The Campaign for Freedom of Information

This briefing was produced in 1988 at the time of the passage through Parliament of the Official Secrets Bill

INTRODUCTION

The new Official Secrets Bill concentrates on the protection of official information, but ignores the natural other half of the argument - the need for more openness. It offers a powerful sanction against leaks, yet fails to address fears that it will help to suppress evidence of serious wrongdoing.

These concerns were all raised when the government's white paper [Cm 408] appeared in June 1988. The bill now published makes little concession to them. Perhaps the most notable response has been the growing extravagance of the language used to defend the reform. Mr Hurd, the Home Secretary, describes it as "an essay in openness which has no parallel in the history of our government since the war", "a substantial and unprecedented thrust in the direction of greater openness", "a charter for liberty" and "an earthquake in Whitehall".

Access to information

In reality, the bill does nothing to increase public access to information. The bill in itself will not lead to the disclosure of even a single item of information which is not now available. The Home Secretary's comments imply that because some kinds of information - for example on education, housing or the environment - are removed from the protection of the criminal law, more of it will reach the public. It will not. Other, generally more immediate, deterrents - such as the threat of dismissal - will continue to operate against unauthorised disclosures. Of course, ministers could decide to authorise much greater disclosure; or even create new legal rights of access to information. But they have given no indication that such changes are planned. And even if they were, they could be introduced immediately without reforming the Official Secrets Act.

The scope of the bill

The bill itself will tighten control over protected information. If it was restricted to the most sensitive, highly classified information, this would be no bad thing. In fact, the bill covers great areas of information - much of it relatively low grade. Unlike Section 2, which in such areas is understood to be quietly dormant, unauthorised disclosures under the new Act may lead to immediate and successful proceedings.

The protected classes of information cover: international relations; information supplied in confidence by other governments and international organisations; defence; security and intelligence; the interception of communications; and information likely to impede law enforcment or lead to crime.

The bill applies to unauthorised disclosures by civil servants or other who acquire information through official duties (such as the police, members of the armed forces, and even government ministers) or as government contractors.

It also covers journalists or any member of the public who obtains protected information which has been disclosed without authority. Even if the information reaches the person indirectly (after passing through the hands of several people, or by being read in the newspapers) it could still be an offence to pass it on.

For some kinds of information, the prosecution would have to show that the person knew that the disclosure was likely to be harmful, within the meaning of the bill. This may protect the ordinary member of the public who finds and passes on an unmarked official document without realising its significance. It is less likely to help the press. Journalists will generally know when the information they are handling results from a leak which could fall within the scope of the new Act.

Tests of harm

In several areas, the new offences do not depend on evidence that disclosure has caused specific harm. A journalist may be convicted and imprisoned without evidence that what he or she has done has harmed basic national interests - or done any damage at all.

In other areas, the offence depends on evidence that a disclosure was likely to cause harm. This applies particularly to disclosures about defence, international relations and law enforcement. But the tests of harm in the first two of these categories are extremely weak. They fall short of those proposed by the Franks report in 1972, and of those which the government itself proposed when it tried to reform Section 2 in 1979. Disclosures which few people would regard as genuinely damaging may now carry the threat of up to two years imprisonment.

Ministers may say that of course the new law will be used sparingly and wisely. Given their unceasing efforts to prevent the British public reading a book freely available to millions of people all over the world, there is room for doubt on this point.

Prior publication

No defence of prior publication is proposed. In areas covered by absolute offences - such as telephone tapping by the police or by Customs and Excise, and actions taken by the security service under a warrant - every repetition of previously published information howevever widely known it has become will be a new offence. This was the argument which the government advanced so unsuccessfully in the Spycatcher case. It prompted one of the Law Lords, Lord Griffiths, to comment: "If such was the law then the law would indeed be an ass".

The arrangements are different for information whose disclosure is only an offence if likely to cause harm. If all possible harm has been done by the initial disclosure, it would not be an offence to repeat the information. But if further harm is possible, then any repetition of the information may be a new offence. The question is: how will newspapers know whether all the potential harm attached to a story has already taken place? A national paper will not know whether giving wide publicity to an item published in a small circulation local paper could lead to further harm, and prosecution. The tendency may be to follow the lawyer's advice, and play safe. Papers may be reluctant even to repeat information already in the public domain. This hardly meets the white paper's supposed objective which was to "ensure that no one need be in doubt in what circumstances he would be liable to prosecution" [paragraph 14].

It will be a specific offence to repeat protected information originating from Britain which has been leaked overseas, even if it has been published in foreign newspapers. This is not an offence at the moment. Where there is a test of harm (eg in relation to international relations or defence) the prosecution would have to show that repeating the information in Britain caused further harm. Where the offence is absolute (eg interception of communications, and some security matters) any repetition in Britain is an automatic offence.

In time, the bar on repeating previously published information may well fall foul of Article 10 of the European Convention on Human Rights, which guarantees "freedom to...receive and impart information...without interference by public authority".

Another offence involves the failure to return leaked documents. A journalist who, in order to protect a source, destroyed a leaked document instead of handing it back when officially asked for it would be guilty of an offence. [Clause 8(4)(a)]

The public interest

Finally, and most importantly, the bill fails to offer a public interest defence for those who reveal protected information in order to expose crime or gross abuse of authority. The government has sought to deliberately confuse the matter by claiming that the public interest can be taken into account. The Home Office press release which announced the bill claimed that it contains "specific tests of harm to the public interest" while Mr Hurd has stated that a defendant will be able to "argue that the disclosure caused good not harm to the public interest."

These statements are wholly misleading. The words "public interest" appear nowhere in the bill. A defendant will have no opportunity to argue a case based on benefit to the public interest; an attempt to do so will probably be ruled inadmissible. The prosecution will merely have to show that a single item of information covered by the bill, however minor, was disclosed. In some cases it may not even be necessary even to show that the disclosure caused harm.

A civil servant or journalist may reveal information about behaviour so unacceptable that no minister will dare stand up and defend it. Everyone in a position to intervene may have failed to act. Yet the person who finally exposes the matter risks imprisonment under this bill - while denied the chance to justify the disclosure.

These points are dealt with at more length below.

In certain areas any disclosure, regardless of whether it causes actual harm, will be an offence. A journalist can be convicted of a disclosure without any opportunity to argue that it had no damaging consequences.

(a) INFORMATION SUPPLIED IN CONFIDENCE BY OTHER GOVERNMENTS OR INTERNATIONAL BODIES.

Despite government claims to the contrary, leaks of information supplied in confidence to the UK by other governments or international bodies would appear to be such an offence, under clause 3(3).

The government claims that though this was proposed in the its white paper, the proposal has now been changed. According to the Home Office:

"The Official Secrets Bill...contains a number of substantial changes...In particular it would not be an offence simply - as the White Paper proposed - to disclose information received in confidence from other governments or international organisations: harm would now have to be proved...It would have the same harm test as information relating to international relations." [Press release, 30.11.88]

The bill itself does not support this claim.

Information from overseas sources and information about international relations are indeed linked. They appear in the same clause, and partly share a single test of harm.

But information from overseas sources is covered by an additional, separate test which apparently removes the need to demonstrate specific harm. It may make it an offence to disclose any confidential information from overseas.

The common test is as follows. A disclosure either about international relations, or of information from overseas sources is an offence if:

But the additional test which applies only to information from overseas sources overrides this:

In other words, the leaking of confidential information, regardless of its contents or nature, can itself be "likely" to have the specified harmful effects, such as jeopardising British interests overseas. Anything "likely" to have these effects is an offence under clause 3(2).

It is the breach of confidence which would be regarded as causing the damage, not the fact that the information relates to a sensitive matter. It is not necessary to show that the disclosure itself is likely to cause specific harm, such as the loss of an export order or the disruption of treaty negotiations.

