A DRAFT of the article published by the
International Journal of Intelligence and CounterIntelligence, 3(4):465-474 (Winter 1989).
All rights reserved. For short quotes under fair use, please cite properly.
Jeremy R. T. Lewis
PhD, MA, Johns Hopkins University
MA, BA, Oxford University
Now: Associate Professor of Political Science
Huntingdon College, 1500 East Fairview Ave,
Montgomery AL 36106.
Before discussing the specific events in official secrecy and Freedom of Information which have occurred in Britain in the last few years, this paper will first explain the structural and cultural factors which make difficulties for the Freedom of Information movement in Britain.
Traditionally, authority descended from the Crown rather than rising from the people in a revolution, and that authority was reinforced by deference to the national security establishment during the second World War. Generations of young people up to and including that of the early 1960s were brought up with parental stories of being bombed nightly while doing homework under the stairs. "Careless talk costs lives" was the slogan for keeping things "hush hush". Britain came very close to being invaded, and simulations and war games after the event have confirmed that southern England would have been lost, and the fight would have had to have been continued by underground guerrilla forces. While the RAF was principally responsible for stopping German invasion plans, CounterIntelligence subsequently played a major role in turning around the war by cracking the German and Japanese ciphers, and the knowledge of that effort had to be guarded (some have written) even at the expense of permitting the bombing attack on Coventry which cost 40,000 lives.(2) Since 1974, the government has authorized publication of these codebreaking successes to offset scandals occurring among a set of homosexual communists who were former top intelligence officers during and after the second World War.(3)
In contrast to the U.S. congress, where 19,000 bills are placed in the hopper per session by all members, in the House of Commons the government has a lock on bills entering Parliament for serious consideration. The exceptions are usually Private Member's Bills which rarely succeed without government assistance, partly because of strong party discipline and partly because they are placed on the Order Papers for Friday afternoons, and parliament is roughly as enthusiastic about working on Friday afternoons as is the congress. Given a Government opposed to laws providing for public access to government documents, the only way to enact such provisions as a right to see one's own files and correct them if they are inaccurate, is to pass private member's bills. Very few of these succeed, although some have been important reforms of moral or social legislation. Abortion, the death penalty, and divorce laws were all reformed when private member's bills stepped in where governments feared to tread.
The press, which fought hard for freedom of information in the American case,(4) has not been greatly interested in the British case. For many years the press, under economic pressure, was divided into the Establishment papers which supported governmental authority, and the gutter press which confined much of its fervor to sports, Bingo, and (in the modern era) the female body. The quality press (including the Times and Telegraph) still subscribes to the Lobby system in which reporters gather regularly to be given non-attributable material on what would be described in Washington as "deep background", and Lobby rules are rarely breached. "D" Notices are still used by an official committee to keep reporters from publishing stories about defence and intelligence matters, and are given considerable weight by the fear of prosecution. The libel laws are so strict that falsehood rather than actual malice is the test. Former Prime Minister Harold Wilson actually successfully sued a publican who had printed beer mats (coasters) sporting a cariacature of Wilson.
However, with the breaking of the monopoly of printers' unions in recent years, newer quality papers have become economically viable, and there have been some scoops derived from critical investigative reporting; in addition, some of the new breed of educated journalists have the necessary fine level of arrogance to write on equal terms with ministers. Peter Hennessy for example, was educated at Harvard and elsewhere, has written excellent books, and been able to persuade reluctant civil servants to discuss their work.
In addition, the civil service has changed its subculture, now both fearing prosecution under the Official Secrets Acts, and believing that it might gain from having its writings exposed to public scrutiny rather than being selectively leaked by ideologically motivated politicians.
