At the time the Intelligence Services Act 1994 was being planned there were two schools of thought. Whitehall felt that the Security Services Act 1989 oversight had been accepted by the European Court of Human Rights in the case of Hewitt and Harman and Parliamentary oversight of any sort was only desirable for presentational reasons. The agencies were of the view that the agencies were moving into a more public stance, particularly to deal with the criminal nature of the new threats against the state and that broad Parliamentary oversight was a necessary balance in the process.

  Underlying Whitehall's view were two separate but converging elements.

  The first was that there existed in Whitehall a culture of protective secrecy towards the agencies. This remained despite the fact that Security Service officers, and to a certain extent SIS officers, regularly gave evidence at trial relating to extremely delicate and sensitive operations. In part this culture was due to failure to understand that Cold War considerations were no longer apt for the new work the agencies were embarking upon. In part it sprang from the mystique the agencies had carefully cultivated during the Cold War era.

  Whilst the agencies had worked hard to shed that mystique, Whitehall attitudes were slow to catch up. This was evidenced in the Scott enquiry. Sir Richard Scott censured government departments for being grudging in their attitude towards disclosure in the Matrix Churchill trial. However, he specifically excluded the agencies from that censure and referred to their willingness to refer documents to the defence. (See paragraph G18-39 of the Inquiry Report).

  The second element was more of a policy issue. The Whitehall view was that any loss of secrecy relating to the agencies would lead to difficulties in sustaining high levels of secrecy in other areas of government. This was evidenced clearly in the continual battle the Security Service had with the Home Office to be free to use information gathered in sensitive operations to prosecute terrorists. There were constant problems with the Home Office insisting on using Class PII claims at trials when it was clear that they undermined the credibility of the Service. Class was deemed to be essential to the proper protection of the administration of government.

  The Security Service had a series of successful prosecutions which went to the heart of the terrorists' capabilities. Because of this success they were able to circumvent some of the Home Office obstacles. For instance, there was unwillingness in the Home Office to assist the Service develop secure judicial procedures for converting their secret information into evidence. These were finally secured by the Service through the Attorney General in a particular case, R v Johnson Davis & Rowe. Here, fortunately, the police urgently needed such procedures and the Security Service had had them prepared and idling for two years.

  But the overall battle remained. On the one hand the Security Service saw the benefits of more opennes and of using intelligence for the first time to convict terrorists and to aid the police in the future fight against organised crime. On the other, the Home Office and Whitehall were fearful that the consequent reduction in secrecy surrounding the Service would lead to an erosion of longheld principles of secrecy surrounding government business as a whole.

  These concerns led Whitehall in 1994 to advise Ministers that whilst some form of Parliamentary oversight was politically desirable it should be within the ring of secrecy and have only very limited access to the operational functions of the agencies.

  These observations are made by way of establishing some pertinent reasons why Ministers rejected any broader form of Parliamentary oversight in 1994.

  I believe they are important because the reasons were not valid then and are not valid now.

  The 1989 Security Services Act oversight was secured only in the face of the certainty of losing the ECHR Hewitt and Harman case. The absolute minimum of oversight was given. It was gauged just sufficient to satisfy the European Commission, which would be unwilling to reject a state's legislation introduced to satisfy a complaint unless it was absolutely necessary to do so.

  That is not to say that the Commissioner and Tribunal are not effective. They are. And from my own experience, I believe the fact that no complaints have been upheld against the Security Service or SIS is indicative of the lengths the agencies go to get the law and the balance of rights correct.

  However, save for the issue of warrants, the Commissioner and Tribunal can only become executive upon a complaint. Ninety-eight per cent of these are found to be frivolous and only 2 per cent are investigated. The agencies have time in which to prepare their responses and the proceedings are methodical and bureaucratic. The complaints system does not lead to a thorough review of the possibilities of abuse within the agencies. It is too narrow in focus and orderly to do this.

