INDIVIDUAL RIGHTS AND NATIONAL SECURITY

Published date01 July 1957
Date01 July 1957
DOIhttp://doi.org/10.1111/j.1468-2230.1957.tb00449.x
INDIVIDUAL RIGHTS AND
NATIONAL SECURITY
A
COMPAEATIVE
STUDY
TEE purpose
of
this article is to consider the system which the
United Kingdom has evolved
to
protect itself against internal
threats aimed at the very nature of its Government.
It
is proposed
to evaluate the operation of the system and its principles by
comparison with similar programmes of other common law nations.
In this manner
it
is
hoped
to
emphasise the inconsistency of the
view that such procedure should not be statutory; and further
and more important, to support the proposition that
a
charged
person
should be entitled
to
representation before the tribunal
created to advise
the
responsible Minister
on
individual cases.
John
Lord O'Brian,
a
well-known American constitutional
lawyer, has said
"
the all-important fact is that all
of
these security
programmes embody
a
consistent trend in governmental policy
which is in conflict with our traditional standards of justice and
also with the fundamental principles of American fair play."
We have been very proud
of
our British instinct for
fair
play,
but there is
a
very real danger
in
so
relying
on
this instinct
as
being present
in
one body asked to fulfil inconsistent functions,
that the methods
of
the separation
of
functions
on
which this
tradition was built are forgotten. The Government has consistently
maintained that the security programme is an entirely administra-
tive process, in which the law
per
se
has
no
part; and that the
hearing process can and should be carried out by
a
tribunal acting
as
prosecutor, defence counsel, and judge.
In
England the parliamentary system of government necessitates
a
greater atmosphere of trust in public officials than in the United
States. The conviction in that country of the need for continuous
check and counter-check is today accentuated by the cold war of
dogma.
It
is not something to which we aspire in England. In
the United Kingdom the discretion
of
the public servant is not
something which can
or
ought
to
be deprecated. What should be
deprecated is imposing
on
that discretion something which
it
is
impossible for one body adequately to determine. The very
creation
of
a
tribunal is
an
admission that within its conferred
jurisdiction pure ministerial discretion cannot suflce in accordance
with fundamental principles
of
justice and individual rights.
It
necessarily follows that responsibility for the decision only should
rest
on
the tribunal. Further, the duty and responsibility for
1 National 8ecun'ty and Zndicidual Freedom,
1965,
front
cover,
864
JULY
1967
INDIVIDUAL
RIGHTS
AND
NATIONAL
SECURITY
565
presenting the case to be decided should rest
on
representatives
of the parties, independent of the board and
of
each other.
PROCEDURE
IN
GREAT BRITAIN
The British system was essentially outlined
in
a Treasury
Memorandum of May
5,
1948,
now superseded by a Memorandum
of March
1,
1957.
The scope of the programme extends only to
those who are
or
who are to be engaged in work "vital
to
the
security of the State.'y2 Each Minister is responsible for desig-
nating which posts in his department are within this category.
Any servant who is employed
or
intended to be employed in
connection with such work and whom the Minister hds prima
facie either to be a member of the Commmiist Party
or
to
have
recently been such,
or
who
"
in such a way as to raise reasonable
doubts about his reliability is,
or
has recently been sympathetic
to Communism, associated with Communist sympathisers,
or
is
susceptible to Communist pressure
"
will normally be sent
on
special leave with pay.4 He must be told under which head of
the criteria he is thought to come, and given any particulars
"
such
as the date of
his
alleged associations
yy
that might enable him to
clear himself.
It
is recognised, however, that there must be limits
on
the information given
"
for he cannot be given such particulars
88
might involve the disclosure of the sources
of
the evidence."
A period of fourteen days is allowed for reply' and if the
Minister does not vary his ruling in the light of this reply a further
seven days for the communication
of
a decision whether
or
not
to
appear before the Advisory Body. This tribunal is composed
of three retired civil servantss who are
to
recommend
to
the
Minister whether in their opinion the charged person is
or
has
recently been a member of the Communist Party
or
had Communist
sympathies
or
associations of the types described above. The
1957
Memorandum amended the terms
of
reference of the Advisers to
2
Cf.
the United States definition of
I'
sensitive positions,"
Le.,
where
"
the
occupant
.
.
.
could bring about by virtue of the nature of his position material
adverse effect
on
the national security." Read literally even this
is
wider than
the scope of the whole British Security Programme. The division sensitive-
non-sensitive is used chiefly
to
determine the extent
of
initial investigation of
an
appointee. Also for the former, investigation is carried out prior
to
commencement of duties; for the latter, generally after.
3
Cf.
the
1948
Memo
".
. .
associated with the Communist Party
. .
.
in such
a
way
as
to cause legitimate doubts as
to
his reliability." The new phrase-
ology would seem
so
wide
as
to lack any real meaning
as
a
definition, and
so,
it
is
submitted, loses most of its purpose.
4
Under the
U.S.
procedure there is suspension without pay, which has aroused
much controversy. This provision takes
on
added hardship when faulty
screening results in
a
majority of those char ed being cleared.
6
Cj.
United States.
In
that system the boarfs are made up of
practising
civil
servants
of
agencies other than that from which the charged employee comes.
It seems far preferable, as is done in the United Eingdom,
to
combine the
experience of trained administrators with the consistenc of having one board,
inevitably leading to some uniformity
in
decisions-a Besired pal.
VOL.
20 24

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT