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Rewriting the Official Secrets Act 1989



Although this article is a piece of legal analysis, and hence it contains (like all legal analyses of quality) significant detail, the argumentation in this article is straightforward. It discusses the UK Official Secrets Act 1989 but its logic applies equally straightforwardly to earlier Acts with the same name (even though their goals were/are slightly different).


By the way, to avoid lawyers' quick or dismissive ripostes, this author has no idea to which Official Secrets Act (there are several) the sign that we use as an illustration in the header of this article refers to. The sign itself does not say. That in itself rather suggests that there may be something wrong with the Official Secrets Acts regime.


The Official Secrets Act 1989 prohibits the disclosure by certain categories of British government official certain sorts of information to third parties. Its purposes are laudable, and may be summarised as follows.


  1. To outlaw UK government officials from spying for or otherwise leaking confidential government information to people who it is not in the national interest to be disclosed to, whether that be a British newspaper or an intelligence agency of the Russian government.

  2. To preserve the confidentiality of British foreign policy, where appropriate because if that specific foreign policy were leaked then its efficacy would be undermined.

  3. To protect the confidentiality of certain British government services, for example the Security Service, the sensitive nature of whose work (for example, infiltrating dangerous terrorist organisations) would be undermined were its activities imprudently publicised.

  4. To protect the secrecy of the work of the Secret Intelligence Service, the United Kingdom's network of foreign intelligence officials and the agents they manage, who hope to achieve substantial edges in British foreign policy through the clandestine collection of information.


No reasonable person would say that any of these things are not legitimate goals to be pursued by legislative enactment. The problem with the 1989 Act is that it is so badly drafted that it does not achieve any of these goals and instead creates a series of perverse incentives upon British government officials that detract from, rather than add to, the common weal. The legislation is also almost in its entirety inconsistent with contemporary international human rights standards, all of which are hiding in UK domestic law by virtue of the Human Rights Act 1998. The result is that prosecutions under the 1989 Act are de facto impossible. If this assertion is right, then the legislation is useless because it does not deter the sophisticated. (And it is only the sophisticated we are worried about.)


Here is the relevant text of the Act for our purposes; the provisions that create criminal offences. We cannot discuss it meaningfully without studying exactly what it says: something nobody seems to do anymore.




Official Secrets Act 1989

1989 CHAPTER 6

An Act to replace section 2 of the Official Secrets Act 1911 by provisions protecting more limited classes of official information.

[11th May 1989]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—


...


1. Security and intelligence.

(1)A person who is or has been—

(a)a member of the security and intelligence services; or

(b)a person notified that he is subject to the provisions of this subsection,

is guilty of an offence if without lawful authority he discloses any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as a member of any of those services or in the course of his work while the notification is or was in force.

(2)The reference in subsection (1) above to disclosing information relating to security or intelligence includes a reference to making any statement which purports to be a disclosure of such information or is intended to be taken by those to whom it is addressed as being such a disclosure.

(3)A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he makes a damaging disclosure of any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as such but otherwise than as mentioned in subsection (1) above.

(4)For the purposes of subsection (3) above a disclosure is damaging if—

(a)it causes damage to the work of, or of any part of, the security and intelligence services; or

(b)it is of information or a document or other article which is such that its unauthorised disclosure would be likely to cause such damage or which falls within a class or description of information, documents or articles the unauthorised disclosure of which would be likely to have that effect.

(5)It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question related to security or intelligence or, in the case of an offence under subsection (3), that the disclosure would be damaging within the meaning of that subsection.

(6)Notification that a person is subject to subsection (1) above shall be effected by a notice in writing served on him by a Minister of the Crown; and such a notice may be served if, in the Minister’s opinion, the work undertaken by the person in question is or includes work connected with the security and intelligence services and its nature is such that the interests of national security require that he should be subject to the provisions of that subsection.

(7)Subject to subsection (8) below, a notification for the purposes of subsection (1) above shall be in force for the period of five years beginning with the day on which it is served but may be renewed by further notices under subsection (6) above for periods of five years at a time.