To be regarded as "confidential", the information need only have been given in confidence or obtained in circumstances where confidentiality would reasonably be expected. [Clause 3(6)]. A civil servant overseas merely has to write "confidential" on a document for it to be protected in British law: and even if he or she forgets, it will probably be protected anyway.

The argument implicit in the bill is that the disclosure of the confidences of another government or international body will itself "be likely to" harm British interests abroad (presumably by making others more reluctant to entrust their confidential information to the British government). To obtain a conviction it would not be necessary to show that any other government actually became more reluctant to pass information to Britain, only that this effect was "likely".

Moreover, it would not be necessary for the leak to involve a spectacular breach of confidence. Anything which might make Britain appear to be an unreliable keeper of other countries' confidences would be enough; this might result from leaks which in themselves were relatively unimportant.

The government has already made it clear that it regards any leak of overseas information as likely to have this damaging effect. And it maintains that the effect is not merely to jeopardise British interests in the country whose information was leaked, but to jeopardise British interests everywhere. According to the white paper:

"...besides the direct consequences which the disclosure of such [overseas] information may have on relations between this country and the state which provided the information, such disclosure has a wider disruptive effect on international diplomacy. If it appears that this country is unwilling or unable to protect information given in confidence, it will not be entrusted with such information. The Government's ability to function effectively in international diplomacy and in relation to international organisations, and consequently its ability to protect and promote this country's interests will thereby be impaired...There is a wider damage to the standing of the United Kingdom in relation to all governments and international organisations." [paragraphs 28 and 51]

Thus clause 3(3) may make it an offence to publish a leak of any document from another country or international body, regardless of the subject matter. It may be an offence to publish leaks of EEC documents coming from Whitehall about pollution control or VAT; about industrial safety or vocational training received from the International Labour Organisation; information on nutritional standards from the Food and Agriculture Organisation; draft UNESCO documents on the development of teaching standards; WHO papers about efforts to cut child mortality; or papers on the control of oil pollution from the International Maritime Organisation.

(b) THE INTERCEPTION OF COMMUNICATIONS

An absolute offence is committed by disclosing any information about authorised postal interception or telephone tapping. Such interception may be undertaken with a warrant under the Interception of Communications Act 1985, obtained by the police, Customs and Excise or the security or intelligence services. A conviction can be obtained without evidence that any specific harm had occurred or was likely. [Clause 4(3)(a)]

This is markedly different from the approach of the Franks report. Franks recommended that such disclosures should be offences only if they caused "serious injury to the interests of the nation".

Any repetition of previously published information relating to such matters would be a separate offence.

The offence - like most others under the Bill - would only occur if the information came, however indirectly, from an official source. Someone who merely suspects their phone is tapped is not at risk by saying so. But if they had any kind of evidence or confirmation which they knew came, however indirectly or accidentally, from an 'inside source', it would be an offence to repeat it.

In general there will normally be good grounds for protecting information about such matters. However, there may be times where publicity is called for. For example, if through police incompetence, criminals whose intentions were known because of phone tapping succeeded in committing serious crimes and in escaping, this would be a matter of some public concern. Under the bill, it would be illegal for a newspaper to carry such a story.

(c) SECURITY AND INTELLIGENCE

The government has maintained that only disclosures about security and intelligence by members of those services would be absolute offences. The Home Secretary has said that a journalist's disclosure would be an offence "only if it can be established positively that it was likely to damage" the security service. [Hansard, 29.6.88, col 366]

It is now clear that this is not the case.

There are three sets of circumstances in which a journalist or author could be convicted for publishing on security matters, without specific evidence that the publication was likely to be harmful.

(i) Security service actions under a warrant

A journalist would commit an offence by revealing any information - whether or not harmful - about steps taken by the security service in accordance with a warrant under the proposed Security Service Act. [Clause 4(3)(b)] Under the new Act a warrant will be needed before premises can be broken into or interfered with.