Furthermore, the culture of deference to authority which had remained from the days of feudalism and aristocracy, has been eroded in recent years by the spread of higher education, critical television discussion programs, and changes in the economy. There is a possibility that computer literacy, more broadly spread in the U.K. than anywhere else, may lead to further changes in the culture in the future. Britons used to selecting pages of videotext from laser disks via their home televisions, as many are today, will not be afraid of using government databases when these become available.(5)
There are some personality matters which we ought to account for. Mrs. Thatcher is implacably opposed to Freedom of Information, and if there was any doubt about her support for national security forces prior to the 1982 Falklands war and the IRA terror bombing at Brighton (where her life was saved purely because her cabinet secretary kept her up till 2 a.m. with a long briefing paper) then there has been no doubt since.(6) Unfortunately even as the Freedom of Information movement sought to keep to the safe ground away from national security matters, the Spycatcher book trial of 1987 forcefully intruded itself.(7) To indicate just how strong was that intrusion into British policymaking, perusal of the fine print of the Times index reveals that the column space devoted to that trial takes up three times the space devoted to all aspects of national security and the Official Secrets Act in the adjacent years.
The Freedom of Information Campaign has its own personality factor. Mr. Des Wilson is a former Chairman of the Liberal party, and a great admirer of Ralph Nader, the American public interest group advocate. He was very successful with his two previous pressure groups, Shelter, which brought volunteer housing programs to the homeless, and Clear, the Campaign for Lead-Free Air, which brought in laws banning lead in fuel. He had the political magnetism necessary to attract all parties other than the governing one, with many groups including civil service unions, into the fold of access legislation. Even some of the governing Conservative party joined the campaign.
Let us examine the new laws which signal changes in the use of official information. Remember that under the Official Secrets Act 1911, Section 2, anything in an official file is secret under "penalties for spying" and since British courts take only the letter of the law into account rather than looking at its legislative history, they may apply that section to any releases of documents without limiting the case to actual spying.(8)
In 1983-86 (before the FOI Campaign was formally organized in its present form) the Data Protection Act was phased in, though it only applied to computerized information thus giving it limited scope for the present.(9) It permitted a person to have corrections made in his or her own file, via a Tribunal of the usual "Three Wise Men" recruited from the civil service, but formally independent of the Departments.(10)
In 1985 the Local Government Access to Information Act ordered open meetings, and the government accepted this private member's bill half way through its process. Mrs. Thatcher's distrust of local councils no doubt contributed to her acceptance of the bill, and in fact her maiden speech in the Commons was on this subject in 1950.(11)
In 1987 the Access to Personal Files Act opened Housing and Social Work files to scrutiny and correction. Schools' files were removed from the language in return for a government promise to introduce this provision under extant regulations, which will become effective in 1990.
In 1988 two acts were passed following sponsorship by private members. The Access to Medical Reports Act permits corrections in doctors' reports to Insurance Companies about oneself, and this was sponsored by Archie Kirkwood, a Liberal member.
The Environment and Safety Information Act was sponsored by Chris Smith of Labour, and permits publication of environmental and safety inspection and enforcement files.
The failure has come on the criminal side of law, where the Official Secrets Act of 1911 (as amended) remained in effect even after a relatively liberal judge urged in the Aitken case of 1971 that it had reached a suitable age to be "pensioned off".(12) Prosecutions produced mixed blessings in the 1980s, when the government attempted to extend prosecution under Section Two to civil servants and journalists. A marginal notation in Section Two indicates that it is intended to refer to "Penalties for Spying", but under British legal practice, judges consider only the language in the section itself, which creates perhaps 3,400 separate offences, capturing almost any situation in which a civil servant releases any information from an official file.