(8)A notification for the purposes of subsection (1) above may at any time be revoked by a further notice in writing served by the Minister on the person concerned; and the Minister shall serve such a further notice as soon as, in his opinion, the work undertaken by that person ceases to be such as is mentioned in subsection (6) above.

(9)In this section “security or intelligence” means the work of, or in support of, the security and intelligence services or any part of them, and references to information relating to security or intelligence include references to information held or transmitted by those services or by persons in support of, or of any part of, them.


2.

Defence. (1)A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he makes a damaging disclosure of any information, document or other article relating to defence which is or has been in his possession by virtue of his position as such. (2)For the purposes of subsection (1) above a disclosure is damaging if— (a)it damages the capability of, or of any part of, the armed forces of the Crown to carry out their tasks or leads to loss of life or injury to members of those forces or serious damage to the equipment or installations of those forces; or (b)otherwise than as mentioned in paragraph (a) above, it endangers the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests or endangers the safety of British citizens abroad; or (c)it is of information or of a document or article which is such that its unauthorised disclosure would be likely to have any of those effects. (3)It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question related to defence or that its disclosure would be damaging within the meaning of subsection (1) above. (4)In this section “defence” means— (a)the size, shape, organisation, logistics, order of battle, deployment, operations, state of readiness and training of the armed forces of the Crown; (b)the weapons, stores or other equipment of those forces and the invention, development, production and operation of such equipment and research relating to it; (c)defence policy and strategy and military planning and intelligence; (d)plans and measures for the maintenance of essential supplies and services that are or would be needed in time of war.


3.

International relations. (1)A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he makes a damaging disclosure of— (a)any information, document or other article relating to international relations; or (b)any confidential information, document or other article which was obtained from a State other than the United Kingdom or an international organisation, being information or a document or article which is or has been in his possession by virtue of his position as a Crown servant or government contractor. (2)For the purposes of subsection (1) above a disclosure is damaging if— (a)it endangers the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests or endangers the safety of British citizens abroad; or (b)it is of information or of a document or article which is such that its unauthorised disclosure would be likely to have any of those effects. (3)In the case of information or a document or article within subsection (1)(b) above— (a)the fact that it is confidential, or (b)its nature or contents, may be sufficient to establish for the purposes of subsection (2)(b) above that the information, document or article is such that its unauthorised disclosure would be likely to have any of the effects there mentioned. (4)It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question was such as is mentioned in subsection (1) above or that its disclosure would be damaging within the meaning of that subsection. (5)In this section “international relations” means the relations between States, between international organisations or between one or more States and one or more such organisations and includes any matter relating to a State other than the United Kingdom or to an international organisation which is capable of affecting the relations of the United Kingdom with another State or with an international organisation. (6)For the purposes of this section any information, document or article obtained from a State or organisation is confidential at any time while the terms on which it was obtained require it to be held in confidence or while the circumstances in which it was obtained make it reasonable for the State or organisation to expect that it would be so held.

4.

Crime and special investigation powers.

(1)A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he discloses any information, document or other article to which this section applies and which is or has been in his possession by virtue of his position as such.

(2)This section applies to any information, document or other article—

(a)the disclosure of which—

(i)results in the commission of an offence; or

(ii)facilitates an escape from legal custody or the doing of any other act prejudicial to the safekeeping of persons in legal custody; or

(iii)impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders; or

(b)which is such that its unauthorised disclosure would be likely to have any of those effects.

(3)This section also applies to—

MIntereption of Communications Act 1985 [F1or under the authority of an interception warrant under section 5 of the Regulation of Investigatory Powers Act 2000], any information relating to the obtaining of information by reason of any such interception and any document or other article which is or has been used or held for use in, or has been obtained by reason of, any such interception; F2...

