What even is national security?
A look at an important concept in state surveillance law
This newsletter is about national security in the context of UK state surveillance. It looks at its definition, its key constituent elements and the evolution of its legal treatment over time.
Here are the key takeaways:
National security is essentially about the state protecting is people from threats. However, the term 'national security' is often thought of holistically and rarely unpacked to clarify its nature and scope.
A negative consequence of this is the potential jeopardisation of human rights. How do we know when a threat is of the requisite magnitude and severity to justify agencies like GCHQ and MI5 to take action?
Such ambiguity could be due to the 'veil of national security'. This is about the secrecy and exclusivity inherent in national security operations.
Secrecy is about national security matters being protected from public eyes and therefore barred from public discussion. Exclusivity is about matters of national security being solely reserved for the government and its agencies.
Both elements of the veil have the reasonable justification of maintaining the efficacy of national security operations. But they also make scrutiny and accountability more difficult.
Therefore, there has been a gradual peeling back of the veil over time to ensure actions taken in the interests of national security are necessary and proportionate. This peeling back is needed to ensure an appropriate balance between national security and human rights.
Defining national security
National security is essentially about the state protecting its people from threats.
There are several of these threats. They include international terrorism, pandemics, trans-national crime and others.
It is therefore concerned with various threats of a particular magnitude and severity. But the term is typically understood as representing the work of the state to address these threats as if they all form one great risk.
National security is therefore often thought about holistically. It is a term that encapsulates many different things, all combined into a single whole.
Take for example the Intelligence Services Act 1994. It states that the surveillance activities of GCHQ may only be exercised, among other things, "in the interests of national security."
This legislation contains no further elaboration on what ‘in the interests of national security’ means. The term is therefore used in a rather cryptic way, leaving open questions about the threats it concerns and their appropriate countermeasures.
This is also the case with the Security Services Act 1989, which describes MI5's function of protecting national security. That legislation only gives a non-exhaustive list of things that threaten national security, and therefore no indication of what other threats may be of the same nature.
The issue with this conceptualisation is that it creates an ambiguity around the nature and scope of national security. How do we know when a threat is of the requisite magnitude and severity to justify agencies like GCHQ and MI5 to take action?
This question is important because of the action that may be required to combat national security threats. In particular, such action could entail the infringement of human rights, like when our privacy is invaded by state surveillance.
The question of exactly what national security is and what it protects against has remained a mystery for a long time. This is due to what I would call the 'veil of national security'.
The veil of national security
There are two key elements to the veil of national security:
The first key element is about national security matters being protected from public eyes and therefore barred from public discussion. Such secrecy applies to information about national security threats, the methods used to combat them, and anything else that is relevant to these operations.
Secrecy is maintained by the 'neither confirm nor deny' (NCND) policy. This is a principle that the government will not confirm nor deny the accuracy of information related to national security matters if doing so would damage national security.1
When invoked, the government will not respond to questions, claims or allegations about its national security work. This policy has been used in Parliamentary debate and in court proceedings.
The second key element is about matters of national security being solely reserved for the government and its agencies. This means that it is not for the courts or the legislature to decide which threats to prioritise and how they should be addressed.
Exclusivity is maintained by the separation of powers. This is a long-standing public law principle that the institutions of the state (the executive, the legislature and the judiciary) should be functionally independent.
This means that none of these institutions should be able to exercise the powers of the other. Only the executive can execute national security policy, only the legislature can pass national security laws, and only the judiciary can provide legal judgments on national security law and policy.2
The rationale for secrecy and exclusivity is the operational efficacy of national security. Both elements contribute to this efficacy in different ways.
Secrecy prevents adversaries from learning about the measures used against them by the state and adapting their behaviour accordingly. Exclusivity ensures that national security decisions are made by agencies with the relevant information, resources and expertise.
These ideas were explored in the Zamora Case in 1916. This case concerned whether an order could be made by the government to requisition a neutral ship carrying contraband (copper) during wartime.
It was determined that such an order was illegal. But even in making this judgement, the House of Lords made reference the veil of national security.