This means it would be an offence to reveal, for example, that the security service had broken into the wrong house, or had injured an innocent person during a raid. No evidence of harm is needed to secure a conviction.

The offence is committed if the information comes, however indirectly from an inside source, even if it had then been published in the newspapers. The only possible defence would be for the journalist to show that that he or she was ignorant of the source of the information or the fact that it was protected.

The Franks Commitee proposed that such disclosures should be offences only if they caused "serious injury".

(ii) "Classes" of harmful information

Although a specific test of harm for general disclosures about security or intelligence does appear in the bill, the prosecution will always be able to bring charges under a much less specific alternative. This offence involves the disclosure of information falling into a general "class or description" of information likely to cause harm.All that has to be shown is that the general class is likely to be harmful, and that the actual disclosures comes within that class. It would not be a defence to show that in this particular case the information was innocuous, or that any possible damage had already been done by widespread previous publication. This is in effect almost an asbolute offence. [Clause 1(4)(b)]

(iii)Accessories

Authors, journalists or broadcasters who helped or encouraged a present or retired member of the security or intelligence services to reveal information could find themselves charged as accessories to the officer's absolute offence.

During the Commons debate on the white paper, Mr John Patten, Minister of State at the Home Office, stated:

"where, for example, there is collusion between a member or a former member of the security and intelligence services and a newspaper...the newspaper could be an accessory to an offence committed by that member".

Hansard, 22 July 1988, col. 1480

The Home Secretary has said:

"in certain circumstances a newspaper or television company may be an accessory to the offence committed by the member or former member whether or not it also commits a separate offence of disclosure. This is, of course, merely the effect of the existing law on ancillary offences. Under this law the accessory shares the liability of the offender for his offence even if, as in this situation, it is one he cannot commit himself"

Letter to Richard Shepherd MP, 29 July 1988

The Official Secrets Bill does not itself provide for offences for accessories: charges would arise under common law. Anyone who encouraged, advised or helped a security or intelligence officer to reveal information might be an accessory. The offence is committed when the officer commits his or her offence.

A publisher who invites an officer to submit a manuscript of memoires may become an accessory if the manuscript is submitted. The delivery of the manuscript - even if it was never actually published - would itself be an absolute offence. Its publication under a contract might be another. An journalist who questioned an officer might be held to be encouraging an offence. So too might a television researcher who invited the person to appear on a discussion programme.

The accessory would commit an absolute offence. It would not be a defence to show that the information had previously been published by others, or was innocuous. The only defence would be that the author etc did not in fact qualify as an accessory, or that they did not realise that information about security was involved.

(d) OTHER OFFENCES

The passing-on by any person of ordinary (unprotected) information which could help someone else obtain protected information. The offence is extremely loosely defined, allowing actions to be brought in a variety of unlikely circumstances. The information passed on does not itself have to be protected under the bill, and can be quite innocuous. The ingredients of the offence are: (a) that the information passed on is also in the possession of a civil servant, or has been; (b) that it would be reasonable to suspect that someone could use it to obtain access to protected information. However, an offence is committed even if it is not deliberately disclosed for this purpose. [Clause 8(6)]

Defence and international relations

The bill does provide specific tests of damage for other categories of information. These apply to disclosures about defence, international relations, and information likely to result in the committing of an offence.

The government however has rejected a central proposal made by the Franks Committee in 1972.

Franks proposed that the test for an offence should be that the disclosure would cause "serious injury to the interests of the nation". The Comittee proposed that this "serious injury" test should apply to defence, foreign relation, security and intelligence. The tests in the new Official Secrets Bill are significantly weaker.

Franks was not suggesting that disclosures which caused lesser injury, should be unprotected. But they felt that such information could be adequately protected without criminal sanctions. This more sparing use of the law would, it was argued, strengthen controls over information most needing protection:

"We believe that most of those who have given evidence to us, and most reasonable people, would accept as a proper basis for the employment of criminal sanctions the unauthorised disclosure of official information which would be likely to cause serious injury to the security of the nation or the safety of the people. If criminal sanctions are justified at all, they are justified for this purpose. If they are to be reserved for what is most important, they should not go any wider. We have therefore adopted this as our touchstone."