Despite the serious difficulties in the late 1970s in prosecuting Aubrey, Berry and Campbell in the sigint or "ABC" trial, the government attempted other prosecutions of civil servants in the 1980s. Sarah Tisdall pleaded guilty under the Official Secrets Act to releasing a memo about the delivery of cruise missiles, which was being protested by a number of groups. Clive Ponting, who released a memo showing that the Defence Secretary had misled the House of Commons over the sinking of the General Belgrano cruiser in 1982, had a conviction directed by the judge on the grounds that the public interest is that of the government of the day.(13) Yet he was acquitted by an exceptionally independent jury. Cathy Massiter, another civil servant, had no action taken against her following Ponting's acquittal. Peter Wright's book of counterintelligence memoirs was published extensively abroad, despite prosecutions from Australia to Hong Kong, and the Law Lords declined to convict by the time the case reached them. Anthony Cavendish MP published his secret service memoirs as a Christmas card and the government at that point admitted there was no breach of security involved. Indeed, Cavendish's memoirs refer to a period forty years before publication; yet when they appeared in the literary magazine Granta during the summer of 1989 in the United States, they were heavily censored to avoid prosecution in the United Kingdom. Both Wright and Cavendish were prosecuted under the law of confidence to an employer, despite the fact that neither had signed a secrecy contract, since their employment had predated such formalities. It appears that extensive prior publication saved one, and antique content combined with impeccable conservative political credentials saved the other.
The major attempt at reform legislation, the Freedom of Information Bill of 1979, failed just barely, as the Labour government fell and an election was called.(14) The government Protection of Official Information bills under Labour and then the Conservatives were blocked by backbench revolts, and the resultant stalemate lasted until 1988.
Then in December 1988 Richard Shepherd of the Conservatives came close with his private member's FOI bill. It was voted down on Second Reading under strict party discipline and a three line whip. (This means that the bill was underlined three times in the order paper, and all government MPs were commanded to vote against it on pain of being expelled from the party and hence from their jobs.)
The government then promised a new Official Secrets Act, and this was duly passed this summer with no amendments permitted. It was rammed through with a guillotine provision cutting off debate and setting a strict timetable for considering each clause. Broad secrecy is still in place for security and intelligence material, although criminal penalties were removed for domestic civilian material. The harm test for national security was changed slightly from "jeopardised" to "damaged", but by an omission of drafting (and the guillotine) information coming from outside bodies such as the CIA was excluded, the penalties applying only to information from "a Crown servant". There would be no further use of the "public interest" defence against prosecution, which had acquitted Clive Ponting.(15)
Britain is increasingly integrated into the European Community, where data privacy protection is already more firmly established. In 1992, with the removal of internal frontiers, both truckers and holidaymakers will be able to able across borders unimpeded by passport controls. The ability to arrest suspected criminals at borders will be severely curtailed, and hot pursuit by police forces across borders with assistance by police on the other side, will be essential. To facilitate this, police operations will need to exchange computerized information almost in real time, and are already making some progress on planning for this eventuality.(16) In return, harmonization of data privacy and correction laws will undoubtedly be demanded, and Britain may come under some pressure from the EC to bring its access laws up to the slightly higher level found elsewhere in the Community.
Government information is still disclosed through positive publication, and the British government has traditionally been relatively active in this respect. There are British Councils in many foreign countries, and these have survived budget cuts under the Thatcher government, allegedly on the grounds that they provide inexpensive light cover for intelligence collection. Her Majesty's Stationery Office has published numerous titles in the U.S. as well as in Britain, selling from retail shops in High Holborn, London and in New York, for example. The BBC World Service which broadcasts reliable news worldwide and is an important source of information for many countries which lack a free press, has also survived budget cuts in the Thatcher administrations. Government White Papers, which detail a bill before it enters Parliament, have occasionally been supplemented by Green Papers, published as consultative documents at an earlier stage of the process. Unfortunately, these Green Papers still are too few and bills are too rarely modified in response to comments made about the Papers. Government statistics have however been cut back, just as happened in the Reagan administration, while the increase in publication of background policy material called for in the Allen Memo of 1977 (itself leaked to a journalist and published) has been quietly shelved.(17)
Britain then, has seen a one way trend (which happily this author predicted in his Master's Thesis in 1980) towards freedom of information, despite the unfortunate linkage of secret intelligence service and security service memoirs and scandals to the topic of freedom of information. This linkage is largely a false one, as witnessed in the U.S. where no court has ever ordered classified material released under the FOIA.(18) All British parties other than the Conservatives are as committed to the concept as they can be, and the civil service unions or other spokespeople have widely accepted FOI legislation as in the safe interests of their members. The Society of Civil and Public Servants was one of the first civil service unions to endorse FOI, and the First Division civil servants is the most powerful. Leading former top Treasury civil servants including Lord Croham, Sir Frank Cooper and Sir Douglas Wass also signed a joint letter to The Times in 1989 calling for Freedom of Information. Wass also called for reform in his ealier book of lectures. Among the Tories, two dozen Members of Parliament rebelled, fourteen of them on one vote alone.