  This is very different to the case where an independent third party, with a staff, has indiscriminate access to the agencies work. Everyone, from directors to desk officers to secretaries, is put on the spot. Not only by questions as to possible abuse or ineffectiveness but also as to major policy issues.

  In a sense I speak from experience because I was catapulted into the Legal Adviser's job from the Foreign Office. Sir Anthony Duff asked me to assist with his reassessment and reorganisation of the agencies. I first made an independent assessment of the legal requirements. Apart from finding what a brilliantly professional group the agencies were, I also found, amongst other things, that they operated proportionality on the basis of what would be embarrassing if it was made public. No-one, not even the legal advisers, were aware of the European Convention on Human Rights, let alone the delicate balances of rights that existed in relation to national security. They were truly shocked when they learned that they would lose the Hewitt and Harman case, which was then at its application stage.

  Of course, that was excusable in that they had fought, in extreme secrecy, the cold war battles that had had to be fought in secret. But had an effective independent roaming reviewer been present during that time, these problems and the difficulties presented by Bettaney and Peter Wright and other issues would have been picked up in a timely manner.

  Things are completely different today. The management and staff are constantly aware of the balance of rights and the need for alert and effective management.

  But, the tunnel of secrecy remains.

  There is always the danger that it gets too dark and the way is lost. Equally important, it is always the case that day to day tasks in the high pressure of intelligence work may overtake the need to look up and out. Moreover, strategic planning is best prompted by outsiders asking difficult questions.

  It is clear from the Reports issued by the Intelligence and Security Committee (hereafter ISC) and the Commissioners that these questions are not being asked. Nor is there a real understanding of the radical and immediate changes that are about to fundamentally affect the way in which the agencies go about their business.

  The work of the agencies in dealing with the new threats cuts across law enforcement, customs and immigration. It relates to private sector finance and commerce. It also requires creative law and procedure making and international harmonisation in those areas.

  Because of the extensive nature of the work of the agencies the oversight given by Parliament must also rely on extensive knowledge in order to be effective. A committee confined to dealing with intelligence matters will almost certainly not have that knowledge. Moreover, if it was to seek outside assistance, the administrative burden would slow down the work of the committee. This is evidenced in the legislative constraints surrounding the ISC.

  Preventing abuse of process or mismanagement in the agencies is not the only necessary function of effective oversight. It also has the task to test the strategies of the agencies and the government. Not only is this necessary for the protection of the state but, in the context of the new threats, there is a need to ensure co-ordination of the strategies of the various departments and agencies dealing with those threats. Each department or agency has its own horizon. The value of strategic oversight with breadth of wide experience in the relevant issues is that it can see beyond the horizons of each and help towards better understanding and achievement.

  The ISC do not have the tools to achieve this essential element of oversight. With respect to the members of the ISC they do not have access to the depth and breadth of background information. Neither do they have hands on access to other vital components in the fight against the new threats to the state, such as law enforcement and law making policy.

  The ISC have other drawbacks. They are within the ring of secrecy; they have no direct access into the agencies save by way of bureaucratic process and they are basically excluded from roaming around operational policies and activities of the agencies.

  The ISC have already noted that they depend to a significant extent on the quality of the relationship with the Agency Heads. This was much commented on in the agencies at the time of drafting the legislation.

  A prime function of the agencies is to cultivate relationships leading to a favourable outcome for them.

  This does not mean that the ISC members can, as it were, be recruited. But that the ISC has no direct access into the agencies and this leaves little room for their determining whether the agencies are cultivating a relationship or are actually responding. This is compounded by the committee's lack of access to the operations of the agencies.

  The agencies are as good or as bad as their operational success. The management, administration and financing of the agencies may look immaculate, but this means little in terms of real effectiveness. Oversight which excludes operational effectiveness is a bit like investing in a quoted company without knowing what its bottom line is.

