Towards Global Principles on National Security and the Right to Information: An Update

On December 11, I was one of four experts to participate in a hearing of the legal affairs committee of the Parliamentary Assembly of the Council of Europe (PACE) on national security and access to information.

I talked about a set of Draft Global Principles on National Security and the Right to Information that my colleagues and I have been drafting over the past 18 months in consultation with more than 400 experts from 73 countries who have discussed the Principles at eleven meetings all over the world. I also submitted more extensive written comments.

The principles were well received. The three other experts—Lord Alex Carlile QC of the UK (the UK’s independent reviewer of anti-terrorism legislation 2001–2010), Prof. Susana Sanchez Ferro of the Universidad Autónoma de Madrid, and Matthew Pollard, Senior Legal Advisor of Amnesty International—all endorsed the principles and gave examples of how incorporation of the principles into national law would improve respect for individual rights while protecting legitimate national security secrets.

It is our hope that the committee will welcome the Principles once they are finalized in March of next year, and recommend to the 47 member states of the Council of Europe that they incorporate key aspects of the principles into their laws, regulations and policies.

Such a recommendation could be tremendously influential. PACE is comprised of 318 MPs, with the smallest countries—Andorra, Liechtenstein, and Monaco represented by 2 MPs each—and the largest—France, Germany, Italy, Russian Federation, and the UK—each represented by 18. The 84 members on the legal affairs committee work on issues of human rights and legal affairs both within the PACE and in their national parliaments and thus can be influential in promoting legislative reforms in their own countries as well as in advancing European standards.

Moreover, rapporteurs on freedom of expression of the UN, Organization of American States and African Commission on Human and Peoples Rights have signalled that they too are interested in promoting awareness of the principles, and recognition by PACE would reinforce their own efforts.

The MP who is chiefly responsible for drafting the Legal Affairs Committee resolution on National Security and Access to Information is Sen. Arcadio Diaz Tejera of Spain. He asked the first question during the hearing: “Which three principles do the experts consider to be the most important?”

There was consensus regarding two principles: Principle 3, which sets forth the harm test and the parameters of the public interest override (which provides that information should be disclosed even if disclosure might cause harm to a legitimate national security interest so long as the public interest in gaining access to the information outweighs the likely harm); and Principle 10, which sets forth categories of information of high public interest that should be proactively disclosed and should never be classified, including information about serious violations of human rights and humanitarian law. Other principles mentioned were Principles 11 and 22, which require public bodies to state reasons for the denial of any request for information.

I noted the importance of Principle 46, which addresses the limited circumstances in which whistleblowers may be criminally punished for disclosing classified information where there is a strong public interest in the information. And I also noted the following fundamental principles:

1. the principle of maximum disclosure, set forth in Principle 1, that disclosure is the rule, and any exception should be as narrow as possible to protect a legitimate interest.
2. the duty to segregate confidential from non-confidential information in any given document, and to withhold only the confidential information, set forth in Principle 24;
3. the principles of legality and legitimacy, set forth in Principle 3, providing that a restriction on the right to information may be imposed only where the restriction (a) is set forth clearly in law and (b) is necessary in a democratic society to protect a legitimate national security interest;
4. the public authority seeking to withhold the information bears the burden of proof concerning legality, legitimacy and the non-applicability of the public interest override.

Lord Carlile, a liberal democrat and QC with a reputation for taking balanced and well-reasoned positions on anti-terrorism legislation, was directly asked if he agreed with the above principles, in particular concerning the public interest override and the burden of proof. He said that he did agree with them, and that he thinks that UK law currently is consistent with them.

The legal affairs committee will next consider the principles in April, when they are expected to adopt a resolution concerning the principles. What remains for the Committee members to discuss is whether they will endorse the principles and call on the Council of Europe’s member states to incorporate them into national law, or whether they will find some weaker language with which to note the principles. That resolution will then be considered by the 318 members of the PACE at their session either in June or end of September/ October.