(b)any information obtained by reason of action authorised by a warrant issued under section 3 of the M2Security Service Act 1989 [F3or under section 5 of the Intelligence Services Act 1994 or by an authorisation given under section 7 of that Act], any information relating to the obtaining of information by reason of any such action and any document or other article which is or has been used or held for use in, or has been obtained by reason of, any such action.[F4and

(c)any information obtained under a warrant under Chapter 1 of Part 2 or Chapter 1 of Part 6 of the Investigatory Powers Act 2016, any information relating to the obtaining of information under such a warrant and any document or other article which is or has been used or held for use in, or has been obtained by reason of, the obtaining of information under such a warrant.]

(4)It is a defence for a person charged with an offence under this section in respect of a disclosure falling within subsection (2)(a) above to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the disclosure would have any of the effects there mentioned.

(5)It is a defence for a person charged with an offence under this section in respect of any other disclosure to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question was information or a document or article to which this section applies.

(6)In this section “legal custody” includes detention in pursuance of any enactment or any instrument made under an enactment.


5.

Information resulting from unauthorised disclosures or entrusted in confidence.

(1)Subsection (2) below applies where—

(a)any information, document or other article protected against disclosure by the foregoing provisions of this Act has come into a person’s possession as a result of having been—

(i)disclosed (whether to him or another) by a Crown servant or government contractor without lawful authority; or

(ii)entrusted to him by a Crown servant or government contractor on terms requiring it to be held in confidence or in circumstances in which the Crown servant or government contractor could reasonably expect that it would be so held; or

(iii)disclosed (whether to him or another) without lawful authority by a person to whom it was entrusted as mentioned in sub-paragraph (ii) above; and

(b)the disclosure without lawful authority of the information, document or article by the person into whose possession it has come is not an offence under any of those provisions.

(2)Subject to subsections (3) and (4) below, the person into whose possession the information, document or article has come is guilty of an offence if he discloses it without lawful authority knowing, or having reasonable cause to believe, that it is protected against disclosure by the foregoing provisions of this Act and that it has come into his possession as mentioned in subsection (1) above.

(3)In the case of information or a document or article protected against disclosure by sections 1 to 3 above, a person does not commit an offence under subsection (2) above unless—

(a)the disclosure by him is damaging; and

(b)he makes it knowing, or having reasonable cause to believe, that it would be damaging;

and the question whether a disclosure is damaging shall be determined for the purposes of this subsection as it would be in relation to a disclosure of that information, document or article by a Crown servant in contravention of section 1(3), 2(1) or 3(1) above.

(4)A person does not commit an offence under subsection (2) above in respect of information or a document or other article which has come into his possession as a result of having been disclosed—

(a)as mentioned in subsection (1)(a)(i) above by a government contractor; or

(b)as mentioned in subsection (1)(a)(iii) above,

unless that disclosure was by a British citizen or took place in the United Kingdom, in any of the Channel Islands or in the Isle of Man or a colony.

(5)For the purposes of this section information or a document or article is protected against disclosure by the foregoing provisions of this Act if—

(a)it relates to security or intelligence, defence or international relations within the meaning of section 1, 2 or 3 above or is such as is mentioned in section 3(1)(b) above; or

(b)it is information or a document or article to which section 4 above applies;

and information or a document or article is protected against disclosure by sections 1 to 3 above if it falls within paragraph (a) above.

(6)A person is guilty of an offence if without lawful authority he discloses any information, document or other article which he knows, or has reasonable cause to believe, to have come into his possession as a result of a contravention of section 1 of the Official Secrets Act 1911.


6.

Information entrusted in confidence to other States or international organisations.

(1)This section applies where—

(a)any information, document or other article which—

(i)relates to security or intelligence, defence or international relations; and

(ii)has been communicated in confidence by or on behalf of the United Kingdom to another State or to an international organisation,

has come into a person’s possession as a result of having been disclosed (whether to him or another) without the authority of that State or organisation or, in the case of an organisation, of a member of it; and

(b)the disclosure without lawful authority of the information, document or article by the person into whose possession it has come is not an offence under any of the foregoing provisions of this Act.