  ISC oversight should deal with operational issues, both as to possible abuse and as to operational effectiveness. It should also address strategic issues. Questions should be asked such as what new threats the new information age presents to the state and the international community; whether the agencies can operate successfully within current legal constraints both within the UK and internationally; whether the lack of legislation governing informants is likely to be damaging; whether telephone intercept is useful as evidence; whether the use of private intelligence agencies is beneficial; whether economic intelligence held by the agencies could be made of use to British commerce; whether amalgamation of the agencies would provide a better response to threats; (the papers submitted under cover of my letter of 18 May 1998 are relevant[1]). The list is long and immediate.

  Matters such as the internationalisation of criminal organisations to deal with them in international law and the requirement for bonds rather than guarantees in preventing arms shipments to terrorists are the order of the day for an oversight body of the calibre of elected Parliamentarians.

  Paragraph 72 of the ISC 1997-98 Report is indicative of the narrow understanding the Committee has of the breadth of issues they should be investigating.

  It is largely due to these drawbacks that the Reports of the ISC are, with respect, anodyne. They deal with administrative problems such as internal security, recruitment and personal records. The latter has been dealt with fully by the Commissioner, particularly in his 1991 Annual Report, so it is in effect a filler in the 1997-98 Report.

  The Parliamentary Committee which already exists and has the necessary attributes for effective oversight in these circumstances is the Home Affairs Committee (hereinafter HAC). The current broad remit of the HAC and the depth of relevant background knowledge would automatically lead to a better understanding of the state's requirements of the agencies, their performance to meet those requirements, their needs and the possibilites of abuse of power. The openness of the HAC, operating even as it would with regard to secrecy, would lead to a healthier, less secretive, relationship with the agencies. Moreover, the relationship with other relevant select committees, such as defence, foreign affairs and trade together with the administrative support given to the committees, would prove immeasurably beneficial to penetrative oversight of the agencies. Power to compel attendance of any witnesses deemed relevant by the HAC would cut away any agency cultivation process.

  Two drawbacks would nevertheless remain. First, the powers of the HAC to delve into highly secret operational matters would have to be clarified. It would, of course, be essential for the HAC to have those powers to fulfill its functions properly.

  Arguments may still be made that such access puts secrets at risk. That members of the Committee, dealing with other issues as they do, may inadvertently expose sensitivities.

  These arguments do not hold water.

  There are regular operations and trials where judges, prosecutors, their deputies, members of the CPS, members of government departments, the Attorney General's Chambers, the police, customs, immigration (the list goes on) are made privy to the most secret operational details of the agencies' work. Solicitors in outside firms are employed to do work for the agencies. Businessmen are asked to help. People from all walks of life are let into the operational secrets of the agencies.

  They keep the secrets.

  It is nonsense to argue that members of Parliament in Select Committees may not.

  Some may argue that if such a Committee can have ready access to such secrets, other Committees should have equally ready access to other secrets. If this really presents a problem, the overriding argument is that, if HAC oversight would be much more effective for the agencies, it should be given special powers for that purpose given the inherent necessity to probe operations and strategic policy.

  The second problem lies in the ability of the HAC to probe effectively into the affairs of the agencies.

  The ISC is experiencing the same problem.

  It is clear that the current Commissioner and Tribunal function cannot act as roaming oversight within the agencies. Therein lies a major weakness. The current complaints system can be said to work, but the complaints are usually narrowly focussed to an individual. The complaints may raise issues of general importance, but only in a hit and miss way. Thus, it is necessary for the ISC to spend time on the sort of administrative and management issues they report on.

  In fact these sort of matters should be dealt with within the first phase of oversight, in other words by the Tribunal and Commissioners. However, even if they were given the power to do so, problems would remain.

  It is, of course, proper and effective for oversight of a complaints nature to be dealt with by lawyers. It is not effective, however, for the administration, management and operations of the agencies to be dealt with. And, importantly, a whole stratum of information which would assist the second phase Parliamentary oversight to deal with strategic issues is also missed by the lawyer/complaint method of first phase oversight.

  The stream of information from relevantly qualified oversight personnel, who have constant access to the personnel and files of the agencies, is invaluable to an oversight body for its functions to prevent abuse, to ensure coordination with other departments and agencies and to elucidate the future strategies to keep the state safe.

