Supplementary written evidence submitted by Guardian Media Group [CT 25]

Letter from Alan Rusbridger, Editor-in-chief, Guardian News & Media, to the Chair of the Committee, 3 March 2014

Thank you for your letter of 27th January asking for the Guardian’s views on the functioning of the DA Notice Committee.

In recent months there has been confusion within Government about the role and status of the DA Notice Committee1[1]. Indeed, the minutes of the 7th November meeting of the Defence, Press and Broadcasting Advisory Committee (DPBAC) detail how the Secretary of the Committee responded to the Prime Minister’s statement of 28th October by “explaining the nature of the DA notice System”[2]. Those minutes also suggest that understanding of DA Notice operations have not been helped by absence from meetings by key government officials.[3]

As the Committee will be aware, the DA Notice committee is entirely voluntary and has no legal authority. The Committee comprises senior representatives from the Home Office, Foreign Office, Cabinet Office, UK Defence forces and the media.

Even after dialogue with the Committee has taken place, the decision as to whether to publish a given story, lies solely with the editor or publisher of that story. The interactions between the DA Notice and publishers are, in theory, confidential in nature. However, as I made clear to this Committee when giving oral evidence last year, the Guardian is concerned that confidential conversations about particularly sensitive stories may be a prelude to injunctions and other forms of prior restraint by Government in the name of a vague and broad ranging notion of national security. Such concerns are evidenced by historic interventions such as the 1987 injunction against the BBC4[4], and by the Cabinet Secretary’s more recent threat to the Guardian that such restraint may be imposed.

Given the wide terrain across which the intelligence agencies now operate, and the broad legal framework within which they work, the Guardian is extremely concerned about attempts to strengthen the use of prior restraint by Government to prevent the debate of difficult, sometimes embarrassing issues, which are nevertheless in the public interest.

As I stated to this Committee in evidence last year, the idea of a body that exists to impose prior restraint on the media is a complete anathema to a United States audience in a post Pentagon Papers world. By contrast in the UK, the Guardian is concerned that the potential aim of reform of the DA Notice Committee may be to put prior restraint on a more formal footing.

To some of its critics, the DA Committee represents the worst of British institutional power dressed up as informality. On the other hand, colleagues have found the Committee’s advice and dialogue throughout the vast majority of reporting of the Snowden files useful and constructive.

The DA Committee is imperfect in many ways. However, it is a peculiarly British solution to the

difficult problem of ensuring that reporting in the public interest takes account of concerns about the national interest, without stymieing debate.

Any replacement for the body would therefore have to demonstrate to the public and to the media, that it struck that balance in a more effective way, or risk further undermining the right of journalistic free expression, and reinforcing the increasingly widespread view of a UK Government clampdown on the right to free and independent press.

I enclose with this letter a short note which provides specific observations in relation to our experience throughout reporting of the Snowden files, and some brief thoughts on potential areas for reform.

I do hope this covers the points raised in your letter.

Alan Rusbridger

Editor-in-chief

Guardian News & Media

Annex

Observations in relation to the reporting of the Snowden files

1. The DA Notice system serves a useful function in two main ways

a. It serves as a forum where defence, intelligence and media people can meet and discuss things;

b. It can be a valuable way of checking sensitive matters in advance so as not inadvertently to risk national security or operations. We have had repeated contacts with the officials in the last six months or so, and have found them helpful, trustworthy and – so far as one can tell – independent.

2. Since the Snowden story began in June 2013, the Guardian has found it generally easier to

have a direct dialogue with the American intelligence services and government than in the UK.

3. The Snowden files contain often highly technical and complex material, of which, even long

term agency staff don't necessarily have a detailed grasp. As such, our experience has been

that conversations between editors, highly specialist reporters and 'subject specialists' at the

agencies have been more effective at assessing whether to withhold or redact material than going through a middle man process such as a DA Notice model. In the UK, there is a sense in which the DA Notice system replaces good direct communications between the services and journalists.

4. For the system to work there has to be trust that:

a. there are true Chinese walls between the DA Notice officials and the intelligence services;

b. an approach to the DA Notice officials will not trigger pre-emptive action by government or its lawyers;

c. the officials will make independent judgements about the agreed criteria and not be “leaned on” by the government or agencies.