Yet, through both cultural and structural factors, British subjects
remain fifteen years behind United States citizens in progress towards
freedom of information. It may take a decade and another government before
this "public information gap" is eroded.
(In the interests of brevity, articles from the quality press will be omitted here. The leading journalistic authors on British official information topics are Peter Hennessy, Richard Norton-Taylor, Brian Sedgemoore and David Leigh. The legislative action was extensively reported in The Guardian and The Observer. The text of the White Paper and of the Bills is found in The Times via the Index. Further references are found in the endnotes.)
Cornford, James, Privacy. (London: the Outer Circle Policy Unit, 1980.)
Dorsen, Norman and Stephen Gillers, None of Your Business: Government Secrecy in America. (New York: Viking, 1974.)
Dresner, Stewart, Open Government: Lesson From America. (London: The Outer Circle Policy Unit, 1980.)
Franck, Thomas and Edward Weisband, Secrecy and Foreign Policy. (New York: Oxford University Press, 1974.)
Freedom of Information Campaign, various newsletters and publications.
Galnoor, Itzhak, (ed), Government Secrecy in Democracies. (New York: Harper, 1977.)
Margach, James, The Abuse of Power: The War Between Downing Street and the Media From Lloyd George to Callaghan. (London: W.H. Allen, 1978.)
Marwick, Christine, (ed), Litigation Under the Amended Federal Freedom of Information Act. (Washington: The Center for National Security Studies of the American Civil Liberties Union, 1978. Also annual editions under different editors, 1979-1989.)
National Council for Civil Liberties, Legislating for Information Privacy. (London: National Council for Civil Liberties, 1980.)
Outer Circle Policy Unit, The Official Information Bill. (London: the Outer Circle Policy Unit, 1978.)
Outer Circle Policy Unit, A Consumer's Guide to Open Government. (London: The Outer Circle Policy Unit, 1980.)
Relyea, Harold C., "Business, Trade Secrets, and Information Access
Policy Developments in Other Countries: An Overview." Paper prepared for
the American Bar Association Program, 1981.
1. This essay was prepared with the help of research grant #669440 of the Professional Staff Congress of the City University of New York, in 1989: "Freedom of Information in the U.S. and U.K.."
2. Nigel West, in his book re-examining intelligence myths of the second World War, argues that Coventry was not in fact deliberately sacrificed to protect the fact that the codes had been broken. His suggestion is that fighter aircraft were not successfully vectored onto the German bomber stream by RAF signals interception stations monitoring German pathfinding beams.
3. William Stevenson, A Man Called Intrepid, explains this motivation in the preface. Other books on the success of codebreaking in the second World War which appear to have been authorized, include those by Gordon Welchman, The Hut Six Story, F.W. Winterbotham, The Ultra Secret, and Anthony Cave Brown, Bodyguard of Lies. The official history is by F.H. Hinsley in multiple volumes. A number of books which were not explicitly authorized, from Chapman Pincher, Richard Deacon, and Nigel West, contain thinly disguised background material from members of the intelligence services. On the spy scandals, see Anthony Boyle, The Climate of Treason, Chapman Pincher, Too Secret Too Long, and Philip Knightley's recent book on Kim Philby. Anthony Cavendish's memoirs in Granta, Summer 1989, were written partly to defend his former superior, Sir Maurice Oldfield, from accusations that he was a traitor as well as a homosexual.