  Officials of the HAC could perform these functions.

  Of course, this approach always presents the danger of information overload for the HAC and administrative overburden for the agencies. There is a danger of this, for instance, in the US system where staffers do the liaison work. Politically driven staffers who see advancement in the job can create excessive difficulties for the agencies. For instance, at the time of BCCI and similar crises my US counterparts were constantly in conference with the staffers.

  First phase oversight might therefore be multi-disciplinary. For instance, a lawyer to deal with complaints and give advice, two parliamentary officials, one from the Home Affairs Committee and one from the Foreign Affairs Committee and one senior ex police officer. An accountant would not be necessary if the NAO retains its current function. Given that the future threats to the state will be largely economic and also concern biological and chemical weapons, it would be logical to have an oversight member conversant with these issues, either from the trade and industry committee or possibly a former senior official from the relevant trade department.

  This leaves open the Commissioners' role relating to warrants. The role could comfortably fall to the first phase oversight body with the disciplines suggested. That is if warrants are still to be issued by the Executive. In my opinion the pressure for Security Service warrants to be issued by the judiciary, as in the US and Napoleonic Code countries, will become overwhelming as the agency's operations become more international. It is certainly a matter that Parliamentary oversight should be reviewing with some urgency. In that case oversight would be within the judicial system.

  Having first phase oversight will allow the HAC to direct the first phase activities to the best advantage. It should also allow the HAC to keep an eye out for information overload and administrative overburden.

  Finally, the Report of the HAC should be as full and frank as possible. There is no reason why the range of threats to society and the tasking and past operations of the agencies to meet them should not be covered in such a Report.

  The allocation of operational resources to these threats is also not a matter for secrecy. In relation to the new threats the statistics would give no valuable information to those being investigated.

  Obviously there would be areas where secrecy would have to prevail. But the Reports would be more informative and convincing than those currently available.

  In summary the present oversight of the agencies is inadequate, uninformative and hidebound in Cold War secrecy. The ISC's narrow approach arising from its legislative constraints is failing to grip the real issues now and for the future.

  That is not to say that the agencies are not gripping them. But there is no effective machinery to find out.

  That can only be effective in the hands of a Select Committee and, for the Security Service, in the hands of the Home Affairs Committee.

 THE FUTURE

  The above deals with the problems of oversight and secrecy encountered at present. If the considerations are not deemed persuasive to give oversight to the HAC it may be useful to consider developments in the future. These herald radical changes in the demands for less secrecy and more effective oversight of the agencies.

  These changes are being shaped by the instantaneous communication, trading and access to information now taking place across the international community.

  The new information age is about internationalization. Individuals with access to an on line computer can freely exchange information across the globe. Commerce is now conducted freely amongst the whole international community, limited only by state legislation and regulation. That legislation and regulation is often unable to be effective because of the international nature of the transactions conducted. For instance the OECD predicts that commercial transactions on the Internet will increase 200 times by the year 2000 to reach $40 billion per annum. There are no effective international regulations on such trade, nor is there any effective capability to assess and collect taxes on the revenues of such trade.

  Internet communication is increasing ever faster. The communications, commercial or private, can be encrypted. And states have not yet agreed how to ensure decryption of those communications internationally without expending the assets of state agencies such as NSA and GCHQ to do so.

  Underlying this proliferation of information lies the thrust of international competition.

  The advantages of Internet commerce are being exploited as much as the advantages of information exchange. Companies trading in countries previously little known now have access to instant in depth information from public web sites. More detailed or personal information is now available via personal web sites or e-mail. Former government servants, including law enforcement and intelligence officers, offer their services to gain and provide information about their own and other countries and business there. Private individuals do likewise. The financial rewards are commensurate and add to the competitive thrust to increase the availability and detail of such information.

  This explosion of information exchange and availability is already piercing the secrecy safeguards of states. Because states are unable effectively to regulate or control the explosion it will continue to pierce that secrecy with deepening and broadening effect. Moreover, the costs of protecting secrecy from this increasing reach into it are prohibitive.

