In an age of unprecedented leaking and briefing, are politicians hiding behind the secrecy laws? How can the modern media fulfil its responsibility to be true to the public and public interests and to the principles of freedom and democracy, without compromising the activities of the intelligence and security agencies? 

A speech given at the RUSI British Intelligence and Security Conference on December 4, 2007 by Margaret Gilmore – Broadcaster, Analyst and Associate Fellow at RUSI.

In his first speech to the Labour Party conference as Prime Minister, Gordon Brown said the following: “I have no doubt that the best answer to disengagement from our democracy is to renew our democracy. And that means more change ... to strengthen our liberties to uphold the freedom of speech, freedom of information and the freedom to protest.''

I’m sure he’s genuine in his beliefs. But many journalists would raise an eyebrow or two at this.  They see a different Britain – a Britain where the undoubted need to protect national security, is they suspect, too often abused by politicians, officials and civil servants - whatever their political convictions - in order to protect themselves from embarrassment.

Journalists I know accept the need for Government to have secrets. They know the intelligence agencies need to protect sources and methods, to keep all of us safe.   They know that details of police operations need to be guarded or the rule of law will no longer operate. That’s not the issue.

I would argue that too often laws properly designed to protect our nation against grave and terrible threats are misused to block legitimate scrutiny that would produce inconvenient truths. And that is certainly not in the public interest.

After Alistair Darling had to stand up and admit that HM Revenue and Customs had lost the confidential data of more than nine million adults and more than 15 million children, employees at tax offices were reminded by public address announcements that they were covered by  the Official Secrets Act. Anyone who talked to the press could face the sack.  

The purpose of those employees signing the Official Secrets Act was to prevent the leakage of our tax details. That’s entirely proper.  But the Act surely wasn’t applied to prevent legitimate enquiry into how security procedures are so lax that a 23 year old is able to download our names, addresses, bank account details and National Insurance numbers: a wonderful Christmas present to any fraudster who can get their hands on them.

Insiders in the tax offices ARE now talking to journalists. They allege the system is in chaos.  They’ve revealed for example that pay is so bad there’s a lack of suitable staff.  It used to be that many clerical staff needed 5 GSCEs. Now that’s been quietly waived. Job applicants sit a reading and writing test set by revenue and customs. Is that the type of information that the Official Secrets Act is meant to protect?  

Let me give you another example that will help you understand why journalists can be sceptical when politicians proclaim the need for secrecy.

A little while back I gave some help to the distinguished political journalist Peter Oborne and his team, as they prepared a Dispatches programme for Channel 4. The programme investigated whether a new political class has emerged whose primary loyalty is to itself rather than the wider country.   

One part of their documentary focussed on a mysterious body of MPs most people have never heard of – the House of Commons Commission.  It consists of five of the most distinguished and senior parliamentarians in the land and is chaired by the Speaker of the House of Commons. Among other duties this Commission advises the Commons’ authorities on how to react to Freedom of Information requests about MPs’ expenditure. 

Since the Act took effect, the Commons’ authorities have turned down at least 104 requests for information about MPs’ allowances.  They have approved only seven. I believe most of these applications were perfectly proper and justified under the act. However in the words of one member of the Commission, speaking privately to ‘Dispatches’, they wanted to “grind such requests in to the dust”, forcing applicants to launch upon a lengthy appeal process to the information tribunal.   They even spent public money hiring lawyers to fight an ultimately successful attempt to find out how much of our money MPs spend on travel expenses.

The reason is simple.  These entirely proper requests would elicit embarrassing information about MPs expenses and allowances.  The commission, with government help, subsequently played an important role in the extraordinary sequence of events that led to a private members bill being passed that exempted MPs from the Freedom of Information Act. In the end, the Bill did not become law, but only because the unelected, supposedly less accountable House of Lords wouldn’t touch it.  However, the House of Commons authorities, led by the Speaker, are still free to reject Freedom of Information requests.

This is a disturbing situation, which I hope explains to you why journalists like me feel bound to treat with scepticism attempts by some in authority to justify the need for secrecy.  Governments and officials constantly proclaim their support for greater transparency, for public debate, for more information. However in stark contrast to these words, recent years have seen a seemingly unstoppable drift towards authoritarianism, a drift to closing down informed argument.

