National Security and the D-Notice System

Pauline Sadler

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138726185
• eBook ISBN: 9781351752336
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This title was first published in 2001. The D-Notice system is a voluntary arrangement between the government and the media whereby the media agree not to publish certain information in the interests of national security. This original and thought-provoking book identifies a major deficiency in both the D-Notice system and the legal alternatives to the system.

1

Introduction

National security and the D-Notice system¹

It seems to be generally accepted that there is some government information which should remain secret and information relating to national security matters is the type of information most often cited in this context (Barendt, 1996; Campbell and Whitmore, 1975).² At the same time secrecy should not be misused in order to obscure government mismanagement or iniquity (Bok, 1982; Lustgarten and Leigh, 1994; Lee, Hanks and Morabito, 1995). In other words the public interest in the non-publication of certain government information must be balanced with the public interest in openness in government.

The D-Notice system sits at the centre of this tension between secrecy and openness in government. The D-Notice system is an arrangement between the government and the media whereby the media agrees not to publish certain government information which is sensitive on the grounds of being a threat to national security. The system exists only in the U.K. and Australia, and has been described as ‘uniquely British’ (HC 773, 1980, para. 12).

In Israel the Military Censor has broad powers to censor publications. There is also an agreement, first signed in 1949, between an ‘Editors’ Committee’ of the daily press and the Israel Defence Force Authorities, whereby certain newspapers accept ‘advisory censorship’ from the Military Censor. In return, criminal proceedings will not be brought against newspapers which are party to the agreement (Seegal, 1991). Although the Israeli system bears similarities to the D-Notice system, further comparison will not be undertaken. Israel is continually under the threat of war or terrorism so the situation there is more akin to wartime censorship in the U.K. or Australia. In the U.S.A. President Kennedy considered introducing a system similar to the D-Notice system after the Cuban crisis, but the members of the press with whom he raised the idea dismissed it without hesitation (Marshall, 1967).

The D-Notice system is administered by a committee consisting of representatives from the media on one side and from the government, or from government departments, on the other side. The system is voluntary and extra legal, that is, there is no legal requirement for the media to participate and the system itself provides for no legal penalties in the event of a breach.

The parties involved and the issues

The main parties, or ‘sides’, involved are the government, wishing to suppress sensitive information, and the media desiring to publish. Both claim to represent the public interest, but for different reasons. In the narrowest of senses the subject matter of this book is the interests of government pitted against the interests of the media. In a broader sense, the subject matter of this book is the right of the government to censor certain material, weighed against the right of the general public, represented by the media, to have full and frank disclosure of government activities.

Neither the government nor the media can properly be described as objective participants in disputes of this nature because their own interests are inextricably tied to the competing public interests they purport to represent. While the government claims the public interest in suppressing material for the safety and welfare of the general public, their real reasons may have more to do with suppression of potentially embarrassing revelations. Similarly the media claim of representing the public interest by revealing information may have little to do with promoting the interests of the general public. The question then arises as to whom, or what, does weigh the competing interests objectively - that is, who looks after the interests of the general public? The answer seems to be that there is a major deficiency in the operation of the D-Notice system and in the legal alternatives to the system: the public interest, that is the interests of the general public, is not sufficiently represented in the former and is often not sufficiently recognised by the judiciary in the latter.

The ‘public interest’ or, as it has just been stated, ‘the interests of the general public’, is a concept at the core of this book. In the context of the issues examined, this means the interests of the general public in having only that material suppressed which is genuinely prejudicial to national security.

Structure of the book

This book begins with a review of the three main philosophical arguments used to justify a free speech principle. Chapters 3 to 5 are mainly narrative and begin with an examination of the history and operation of the D-Notice system in the U.K. This commences with the political background leading to the introduction of the system and continues by closely following its development and charting the major events that have taken place until the present day. Much of the early historical material was obtained by examination of original cabinet and war office documents held in the Public Record Office in Kew. The current operation of the system in the U.K. is outlined, followed by the history and operation of the system in Australia. Finally there is also a look at issues such as the financial cost of complying with the system and misuse of the system by the government.

As noted earlier, D-Notices are supposedly extra-legal, that is they are voluntary and have no legal backing. In both the U.K. and Australia, however, the government has utilised civil actions against media organisations in order to secure by injunction prior to publication the suppression of sensitive information. The criminal law has been used in the U.K. to punish media defendants subsequent to publication. Chapters 6 to 8 examine the legal protection of sensitive material, starting with the use of the criminal law in the U.K. This involves a detailed look at the Official Secrets Acts (U.K.) passed between 1911 and 1989. The provisions of these Acts have been the main instruments of punishment for the publication of government information, sensitive or otherwise. The very existence of these provisions may prevent the publication of sensitive material because the threat of potential prosecution may act as a deterrent. The equivalent legislation in Australia, the Crimes Act 1914 (Cth), is then considered.

For the media the use of the criminal law generally follows publication, but the government would prefer that the information not be published in the first place. The next matter to be investigated is therefore the potential for the use of injunctions to restrain a breach of the criminal law, for example to prevent a breach of the Official Secrets Act 1989 (U.K.). The discussion includes the use of injunctions to restrain a contempt of court. It will be seen that the use of injunctions in these circumstances is not as dependable as in the civil law, and Chapter 8 looks at the way in which the government in both the U.K. and Australia have applied the civil law to suppress publication of information. There is a detailed analysis of the use of breach of confidence in this context, and a briefer look at copyright. In effect the issues discussed in these chapters comprise the main alternatives to the D-Notice system for the protection of sensitive information.