(2)Subject to subsection (3) below, the person into whose possession the information, document or article has come is guilty of an offence if he makes a damaging disclosure of it knowing, or having reasonable cause to believe, that it is such as is mentioned in subsection (1) above, that it has come into his possession as there mentioned and that its disclosure would be damaging.

(3)A person does not commit an offence under subsection (2) above if the information, document or article is disclosed by him with lawful authority or has previously been made available to the public with the authority of the State or organisation concerned or, in the case of an organisation, of a member of it.

(4)For the purposes of this section “security or intelligence”, “defence” and “international relations” have the same meaning as in sections 1, 2 and 3 above and the question whether a disclosure is damaging shall be determined as it would be in relation to a disclosure of the information, document or article in question by a Crown servant in contravention of section 1(3), 2(1) and 3(1) above.

(5)For the purposes of this section information or a document or article is communicated in confidence if it is communicated on terms requiring it to be held in confidence or in circumstances in which the person communicating it could reasonably expect that it would be so held.


...


8.

Safeguarding of information.

(1)Where a Crown servant or government contractor, by virtue of his position as such, has in his possession or under his control any document or other article which it would be an offence under any of the foregoing provisions of this Act for him to disclose without lawful authority he is guilty of an offence if—

(a)being a Crown servant, he retains the document or article contrary to his official duty; or

(b)being a government contractor, he fails to comply with an official direction for the return or disposal of the document or article,

or if he fails to take such care to prevent the unauthorised disclosure of the document or article as a person in his position may reasonably be expected to take.

(2)It is a defence for a Crown servant charged with an offence under subsection (1)(a) above to prove that at the time of the alleged offence he believed that he was acting in accordance with his official duty and had no reasonable cause to believe otherwise.

(3)In subsections (1) and (2) above references to a Crown servant include any person, not being a Crown servant or government contractor, in whose case a notification for the purposes of section 1(1) above is in force.

(4)Where a person has in his possession or under his control any document or other article which it would be an offence under section 5 above for him to disclose without lawful authority, he is guilty of an offence if—

(a)he fails to comply with an official direction for its return or disposal; or

(b)where he obtained it from a Crown servant or government contractor on terms requiring it to be held in confidence or in circumstances in which that servant or contractor could reasonably expect that it would be so held, he fails to take such care to prevent its unauthorised disclosure as a person in his position may reasonably be expected to take.

(5)Where a person has in his possession or under his control any document or other article which it would be an offence under section 6 above for him to disclose without lawful authority, he is guilty of an offence if he fails to comply with an official direction for its return or disposal.

(6)A person is guilty of an offence if he discloses any official information, document or other article which can be used for the purpose of obtaining access to any information, document or other article protected against disclosure by the foregoing provisions of this Act and the circumstances in which it is disclosed are such that it would be reasonable to expect that it might be used for that purpose without authority.

(7)For the purposes of subsection (6) above a person discloses information or a document or article which is official if—

(a)he has or has had it in his possession by virtue of his position as a Crown servant or government contractor; or

(b)he knows or has reasonable cause to believe that a Crown servant or government contractor has or has had it in his possession by virtue of his position as such.

(8)Subsection (5) of section 5 above applies for the purposes of subsection (6) above as it applies for the purposes of that section.

(9)In this section “official direction” means a direction duly given by a Crown servant or government contractor or by or on behalf of a prescribed body or a body of a prescribed class.

...


10.

Penalties.

(1)A person guilty of an offence under any provision of this Act other than section 8(1), (4) or (5) shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

(2)A person guilty of an offence under section 8(1), (4) or (5) above shall be liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 5 on the standard scale or both.


---


These are the provisions of the Act we need to focus upon: the provisions creating criminal offences and the provisions setting the penalties for committing those criminal offences.


Now consider the following:


Section 1


  1. Look at section 1 of the Act. This prohibits three classes of people from disclosing security and intelligence information. (a) Current and former security and intelligence service members (i.e. employees in the strict sense.) (b) Other sorts of civil servant, if the disclosure is 'damaging' (broad definition by reference to what is likely to be damaging - this could be anything). (c) Anybody else, given a specific notice (i.e. a piece of paper). This is generally intended for contractors (people in the category of Edward Snowden).

