Sunday, 18 September 2011

The Official Secrets Acts 1911-1989: Blunderbusses and Armalites

The first Official Secrets Act was enacted in 1889.  This was replaced by the Official Secrets Act 1911.  The background to this is explained very well on the BBC Radio programme "Secret Britain" (43 minutes) - "One Hundred Years of Secrecy." The programme traces how the 1911 Act was planned by Ministers for quite some time but was only introduced into Parliament when an opportunity arose to make it more acceptable to the public.  That came when Germany sent a gunboat to Agadir, Morocco in July 1911 on the pretext of protecting a German Colony.  The 1911 Act went through Parliament in one day and there was minimal debate.  The major problem with the Act was the exceptionally extensive section 2 which, according to one estimate, could produce over 2000 separate charges:

Wrongful communication of information

(1) If any person having in his possession or control any sketch, plan, model, article, note, document, or information which relates to or is used in a prohibited place or anything in such a place, or which has been made or obtained in contravention of this Act, or which. has been entrusted in confidence to him by any person holding office under His Majesty or which he has obtained owing to his position as a person who holds or has held office under His Majesty, or as a person who holds or has held a contract made on behalf of his Majesty, or as a person who is or has been employed under a person who holds or has held such an office or contract,—(a)communicates the sketch, plan, model, article, note, document, or information to any person, other than a person to whom he is authorised to communicate it, or a person to whom it is in the interest of the State his duty to communicate it, or(b)retains the sketch, plan, model, article, note, or document in his possession or control when he has no right to retain it or when it is contrary to his duty to retain it :that person shall be guilty of a misdemeanour.

(2) If any person receives any sketch, plan, model, article, note, document, or information, knowing, or having reasonable ground to believe, at the time when he receives it, that the sketch, plan, model, article, note, document, or information is communicated to him in contravention of this Act, he shall be guilty of a misdemeanour, unless he proves that the communication to him of the sketch, plan, model, article, note, document, or information was contrary to his desire.

(3) A person guilty of a misdemeanour under this section shall be liable to imprisonment with or without hard labour for a term not exceeding two years, or to a fine, or to both imprisonment and a fine.

Here was an Act which protected virtually everything.  As Geoffrey Robertson QC put it  - "In legal theory, it was a crime to reveal even the number of cups of tea consumed each day in the MI5 canteen" -"Freedom, the Individual and the Law" - 7th Ed., 1993 at p.159.

Of course, there is no doubting that secrecy of certain information is absolutely crucial.  For example, where lives of troops could be put at risk by disclosure.  Thus, in any society there will always be such an inner core of secrecy and the authorities must be able to protect this.

It was the Clive Ponting prosecution in February 1985 which brought matters to a head over section 2.  Ponting was a civil servant at the Ministry of Defence and he was tasked with drafting briefings on the Falklands War for MPs.  He became concerned that they were not being told the full story and passed fuller details about the sinking of the General Belgrano to Mr Tam Dalyell MP.  Charged under section 2, Ponting was acquitted by the jury who perhaps accepted that he had acted in the public interest in revealing the truth.  Their acquittal was certainly against the general thrust of the direction by McCowan J (the trial judge).

In 1978, a report by Lord Franks recommended reform - "Departmental Committee on section 2 of the Official Secrets Act 1911" - Cmnd 7285, 1978.  However,  it was not until 1988 that a white paper emerged - "Reform of Section 2 of the Official Secrets Act 1911" - Cm. 408, June 1988.   The Official Secrets Act 1989 was enacted to replace section 2.  It has been claimed that the 1989 Act is an "armalite rifle" by comparison with the section 2 "blunderbuss."  On its face, the 1989 Act is more limited - (i.e. more precisely targeted) - than section 2 but it is still wide in scope.

Turning to the 1989 Act, it covers Security and Intelligence (s.1); Defence (s.2); International Relations (s.3); Crime and Special Investigation Powers (s.4); Information resulting from unauthorised disclosures or entrusted in confidence (s.5); Information entrusted in confidence to other States or international organisations (s.6).

The Act does not contain any public interest defence.  This is deliberate.  When the Bill was in Parliament, the government resisted amendments for such a defence.  This has the consequence that disclosure of a scandal within government would be a criminal offence (subject to any defences provided within the Act).  There is a great deal of difference between protecting information relating to serious matters such as disposition of the armed forces etc. and protecting information so as to avoid embarrassment to Ministers.  The OSA 1989 is capable of protecting both.

Since the enactment of the 1989 Act there have been some moves toward greater openness on the part of government such as placing the Security Services on a statutory basis - see the Intelligence Services Act 1994,  Security Service Acts of 1989 and 1996 and enabling greater freedom of information albeit with considerable exceptions - Freedom of Information Act 2000

The Official Secrets Act 1989 was enacted as the old Cold War world - (c. 1945-1991) - was drawing to a close.  However, that world has been replaced by other challenges and we continue to live in difficult times.    Post 9/11, the UK has engaged in military action in Iraq and Afghanistan and, during 2011, has been involved (with NATO partners) in connection with Libya.  The nation has also had to live with much serious crime including terrorism and intelligence obtained in such matters must remain wrapped in secrecy.  That necessary "core of secrecy" is likely to remain and those "in the know" about serious matters will be expected to take their knowledge with them to their graves.

Other links:

Telegraph - "The slow road to reform in a nation once ruled by secrecy" - 15th Augsut 2011
For a commentary on the Official Secrets Bill see Campaign for Freedom of Information, 1988.
Troubled history of the Official Secrets Act - BBC 18th November 1998
MI5 - the Security Service
MI6 - Secret Intelligence Service

Addendum 22nd September:

The Guardian - "Let's free the Official Secrets Act from its cold war freeze."

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