All of us rely on the intelligence and security services.  They must keep the British public safe, and that is a daunting duty. I would argue that if they’re to do that, the policies they follow must be open to public debate and scrutiny.  I’m not for a second suggesting that contacts should be endangered, or operational methods jeopardised. However the intelligence and security services need to carry the public with them.  And at the moment I’m not sure they always do.

I take the threat of terrorism seriously. I worked and lived in Belfast, at the height of the Troubles, when security was part of everyday life and we all accepted the need for it.

Yet last month when the Government announced plans to introduce airport style security in British railway stations I was one of those whose jaw dropped.  Anyone who travelled here today by train knows this proposal is surely unconnected with reality.   London’s railway stations are at the edge of the capacity.  I travelled here via Paddington where the tube station is frequently shut down in rush hour because of overcrowding, and the ticket barriers often fail, creating huge queues.  Security checks at railway stations wouldn’t deter suicide bombers: they’d create vast crowds of frustrated travelers that would attract bombers. I get on at a station with no ticket office, where the trains rarely even have a guard or ticket collector, let alone any security.   

Shortly after the announcement on railway security we learned, rather later than they did, that the Home Office had allowed 10,000 illegal immigrants to work in the security industry.  Some of them were guarding sensitive Whitehall buildings. One was even hired to guard the Prime Minister’s bomb proof limousine.

However unfairly, to the British public it can seem that the strategies produced to protect us are too often ill thought out and cosmetic, while fundamentals are neglected.  Rather than creating Fortress Britain the danger is that poorly thought out responses to the terror threat is a far more Porous Britain.  This means that there is an urgent need for the intelligence and security services to accept, even embrace, the need for greater public scrutiny of the broad thrust of their policies and strategy.  All of us face a grave threat.  All of us will want to be assured the general approach is based on well thought out ideas, and that the spin doctors who want quick headlines are kept away from policy making.

Given the climate I’ve described, journalists are working harder than ever at searching out whistleblowers and in looking for leaks. Nowadays of course evermore sophisticated technology means the whistleblower is more likely to be traced – look at how mobile phones, cash machines and computers are routinely used to track suspects. 

In the past it was a different story. How many years was it before we discovered “Deep Throat” was in fact the number two at the FBI, W Mark Felt. The true identity of the man who exposed President Nixon’s involvement in Watergate, didn’t emerge until two years ago when he was in his nineties and decided to come clean.

There is now a law which is designed to protect people from victimisation or punishment if they’ve publish secrets – so long as those secrets expose either an internal cover up or a criminal offence. The Public Interest Disclosure Act 1998 protects whistleblowers. However – it does not cover the army, intelligence services or police officers. They must adhere to a tougher law which over rides the Public Interest Disclosure Act – that is of course the Official Secrets Act – and there is no public interest get out clause under this Act.  

Derek Pasquill, a civil servant in the Foreign Office is accused of breaking the Official Secrets act. One of the documents it’s alleged he leaked revealed the government was attempting to appease Islamic extremists. The Government later changed this policy in favour of engaging mainstream moderate Muslims instead – partly some have claimed, as a result of the leaks. In other words it seems David Pasquill is now accused of a leak that’s lead to better public policy. It’s difficult to say more because the case going through the courts at the moment, and there are contempt issues.

Part of the problem with the Official Secrets Act, is it’s difficult to see rhyme or reason as to when it’s upheld and when it’s not.

Katherine Gun is a modern day whistleblower. A former translator at GCHQ, she was accused in 2003 of leaking a memo on an alleged dirty tricks campaign by America to spy on United Nations delegates, ahead of the war on Iraq. She clearly had BROKEN the Official Secrets Act, yet she was declared not guilty after the prosecution chose in the end not to offer any evidence against her. The prosecution refused to explain why they arrested and charged her only to drop the case at the eleventh hour. We can only speculate.    

But earlier this year another whistleblower, David Keogh, WAS put through a lengthy trial and WAS jailed. Details of the document he tried to leak remain secret and are likely to do so for decades – until long after it’s ceased to be controversial or problematic for those involved. David Keogh was a civil servant at the Ministry of Defence who came across a confidential memo of a meeting in 2004 between George Bush and Tony Blair. He sent it to a researcher for a Labour MP. The MP passed it to the police – who traced it back to Keogh and both Keogh and the researcher were jailed. The internet is full of speculation about what was in that document – did it include a threat to bomb a TV station – was it about Fallujah?  