4. Press spokesmen were the driving force behind the Moss subcommittee on government information in the period 1955-66 when the Freedom of Information concept was defined and enacted. They frequently testified before the committee.
5. The commercial television network, ITV, has a videotex service called ORACLE, while the BBC has its own. Televisions equipped with an adaptor can decode the top 25 lines of the 625-line signal and reveal screens of text, which can be selected by means of a small keyboard attached to the set.
6. The leading book on the Spring 1982 Battle of the South Atlantic is by a war correspondent on the spot, Max Hastings. Other appraisals have come notably from Colonel Frost, a distinguished former paratroop leader and hero of Arnhem; and from Lawry Freedman, Professor of War Studies at King's College, London. From these and other accounts, and from the contemporary television and press coverage, it was abundantly clear that Mrs. Thatcher had taken a perilous political risk in the Falklands campaign, never faltered in her policy, and was rewarded with re-election a year later. As for the Brighton bombing, the hotel in which the Conservative leadership was staying before the party conference was partly demolished by a sophisticated IRA bomb set in Mrs. Thatcher's bathroom. A number of people were killed or badly wounded, including some of her close advisers.
7. Peter Wright, Spycatcher, (New York: Viking, 1987). Also, participant interview with Ms. Patti Goldman, former law clerk to Anthony Lester Q.C., the defence counsel in the case.
8. The magisterial work on the legislative and judicial history of the Official Secrets Acts from the 1880s onwards, is David Williams, Not in the Public Interest. For later materials from the 1970s, see Norman Dorsen and Stephen Gillers, (eds); and Thomas Franck and Edward Weisband, (eds), Secrecy and Foreign Policy.
9. The argument for data privacy protection was made by Colin Bennet, in a graduate student paper circulated among interested parties.
10. The timing of the phasing in of the Data Protection provisions was explained to the author by Thomas Riley of Riley Information Services of Toronto, Canada and of the International Freedom of Information Institute.
11. The discussion of the bills from 1985-88 has benefitted from telephone interviews with the following: James Michael of the Law Faculty, University College, London; Maurice Frankel, Research Director of the Freedom of Information Campaign of London; and Pat Birkenshaw, of the Law Faculty, University of Hull.
12. For further discussion of events in the period 1970-1979, see Jeremy Lewis, Freedom of Information in British Politics, M.A. Thesis, The Johns Hopkins University, 1980. (Unpublished). See also Kenneth G. Robertson, Freedom of Information in the U.K., Sweden and the U.S., Sociology PhD Dissertation, University of Reading, 1979; later published by MacMillan in the same form.
13. See Clive Ponting, The Right to Know. Ponting and Tisdall also spoke about their cases in the presence of the author at the January 1985 Secrets Rally in London, organized by the FOI Campaign.
14. The author conducted extensive participant interviews with (among others) Peter Hennessy of The Times, James Michael of the Law Faculty, Central London Polytechnic and the Outer Circle Policy Unit; Rodney Foster of King's College London and the Outer Circle Policy Unit; and Lord Croham, the former Sir Douglas Allen, who had been Head of the Home Civil Service. In addition, he used extensive coverage from the quality press, and papers by the Outer Circle Policy unit, particularly those by Stewart Dresner. He exchanged correspondence with a number of Members of Parliament, including Tony Benn and Clement Freud, the sponsor of the FOI Bill of 1979.
15. The text of the White Paper which became the new official Secrets Act was published in the quality press. The action in the Commons was described from participant interviews with Professors Birkenshaw and Michael, and Mr. Frankel of the FOI Campaign.
16. The alterations in police data exchanges were briefly dissected in The Economist, September 1989.
17. The Allen Memo calling for greater publication of documents to forestall a Freedom of Information movement, was published by David Leigh in The Frontiers of Secrecy. The author also conducted an extensive participant interview with Lord Croham, formerly Sir Douglas Allen.
18. The one case in which the release of a fragment of classified material was ordered, Holy Spirit v Central Intelligence Agency, was dropped on appeal. (The case is otherwise better known as the "Moonies" case.)