism was originally governed by the Prevention of Terrorism (Temporary Provisions) Act 1984, which was renewable by Parliament annually.
- The change in the nature of threats from terrorism resulted in the Terrorism Act 2000, and the events of 11 September 2001 resulted in the Anti-Terrorism, Crime and Security Act 2001.
Proscribed organisations
- Section 3 of the 2000 Act provides for proscription of organisations concerned in terrorism by the Secretary of State (the Home Secretary).
- Proscribed organisations are listed in Schedule 2 of the Act.
- An organisation is concerned in terrorism if it commits or participates in acts of terrorism; prepares for terrorism; promotes or encourages terrorism, or is otherwise concerned in terrorism.
- Where an organisation has been proscribed, that organisation may apply to the Home Secretary to have its name removed from Schedule 2. Should that application fail, appeal lies to the Proscribed Organisations Appeal Commission, and from there on a question of law to the Court of Appeal, Court of Session in Scotland or Court of Appeal in Northern Ireland.
Offences relating to membership and support of terrorist organisations
- It is a criminal offence to belong to a proscribed organisation (section 11).
- It is also an offence to solicit support – whether financial or otherwise – for a terrorist organisation, and to arrange or assist in arranging meetings in support of the organisation (section 12).
- Section 13 makes it an offence for a person to wear an item of clothing or wear or display articles (such as badges, banners, etc) which gives rise to a `reasonable suspicion’ that he or she is a member or supporter of a proscribed organisation.
- The Act extends jurisdiction to try offences to acts of terrorism by bombing to actions outside the United Kingdom if such actions would be an offence under domestic law (section 62).
Seizure of property
- Cash intended for use or which is the property of terrorist organisations may be seized and forfeited (sections 25 and 26). Police powers
- Police may arrest without warrant a person who is reasonably suspected to be a terrorist (section 42), and the Act specifies conditions of detention (Schedule 8) and the length of detention.
- Extended detention must be authorised by warrant.
- The search of premises must be under warrant (section 42), but the police may search a suspected terrorist, whether under arrest or not, to discover evidence of terrorist activity (section 43).
The Terrorism, Anti-Crime and Security Act 2001
- Passed as a rapid response to the terrorist actions in the United States of America, the 2001 Act increased the powers of enforcement agencies to cooperate in investigations, introduced detention without access to a court of law in respect of suspected international terrorists suspending Article 5 of the European Convention on Human Rights, increased police powers in relation to identification issues and removed the right to judicial review of detention pending deportation decisions.
- There is to be a regular review of the working of the Act.
The interception of communications
- Until 1985 there was no statutory basis on which warrants for the interception of communications were granted.
- It was assumed that warrants were legitimated under the royal prerogative power to defend the realm.
- The case of Malone v Metropolitan Police Commissioner [1979] Ch 344 challenged the power to intercept telephone calls, the defendant in criminal proceedings arguing that intercepts violated a right to privacy and amounted to a trespass to property. Both arguments failed, the judge holding that there was no right to privacy and that no trespass had been committed. There being no violation of law, the intercepts were lawful. Malone then took his case to the European Court of Human Rights (see Malone v United Kingdom (1984) 7 EHRR 14). The Court held that the United Kingdom authorities had violated Malone’s right to privacy, protected under Article 8 of the Convention.
- The Interception of Communications Act 1985 was the response to the Malone case. That is now mostly superseded by the Regulation of Investigatory Powers Act 2000 (RIPA). RIPA makes it a criminal offence to intentionally and without lawful authority intercept, anywhere within the United Kingdom, any communication being transmitted by the postal service or public telecommunications system.
- A person is not liable under the Act if there is a warrant for the intercept. Note that the statutory provisions are detailed and specific in relation to who may issue warrants, their scope and duration.
- Complaints regarding suspected unlawful interceptions may be made to a Commissioner and a Tribunal. The Commissioner oversees the operation of the Act, and issues an annual report.
Official secrecy
- In addition to securing its own territory from subversive threats, the state also requires laws which protect the state from the disclosure of sensitive information which could be used by its opponents.
- The law relating to official secrecy originated in 1911 in response to reported hostile spies.
- That law was fundamentally reformed by the Official Secrets Act 1989.
- In addition there are non-statutory mechanisms which restrict the media from reporting sensitive data.
- Official secrecy was first regulated under the Official Secrets Act 1889, and reformed under the Act of 1911, which remained in force until largely replaced by the Official Secrets Act 1989.
The Official Secrets Act 1911
- The Official Secrets Act 1911, section 1 – which is still in force – provides penalties for espionage. Section 2 of the 1911 Act – now reformed – provided penalties for the unauthorised disclosure of any official data, even where no damage was intended or caused by the disclosure.
