OFFICIAL SECRETS IN THE UK - A MODEL FOR THE EC?
Britain has had an Official Secrets Act since 1889, but the most significant law was passed in 1911, in a mood of national panic about German spies posing as tourists. The act was rushed through all its parliamentary stages in one day, with only one hour's debate, and stayed in force for the next 78 years. Its most controversial aspect was section 2, which made it an offence for any civil servant to reveal any information obtained in the course of their employment, without authorisation. It was also an offence to receive such information, even unintentionally. There was no "public interest" defence.
Needless to say, the act was in theory breached every day, and most "offences" went unpunished: after all, the most assiduous leakers of information were ministers and senior civil servants. However, there were a number of celebrated prosecutions. In 1977, two journalists were prosecuted for talking to a former soldier who had worked on signals intelligence in Cyprus. They were convicted, but the journalists were given "conditional discharges", and the soldier received a suspended sentence.
In 1983, a young clerk who worked for the Ministry of Defence, Sarah Tisdall, was prosecuted for sending to the Guardian newspaper documents revealing when American cruise missiles would arrive in Britain. The documents disclosed how the government intended to evade parliamentary questions about the arrival of the missiles. Tisdall was given a six month prison sentence.
In 1984, a much more senior civil servant, Clive Ponting, was prosecuted for a similar offence: he had sent information to a member of parliament which demonstrated that ministers were giving misleading information to parliament about the sinking of the Argentinian ship, the 'General Belgrano', during the Falklands war. Ponting argued that he had a duty to leak this information. However, the judge ruled, controversially, that the interests of the state were identical with those of the government of the day. Allthough there was no legal doubt that Ponting was guilty, the jury acquitted him, presumably recognising the moral force of his argument.
That was the last major official secrets prosecution: since then, the government conspicously avoided such prosecutions and began using the civil law of "confidence" instead [e.g. the "Spycatcher" case against Peter Wright, the author of a book on the British secret services].
In 1989, a new official secrets act was passed to replace the old one. In some respects, it was an improvement on the old one, in that the prosecutions must prove that "harm" has been done to the national interest, a number of classes of information are now excluded from the criminal law, and it is no longer an offence to receive information. But the "harm" tests are very broadly worded, there is still no "public interest" defence, and the classes of information now excluded are those in respect of which prosecutions were never brought anyway. In the case of members of the intelligence and security services, it is always illegal for them to disclose information, whether or not "harm" has been done.
Among the categories of information specifically included in the act are: defence, international relations, and information obtained in confidence from other states or from international organisations. Police information is included if its disclosure is likely to result in the commission of offences, to facilitate an escape from custody or to impede the prevention or detection of crime.
The government has hailed the new act as "a significant essay in openness", but this seems an overblown claim. The act still sends very clear signals to civil servants that they are not to disclose information on pain of criminal prosecution, and, in absence of a Freeedom of Information Act, the strong climate of secrecy that surrounds British government and police has not been diminished.
Jolyon Jenkins