The Shayler case shows why our spies need whistleblowing rights
Richard Norton-Taylor and John Wadham
Wednesday November 6, 2002
David Shayler was sent to prison last night insisting he had been denied his rights. But let's look at it from the other end of the telescope: what about our rights?
The reason why former members of the security and intelligence agencies should be allowed to argue they disclosed information in the public interest is a much broader issue than the Shayler case, though he did us a service by highlighting it. It is about our right to know that the agencies are efficient, accountable and as open as possible. The Official Secrets Act imposes an absolute ban preventing any member or former member of the security and intelligence agencies from saying anything about his or her work without official authority. But this is a deterrent which prevents the disclosure of wrongdoing as well as information which might jeopardise operations and threaten agents' lives.
Shayler, who had a number of concerns - on the one hand he criticised MI5 for being too soft and for not nailing the terrorists quickly enough, on the other for breaking the law and violating our rights to privacy - says there was no way he could make his complaints heard, a point even the judge half conceded yesterday. Yet, before the jury, Mr Justice Moses had to say that under the secrets act the point was irrelevant. So, too, are the motives of the aggrieved member of the security and intelligence agencies, the truth or falsehood of his allegations, and whether or not they caused damage.
Of course, no one wants any member of the agencies, holding a real or perceived grievance, simply to spill the beans about highly sensitive information. Yet how can we be confident when even the notionally independent scrutiny by commissioners - serving or former senior judges - and by a parliamentary security and intelligence committee handpicked by the prime minister, are so woefully inadequate? In the US, whistleblowers are protected if they explain their concerns to congressional committees. Here, parliament runs a mile.
Stella Rimington, the former head of MI5, told the Guardian last year that the absolute ban imposed by the secrets act was "unrealistic". There is not even a system in place to enable former civil servants - let alone security and intelligence officers - to have their books or memoirs vetted, she said.
We are not saying there should be no criminal charge for revealing genuinely secret information, merely that a person, if prepared to take the risk of disclosure, should be allowed to argue before a jury that he or she acted in the public interest. If necessary the court could go in camera and the jury could even be vetted. Ironically, this could lead to more openness. Shayler's trial was heard in public, which meant that he was not allowed to argue his case fully in front of a jury.
The security and intelligence agencies should be subject to more scrutiny, with a system protecting genuine whistleblowers, because the onus is on these services to show they are not indulging in political activities or abusing civil liberties. That they have done is revealed in the current BBC series, True Spies, which shows how MI5 and the police special branch targeted leftwingers and trade union leaders they considered subversive. Special branch officers proudly admit indulging in lies and betrayal. If they can spill the beans, why can't MI5 officers?
The secrets act, which gives the government enormous discretion, is applied inconsistently. State officials and ministers decide what disclosures are damaging. MI5 says it has now closed down its counter-subversion branch. The new danger lies in the extremely broad definitions of terrorism and national security enshrined in law or used by state officials in the courts. They go far beyond the conventional meaning of a terrorist act or the security of the state. Worse, the government is now attempting to put the clock back by suppressing the publication of information relating to the security and intelligence agencies already in the public domain.
It is trying in particular to stop journalists from writing about allegations that MI6 officers were involved with Islamist extremists plotting to assassinate the Libyan leader, Muammar Gadafy. More than two years ago, dismissing attempts by the government to gag the Guardian and Observer, the appeal court described the Gadafy allegation as raising "critical public issues". It added: "Inconvenient or embarrassing revelations, whether for the security services or for public authorities, should not be suppressed."
In opposition, Labour frontbenchers, including Tony Blair, argued and voted for a public interest defence as the Official Secrets Act passed through parliament in 1989. Now they are in powe