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Changing the rules of the game: some necessary legal reforms to United Kingdom intelligence

Published online by Cambridge University Press:  28 October 2009

Abstract

This article argues that there is a need to modernise the law governing accountability of the UK security and intelligence agencies following changes in their work in the last decade. Since 9/11 the agencies have come increasingly into the spotlight, especially because of the adoption of controversial counter-terrorism policies by the government (in particular forms of executive detention) and by its international partners, notably the US. The article discusses the options for reform in three specific areas: the use in legal proceedings of evidence obtained by interception of communications; with regard to the increased importance and scle of collaboration with overseas agencies; and to safeguard the political independence of the agencies in the light of their substantially higher public profile. In each it is argued that protection of human rights and the need for public accountability requires a new balance to be struck with the imperatives of national security.

Type
Research Article
Copyright
Copyright © British International Studies Association 2009

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References

1 Anti-Terrorism Crime and Security Act 2001, Pt. IV.

2 Prevention of Terrorism Act 2005.

3 Exceptions also apply for closed proceedings of the Proscribed Organisations Appeals Commission and concerning Control Orders under the Prevention of Terrorism Act 2005. The government has proposed further exceptions for closed proceedings in appeals against Treasury freezing orders and Coroner's courts: Privy Council Review of Intercept as Evidence, Cm.7324 (2008), paras. 20–3.

4 Intelligence and Security Committee, Annual Report for 2004–5, Cm.6510 (May 2005), paras. 92–94.

5 Interception of Communications (Admissibility of Evidence) Bill 2006/7.

6 Justice, Intercept Evidence: Lifting the ban (London, 2006), at para. 168.

7 Privy Council Review of Intercept as Evidence, Cm.7324 (2008). See also Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning, 19th report for 2006–7, HL Paper 157; HC 394, ch. 4.

8 See the ‘Requirements for Intercept as Evidence to be Operationally Workable’: Chilcot, para. 91.

9 At para. 90 the Chilcot report states: ‘We have concluded that any material risk to the strategic capability of the UK's intelligence agencies would be unacceptable.’ (emphasis added).

10 This is a dubious argument in any event in view of use of intercept evidence in partner countries.

11 Chilcot, para. 91.

12 For a detailed and critical study of special advocates see C. Forcese and L. Waldman, Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom, and New Zealand on the Use of ‘Special Advocates’ in National Security Proceedings (Ottawa, 2007).

13 Ibid., para. 58.

14 See especially Secretary of State for the Home Department v MB [2007] UKHL 46; SSHD v MB [2006] EWCA Civ 1140; [2006] 3 W.L.R. 839.

15 Anti-Terrorism Crime and Security Act 2001, Pt. IV.

16 Prevention of Terrorism Act 2005.

17 D. Bonner, Executive Measures, Terrorism and National Security (Aldershot: Ashgate, 2007); I. Leigh and R. Masterman, Making Rights Real: the Human Rights Act in its First Decade (Oxford: Oxford University Press, 2008), ch. 8.

18 Privy Counsellors Review Committee, Anti-Terrorism Crime and Security Act 2001 Review, 18 December 2003.

19 A. Blick, T. Choudhury, S. Weir, The Rules of the Game: Terrorism, Community and Human Rights (York: Rowntree Trust, 2006).

20 S. Lander, ‘International Intelligence Co-operation: An inside perspective’, Cambridge Review of International Affairs, 17:3 (2004), pp. 481–93.

21 Australian Security Intelligence Organisation, Annual Report to Parliament 2006–7 (Canberra, 2007), p. 4.

22 Report of the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Freedom and Security Under the Law, Second Report, vol. 1 (Ottawa, 1981), p. 632.

23 J. Sims, ‘Foreign Liaison: Devils, Deals and Details’, J. of Intelligence and CounterIntelligence, 19:2 (2006), pp. 195–217.

24 R v Mullen [1999] 2 Cr App R 143. See also R v Horseferry Magistrates Court, ex p. Bennett [1994] 1 AC 42.

25 See the Foreign Secretary's statement HC Debs. Vol. 472, cols. 547 ff, 21 February 2008; Reprieve, submission to the Foreign Affairs Select Committee, Enforced Disappearance, Illegal Interstate Transfer and Other Human Rights Abuses Involving the UK Overseas Territories.

26 Under the European Convention on Human Rights (see Ribitsch v Austria, European Court of Human Rights, 4 December 1995 and Aksoy v Turkey, European Court of Human Rights, 18 December 1996; under the UN Convention Against Torture, Arts.12 and 13. And see European Commission for Democracy Through Law (Venice Commission), Opinion on the International Legal Obligations of Council of Europe Member States In Respect of Secret Detention Facilities and Interstate Transport of Prisoners, 17 March 2006, Opinion no. 363/2005 {http://www.venice.coe.int/docs/2006/CDL-AD(2006)009-e.asp?PrintVersion=True&L=E}.

