The European convention on Human Rights

Open government, in short is the concept that, a government will conduct itself in a transparent and fair manner hence allowing the public to scrutinize its initiatives and decisions. It is most significant in the domain of state secrecy which is in direct conflict with the concept of open government as it legitimizes the suppression of information from the public domain. The suppression of information is linked to Article 10 of the European Convention of Human Rights which guarantees the right of free speech and the right to receive and impart with information freely.

However Article 10 is not an absolute right and it allows members to the convention the right of derogation where national security and public safety are at risk. The law must therefore provide a means of balancing the individual’s right to guard his or her privacy against the public’s right to know about matters of general importance. Yet over the past two decades, British governments have been reluctant to create a specific civil obligation to protect personal privacy. It was argued that privacy is too vague a concept for legal protection[1].

But the enactment of the 1998 Human Rights Act has changed this situation. The Act requires that the government respect both the right to privacy and the right to freedom of expression, although it leaves it to the courts to decide how the balance should be struck. The statement raises to main issues which will be the focus of this discussion. First the statement suggests there has been an effort to create a more open government in the United Kingdom over the past two decades. This is evident through the Official Secrets Act which decriminalised the disclosure of once sensitive information.

Furthermore the intelligence services M16 and GCHQ were placed on a statutory basis by the Intelligence Services Act 1994 and a parliamentary committee was established to oversee their work. The Freedom of information Act was also a significant step towards open government. Then the discussion will focus on the second issue that is the assertion that open government has increased due to various decisions of the European Court of Human Rights and decisions under the human rights act.

It will be argued that these decisions did have an influence but not to the extent the statement represents and other influences such as the common law had a great impact. Parallel to the main issues is the observation that the movement towards open government is merely to satisfy the provisions of the ECHR rather than allow enjoyment of the rights it confers. Accordingly It was said by Ronald Wraith[2] a legal scholar that, “open government is a fashionable expression whose general intention is reasonably clear but whose practical meaning awaits clarification” Richard A.

Chapman, Open Government pg11 paragraph 1. This observation alludes to the limited effect of the measures to enhance open government and that the provisions do not offer aggrieved parties adequate relief. In recent years, the British government has attempted to allow greater access to government information and stop the old notion of obsessive state secrecy. In November 2000, Parliament adopted the Freedom of Information Act, which creates a legal right for individuals and organisations to have access to information held by government authorities.

Many editors and journalists argued that the law should give broad access to government information, whilst government officials were concerned that such access would create risks to security and also undermine the efficiency of government. The Freedom of Information Act is a compromise between these positions. The Act creates a public right to information which is subject to a number of exceptions. Some of these exceptions apply only where release of the information would harm particular interests, such as defence or international relations.

Other exceptions apply to entire classes of information even if disclosure does not cause harm. There is, for example, a general exception for all information that relates to the formulation or development of government initiatives and policy. This means that the government could deny access to research and reports that were used in deciding government policy. The Act provides less access to government information than many people had hoped for, but it has created a legal right of access to government information that did not previously exist in British law

The first movement towards more open government came following the Interception of Communications Act 1985 a law which regulated various authorities use of phone tapping and other techniques. The law was introduced following an ECtHR decision in the case of Malone v UK 1984 where the applicant complained that the United Kingdom’s authorities had illegally tapped his phones while he was under investigation for theft of which he was eventually acquitted. The case dealt with Article 8 of the ECHR, Everyone has the right to respect for his private and family life, his home and his correspondence.

The wider issue was that the government did not deny or accept that it had been involved in the illegal phone tapping which showed that information on these matters were suppressed contrary to the rights afforded under Article 10. The decision resulted in the government introducing the 1985 Act, however its scope was limited as it only regulated the situations where the tap could be used rather than outlining the limits to private life. Consequently due its limitations and extensive technological development the 1985 Act was replaced by the The Regulation of Investigatory Powers Act 2000 also known as the RIPA.