  The explosion goes to the heart of the sovereignty of states. And, as states perceive their sovereign control weakening, they will be tempted to test the limits of proportionate response to protect their secrets.

  At the same time as this phenomenon develops another has become apparent. In the past, threats to states were readily identifiable both physically and geographically. Now, the threats to states are fluid, transient, international and obscure. Terrorism comes not only in the identifiable shape of state terrorism but also in the dim images of iconoclastic groups, anarchic gangs, and eco-warriors. Terrorism now spills over to narcotics traffickers, extortionists and information warfare computer hackers. Organized crime, operating in chameleon form, crosses international physical and financial borders with ease. Money laundering and narcotics trafficking in turn are leading to the stealthy corruption not only of law enforcement officers and court officials but also of entire governments. Added to this, fraud is becoming more prevalent and is increasing rapidly via the Internet where unidentified, sophisticated hackers are breaking into banks, and equally sophisticated users are promoting scams of all kinds.

  These new, disparate threats amount to a common danger to the economic base of states. They are admitted by states to be out of control. The old sovereign methods of limited group defence and limited international information exchange which were effective against the Soviet Union, another limited group defence, are failing to deal with the absolute international dimension of these threats.

  Moreover, the old methods of secret spying, disinformation, disruption and diplomacy which were used to fight the cold war are of little use in the fight against the new threats which are commonly based in criminal enterprise.

  Crime is fought successfully by convicting the perpetrators or penalising them by way of civil or administrative proceedings, including sanctions.

  Fighting crime, successfully, relies on information. First of all, gathering information which can be turned into evidence to support proceedings against suspects, both private and corporate. This information comes from public sources and secret sources, such as informants and electronic surveillance. This information must be shared not only amongst the various state agencies fighting crime but also internationally between such bodies and also between the juridical bodies supervising the prosecutions or other proceedings.

  Information must also be disseminated to protect the public. Examples of this relate to threats to individuals at risk of physical harm, threats to financial institutions at risk of fraud and threats to corporations at risk of computer hacking.

  Information has to be made available to independent oversight bodies to ensure that they effectively oversee the administration and operations of the law enforcement and intelligence agencies and others used in the fight against crime.

  It is obvious that much of this information is information which states would wish to keep secret not only within their own separate agencies but also within their borders. However, the opacity of many of the threats and their international nature makes it imperative that state agencies share their information and share it across international boundaries. At the same time, full information must be divulged to oversight bodies. Secret operations leading to the use of information as evidence in proceedings must be exposed to rigorous independent examination to prevent abuse of the juridical process.

  States are, of course, used to such openness in dealing with ordinary crime. They are not, however, prepared for such openness when dealing with politically sensitive issues such as terrorism or the involvement of their secret agencies or the gathering of information by secret means. For instance information obtained electronically by the US NSA and the UK GCHQ is still not made available for court proceedings. It is essential that this information is brought into the law enforcement process as evidence. However, both the US and the UK are showing reluctance to engage these agencies in this duty.

  This problem for states is being compounded by two other openness requirements that at present are only in their infancy. First, the nature of the new threats requires that states operate PR programmes to inform and educate the public at large. It is inevitable that information based on secret sources will form part of those programmes. Second, the public demand for information from the state will increase. The inability of states to control international crime will erode the quality of life within states. For example, society is already witnessing the gathering pace of indiscriminate terrorism including foreign hostage taking, juvenile drug abuse, fraud and the ghettoing of the wealthy and middle management into secure compounds. An increasingly educated society will increasingly demand to know why their quality of life is not being adequately protected by the state.

  Thus, the phenomenon of the new information explosion, both by way of the international information highway and by way of the needs of law enforcement to control international crime, is opening secrecy like a knife into an oyster. The extent of the erosion is so deep that states are no longer capable of protecting their secrecy in the ways in which they have done in the past. And society is only at the threshold of this phenomenon.