Chapters 9 to 11 cover a number of concepts that are interwoven into the matters that have been already been discussed, but have not been examined in their own right. Chapter 9 investigates the meaning of the key phrases ‘national security’ and ‘the state’, then inquires into whom or what balances the interests of national security against the competing public interest of openness in government, manifested by publication. Chapter 10 examines the tension between freedom of speech and the suppression of information, and considers the question of what circumstances justify censorship. Chapter 11 looks at manipulation of the news by government and by the media. This is followed by examination of the role of the judiciary in determining cases, either criminal or civil, that come before courts where the publication of sensitive information is in dispute. Chapter 11 helps to gain a better understanding of whom or what balances the competing public interests in suppression or disclosure. Finally the conclusion makes recommendations based on the examination of the above issues.

Notes

¹ For the sake of continuity the term ‘D-Notice system’ is used in any general references to the system in this book even though it has been called the ‘DA-Notice system’ in the U.K. since 1993. References to the system in books, reports and articles include many variations in citing the name. For the sake of simplicity and uniformity, the ‘D-Notice system’ will be the name used throughout this book when general reference is being made to the system in either country.

² For an argument that there is little justification for keeping national security information secret see Toohey (1994). In 1997 the present author sent out a survey to print media editors and electronic media news editors in the U.K. and Australia. One of the questions was: ‘Do you consider that there is certain information which, in the interests of national security, should not be published?’ Six respondents, all from the Australian media, answered in the negative.

References

Barendt, E. (1996), Freedom of Speech, Oxford.

Bok, S. (1982), Secrets - On the Ethics of Concealment and Revelation, New York.

Campbell, E. and Whitmore H. (1975), Freedom in Australia, Sydney.

HC 773 (1980), Third Report from the Defence Committee (Session 1979-80), The D Notice System, London.

Lee, H., Hanks, P. and Morabito, V. (1995), In the Name of National Security: The Legal Dimensions, Sydney.

Lustgarten, L. and Leigh, I. (1994), From the Cold: National Security and Parliamentary Democracy, Oxford.

Marshall, G. (1967), ‘Comment’, Public Law, vol. Winter, p. 261.

Seegal, Z. (1991), ‘Security Censorship: Prior Restraint (After the Schnitzer Decision)’, in S. Shetreet (ed), Free Speech and National Security, Dordrecht.

Toohey, B. (1994), ‘A Case for Greater Openness’, in A. Bergin and R. Hall (eds), Intelligence and Australian National Security, Canberra.

2

The Right to Freedom of Speech

This book examines the operation of the D-Notice system to determine if the system provides a satisfactory way of deciding whether or not certain confidential government material should be suppressed. The essence of the issues involved is the government’s right to censor certain material versus the public’s right to be informed - or censorship versus freedom of speech. This presupposes that freedom of speech is a right that can legitimately be weighed against the government’s right to censor information. The focus of this chapter is to justify the presupposition.

In the Western democracies freedom of speech is accepted as being one of the fundamental basic rights, whether or not those rights are entrenched in the constitution of a country or formally adopted in some other way. Where there is no constitutional protection of human rights, for example Australia, and ‘rights’ are therefore residual, the word ‘value’ might be more appropriate. Barendt (1996), uses ‘value’ in this context. The acceptance of freedom of speech as being one of the fundamental rights is reflected in the International Covenant on Civil and Political Rights (ICCPR), Art. 19(2) of which recognises the importance of freedom of speech. Both the U.K., in 1976, and Australia, in 1980, have signed and ratified the ICCPR. Neither country has incorporated the ICCPR into domestic law. The U.K. is also a party to the European Convention on Human Rights (ECHR), Article 10(1) of which protects freedom of expression; the ECHR was incorporated into domestic law in November 1998 by the Human Rights Act 1998 (U.K.). The Act came into force in Scotland in July 1999 and in England in October 2000.

There are a number of different, and perhaps to some degree competing, philosophical bases for justifying a free speech principle. The three main theories are the argument from truth, the argument from democracy and free speech as an aspect of self fulfilment. In the context of this book it is necessary to examine these philosophical justifications in order to determine whether one or more of them alone or in ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Table of Cases
• Table of Statutes
• 1. Introduction
• 2. The Right to Freedom of Speech
• 3. History of the D-Notice System in the U.K. to 1945
• 4. History Post 1945 and Current Operation of the D-Notice System in the U.K.
• 5. History and Operation of the D-Notice System in Australia
• 6. The Use of the Criminal Law in Relation to the Disclosure of Sensitive Information
• 7. Injunctions to Restrain a Breach of the Criminal Law -U.K. and Australia
• 8. The Use of the Civil Actions of Breach of Confidence and Copyright
• 9. ‘National Security’ and ‘The State’
• 10. Free Speech and National Security
• 11. The Government, Media and Judiciary
• 12. Recommendations and Conclusion
• Bibliography