- All civil servants are required to sign the Official Secrets Act, and were liable to prosecution for disclosures. The trial of senior civil servant Clive Ponting (reported in 1985) for disclosing information concerning the Falklands War to a Member of Parliament prompted reform of the law. Ponting had claimed that he was acting in the public interest by revealing the truth about matters into which Parliament was enquiring but having little success in unravelling the truth.
- The judge ruled otherwise: Ponting’s view of what was in the public interest was irrelevant and he directed the jury to convict. The jury, however, refused to do so and Ponting was freed. It was then dear that the law had shown itself to be draconian and needed reform.
The Official Secrets Act 1989
In place of the blanket prohibition against unauthorised disclosure, the 1989 Act prohibits disclosure of information under various categories.
Security and intelligence
- Section 1 of the Act makes it an offence for members or former members of the security and intelligence forces to disclose without lawful authority any information, document or other article relating to security or intelligence matters which is or has been in his or her possession.
- The section also prohibits `damaging disclosures’ without lawful authority on the part of Crown servants or government contractors.
- The section defines the meaning of `damaging disclosure’ and `security and intelligence’. It is a defence (see section 1(5)) to prove that the accused did not know, and had no reasonable cause to believe that the data related to security or intelligence.
Note that there is no defence of disclosure in the public interest. The Court of Appeal rejected the contention that such a defence existed in R v Shayler [2002] Times LR 22 March 2002.
Defence .
- Section 2 makes it an offence for a Crown servant or government contractor to make a `damaging disclosure’ of any information, document or other article relating to defence. Section 2(3) provides a similar defence as that in section 1(5).
International relations
- Section 3 makes it an offence to make a damaging disclosure without lawful authority of any information relating to international relations. The section defines damaging disclosure and international relations.
Crime and special investigation powers
- Section 4 adopts a different formula from the previous sections, making it an offence of a present or former Crown servant or government contractor to disclose without lawful authority any information, document or other article which results in the commission of an offence, or facilitates an escape from legal custody or impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders. It is also an offence to make any disclosure which is likely to have any of those effects.
- The section relates to information obtained under warrants under the Interception of Communications Act 1985 or the Regulation of Investigatory Powers Act 2000, information under the Security Services Act 1989 or the Intelligence Services Act 1994.
Defence Advisory Notices
The DA Notice system is designed to prevent sensitive defence information from being published by the media. It is a nonstatutory system. Compliance by the press with the system does not guarantee immunity from prosecution under the Official Secrets Act.
State security
Introduction
- Without a state which is secure from attack from internal or external forces, no citizen can enjoy rights and freedoms.
- The nature of threats to state – or national – security vary over time.
- In former centuries the perceived dangers were military and naval attacks from hostile nations intent on assuming power.
- Following World War II came a new ideological threat from communism, hostile to Western capitalism and seeking to infiltrate and undermine its economic and political structures.
- The demise of communism removed an ideological threat, but with the opening up of the former Eastern bloc countries came the increased problem of international trafficking in people and drugs.
- Terrorism also became an international phenomenon. As 11 September 2001 demonstrated so starkly, there is now also the danger posed by fundamentalist fanatics intent on subverting the stability of nations through terrorist attacks. In this chapter we examine the role of the security forces and the legal framework within which they operate. We also consider the law relating to terrorism and to official secrets. .
Defining state security
- While it is necessary that the state has sufficient powers to counter threats to the security of the nation, it is also important that the powers granted are confined to real threats to the state and do not impinge more than necessary on individual freedoms and rights.
- In order to be able to evaluate the work of the security forces it is therefore necessary to have a definition of state or national security.
- In a stable democratic state, national security cannot justify, as is the case in totalitarian regimes, anything that the government wishes to do to guarantee order; powers must be limited to the extent strictly necessary to achieve legitimate objectives.
- As will be seen there is a patchwork of statutes which regulate this area of the law and it is important to be clear as to which Act governs a particular aspect of state security.
The security services
- The security services include the internal service (MI5), and the external service (MI6 or the Secret Intelligence Service – SIS). The Special Branch of the police forces assists MI5 in operational matters.
- There are also the National Intelligence Service and National Crime Squad which complement the work of the other services. In addition there is the government’s Communications Headquarters, GCHQ, which receives and analyses signals intelligence from around the world.
- In order to carry out their functions, the security services require powers, inter alia, to enter into premises, search and seize material and to intercept communications.
- It is important to understand the scope of the powers granted under statute and the controls which exist over the use of these powers.
