Secrecy and Transparency: Striking the Balance
RUSI Analysis, 23 Oct 2011
By Margaret Gilmore, Senior Research Fellow, Homeland Security
The long awaited Green Paper on Justice and Security suggests the British Government wants to close a legal loophole to ensure sensitive intelligence material from abroad can be kept secret. But is this wise in an age when advancing technologies makes secrecy more difficult - and at a time when the public appears to want greater openness?
By Margaret Gilmore, Senior Research Fellow, RUSI
The October 2011 Green Paper on Justice and Security, if it translates into law, will go a long way towards modernising and increasing oversight of the UK's intelligence agencies. The proposals in the paper could have the effect of increasing public confidence in their work. If accepted the Parliamentary Intelligence and Security Committee will be overhauled and greater powers will be given to the Intelligence Services Commissioner and the Interception of Communication Commissioner 'to improve their effectiveness and credibility'.
Controversially, the Paper also proposes making it easier to hold civil hearings in secret, and more difficult to use intelligence gained from foreign sources in open court in the UK. These are moves which should not be taken lightly and any proposal that involves decreasing transparency may appear retrograde. Instead of a presumption towards greater openness it seems in certain instances it will be towards greater secrecy. This is further compounded by the revelation in the Green Paper, that the 'Government does not propose to introduce ...more active case-management responsibilities for judges in cases involving sensitive material'.
This choice means the Government has chosen to resist the chance to move certain sensitive decisions to the independent judiciary.
The Motive For Secrecy
The case of Binyam Mohamed, a British citizen held at Guantanamo Bay from 2004 to 2009, spurred the Government to look again at the laws on secrecy. He claimed he had been tortured while in US custody under the 'extraordinary rendition' programme and that MI5 and MI6 were complicit in this. Last year the Court of Appeal forced the disclosure of secret US intelligence information as evidence in the case.
The US was deeply unhappy to see classified intelligence, which it had passed to its UK counterparts in strictest confidence, openly published. MI5 was equally upset fearing it would not in future be trusted with such information which could be critical in keeping the UK safe. The Green Paper states the Government's view that:
'We expect our intelligence partners to protect our sensitive material from open disclosure. We must do likewise if we are to sustain the international partnerships that are crucial to the Government's efforts to protect the public'.
Now the Government is proposing to legislate a block to the publication of classified information from foreign security agencies in similar civil cases. The reforms set out by the Government in the Green Paper, would reassure foreign allies that secrets shared with the UK will remain secret. Thus, it would protect the UK's intelligence sharing relationships with counter-parts abroad and avoid another embarrassing diplomatic episode.
But are the proposals set out in the Green Paper the best solution to this dilemma? No one wants intelligence and security compromised - but the more that is kept secret - the more difficult it is for suspects, or the public to know whether actions taken by the intelligence agencies or the Government are justified. Taking the route of caution on secrecy could bring criticism that Ministers have chosen the easy rather than a more flexible option. Bringing more information where possible into the public arena - despite the extra complexities that would bring - would be in keeping with government policy on openness and transparency, and perhaps more in tune with public thinking on this.
This year's inquests into the 7 July 2005 London attacks brought evidence that the UK's traditional caution on secrecy is not always justified. The Coroner, a Senior High Court Judge, allowed repeated challenges to Home Office and Security Service's efforts to protect intelligence secrets, pushing the boundaries on transparency by insisting on disclosure unless it was absolutely clear to her that such disclosure would undermine national security, instead of leaving the decisions entirely with the intelligence agencies. She went further than ever in insisting that she and her staff saw material. The result was that far more than was originally offered was brought into open court.
Five years after the attacks, the inquests brought a raft of new revelations including details about the modus operandi of MI5. The Coroner was able to identify weaknesses and make recommendations and MI5 was able, openly, to give assurances it was tackling these. The inquests also brought to light new information about the methodology of the terrorists - including further evidence of an (as yet unidentified) mastermind figure in Pakistan. This openness and detailed information made available gave the public a better understanding of the complexities of tackling terrorism and it brought some sense of closure to bereaved families.