  The new information age will witness the increasing erosion of sovereignty as internationalisation develops. The concept of secrecy will diminish accordingly. It is difficult to predict the constituent elements of the concept at the point of absolute internationalisation, if that is ever reached. But the intermediate concept of secrecy is predictable.

  To control secrecy in the first phases of internationalisation states must accept that old concepts of Cold War secrecy are dead.

  A reassessment of what really needs to be protected is essential. That reassessment may not be easy. For instance, the US military in a recent US internal exercise found that their combat effectiveness was destroyed by the simple ability of the enemy to hack into the unprotected computers dealing with military supplies. Supplies were re-routed, countermanded or simply made to vanish by the enemy computer hackers. Chaos and defeat ensued.

  Of course, the answer to that problem lay not in making the supply system secret, but in protecting the on line system from hacking. A technical, not a secrecy, problem.

  However, many areas of current secrecy are easily identifiable as being unnecessary and vulnerable in the new information age. For instance, education, public health and welfare are all areas where governments seek to create policies and adminster certain provisions in secret. These are all societal problem areas where society is demanding increasing information.

  By abandoning secrecy in these areas states will no longer have to protect against the depredations of information loss, save, of course, to protect the privacy of individuals. In doing so, states will free up administration and fiscal savings to protect what is vital to be protected in other areas.

  Identification of other like areas of state business where secrecy is no longer viable or sustainable leaves few areas where a degree of secrecy remains necessary. Defence, foreign policy, intelligence, law enforcement (including immigration and customs) and commercial confidence (including research and development) are the obvious candidates.

  However, these areas are all vulnerable to the new information age capabilities and demands. And by seeking to safeguard the whole area states incur huge costs with diminishing returns. Therefore, within each area it will be necessary to determine what is absolutely essential to be kept secret. The necessary physical and legal safeguards must then be constructed.

  Secrecy within the intelligence and law enforcement area will require especially delicate balancing to ensure the protection of society on the one hand from the new threats and on the other from abuse by the state and its organs.

  It should be noted that the protection should be afforded to society as a whole rather than to the state.

  There are a number of reasons for this. In the fight against internationally based or executed threats the security of individual states becomes almost irrelevant. The fight has to be conducted on an international scale with resultant transborder intelligence and law enforcement operations and information exchange. The results of such operations will be enforced initially in whichever jurisdiction or jurisdictions become available or are most convenient. Gradually, as sovereign jurisdiction is seen to be unworkable to control international crime, jurisdiction will emanate from international tribunals, such as the International Criminal Court, or international regulatory bodies established for that purpose.

  International organised crime is carried out in great secrecy. Secrecy that is enforced by bribery, physical assault and murder.

  Intelligence operations are planned, covert, highly secret infiltrations into organisations which pose a threat to the state. The objective is to learn about the organisation and methods of the target. The operations use long term informants, telephone intercepts, eavesdropping devices and complex surveillance. They may take months or even years to penetrate a target and create a picture of its operations.

  And the effect of this penetration on an illegal organisation is extremely damaging, whether by resultant court proceedings, disruption, exposure or discovery.

  It is now accepted by the Europen Court of Human Rights in the cases cited above that secret intelligence operations may be used to protect society.

  So just what are these intelligence operations?

  They broadly fall into three categories: Information and report; gathering information for the purpose of legal proceedings, and disruption.

  Information and report is obviously useful. It puts governments and others on notice and allows for strategic policy analysis and decisions. But, of course, it does not directly damage the criminal organisations.

  Disruption is aimed at causing confusion, suspicion and panic. But not, of course, physical harm. On the other hand, neither do they sanction the wrongdoer by, for example, imprisonment or relieving him of his powers to adminster a company.

  That is left to operations which gather information for the purpose of legal proceedings. Prosecution or civil administrative proceedings.

  These operations must be led by the law enforcement or regulatory agencies. They are the overt arm, skilled in investigation. They are responsible for creating a case leading to proceedings.