Should we as journalists have used the information they tried to leak? In this age of 24 hours news with editors desperate for scoops and leaks, desperate to be first with breaking news, WE tried very hard to get hold of it. I talked to a handful of people who’d seen it – I door stepped Keogh and his lawyers, I spoke to people in America. I have an idea about some of things that were in it – as it seems did the Daily Mirror who broke the original story.

But neither I nor I suspect the Mirror ever saw the actual document. And no sooner had they published their first story then the Attorney General threatened prosecution under the Official Secrets Act and the media were effectively muzzled. Later even some of the colourful language Keogh used in court was banned and much of the case was heard behind closed doors.

Mr Keogh’s supporters said he felt he had a moral duty to expose the mindset of these two powerful men. His lawyers wanted to argue it was in the public interest –but because he was charged under the Official Secrets Act they couldn’t. They argued instead that the leaked memo did not damage British interests and was more embarrassing than damaging. One MP claimed he thought the document leaked by Keogh was being kept secret not for reasons of national security but to protect Tony Blair and George Bush from embarrassment - a case as Sir Humphrey put it in ““Yes Minister” of  The Official Secrets Act being there “not to protect secrets – but to protect officials.” 

Prosecution lawyers however argued the leaked document did contain operational matters and could have cost lives if published and they won the argument. Ultimately Keogh had broken the Official Secrets Act and that was that.   

Of course I’m not arguing for publishing operational matters, at a particularly sensitive time in Iraq. I’m not trying to undermine the authority of the courts which were simply following the letter of the law – in this case the Official Secrets Act.

But because of the particularly strict injunctions preventing discussion about this leak, and that fact snippets of what the document might have contained have inevitably been  published on the internet, the public is left with suspicion and innuendo – the whiff of a cover-up. Many still believe George Bush called in the memo for Al Jazeera to be bombed even though the judges said this was not the case. But the damage was done.

Add this case to the now discredited dossier on weapons of mass destruction, and the Hutton affair and a host of other leaks and its no wonder the public don’t always believe or trust what’s being done in the name of security and tackling terrorism

The government admits the Official Secrets Act isn’t ideal. Back in 2001 it looked for a moment as if they’re loosen it. They didn’t for example block the memoirs of Stella Rimington, former Director General of MI5, though they disapproved of her writing them. At the time she called for reform claiming the Act placed an “unrealistic” duty of confidentiality on former members of the security and intelligence services. But in the end nothing changed.

Now instead of loosening it, there are rumours they in fact want to tighten the Act. There is one clause which might help a whistleblower. Katherine Gunn for example could have argued she leaked through “duress of circumstance”, in other words the gravity of what she was exposing justified the leak.  That’s one clause sections of the Government are now apparently considering removing.

LEAKS AND SPIN

And yet, though politicians will at times hide behind the secrecy laws – many if not most - are themselves leaking as never before. We now have a political system – and I include in this all the parties to a degree, and we have a government and civil service which has a highly developed culture of leaking and briefing, non-attributably, off the record, with official sanction, be it from Downing Street or the Home Office, from Senior Police Officers or even the intelligence agencies. Of course journalists take much of it with a pinch of salt – they analyse what they hear - and they assume there’s likely to be an ulterior motive – a spin that’s favourable to our informant or his organisation.

CITIZEN JOURNALISM.

Before I end I should point out: there are times when the briefing is necessary. Modern communications technology and the public’s understanding of  it is now so sophisticated that if there is an incident or a security operation underway in public anywhere in the country –  people will see it and tell the press about it. The police for example didn’t want publicity when they started arresting the 21/7 bombers because they didn’t want to alert those they hadn’t yet caught – but the press were on site filming from every vantage point within minutes – thanks to tip-offs from the public. It would have been foolish of the police then, not to brief on what was going on, or who knows what messages would have come out.

Almost as soon as Sky news started reporting the week before last that the government was to make an important announcement on a serious security lapse – the emails started coming in to them from people inside the child benefit system saying the police were crawling over their Newcastle offices. And lo and behold the press were there before the official announcement was ever made – hence the reminders employees there should not  talk to the press.  

Which brings me back to where I started – the shadow of the Official Secrets Act. No one’s arguing we should get rid of.  None of us want to give away operational secrets that could jeopardise national security. But it must not be used as a tool to cover incompetence or embarrassment. It must not be used to close down informed debate…because that would be dangerous to all of us.