It was clear however from the inquests that new guidelines were needed and in this respect the Green Paper is a necessity - the laws must be clearer than they have been and that is what this paper is consulting on. It includes a specific section on disclosure at inquests.
The Green Paper also deals with the problems of compensation. Late last year, the UK agreed to pay what was reported to be in the region of £20 million pounds to sixteen former Guantanamo Bay detainees, including Binyam Mohamed, to end a series of civil cases over torture allegations during which secret material, had been a major factor.
These cases show how expensive payouts can be. The problem comes with other cases, where according to the Green Paper, the government and intelligence agencies, faced with the choice of being forced to disclose sensitive information, have chosen instead to drop cases, pay compensation and free suspects they would rather pursue. In its executive summary the Green paper states:
'Allowing this status quo to continue leaves open the increasing risk that the taxpayer will foot the bill to settle cases that the Government is prevented from defending'.
It follows then that justice is not necessarily being done and there is a clear need for the law to be clarified.
The Green Paper suggests courts would hear parts of civil cases involving secret material in a closed session, with claimants excluded and a special security-cleared lawyer representing their interests. This has similarities with existing Special Immigration courts that deal with immigration cases involving terrorist suspects.
But this means further secrecy. The UK's involvement in the CIA's extraordinary renditions, so long denied by Ministers, would not have come to light in such detail if the intelligence had not appeared in open court, raising critical questions about the UK and its attitude to torture. There will of course be times when secrecy is essential, for example to protect human sources who may have risked their lives to collect and distribute information. But these cases could surely be the exception not the norm - and a system to allow flexibility, with the balance favouring openness over secrecy where possible, could build public confidence further, even if it were more complex to deliver. The arguments for a more open system with more active involvement of a judge and greater inquisitorial elements in proceedings are outlined in the Green paper, but it goes on to argue against such systems and invites consultation in the context of Government thinking on this.
The paper clearly states the aims of its proposals are to ensure fairness and transparency to see as much material appear in open court as possible, and ensure more cases are able to proceed and not fail. Some of the plans, however, may not be taken in this spirit.
Interested parties have until January to comment and influence Government thinking before the new laws are finally drafted. The civil liberties group Amnesty International has already given an initial response through its UK Director Kate Allen who says:
'Regrettably, the proposals in the Green Paper appear designed to further entrench secrecy in the justice system. Secrecy of this sort has the potential to undermine the fair administration of justice and allow the government to shield itself from adequate scrutiny and criticism of its human rights record.'
The Justice Secretary Kenneth Clarke is right in his forward to the Green paper to praise the brave work of the Intelligence Agencies. He is right to tackle this complex, sensitive and controversial issue head on and in the wake of the debate, to change the law on handling intelligence in court. But he should be cautious about introducing tougher laws on secrecy.
The UK's political system is centred on democratic principles and that means recognising the views of the majority. But as ever, it is a case of getting the balance right between the need for open justice and the need to retain a secret security service that is able to operate effectively and keep us safe.
The views expressed here are the author's own and do not necessarily reflect those of RUSI.
 HM Government, Justice and Security Green Paper, Cm8194 (London: The Stationery Office, October 2011).
 Ibid p.xv
 Ibid p.29
 Duncan Gardham and Gordon Rayner, 'MI5 "knew Guantanamo detainee Binyam Mohamed was being tortured', Telegraph, 10 Feb 2010
 HM Government, Justice and Security Green Paper, p.14
 Ibid p.15
 'UK to protect foreign secret material from courts', Thomson Reuters, 10 October 2011, available at http://newsandinsight.thomsonreuters.com/Legal/News/2011/10_-_October/UK_to_protect_foreign_secret_material_from_courts/
Amnesty International UK, 'Ken Clarke's Justice and Security Green Paper criticised over "secretive process"' available at http://www.amnesty.org.uk/news_details.asp?NewsID=19765
Further Analysis: Law and Ethics, Domestic Security, Terrorism, Tackling Extremism, Securing Britain