Line to take - LTT68 - Required for purposes of national security
- FOI/EIR: FOI
- Section/Regulation: s24
- Issue: Required for purposes of national security
- Source: Decision Notice
- Details: [Redacted name] / Northern Ireland Office (27 February 2007)
- Related Lines to Take: LTT54
- Related Documents: FS50074788; Scottish Parliament Research Paper - ECHR Incorporation into domestic law; Stroud’s Judicial Dictionary Page 1660 and Pages 2374 to 2377; R v Leeds City Council, Ex parte Leeds Industrial Co-operative Society Ltd (1997) 73 P&CR 70; Sunday Times v United Kingdom (1979) 2 EHRR 245 at 275 E Ct HR para 59; Handyside v United Kingdom (1976) 1 EHRR 737 at 753-754, E Ct HR, para 48; MOJ Guide to Data Sharing Legal Guidance Nov 2003
- Contact: RM
- Date: 21/08/2007
- Policy Reference: LTT68
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
The section 24 exemption only applies where the exemption itself is required for the purpose of safeguarding national security. The word required in this context means reasonably necessary and sets a high threshold for the use of this exemption. It is not sufficient for the information sought simply to relate to national security, there must be evidence of specific and real threats to national security before the exemption is engaged.
The necessity test is illustrated in the Commissioner’s decision in case reference number FS50074788. This decision concerned a request for the information held by the Northern Ireland Office which led the Chief Constable to attribute the Northern Bank robbery to the Provisional IRA. The NIO relied upon the section 24 exemption to withhold some of the information caught by the request. In that case the issue was around the timing of the information request and the fact that the police investigation into the bank raid had just begun and its impact on the NI peace process. The Commissioner found that the disclosure of the relevant information, given the sensitivities, posed a real threat to national security and therefore s24 was engaged.
The Commissioner in that decision stated that although the word ‘required’ is not defined in the Act, he is satisfied that in ‘in this context it means something more than desirable, in effect it must be necessary to apply this exemption for the purposes of safeguarding national security’. (para 30). In the context of the Town and Country Planning Act 1990 (c.8) s226, required was adjudged to mean more than merely convenient and less than ‘indispensable’.
The Tribunal has not ruled on this issue to date*. The verb ‘require’ is defined in the Oxford English Dictionary as ‘to need something for a purpose’. Given the close link between information rights and Human Rights it is deemed appropriate to consider the case law on the article 8(2) word ‘necessary’ where interference may be justified when it is necessary in a democratic society in the interest of national security’ . The European Court of Human Rights has explained the adjective necessary as something which ‘is not synonymous with ‘indispensable’, neither has it the flexibility of such expressions as “admissible”, “ordinary”, ‘useful’, “reasonable” or “desirable”
The necessity test is well defined in the Convention jurisprudence and equates with a pressing social need. Necessity is something less than absolutely essential but does connote a degree of imperative, see the construction of this word in the case of AG V Walker Ex 242 by Pollock J.
(*) The Information Tribunal has however considered the definition of ‘national security’ in a previous case, Norman Baker/Cabinet Office — see LTT54.