Originally posted on the Northern Ireland Legal Quarterly Blog
Dr Lydia Morgan
State secrecy is poorly understood. As citizens, not only do we not really understand the function of state secrecy, we also don’t understand its extent. But – and this is the interesting part – neither does government or political theorists. Are government secrets the same as personal secrets? Should the government be able to keep information from its citizens? When I first began working on these questions the answer seemed obvious. I made the assumption that access to government information should be easier in the twenty-first century. There should not have been a scandal over the Snowden leaks because governments should not have engaged in the wide ranging digital surveillance of their citizens. I assumed that the Official Secrets Acts 1911–1989 was an outdated piece of legislation that was in tension with the ideals of liberal democracy. It quickly became apparent that government secrecy differs from personal secrecy and the secrecy relied upon in business in knottier and more complex ways. Secrecy across all levels of government was far more routine and ingrained into the structure of the UK political and legal system than I had ever imagined.
But if state secrecy is systemic and not exceptional, how should we understand it? I began this research in 2011, the year of the phone-hacking scandal and of the discovery that undercover police had been having relationships with those they had spied on. During the time I was working on these ideas, the name Wikileaks became common parlance following the Chelsea Manning leaks, and the subsequent Snowden revelations about mass internet surveillance through the Tempora and Prism programmes made it clear that the UK and US governments were engaged in wide-ranging indiscriminate surveillance of their citizens. In this context, I hoped to find a clear and well-structured argument against state secrecy in liberal democracies. What I actually found was that to even begin to argue for or against government secrecy, we needed to understand it better. My full article in the Northern Ireland Legal Quarterly introduces the way I think state secrecy should be understood. It is not a simple or neat definition because state secrecy is multifaceted and tends to conceal its own nature and workings, as well as screening the discussions, mechanisms and structures of government.
As outlined in my longer piece, we can see state secrecy in a surprisingly extensive range of government architecture, from investigatory powers and criminal offences to protect information, to a persistent political elitism which utilises a culture of secrecy occasionally for its own ends. Such a culture results from the commodification of information and the idea that in order for institutions to run well it is necessary for there to be secrecy. State secrecy has co-opted transparency and accountability. For transparency, state secrecy places control firmly in the hands of the state itself to determine the public interest in access to information. For accountability, this happens in part through the claim that accountability needs to be balanced against state secrecy. But this shifts the focus from whetherit needs balancing to how it should be balanced, overlooking state secrecy’s subtler effects and outright neglecting the pre-assigned weight given to secret information. We can have transparency as long as the government is in control of who gets to see what when, and accountability as long as it does not damage the operations of the security services or other protected state institutions and behaviours.
State secrecy, in the UK at least, appears in three ways. First, in the formal institutionally secretive security and intelligence agencies, as well as the relevant law enforcement agencies which, while not secretive by design, can operate in secret. Second, the semi-formal regulatory mechanisms which are used to limit and control access to government material such as the Official Secrets Act 1911–1989 and various civil actions. And, finally, the informal ‘need to know’ culture, which not only characterises the relationship between the government, the people and external agencies, but also between departments and units, as well as between the government, Parliament and the courts.
Analysing these elements indicates that, properly understood, state secrecy can be divided into three categories: esoteric, operational and efficient. Esoteric state secrecy restricts access to decision-making and information. It is a facet of power, utilised to control. Operational state secrecy protects techniques, procedures and investigations. It is not as all-encompassing as esoteric state secrecy, but can be cumulative where one demand for secrecy creates another. Finally, efficient state secrecy references the pragmatic sense in which secret conditions allow faster decision-making and demarcates the conceptual limits of transparency in a modern complex state. These categories illuminate how state secrecy’s true effects are masked because it is so entrenched within government functions and conduct. Reconceptualising state secrecy in this multifaceted way enables it to be understood in a pluralistic sense and allows for fluctuations and tensions between its different elements.
Of course, there have been many relevant developments that might impact upon how we understand state secrecy. For example, in 2017 the Law Commission announced a consultation on the reforms of the Official Secrets Act 1911–1989. The driver for reform was not, as I might have initially speculated, to loosen the restrictions on access to government information but rather to increase the penalties for unauthorised disclosures. The proposals so far do not appear to deal with the use of government-sanctioned leaking. The response to these reforms highlights that the controversies over state secrecy persist and indicate that a tripartite definition of secrecy, as proposed in my work, could help to unpick the tangled arguments. Following the exposé of Cambridge Analytica, understanding who has access to information about citizens, the communities they live in and how the state uses this to act on their behalf renews the imperative for openness supposedly at the heart of liberal democracy.