  2. The defences are exhaustively listed. The principal defence is that the person did not reasonably know that this was a piece of security or intelligence information. This is not much of a defence at all; security and intelligence information is pretty clear when you see it.

  3. The injunction is so harsh that it may include simply revealing that a person is a security or intelligence agent - even if they work for the enemy.

  4. This makes it very hard to work with agents of intelligence services - the people who collect the day to day information - because you cannot tell them anything. How are they supposed to perform their roles, effectively and safely (for them and for everyone), if you can't tell them what's going on without a bureaucratic authorisation that in the greater majority of cases you are unlikely to get?

  5. The other curious provision of the legislative provision is that it criminalises the disclosure of information that is not security and intelligence related; but is intended to be so. Hence anyone covered by this provision will close up like a clam, in case they say something harmless that the government later decides that they 'intended' to be security and intelligence information. It creates preposterous caution on the part of those governed by it.

  6. Hence this provision causes sclerosis - indeed paranoia - on the part of the people it applies to.

  7. The sclerosis is compounded by the fact that there is no public interest defence, so a person covered by section 1 cannot use their common sense.

  8. Moreover the absence of a public interest defence likely makes the provision incompatible with European Convention on Human Rights freedom of expression, and hence with the UK Human Rights Act 1998.

  9. All things considered, this is a horrible provision of UK law. It suppresses sensible disclosures and communications, thereby potentially placing intelligence agents at risk: and at the same time it is likely totally unenforceable.


Section 2


  1. Now look at section 2 of the Act. This is a very broad provision, prohibiting the disclosure by any civil servant of any information about defence matters if the disclosure endangers the interests of the United Kingdom abroad. This is both too broad and too narrow; the language is facially wide, but a jury or appeal court might construe it restrictively.

  2. Again there is no public interest defence. This entails both that common sense disclosures cannot be made, jeopardising rational cooperation and routine operations; and that the provision is likely unenforceable as inconsistent with European Convention standards.


Section 3


  1. Now consider section 3. It applies the section 2 regime to matters of international relations - a subject even broader than defence. Again there is no public interest, and ergo common sense, defence; and hence the provision is highly likely to be unenforceable.

  2. Nevertheless this provision maintains the system of total paranoia on the part of the persons it applies to. They cannot even have a discussion about foreign policy, for fear of breaching the onerous rule. (The 'damaging' proviso is again broadly drafted. Is such a discussion with another British person non-damaging, but a discussion with a Russian citizen might be damaging? None of this is made clear - at least, not explicitly.) There might be secret internal guidance. But that hardly assists third parties in assessing their legitimate expectations in dealing with government officials.


Section 4


  1. Section 4 is better drafted than its predecessor sections of the same Act. It is aimed at preventing civil servants from using distinctive information in their possession to assist persons in the commission of crimes and so on and so forth. So a Police Officer cannot use the information he has by virtue of his role to assist criminals.

  2. Nevertheless there is no 'public interest' or 'common sense' exception. In this case it is easier to argue that there need not be, given that the premise of the section is the performance of criminal acts that it cannot, so one might argue, be in the public interest to be aided and abetted, whether before or after the fact.

  3. Be that as it may, European Human Rights law expects restrictions on freedom of speech to be justified; and the person speaking out should always have the opportunity to justify what they were doing.

  4. We live in a world of enormously complex criminal legislation. Some people take colourable objections to some of it. (Consider the debate over decriminalisation of some narcotics, which has involved some Police forces declining to prosecute some kinds of drug offences on expediency bases.)

  5. Where there are evident or even arguable gaps between what is illegal and what is immoral, it is appropriate to offer a defendant the opportunity of availing himself of the public interest as a defence of what he did.

