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http://observer.guardian.co.uk/comment/story/0,6903,1153542,00.html

A duty to country and democracy

The case against the GCHQ whistleblower exposes glaring flaws in Britain's unwritten constitution, says David Shayler.

Saturday February 21, 2004

The Attorney General's reported decision to drop the Official Secrets Act prosecution against Katharine Gun, former GCHQ transcriber, is a tremendous victory for her, should it be confirmed in court next week. She acted gallantly and honourably to expose an illegal operation, in which the United States asked GCHQ to spy on our allies to establish whether they would support a second resolution allowing an invasion of Iraq. She will be relieved that it is reportedly all over.

However, her future remains uncertain. Despite emerging without a stain on her character, she no longer has a job at GCHQ. She would fail any vetting assessment. After having faced months of sleepless nights, worry and fear, she now has to face an uncertain future.

Yet, Katharine Gun is exactly the sort of person we need in our intelligence services. She performed her duties in the service of this country and its security. Then, when faced with an illegal operation, she did her duty to the country and its democracy by exposing the crime.

If the case goes to court, it is highly likely that the prosecution would only have to prove that she worked for GCHQ, and that she said something about the service without permission to secure a conviction. She will not have been able to argue that her disclosure was in the public interest, even though all the relevant freedom of expression case law under the Human Rights Act affirms this principle. So the decision would hardly be a victory in the fight for greater openness in Britain.

The 1989 Official Secrets Act remains a cancer in the body politic. It continues to blight the lives of those who try to expose state crimes. The Act specifically prevents honest officials from taking their concerns to an independent body like parliament, where they can be objectively investigated. It automatically makes a member of the intelligence services a criminal, should they disclose anything 'relating to, or in support of, the services' to another individual, like a reporter.

It prevents them from making free, unfettered and informed criticism of the intelligence apparatus. To put it in context, if MI5 assassinated the Prime Minister, any MI5 officer who gave this information to a newspaper could be prosecuted under the Act.

In 1989, when in opposition, Tony Blair voted against the formal removal of a public interest defence when the Act was passed. As Prime Minister, his government has used it against investigative journalists like The Observer's Martin Bright, the Sunday Times's Liam Clarke and free-lance Tony Geraghty; as well as Lt-Col Nigel Wylde, Julie Ann Davies, one of my supporters, former MI6 officer Richard Tomlinson and me. None of us was seeking to give Britain's secrets to the enemy. None of us came anywhere near damaging national security. So why has the Attorney General considered dropping the case against Ms Gun after the government made a great song and dance in my case about the need to protect state secrets?

I believe it is down to potential embarrassment. As a result of my prosecution, the Court of Appeal and the Law Lords ruled that in certain tightly defined circumstances, a defendant prosecuted under the 1989 OSA could argue to the jury that their actions were a proportionate response intended to prevent imminent and illegal danger to life and limb. At committal proceedings, Ben Emerson, QC, her counsel, argued that Ms Gun would try to call on this argument, known as the 'defence of necessity'.

In Katharine Gun's case, she could certainly have asked for disclosure of the legal advice the Attorney General gave the Prime Minister before the war in Iraq. In the case of Katharine Gun, the Attorney General and the man who employs him, the Prime Minister, risked being enormously embarrassed by the disclosure of legal advice regarding the Iraq war.

In routine criminal cases, the Crown Prosecution Service, an independent body, makes any decision to prosecute. Under Section 9 of the 1989 Act, the Attorney General is responsible for decisions to proceed. In other words, the Attorney General found himself with an enormous conflict of interest in the Gun prosecution, which he should have declared before taking any decision. After all, it cannot be in the public interest that the Attorney General proceeds against one defendant but not another, when they are charged with offences under the Official Secrets Act simply because he stands to be embarrassed in one case and not the other. It undermines one of the cornerstones of democracy, equal treatment under law without discrimination (Article 14 of the European Convention on Human Rights, incorporated into English law in the Human Rights Act).

This is yet another example of Britain's flawed unwritten constitution with its lack of separation of powers and blurred lines of responsibility. Criminal prosecutions should routinely proceed without the interference of ministers, otherwise it is a recipe for corruption and injustice. At the same time, we need an independent Supreme Court, which would never have ruled - as the Law Lords did in my case - that the draconian OSA meets international standards of human rights. And we need an independent and elected upper house so that our representatives can scrutinise and amend proposed laws before deciding to pass them - the kind of scrutiny that was not possible in 1989 when the OSA was passed. Although Katharine Gun is reportedly free from prosecution, there are no winners - just further evidence of our imperfect political infrastructure.

David Shayler is a former MI5 officer