The Special Immigration Appeals Commission is a peculiarly British invention. It meets in the windowless basement of an anonymous building in central London. The appellants, usually said to have terrorist links, are not informed about what is being alleged against them. They are represented by carefully selected lawyers, so-called special advocates, who can take instructions from the appellant at the start of the process.
Special advocates are allowed to see the secret evidence and cross-examine government witnesses, but once they have done so they are forbidden to communicate with those on whose behalf they are acting. Journalists are occasionally admitted, but what they can report is severely restricted. And, of course, the rulings of the court are never fully disclosed.
When the commission was created in 1997, parliament was told that these special measures would be rarely used. But before long a dozen or so other tribunals had adopted secret evidence procedures, among them the Parole Board, the Northern Ireland Sentences Review Commission and some courts hearing child custody cases. The habit of secrecy is catching.
Passed through parliament
Among mature democracies, no one does secrecy quite like the British. The first Official Secrets Act was passed in 1889. On second reading it passed through parliament in just two minutes. It was directed mainly against wartime espionage and contained a number of loopholes.
The 1911 Act closed the loopholes and greatly extended its reach. Section 2 prohibited the unauthorised disclosure or receipt of any official information. Once again, the Act passed through parliament almost without debate.
Further refinements would be added in later years, including a system of so-called D-notices, under which newspapers could be quietly warned off publishing material that was deemed to be embarrassing to the defence or security establishment.
In 1989, after a series of scandals, the notorious section 2 was replaced by a clause that greatly reduced its scope. However, the new Act took the opportunity to deprive anyone accused of disclosing official secrets of the defence that they had acted in the public interest. The very existence of MI5, the internal security service, was not officially acknowledged until 1989; MI6, the secret intelligence service, was not brought within the law until 1994.
As for GCHQ, which monitors communications worldwide, we have only lately become aware of its vast capacity and the fact that its targets apparently include allied governments. The Russians, needless to say, are much better informed. It is the British public who have been kept in the dark.
Archival destruction
With The History Thieves, Ian Cobain has produced a meticulously researched and immensely readable history of the British obsession with secrecy. Among the episodes he documents are the massive destruction of official archives that accompanied the withdrawal from empire, and the existence of the so-called "migrated archive". The very existence of the latter was denied for many years, and most of it remains closed even to this day.
It is a little-known fact that there has not been a year in more than a century when British troops have not been engaged in open or covert warfare somewhere on the planet – a record unmatched by any other power. “Only the British”, Cobain writes, “have been perpetually at war”. We have, as a result, rather more to hide than most other major powers.
There is a particularly interesting chapter on the dirty war in Ireland. The British army colluded with loyalist death squads, even going so far as to blow up the headquarters of the inquiry team sent from the British mainland to investigate what they were up to.
Official secrecy is often used to outwit parliament. Two years ago, for example, MPs voted against the involvement of the British military in the bombing of Syria. It later emerged that servicemen “embedded” with the American military were doing exactly that. I suspect the same happened in Vietnam as well.
Cobain also charts the long history of official resistance to greater openness. Over the years, various official inquiries have recommended greater official transparency, only to be seen off by the backroom manoeuvring of the mandarin class. Politicians, too, have a history of promising reform in opposition only to go cold on the idea once in government.
The Labour Party under Tony Blair made much of its promise to introduce a Freedom of Information Act, which was indeed introduced, albeit much watered down. Subsequently, as Blair made clear in his memoirs, he regarded its introduction as one of his biggest mistakes.
In fairness, as Cobain acknowledges, transparency can be the enemy of good government. Any reasonable person would accept that a high degree of secrecy must surround the state’s military capability and its capacity to combat terrorism. Also, and this is where it gets trickier, civil servants and advisers need to be given the space to advise ministers without fear of seeing their opinions splashed (and often misrepresented) all over the media next day.
Burden of freedom
There is another issue: Freedom of information can impose a huge burden on government. Especially in the early years after the Official Secrets Act came into force, departments were swamped with requests for information; many were no more than fishing expeditions.
Some news organisations, notably the BBC and the Guardian, employ people full time to fire off requests . Processing them can impose a huge administrative burden. There is a balance to be struck.
What is less easy to defend, however, is the use of official secrecy to cover up, often years after the event, activities that are indefensible. It has, for example, become clear in recent years that, for all their protestations of innocence, British intelligence and security services have collaborated with foreign torturers. They even appear to have been directly involved in kidnapping Libyan dissidents in order to win favour with the Gadafy regime.
What’s more, they appear to have lied to parliament about these matters. In these circumstances, they deserve all they get.
Chris Mullin is a former Labour minister. He has recently published his memoirs, Hinterland (Profile).
