In from the Cold: National Security and Parliamentary Democracy

In from the Cold: National Security and Parliamentary Democracy

In from the Cold: National Security and Parliamentary Democracy

In from the Cold: National Security and Parliamentary Democracy

Synopsis

How, in a democratic state, can the competing interests of the need for national security and the demand for open government be reconciled? Should Security Services have a legal obligation to report their activities and should their members be held liable for exceeding the powers bestowed upon them by Parliament? These questions have taxed governments and academic commentators for generations until now. The early 1990s have witnessed an unprecedented change in public opinion and governmental attitude away from the extreme levels of secrecy and mystery which have traditionally enshrouded the Security Services. In this searching analysis, two leading constitutional lawyers shed light on the legal powers and basis of this murky area of government, comparing the accountability of Britain's Security Services with the very different situations in Canada and Australia. The authors question whether we still need, or should tolerate, the level of secrecy together with all the possibilities for misuse and abuse of power which accompany it in this authoritative study of the constitutional and legal position of the Security Services in Britain.

Excerpt

Let us begin with what this book is not. It makes no claim to be as it were a book of revelations, casting light into dark corners and on shadowy figures and organizations engaging in fanciful conspiracies or elaborate deceptions. There are more than enough such books, of variable quality, purporting to reveal 'the truth' about the intelligence agencies, without us adding to them. There also exists a vast literature on spies, 'moles', ancient secrets, and antique treasons, much of which is manifest nonsense and even more of which concerns matters that, at best, are of historical interest. We were able to avoid having to venture into this intellectual quagmire because it was never our purpose to uncover secret information about previously unknown operations. Apart from the names of a few people who spoke to us on condition of anonymity (see below), we make no claim to knowing any more secrets than anyone else. Our aim is quite different.

As academic public lawyers our principal interest has been in exploring the application of the recurring themes of constitutionalism to the realm of security and intelligence. Our starting point is that the maintenance of national security is a function of government like (say) education or transport policy. As such it raises a host of questions familiar to political scientists and public lawyers: how is policy decided upon and implemented? What institutions are involved in these stages? What discretion exists? What democratic input or control is there over the processes and agencies involved? What mechanisms exist for exercising such control and how effective are they? How do decisions taken within this policy field affect individuals, and what avenues of redress exist for persons aggrieved by the outcome?

In exploring these questions in the study of national security as one might in any other field of government policy, two complicating factors add particular interest. The first is the secrecy. We discuss in Chapter 1 the relationship between security and secrecy, but it is unquestionably and necessarily the case that government concern over secrecy affects the processes and institutions involved here. The more difficult questions are how far that concern is justified, and how it is to be reconciled with the state's other commitments to democracy and protection of human rights. The second factor which sets national security apart is the importance of the interests involved, certainly to the state and arguably to its citizens. It is usually claimed in political and legal discourse that these interests . . .

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