  Thus the intelligence agencies must operate in very close co-operation with the law enforcement and regulatory authorities. Their purpose is to gather sufficient information about the activities of an organisation and its members so that evidence can be adduced in legal proceedings. Alternatively, the objective is to create a sting or entrapment operation against a predisposed criminal organisation and arrest the offenders in flagrante.

  In either case there has to be a careful intelligence operation to gather as much information about the organisation as possible. Who are the leaders, who are the members, what criminal activity are they involved in, what are they planning, where do they get their money from. Where and how is that money laundered, who does the organisation associate with, why, are the associates aware, ignorant or just turning a blind eye.

  This information is painstakingly gathered from informants, electronic intelligence and surveillance. Every move is covert. Every protection must be given an informant.

  And these operations are carried out against organisations that are alert and have access to their own electronic counter measures.

  It requires skill, patience and care.

  But that is just the operational requirement.

  The legal requirements are just as arduous.

  The object is to convert the intelligence into useable evidence. Respecting the rules of evidence to the letter.

  And that means that any activity or information discovered in an operation which may assist the defence in subsequent proceedings must be disclosed to the defence prior to trial.

  But that activity and information includes secret activity and information, including the use of eavesdropping and informants. And it may be vital at the time of Court proceedings that such information is kept secret, particularly the identity of an informant. The whole proceedings must collapse if information relevant to the defence has to be kept secret. There is no alternative but to abandon the proceedings in those cases.

  In the UK this problem is minimized by evidential procedures which open gateways for the intelligence to be put to the Courts as evidence. All the information gathered and the file of the operation is perused by prosecuting Counsel and then, in ex parte proceedings, by the judge. In these proceedings the judge can question why any information is deemed by the prosecution not to be relevant and request a justification for not releasing it to the defence. Documents may be passed to the defence in whole or redacted to protect sensitive non-relevant information.

  The procedures are similar to the United States Classified Information Procedure Act procedures. In fact, they were based on them.

  It is no use going to Court hoping that vital secret information gathered in a lengthy intelligence operation will be ruled non relevant. That has to be worked out during the intelligence operation prior to any arrests. In the UK the intelligence agencies have lawyers working alongside the operational teams. They not only advise on the legal and civil rights issues in these operations but they also anticipate the relevance issues so that vitally secret sources do not become relevant at trial. This avoids not only any exposure of those sources but also, if they get it right, a trial having to terminate on a Judge's order that secret material is, in fact, relevant.

  France and the Napoleonic Code countries have a similar but better Court Procedure. There, the examining judge discusses the balances of sensitivity and relevance with the agencies as the investigation progresses and prior to trial. He keeps two files, one for the Court and one confidential to him. Where he decides information is relevant he puts it on the court file. Where he decides it is secret but not relevant it goes on the confidential file and is not exposed in the proceedings.

  Obviously in the intricacies of an operation it is surer to obtain the views of the judiciary at the time of the actual operational decision on relevancy than in limbo. As can be seen these decisions can lead to a failed prosecution. And the French system reduces this problem to a minimum.

  The French system should become the international norm. It ensures that vital secrets are not exposed. It also ensures an ongoing oversight of the intelligence operations rather than post action oversight.

  In this way the secrecy required by intelligence and law enforcement agencies to operate properly to secure convictions and regulatory penalties is secured. The judicial oversight will limit to a minimum the possibility of abuse in operations which result in judicial proceedings.

  One drawback to the success of these operations and to information exchange generally is the shaky security of international information exchange between state agencies. The suspicions that jurisdictions harbour against each other about leakages, corruption or negligence prevent effective international information exchange. Interpol has not succeeded in defeating this problem. Nor has the recently established Europol.

  The reason for this is that the problem is largely unspoken. And private channels of communication are established between individuals in various agencies. This is unsatisfactory not only because of the risk of misinformation but also of abuse.

