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GCHQ and its Chamber of Secrets

April 12, 2016

It was reported on Sunday that GCHQ intervened to prevent the leak of the sixth instalment of JK Rowling’s Harry Potter series. In response the spy agency said that it “didn’t comment on [its] defence against the dark arts”. The story was no doubt intended to demonstrate that United Kingdom’s third intelligence service has a sense of humour but to many it may have been deeply insensitive.

Disclosures made by any of the intelligence services are tightly regulated by statute. The Security Service Act 1989 governs disclosures by the Security Service (MI5) and the Secret Intelligence Service (MI6) and GCHQ, by the Intelligence Services Act 1994. The provisions in relation to the disclosures each makes are in identical terms but those in respect of GCHQ are as follows:

4 The Director of GCHQ.

(1) …

(2) The Director shall be responsible for the efficiency of GCHQ and it shall be his duty to ensure—

(a) that there are arrangements for securing that no information is obtained by GCHQ except so far as necessary for the proper discharge of its functions and that no information is disclosed by it except so far as necessary for that purpose or for the purpose of any criminal proceedings

The government places great emphasis on the strict application of these – what it calls – “the statutory provisions on disclosure of information”. Indeed in a witness statement provided to the Pitchford Inquiry on Undercover Policing, a cabinet office witness has correlated the provisions with the need to avoid a “hostile individual or group” thwarting an investigation or operation or to discover the methods, capabilities or techniques used by our intelligence services. This is in addition to compromising the safety of agents or prospective agents whose lives could be “put at personal risk” if the provisions in relation to disclosure were less than strictly applied. For these reasons, says the Cabinet Office, the same principles are “also likely to apply to undercover operations conducted by the police”. Indeed, this is the entire premise underpinning the Metropolitan Police’s argument to rely on the policy of Neither Confirm Nor Deny (“NCND”, explained here) in the Undercover Policing Inquiry, which is investigating, amongst other things, the practice by some officers of sleeping with activists or their associates.

Just to get a flavour of how serious the Metropolitan Police (eventually) considered this practice it may be worth recalling the apology the victims received from assistant commissioner Hewitt after attempts to strike out the legal action failed:

“I acknowledge that these relationships were a violation of the women’s human rights, an abuse of police power and caused significant trauma. I unreservedly apologise on behalf of the Metropolitan police service. I am aware that money alone cannot compensate the loss of time, their hurt or the feelings of abuse caused by these relationships.

“Most importantly, relationships like these should never have happened. They were wrong and were a gross violation of personal dignity and integrity”.

The principal basis of the assertion to NCND is therefore interwoven in the legislation that strictly regulates the disclosures that can properly be made by the intelligence services. It is being used to seek an order that much of the public inquiry be heard in secret a departure from the established principle of open justice.

The provisions of s 4(2) (a) also appear in the report of Sir Peter Gibson in connection with his report into the intelligence sharing that took place prior to the Omagh bombing. He said this:

“Once intercept material reached RUC HQ and Special Branch South, any further publication and release of that material, even to another part, or other members, of Special Branch, was subject to strict conditions imposed by GCHQ designed to achieve a balance between providing support to customers like Special Branch and protecting GCHQ’s capabilities, sources and methods. GCHQ also sought to ensure compliance with its legal obligations, in particular that required of the Director of GCHQ by section 4(2)(a) of the Intelligence Services Act 1994, viz to ensure that no information was disclosed by GCHQ except so far as necessary for the proper discharge of its functions or for the purpose of any criminal proceedings. If those persons within the RUC HQ and Special Branch South who received intelligence from GCHQ wanted to disseminate it within the RUC or even within Special Branch a set procedure had to be followed. GCHQ’s permission had to be sought for the use of intelligence in a ‘sanitised’ form, that is without revealing its source, to carry out some authorised action. Thus the release of intelligence intended to be acted on by other officers had to be requested of GCHQ and a form of words cleared with GCHQ”.

The reaction to organs of the state asserting secrecy is one of cautious if not reluctant acceptance that “it” knows best and in serving the greater good of our overall security some tolerance of secrecy is necessary. However this timid balance depends on public confidence that such restrictions placed on the public’s right to know is exercised appropriately and only when strictly necessary. Revelations that spy agencies misuse it, even when it relates to a fictional, though highly popular, orphaned wizard, is insensitive and undermines the great tragedy and intrusive violations that some have had to endure in the absence of full accountability. Unless the state is prepared to open a Pandora’s box, it should keep its chamber of secrets firmly closed.

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