  6. Such a defence might be held pretextual nine times out of ten. But to cover the awkward and embarrassing cases one time out of ten, a public interest defence must in principle exist on the statue books. For matters to be otherwise would be both to discourage those with a legitimate interest in speaking out, such as legitimate whistleblowers (a controversial topic but about which there has been substantial interest and even growing consensus recently); and a straightforward denial of due process for defendants, precluding them from advancing legitimate common sense explanations as to why confidential information was circulated. In any other confidentiality case, such issues could be aired. Why not in this one?


Section 5


  1. Section 5 of the 1989 Act is still more concerning than the first four provisions. That is because it applies to a member of the public, criminalising the communication of information that has been passed to him unlawfully by a government servant, if it is "damaging" (again, an ill-defined test) to so disclose it. It is a defence to the offence that once did not (reasonably) really know that this was classified information; but again there is no public interest (or common sense) defence.

  2. Section 5(6) of the Act also makes it a crime to disclose information to disclose to anyone the fruits of foreign espionage against the United Kingdom (a matter proscribed by section 1 Official Secrets Act 1911). There are no defences to that section.

  3. There are many reasons this legislative regime is inadequate. Criminalising the free speech of a government employee, who has undertaken as part of his employment commitments not to disclose certain categories of information and thereby has voluntarily foregone certain of his rights of free speech, is one thing. Imposing such an obligation against a person with no government connections, enforced by sanctions of the criminal law, is something altogether more insidious.

  4. Let us consider the following example. The defendant in a section 5 prosecution is a journalist. Should he or she really be the subject of a criminal prosecution by reason that material came into his hands in the course of the performance of his duties that embarrasses the government? Of course such things happen every day in the United Kingdom, which has a culture of political leaks. Moreover should not a journalist be allowed to explain himself in court in a way that permits him to to say "I did this for the greater good"? Section 5 is virtually akin to media censorship. That is probably why there have never been any prosecutions under it. Hence it is ineffective law, that only gives rise to hints, intimations and whispering by security and intelligence officials, a non-transparent tool for suppression of journalists' sources, that does not satisfy the criterion of transparency: an essential plank of what we in the United Kingdom are proud to call the rule of law.

  5. The public interest argument in favour of disclosing foreign espionage against the United Kingdom is of course prima facie very strong.


Section 6

  1. Section 6 criminalises the disclosure of classified information by a third party who has acquired such information, save that it applies to information supplied by Her Majesty's Government to another state or to an international organisation.

  2. It has all the purported logic, and all the frailties, of section 5.


Section 8

  1. Section 8 criminalises the unintentional leaking by civil servants of the various matters referred to above, through want of care in the custody arrangements in respect of the confidential information. So this covers the laptop left on a train; or using a mobile telephone with insufficient encryption technologies.

  2. This provision appears reasonable until you try to find out what custody arrangements are necessary not to trigger a breach of this section. That is relegated to internal memoranda: again, hardly satisfactory for a member of the general public, particularly if they are bound by this provision (as they are) without knowledge of the informal, internal guidelines.

  3. Section 8 also introduces the extraordinary offence of failing to comply with the official instruction of a lawful authority to return any such document. So as soon as the security or intelligence agencies have seen it, HM Government can demand that other copies be handed over by third parties. It may never have been used, but this threat creates a substantial chilling effect amongst the international media contemplating publishing on security and intelligence issues (which must be a legitimate thing to do in the interest of transparency, deterring wrongdoing within those agencies, and freedom of the press more generally).


Section 10


  1. Section 10 provides for criminal penalties. The maximum penalty is two years, so that the matter can be tried either way (in a Magistrates Court or in a Crown Court before a jury). The law in England is that any crime which may carry a penalty of more than six months gives the defendant the right to trial by jury. The event where a juries told they are not allowed to consider a public interest (or common sense) defence is most unfortunate. They may decide upon their own initiatives to do so anyway. Such trials can be very embarrassing, because a jury trial will be compelled not to consider a defendant's European Convention human rights. Juries tend not to like being told to adopt such an approach.

  2. That is one reason why prosecution of crimes under the Act are so rare. The statutory regime of criminalisation sits uncomfortably with the British common law right to jury trials.