On secrecy, it was asserted that matters of national security should not be “made the subject of evidence in a Court of law or otherwise discussed in public.” On exclusivity, it was asserted that “those responsible for the national security must be the sole judges of what the national security requires.”3
Justifications have therefore been made for the veil of national security. It ultimately provides agencies like GCHQ and MI5 the opportunity to do their job effectively.
But another consequence of the veil is that it makes it more difficult to determine what national security actually is. It can distort what constitutes a national security threat and how they should be addressed.
This in turn complicates the scrutiny and accountability of government agencies responsible for executing national security operations. It is hard to critique the work of these agencies when their internal workings are largely inaccessible.
This is clearly demonstrated in the GCHQ Case in 1985. This case looked at the decision by the government, made without consultation, prohibiting GCHQ employees from being members of trade unions.
While motivated by the disruptive industrial action that had already taken place at the agency, the House of Lords found the government’s decision would normally be illegal. However, it was ultimately concluded that the decision should be permitted.
The reason for this had to do with national security. Not only was it for the government to balance national security with fairness, but that sometimes government power “must take precedence over those of the individual.”4
The government was given the benefit of the doubt that it was in a better position to determine whether trade union membership was a genuine threat to national security. Therefore, if the government says it is such a threat, then it is not for a court to conclude otherwise.
Such a situation can put human rights in jeopardy. How can we know if the infringement of our rights is necessary and proportionate if we lack the opportunity to assess the potentially infringing decision by the state?
Such a position is clearly not tenable. This is therefore why, over time, the veil has had to be pulled back gradually.
Pulling back the veil of national security
There are two important legal developments in the UK that have pulled back the veil:
The European Convention on Human Rights (ECHR)
The Investigatory Powers Tribunal (IPT)
The ECHR is important for ensuring that decisions of the state are not completely free from scrutiny. Transposed into UK law via the Human Rights Act 1998, the ECHR ensures that infringements with rights are necessary for and proportionate to a legitimate aim, such as national security.
This deals with the exclusivity element of the national security veil. The ECHR enables the judiciary to assess the human rights consequences of national security decisions made by the state.
The ECHR enables this without upsetting the separation of powers. It does not require the judiciary to substitute government national security policy with its own, but empowers courts to ensure adequate safeguards against arbitrary interference with rights.5
The IPT is important for ensuring the transparency of national security operations. It is a court with special powers to conduct in-depth examinations of the state surveillance.
This deals with the secrecy element of the national security veil. The IPT can hold closed hearings to obtain evidence about surveillance activities too sensitive to discuss in open court.
This can be done even with the use of mechanisms for secrecy like the NCND policy. During closed proceedings, the Tribunal still needs to ensure that sensitive information is not disclosed in a way that is prejudicial to national security.6
But there is another (unofficial) way in which the veil of national security has been pulled back. That is whistleblowing.
Edward Snowden is a significant example of this. His revelations in 2013 showed how states have sought greater collaboration with private companies to develop surveillance capabilities on a global scale.
A consequence of these revelations has been improvements to surveillance laws in terms of greater transparency and accountability. Though not perfect, the Investigatory Powers Act 2016 regulates the use of various surveillance powers used by government agencies for national security and other purposes.
Such regulation has tackled the secrecy and exclusivity elements of the national security veil. The 2016 Act imposes limitations on how surveillance powers can be used7 and warrants authorising such powers must be reviewed by persons who have held high judicial office.8
But balancing national security with human rights is a never-ending exercise. Technology and the nature of national security threats are forever in flux, tipping the balance one way or another.
This means that the laws peeling back the veil of national security will need to constantly evolve as these factors change. Otherwise, surveillance and the other actions of the state taken in the interests of national security could end up undermining the very thing that it seeks to protect.9
R v Secretary of State for the Home Department, ex p Fire Brigades Union  UKHL 3 26, 26 (link).
The Zamora  2 AC 77 (Privy Council), 107.
Council of Civil Service Unions & Others v Minister for the Civil Service  AC 374 (HL), 420].
The Investigatory Powers Act 2016 regulates the interception of communications, retention of communications data, acquisition of communications data, equipment interference, bulk personal datasets, technical capability notices and national security notices. The Home Office has also published codes of practice for each of these powers regulating their practical application.