5. The system must also be advisory and not binding. The ultimate judgements must be made by editors. One example related to Snowden: we received advice from the DA Notice officials not to run a story about the extent to which the NSA had undermine the security of the web itself. Yet many people – including international journals, academics, businessmen, legal scholars and technologists – believed this was the most important story of all.

6. The legal regime in the UK – with the ever present threat of prior restraint (explicitly made in the Snowden case) – contrasts with the situation in the US, where the first amendment is reinforced by the Supreme Court judgement in the Pentagon Papers case. It is virtually inconceivable that the US Government would have attempted – far less succeeded – the gagging the NYT or Washington Post over their Snowden coverage. The NSA’s general counsel went further in debate over the autumn when he said that – while the agencies and government deplored the Snowden leak – once the material was in the hands of a newspaper, the journalists were protected.

7. In the UK – where judges have shown themselves quite ready to grant injunctions preventing publication – it is harder to engage in full and frank discussions with the authorities. Our colleagues in America found it more natural to have advanced conversations with the US intelligence services, knowing that there would be no attempt to frustrate publication.

8. Once the UK Government effectively forced the Guardian’s reporting out of the jurisdiction it lost a degree of influence over the reporting. Our reporting was done in collaboration with ProPublica and the NYT. On more than one occasion we placed a higher value on the contacts between the NYT and White House than any parallel conversations with the UK government. By seeking short term control over the Guardian, the Government lost long term influence.

9. It is not clear that the DA Notice mechanism, the agencies or the government have fully grasped the complexities of the new media environment. The more restrictive they are towards mainstream media, the greater the likelihood that future leakers or whistleblowers will bypass traditional organisations and publish through channels which they regard as “freer” – or even publish directly to the web themselves.

10. We therefore urge against knee jerk instincts to discard the valuable mechanisms which do enable some form of communication over the handling of sensitive material particularly given that the government and intelligence agencies have shown limited appetite for true engagement.

11. We hope that the Snowden reporting could stimulate a constructive dialogue between media, government and agencies about how to modernize the relationship between them. We hope this discussion might include a consideration of moving the Government’s attitude towards prior restraint to be more in line with that which exists in the US.

Suggested amendments to the DA notice system

12. Suggested amendments to the operation of the DA Notice system have historically followed disagreements between the Government of the day and the press about whether a specific story should have been published.

13. Calls in 1967, by the Wilson Government, for reform of the DA Notice system followed a Daily Express story entitled ‘Cable Vetting Sensation’ which outlined how the Government of the day was vetting private communications flowing across cable networks. Ultimately, Wilson’s calls for reform were opposed, not just by the media, but also by a Committee of Privy Councillors whom he directed to investigate the matter.

14. Similarly in 1987, the system was called into question after the government sought an injunction against BBC Radio 4 for the programme 'My Country: Right or Wrong'. The injunction resulted despite the BBC following the appropriate procedures, and being confident the programme did not endanger national security. The confidentiality of the process was brought into question when the Attorney-General, who apparently learnt about the number of former security service personnel taking part in the programme from a newspaper gossip column, obtained an injunction against the programme.

15. As outlined in the cover letter to this note, the DA Notice Committee is by no means a perfect solution. However, in the absence of any compelling alternative proposals for wholesale reform, the Home Affairs Select Committee may instead look at a number of reforms and tweaks to the DA Notice Committee which could include:

a. Direct representation of national newspapers on the Committee. There are currently no newspapers directly represented on the DA Notice Committee. Representation is instead through the NPA and NS. It may benefit the Committee to have direct representatives of newspapers within its midst;

b. A review of the guidelines by which the Committee recommends that stories should not be published. This review should be conducted in consultation with the media, with the aim of better reflecting both the changing nature of: surveillance; of the media; and of the digital distribution of information;

c. Learning from the US system of constructive discussion between the White House, agencies and publishers. Perhaps because the Americans are the senior partner in the NSA/GCHQ relationship, they feel more able to recognise elements of stories that are genuinely of concern, and those which are merely embarrassing. There may however, be elements of best practice about direct communication between the agencies and the press that the DA Notice Committee could adopt from the US model.

Guardian Media Group

February 2014