  3. Failure to take proper care, resulting in a leak, has the more modest maximum penalty of three months' imprisonment.


To conclude, we have in the 1989 Act a statute that creates a chilling effect upon the press in what they are allowed to talk about. It also creates a chilling effect upon civil servants, causing them to take decisions otherwise than in accordance with common sense because the regime is so onerous. The absence of a public interest defence renders virtually the entire statute void on human rights grounds; a person, including a government servant (but this statute is not confined to government servants), has a right of free speech if it is in the public interest that he does so. Now a government may legitimate prescribe the circumference of what a public interest is; but it cannot (as this legislation seeks to) exclude resort to the public interest as a defence altogether.


Some would complain that the United Kingdom's security, defence, foreign policy and intelligence institutions are insufficiently transparent. Indeed her security and intelligence institutions are almost shrouded in mystique. It was only in the 1980's that the government admitted that the United Kingdom has a Secret Intelligence Service. The legislation recognising the institution was enacted in 1994. This approach is old-fashioned and there seems to be no coherent public policy supporting it. The institutions of state addressing these policy areas are just departments employing civil servants, like all the rest. You can buy books of non-fiction, describing in extensive detail their operations techniques and their histories. The idea that they should not even be discussed is just crackers. Individual civil servants should be permitted to undertake their roles, albeit with a heightened sense of secrecy by reason of the fact that some sorts of dissemination of information will compromise the effectiveness of their work or the work of government in general, and/or British foreign policy interests. The imperative for a heightened sense of secrecy in some areas of government work should be acknowledged. But there is no value in acknowledging it in such excruciatingly tight terms that the legislation becomes unenforceable.


Instead we find ourselves in the perverse situation that civil servants cannot exercise legitimate discretion (which every other civil servant has on their field of operation) to convey information to third parties in a way that will assist in advancing British security and intelligence interests. Indeed the atmosphere might be regarded as one of paranoia: information is so secretly guarded that its useful disclosure in specific situations is being curtailed and the common weal is not being pursued. Then there is the issue of public oversight of government work under the auspices of these departments. Even their budgets' are classified. That hardly assists a parliamentary committee in establishing whether the taxpayers' funds are being wasted.


Here are some proposals for common sense reforms of the 1989 Act.


1. Maintain the basic structure of the regime, but create a public interest defence.


2. Prescribe the sorts of circumstances that are within the public interest: for example, limited disclosure to facilitate certain kinds of diplomacy; to assist in domestic law enforcement; one or more mechanisms for staff to raise sensitive issues that relate to the commission of more or less serious crimes; the transmission of information to facilitate common sense communication where there is no significant risk of damage or prejudice.


3. Improve the definitions of the information whose transmission is proscribed by the Act.


4. Do away with the Act's attempts to muzzle the press or third parties (i.e. non-government parties - people who are not civil servants). These provisions appear draconian and run in the opposite direction from contemporary internationalising trends in media law and practice, and are very unlikely ever to survive a human rights challenge in Court, which is why they are never (formally) used.


5. As a matter of internal policy, strongly discourage the use of informal threats of prosecutions under the 1989 Act against third parties. As we have seen in recent years, this can have the most catastrophic consequences. People's reactions when threatened with prosecution for breach of government national interests statutes are unpredictable. They may even be driven so far as to take their own lives. It is not for the members of the security and intelligence services to investigate crimes or initiate prosecutions; that is for the Police. Hence they should not be making threats or allusions about such things save in writing and on legal advice.


The legal rigour of the administrative state catches up with every branch of government eventually, and the law governing the operations of the security and intelligence services has now reached that point. It is fundamentally useless to have an unenforceable statute being the principal source of law on so important a subject as third party disclosures of security, intelligence and foreign policy information. It must be redrafted. Although the relevant civil service management may have their doubts, a stronger security and intelligence architecture will emerge if it is more sensibly regulated, and if just a little greater transparency is permitted in its operations. In due course, the other official secrets legislation can also be updated in a similar spirit; but this, the most recent such legislation, now over 30 years old on the statute book and no longer fit for purposes, is the most important.