KEEPING SECRETS

1
KEEPING SECRETS

• THE DA-NOTICE SYSTEM
• Dr Pauline Sadler
• Pauline.Sadler_at_cbs.curtin.edu.au

2
BACKGROUND

• You can be open, or you can govern, but you
  cant do both
• Tension between free speech and national
  security/media and government
• DA-Notice system voluntary and extra legal
• Arrangement between government and media not to
  publish certain information

3

• Information covered relates to national security
• At an early stage (probably 1912) it was agreed
  by the parties that the arrangement was intended
  to prevent disclosure of information as to facts
  and not to stifle comments on policy (NA DEFE
  53/1)
• This particular issue has been contentious over
  the years

4
(VERY) BRIEF HISTORY

• 19th century problems
• 1912 conferences formation of the Joint
  Standing Committee (Admiralty, War Office Press
  Committee)
• A friendly arrangement rather than a proposed
  Press Censorship Bill
• 1918 gt Admiralty, War Office, Air Ministry and
  Press Committee

5

• Several other name changes between 1918 2007
• Most significant
• 1970 gt Defence Press Broadcasting Committee
• 1993 gt Defence Press Broadcasting Advisory
  Committee
• 1993 D-Notices gt DA-Notices (Defence Advisory
  Notices)

6

• Neither Parliament nor the public knew of this
  arrangement until 1961
• Until 1938 the secretary was from the press side
  since 1938 the secretary has been a high ranking
  member of the services
• By 1962 the Permanent Under-Secretary of Defence
  chaired the committee on a permanent basis

7

• The D was coincidental came about during
  1914-18 war
• Originally numerous D-Notices, these have been
  reduced progressively
• Now cover general issues rather than specific
  instances
• 12 in 1971, 8 by 1989, 6 by 1993, 5 now

8

• DA-Notice 01 Military Operations, Plans
  Capabilities
• DA-Notice 02 Nuclear Non-Nuclear Weapons
  Equipment
• DA-Notice 03 Ciphers Secure Communications
• DA-Notice 04 Sensitive Installations Home
  Addresses
• DA-Notice 05 United Kingdom Security
  Intelligence Services and Special Services

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BIG NEWS EVENTS

• 1961 Naval Spy Ring
• Gordon Lonsdale, Harry Houghton, Ethel Gee,
  Morris Lona Cohen (alias Peter Helen Kroger)
• 1963 Spies For Peace
• Warren Row
• 1967 D-Notice Affair
• Chapman Pincher
• 1970 Jonathan Aitken case

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OPERATION IN AUSTRALIA

• Mid 1952 first meeting Defence, Press
  Broadcasting Committee
• Identical to system in UK
• Original 7 (or 8) notices reduced to 4 in 1974
• System secret until 1967
• Fell into disuse after last meeting in 1982
• 1995 Chinese Embassy bugging affair

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OPERATION IN UK AS AT AUGUST 2001

• Met twice a year (Spring Autumn)
• Secretary deals with specific enquiries from
  media
• Comprehensive website
• Seemingly uncontroversial due largely to public
  relations skills of the secretary

12
OPERATION IN UK POST 11 SEPTEMBER 2001

• Meets twice a year (Spring Autumn)
• Secretary deals with specific enquiries from
  media
• Comprehensive website
• Seemingly uncontroversial due largely to public
  relations skills of the secretary

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HAS ANYTHING CHANGED?

• Yes no
• Yes
• the internet has increasingly changed the way the
  public accesses news and information
• increases information available in the public
  domain (Google earth, bloggers in war zones)
• Discussed at Nov 2006 meeting
• Some of this had already become evident before 11
  Sept e.g. Shaylergate

14

• No
• System still useful for old technology hard
  copy print media, radio television ( internet
  versions)
• Represents an alterative conciliatory approach
• 6 months prior to November 2006 88 enquiries
  (Special Forces, UK operations in Iraq and
  Afghanistan, security agencies and
  counter-terrorism)
• 7 months between Nov 2006 and June 2007
  enquiries increased 161 (e.g. re kidnapping of
  British Embassy party in Ethiopia in March
  projected operational deployment of Prince Harry
  to Iraq increase in requests for advice on
  publishing aerial and satellite photography)

15
DA-NOTICE SYSTEM THE LAW

• The secretary does not give legal advice, for
  example on the Official Secrets Act(s) or the
  Terrorism Act(s)
• Compliance with the DA-Notice system did not
  preclude prosecution (Jonathan Aitken case), and
  defiance did not necessarily mean prosecution

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DA-NOTICE SYSTEM FREE SPEECH

• Various theories justifying free speech free
  speech as an argument from democracy most
  relevant in this context
• Not an absolute right national security is a
  legitimate reason for limiting free speech

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PRIOR RESTRAINTS ON SPEECH

• Pre-publication restrictions (prior restraints)
  regarded as censorship in its purest form (e.g.
  English licencing system that operated until
  1695)
• Eric Barendt (1996) Freedom of Speech posits the
  following tests for determining whether or not a
  prior restraint is reasonable
• How is the censoring body constituted and what is
  its procedure?
• Length of time the prior restraint is operative?
• Content of the restrained material?
• Is the DA-Notice system a prior restraint, and is
  it reasonable?

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LEGAL ALTERNATIVES TO DA- NOTICE SYSTEM

• Criminal law
• Official Secrets Act(s)
• Terrorism Act 2000
• Terrorism Act 2006 (s 2??)
• Prosecution follows publication

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• Civil Law
• Breach of confidence
• Since late 1970s, in both UK Australia there
  has been government use of civil action of breach
  of confidence in order to obtain a
  pre-publication injunction e.g Spycatcher cases
• The proceedings (criminal and civil) may
  themselves be subject to suppression orders

20
FOOD FOR THOUGHT

• Do original criticisms of DA-Notice system still
  apply? For example
• What exactly is national security, and who
  should decide?
• Cosy relationship between government and media?
• Surely it must be obvious to media what should
  not be made public?
• Does the system best serve the public interest?

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QUESTIONS?