27 See, for example, Law of the Intelligence and Security Agency of Bosnia and Herzegovina, Article 64 which requires approval from the Chair, before the Agency enters into an arrangement with intelligence and security services of other countries. (Additionally, the Minister for Foreign Affairs must be consulted before an arrangement is entered with an Institution of a foreign State, an international organisation of states or an institution thereof.). The Chair is obliged to inform the Intelligence Committee of all such arrangements.

28 See, the Dutch Intelligence and Security Services Act 2002 (De Wet op de inlichtingen- en veiligheidsdiensten) Article 36(1)(d), 40(1) and 42.

29 Intelligence and Security Committee, Rendition, Cm.7171 (July 2007), paras. 111–47.

30 R (Al Rawi and others) v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department (United Nations High Commissioner for Refugees intervening) [2006] EWCA Civ 1279.

31 Bundesverfassungsschutzgesetz (BVErfSchG), Germany, November 2002, Art. 19 (Unofficial translation).

32 See Arar Commission, Report of the Events Relating to Mahar Arar, Analysis and Recommendations (Ottawa, 2006), p. 334.

33 A (No 2) v Secretary of State for the Home Department [2005] UKHL 71.

34 Para. 98.

35 European Commission for Democracy for Law (Venice Commission), Report on Democratic Oversight of the Security Services in Council of Europe States, Study 388/2006 (CDL_DEM 2007–016) (June 2007), pp. 39–40.

36 Note that in the UK the government had originally proposed no damage requirement should apply to disclosures of information received from foreign governments or international organisations because of the wider damage to the UK's standing in the international community that such disclosures would cause: Reform of Section 2 of the Official Secrets Act 1911, Cm 408 (1988), para. 51.

37 Katherine Gun, ‘Ex-GCHQ Woman Cleared Over Leak’, BBC News (13 November 2003), {http://news.bbc.co.uk/2/hi/uk_news/3268113.stm}.

38 ‘“Brave” Official Praised for Leak’, BBC News (8 January 2008), {http://news.bbc.co.uk/2/hi/uk_news/7179247.stm}. ‘Official Cleared in Secrets Case’, BBC News (9 January 2008), {http://news.bbc.co.uk/2/hi/uk_news/7178785.stm}.

39 ‘When Should a Secret Not be a Secret?’, BBC News (10 May 2007), {http://news.bbc.co.uk/2/hi/uk_news/6639947.stm}.

40 A. Roberts, ‘Entangling Alliances: NATO's Security of Information Policy and the Entrenchment of State Security’, Cornell Int LJ, 36 (2003), pp. 319, 355.

41 Roberts, pp. 359–60.

42 The government published two controversial dossiers of intelligence material in September 2002 and January 2003: P. Gill, ‘The Politicization of Intelligence: Lessons from the Invasion of Iraq’, in H.Born, L.Johnson and I.Leigh (eds), Who's Watching the Spies: Establishing Intelligence Service Accountability (Dulles VA: Potomac, 2005).

43 Security Service Act 1989, section 2(2); Intelligence Services Act 1994, sections 2(2)(b) and 4(2)(b).

44 ‘Ex-KGB man backs new MI6 Chief’, BBC News (7 May), available at: {http://news.bbc.co.uk/2/hi/uk_news/politics/3689779.stm}. Political controversy also broke out in July 2009 concerning the appointment of Sir John Sawers as Scarlett's successor following publication of personal details on Lady Sawers' Facebook page: ‘Miliband Defends Future MI6 Chief’, BBC News (5 July 2009), {http://news.bbc.co.uk/1/hi/uk/8135070.stm}

45 Report of a Committee of Privy Counsellors, 2004, para. 39.

46 Act Governing the Supervision of the Police and Intelligence Services, 1991, Art. 17

47 Part 3, Section 17 (3), Intelligence Service Act, Australia, 2001 (Cth).

48 The Governance of Britain, Cm.7170 (July 2007), paras. 72–81.

49 Canadian Security Intelligence Service Act 1984, Sections 7(1) and (2); Act on the National Security Services 1995, Hungary, s. 11.

50 Intelligence Services Act 2001 (Australia), s. 8(1).

51 Canadian Security Intelligence Service Act 1984, s. 6(2), and Australian Inspector-General of Intelligence and Security Act, 1986, s. 32B, respectively.