The legal framework
ü The security services were established under the royal prerogative. It was not to be until 1989 that statute – the Security Services Act 1989 – recognised MI5, providing a definition of the functions ofthe service and authorisation for warrants for operations. MI6 and GCHQ remained outside of statutory control until 1994 when the Intelligence Services Act was passed.
ü The Regulation of Investigatory Powers Act 2000 (RIPA) now regulates the issuing of warrants and controls over operational matters, including the use of agents (see below).
Authorisations
ü Part II of RIPA regulates surveillance operations and the use of agents.
ü The Act defines surveillance (section 26). Where authorisation has been given and action taken within the scope of the authorisation, the conduct is lawful.
Complaints
- The RIPA, Part IV, provides for a tribunal to hear complaints against action taken by or on behalf of the intelligence services.
Accountability
- The security services, MI5 and MI6, are under the authority of the Home Secretary and the Foreign Secretary respectively, although ultimate control lies with the Prime Minister.
- There is a Joint Intelligence Committee which oversees the work of the services and coordinates operations. Data from GCHQ are analysed by the Committee.
- There is quasi-parliamentary oversight through the Intelligence and Security Committee, which makes an annual report to the Prime Minister.
terrorism
- Terrorism may be defined as the use of force and violence directed towards undermining the authority of the state and its agents.
- It is to be distinguished from peaceful protest which is aimed at raising public awareness about a particular cause and seeking a change in the relevant law.
- The most sustained campaign of terrorism experienced in the United Kingdom was related to Northern Ireland, and it is against the background of this situation that the law developed. Significantly, with the cessation of the Cold War and the collapse of communism, the resources of the security forces have been diverted in large measure away from the focus on intelligence and counter intelligence operations against hostile regimes and are increasingly devoted to the international campaign against terrorism.
The Terrorism Act 2000 provides a statutory definition, namely:
1(1) Terrorism means the use or threat of action where –
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public,. and, (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause, and if it –
1(2) … involves serious violence against a person, … involves serious damage to property
… endangers a person’s life, other than that of the person committing the action
… creates a serious risk to the health or safety of the public or a section of the public, or
…is designed seriously to interfere with or seriously to disrupt an electronic system.
1(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1) (b) is satisfied.
The legal framework
- The law relating to terrorism was originally governed by the Prevention of Terrorism (Temporary Provisions) Act 1984, which was renewable by Parliament annually.
- The change in the nature of threats from terrorism resulted in the Terrorism Act 2000, and the events of 11 September 2001 resulted in the Anti-Terrorism, Crime and Security Act 2001.
Proscribed organisations
- Section 3 of the 2000 Act provides for proscription of organisations concerned in terrorism by the Secretary of State (the Home Secretary).
- Proscribed organisations are listed in Schedule 2 of the Act.
- An organisation is concerned in terrorism if it commits or participates in acts of terrorism; prepares for terrorism; promotes or encourages terrorism, or is otherwise concerned in terrorism.
- Where an organisation has been proscribed, that organisation may apply to the Home Secretary to have its name removed from Schedule 2. Should that application fail, appeal lies to the Proscribed Organisations Appeal Commission, and from there on a question of law to the Court of Appeal, Court of Session in Scotland or Court of Appeal in Northern Ireland.
Offences relating to membership and support of terrorist organisations
- It is a criminal offence to belong to a proscribed organisation (section 11).
- It is also an offence to solicit support – whether financial or otherwise – for a terrorist organisation, and to arrange or assist in arranging meetings in support of the organisation (section 12).
- Section 13 makes it an offence for a person to wear an item of clothing or wear or display articles (such as badges, banners, etc) which gives rise to a `reasonable suspicion’ that he or she is a member or supporter of a proscribed organisation.
- The Act extends jurisdiction to try offences to acts of terrorism by bombing to actions outside the United Kingdom if such actions would be an offence under domestic law (section 62).
Seizure of property
- Cash intended for use or which is the property of terrorist organisations may be seized and forfeited (sections 25 and 26). Police powers
- Police may arrest without warrant a person who is reasonably suspected to be a terrorist (section 42), and the Act specifies conditions of detention (Schedule 8) and the length of detention.
- Extended detention must be authorised by warrant.
- The search of premises must be under warrant (section 42), but the police may search a suspected terrorist, whether under arrest or not, to discover evidence of terrorist activity (section 43).
The Terrorism, Anti-Crime and Security Act 2001
- Passed as a rapid response to the terrorist actions in the United States of America, the 2001 Act increased the powers of enforcement agencies to cooperate in investigations, introduced detention without access to a court of law in respect of suspected international terrorists suspending Article 5 of the European Convention on Human Rights, increased police powers in relation to identification issues and removed the right to judicial review of detention pending deportation decisions.
- There is to be a regular review of the working of the Act.