Despite the introduction of the RIPA Article 10 of the ECHR is still limited as information regarding authorised an unauthorised phone taps are still difficult to obtain. Furthermore any complaints of Human rights violations can only be made to a special tribunal established by the RIPA which also prevents any court from examining the decisions it has made. Another act which came into effect as a result of a ECtHR decision was the Security Services Act 1989. The decision in question derived from the case of Hewitt and Harman v United Kingdom 1989 which found that a complaint against MI5 was inadmissible.

As a result MI5 was placed on a statutory basis meaning that its function and existence was written down in law. However Human Rights complaints against MI5 cannot be brought before a court, the only effective way to examine a possible complaint can be made to a tribunal set up by s65 of the RIPA. Furthermore the outcomes of these tribunal hearings are private and there can be no effective scrutiny by a court. The influence of these provisions and decisions are not directly attributable to the decisions of the ECtHR as at the time of their introduction there was also political pressure from domestic matters.

One such pressure came from the case Secretary of state for the home department ex p Ruddock which involved a phone tapping complaint from the Campaign for Nuclear Disarmament group. Another instance where domestic political pressure has shown that the decisions of the ECtHR are not the main reason for a move towards open government can be derived from the introduction of the Official Secrets Act 1989. As mentioned before the OSA 1989 decriminalised the disclosure of various state secrets and also replaced the OSA 1911 which was widely discredited due to the outcome of the R v Ponting 1985.

In Ponting the defendant was accused of leaking documents about the sinking of an Argentinean war ship in the Falkland’s war to a labour party MP. The documents revealed that the Argentinean war ship had indicated surrender by fleeing the exclusion zone but was nevertheless attacked and sunk by the British forces. Ponting admitted revealing the information and was charged with a criminal offence under Section 2 of the Official Secrets Act of 1911. His defence was that the matter was in the public interest and its disclosure to a Member of Parliament was protected by Parliamentary Privilege.

Subsequently he was acquitted because of the broadness of Section 2 which allowed a jury to decide that his actions were in the public interest. The OSA 1989 suppresses less information than the 1911 Act due to the introduction of the ‘harm test’ which takes into consideration the subject matter of the information being divulged. The nature of the ‘harm test’ is that there is no public interest defence, as there was in Ponting under the 1911 Act, and such a defence cannot even be implied into the test.

Accordingly any good that stems from the disclosure of secret information cannot be considered by the jury, they must focus only on any harm that may have been caused. This position was supported in the case of R v Shaylor where a secret service agent divulged confidential information relating to the interception of communications and the warrants issued under section 2 of the Interception of Communications Act 1985. Under the 1989 Act Shayler was not afforded the defence of public interest as it had been excluded from the new law.

Questions arose as to whether this provision was in line with Article of the ECHR but because the Act was not absolute and provided for disclosure with lawful authority provided the correct procedures were followed, sufficient and effective safeguards to satisfy Article 10 (2) of the Convention had been provided. Under the influence of the Human Rights Act, the courts have extended the existing law of “breach of confidence” to protect the right of individuals to keep personal information out of the media.

The law of breach of confidence protects sensitive information communicated in confidential circumstances. Traditionally this applied in quite restricted circumstances. A newspaper cannot, for example, publish information a patient has told a doctor in confidence without the permission of the patient. Obligations of secrecy are frequently contained in employment contracts and employers are able to use an action for breach of confidence to prevent disgruntled employees from disclosing damaging commercial information.

In the famous “Spycatcher” case, the British government attempted to prevent newspapers in the UK from publishing extracts from a book written by Peter Wright, a former British intelligence officer living in Australia. Wright was clearly in breach of his contractual obligation of secrecy. But the courts refused to prohibit the publication in Britain on the ground that the information in the book was already widely available in America and other countries.

Lord Kieth of Kinkel stated during the trial, The general rule is that anyone is entitled to communicate anything he pleases to anyone else, by speech or in writing or in any other way. That rule is limited by the law of defamation and other restrictions similar to those mentioned in art 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms … All those restrictions are imposed in the light of considerations of public interest such as to countervail the public interest in freedom of expression. ”[3]