  States in the new information age must openly recognise the problem. Once they do, they will be able to open secure, limited personnel, single, cross border information exchange agencies. They will be formed of personnel with 7the highest security clearance, regularly vetted, using maximum encrypted communications. Of course, leakages will still occur and personnel may well succumb to the huge bribes on offer. But the leakages should be quickly traceable and defensive action taken in a timely manner. Much more so than pertains to the haphazard private communications that take place now. These agencies will gradually form the nucleus of international groups in organisations such as Europol and Interpol which will then succeed in broad crossborder secure information exchange.

  It is self evident that the procedures outlined protect the agencies' operations with a great amount of secrecy.

  That is vital as far as their operational work is concerned.

  However, it it equally vital that society is assured that the state and the agencies are not abusing their powers in relation to what would normally be ordinary criminal investigations.

  It is necessary to have PR to educate the public as to the new threats they face. It is equally necessary to have PR to educate the public as to how those threats are to be countered. If not, the public will resort to the tools of the new information age to find out for themselves. As has been ascertained the administrative efforts to contain wide field secrecy in the face of such a determined search will be prohibitively costly and patchily successful.

  The depredations of international organised crime will become such that it will be necessary to assure society that the agencies are doing their job properly and that individuals in them are not being corrupted. In this respect, the policy and administrative details of the law enforcement and intelligence agencies must be made public.

  States will, therefore, have to learn that the vital secrets of law enforcement and intelligence agencies that really need protecting are the identities of informants, the techniques employed in electronic surveillance, the details of ongoing operations and the identities of some of the members of the agencies. And even the latter must have regard to the increasing necessity internationally for witnesses to be identified.

  But the problem of society's need to know will be such that it will be necessary to have an independent arbiter to decide what is and what is not a vital secret. Governments will no longer be trusted to take those decisions.

  This leads to the second element of openness and that is oversight.

  In a democracy the fount of information about the state is Parliament. It is logical therefore that society will increasingly look to Parliament rather than any other body to oversee the policy, administration and operations of both the intelligence and law enforcement agencies in their work against international threats. Because the work will become more arduous it is also logical for Parliament to appoint an executive directorate with responsibility for administering oversight. The directorate's powers will have to be absolute in demanding information from the agencies as well as the public, save for the usual self incrimination limitations. The directorate must also be able to roam among the files and interview members of the agencies as well as receive complaints from the public.

  Public Reports would be issued, protecting only vital secrets.

  In order to ensure public confidence to the fullest extent, the law enforcement and intelligence agencies must be brought within Freedom of Information legislation. The only limitation being a filter, logically through the executive directorate, to ensure that frivolous, time wasting enquiries are refused. The executive directorate would also make all decisions as to what are vital secrets, subject to Parliament's final decision.

  These changes, taken as a whole, will allow states the best chance in the medium term successfully to defend both their vital secrets and also society from the challenges of the new information age and the internationalisation of serious crime.

  In the longer term, as the new information age progresses, states will gradually turn to more international solutions to their problems.

  Law enforcement and intelligence agencies will amalgamate. This will be necessary to focus better on the international nature of the threats. It will also become necessary to harness the escalating costs of running different agencies to combat the same problem.

  The vital secrets will remain the same but overall secrecy in the area will diminish with the absence of inter-agency turf battles.

  Moreover, the national agencies will gradually amalgamate to form one or more international agencies with special powers to deal with the threats to the international community. As a result relevant state secrets will become the secrets of the international agencies, with a further resultant diminishment of state secrecy in that area.

  At the same time, oversight will gradually become internationalized. Either because it will be much easier and cheaper for one or more international organisations to oversee the international operations of multiple member national agencies or because international anti organised crime agencies will have already been established.

  In either case state secrecy relating to the intelligence and law enforcement agencies will be determined by those international agencies. This will result in harmonisation of secrecy and a corresponding diminishment of state secrecy.

  In the new information age, society has the exciting challenge of the development of internationalisation. That challenge will be met in the face of the new enemy, the internationalisation of serious crime.

  If states accept that secrecy must be diminished to a vital minimum then society will prosper. If not, state secrecy will be pierced by the needs of society and organised crime will plunder sovereignty.

David Bickford CB

8 December 1998