The interception of communications
- Until 1985 there was no statutory basis on which warrants for the interception of communications were granted.
- It was assumed that warrants were legitimated under the royal prerogative power to defend the realm.
- The case of Malone v Metropolitan Police Commissioner [1979] Ch 344 challenged the power to intercept telephone calls, the defendant in criminal proceedings arguing that intercepts violated a right to privacy and amounted to a trespass to property. Both arguments failed, the judge holding that there was no right to privacy and that no trespass had been committed. There being no violation of law, the intercepts were lawful. Malone then took his case to the European Court of Human Rights (see Malone v United Kingdom (1984) 7 EHRR 14). The Court held that the United Kingdom authorities had violated Malone’s right to privacy, protected under Article 8 of the Convention.
- The Interception of Communications Act 1985 was the response to the Malone case. That is now mostly superseded by the Regulation of Investigatory Powers Act 2000 (RIPA). RIPA makes it a criminal offence to intentionally and without lawful authority intercept, anywhere within the United Kingdom, any communication being transmitted by the postal service or public telecommunications system.
- A person is not liable under the Act if there is a warrant for the intercept. Note that the statutory provisions are detailed and specific in relation to who may issue warrants, their scope and duration.
- Complaints regarding suspected unlawful interceptions may be made to a Commissioner and a Tribunal. The Commissioner oversees the operation of the Act, and issues an annual report.
Official secrecy
- In addition to securing its own territory from subversive threats, the state also requires laws which protect the state from the disclosure of sensitive information which could be used by its opponents.
- The law relating to official secrecy originated in 1911 in response to reported hostile spies.
- That law was fundamentally reformed by the Official Secrets Act 1989.
- In addition there are non-statutory mechanisms which restrict the media from reporting sensitive data.
- Official secrecy was first regulated under the Official Secrets Act 1889, and reformed under the Act of 1911, which remained in force until largely replaced by the Official Secrets Act 1989.
The Official Secrets Act 1911
- The Official Secrets Act 1911, section 1 – which is still in force – provides penalties for espionage. Section 2 of the 1911 Act – now reformed – provided penalties for the unauthorised disclosure of any official data, even where no damage was intended or caused by the disclosure.
- All civil servants are required to sign the Official Secrets Act, and were liable to prosecution for disclosures. The trial of senior civil servant Clive Ponting (reported in 1985) for disclosing information concerning the Falklands War to a Member of Parliament prompted reform of the law. Ponting had claimed that he was acting in the public interest by revealing the truth about matters into which Parliament was enquiring but having little success in unravelling the truth.
- The judge ruled otherwise: Ponting’s view of what was in the public interest was irrelevant and he directed the jury to convict. The jury, however, refused to do so and Ponting was freed. It was then dear that the law had shown itself to be draconian and needed reform.
The Official Secrets Act 1989
In place of the blanket prohibition against unauthorised disclosure, the 1989 Act prohibits disclosure of information under various categories.
Security and intelligence
- Section 1 of the Act makes it an offence for members or former members of the security and intelligence forces to disclose without lawful authority any information, document or other article relating to security or intelligence matters which is or has been in his or her possession.
- The section also prohibits `damaging disclosures’ without lawful authority on the part of Crown servants or government contractors.
- The section defines the meaning of `damaging disclosure’ and `security and intelligence’. It is a defence (see section 1(5)) to prove that the accused did not know, and had no reasonable cause to believe that the data related to security or intelligence.
Note that there is no defence of disclosure in the public interest. The Court of Appeal rejected the contention that such a defence existed in R v Shayler [2002] Times LR 22 March 2002.
Defence .
- Section 2 makes it an offence for a Crown servant or government contractor to make a `damaging disclosure’ of any information, document or other article relating to defence. Section 2(3) provides a similar defence as that in section 1(5).
International relations
- Section 3 makes it an offence to make a damaging disclosure without lawful authority of any information relating to international relations. The section defines damaging disclosure and international relations.
Crime and special investigation powers
- Section 4 adopts a different formula from the previous sections, making it an offence of a present or former Crown servant or government contractor to disclose without lawful authority any information, document or other article which results in the commission of an offence, or facilitates an escape from legal custody or impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders. It is also an offence to make any disclosure which is likely to have any of those effects.
- The section relates to information obtained under warrants under the Interception of Communications Act 1985 or the Regulation of Investigatory Powers Act 2000, information under the Security Services Act 1989 or the Intelligence Services Act 1994.
Defence Advisory Notices
The DA Notice system is designed to prevent sensitive defence information from being published by the media. It is a nonstatutory system. Compliance by the press with the system does not guarantee immunity from prosecution under the Official Secrets Act.