[Departmental Committee on Section 2 of the Official Secrets Act 1911, Cmnd 5104, paragraph 119]

Franks described the four basic security classifications used in Whitehall. They are defined in terms of the damage that disclosure would cause:

The Franks proposal was that only disclosures of information classified as "SECRET" and above should be criminal offences. This was accepted by the present government in the bill it unsuccessfully introduced in 1979. Under that disclosures about defence and international relations would have been an offence only if "serious injury" was likely, though the injury would have been attested to by a ministerial certificate. The government has now abandoned the "serious injury" criterion:

Under the new bill the key test in the defence field is that disclosure is likely to "prejudice" the capability of the armed forces.

The main test on international relations is that the information "jeopardises" the interests of the UK abroad.

These terms correspond to the marking "CONFIDENTIAL" in the above classification system. This means that a much greater volume of information will be protected, and prosecution could be brought for much less harmful disclosures. Commenting on these proposals Mr Leon Brittan, the former Home Secretary said:

"It would be easier to prove that the material that is disclosed prejudices something than that it does serious harm...I do not see any justification for what amounts to a tightening up of the proposals that were originally put forward in 1979".

[Hansard, 22.7.88, col. 1430]

Crime

The proposed tests of harm relating to crime involve a welcome tightening up of the white paper proposals. The white paper had proposed that information "likely to be useful" in committing crime should be protected. The bill has narrowed this to information "likely to result in" the committing of an offence. [Clause 4(2)]

The government continues to reject any form of public interest defence. Such a defence would allow someone who had published protected information to argue that the disclosure was justified because it revealed evidence of exceptional wrongdoing or gross abuse of authority.

The government has done much to muddy the waters on this issue, implying that a jury can take the public interest into account. For example, the Home Office press release announcing the bill referred to its supposed "specific tests of harm to the public interest" (emphasis added). Mr Hurd has said that:

"the prosecution would have to satisfy a test of harm to the public interest. It would be for the jury to decide...

Under these proposals, where there is a harm test the defendant could argue that the disclosure caused good not harm to the public interest. It would be for the jury to decide."

[Press release, 30.11.88]

In fact the words "public interest" appear nowhere in the bill. The jury will not be invited to consider the public interest, still less to balance up whether a disclosure did more benefit to it than harm. If the prosecution shows that a disclosure was likely to cause a particular type of harm the jury will have no option but to convict. It will no opportunity to consider whether some other much greater harm was prevented as a result.

For example, the Navy does not discuss the movements of British nuclear submarines, and no doubt would regard any leak of information about them as "likely to prejudice the capability of...[a] part of...the armed forces...to carry out their tasks", an offence under clause 2(2)(a) of the bill. If such prejudice was established, a disclosure would be an offence, regardless of the circumstances.

However, there are growing allegations that fishing boats have been sunk, and lives lost, in the Irish Sea because submarines have become entangled in their nets. [Independent, 4.11.88]

A journalist who acquired Royal Navy information confirming that this was happening, could be convicted and imprisoned for publishing it. The prosecution would only have to show that the disclosure "prejudiced" its capability. Presumably it would maintain that any disclosure of the location of its submarines while patrolling does so. The defendant would not be able to argue that the disclosure was justified because it revealed that safety procedures were disregarded, that officers were negligent in their duty, or that nothing was being done to stop the continuing loss of life. Without a public interest defence, such considerations would be irrelevent - and possibly inadmissible in court.

The present situation

The government maintains that no public interest defence exists under Section 2 of the Official Secrets Act, and therefore no-one is being deprived of an existing defence. Mr Hurd has said: "we are not taking away anything that now exists in the way of a defence". [Hansard, 22.7.88, col. 1415]

In fact, Section 2 contains an element of such a defence. A defendant can argue that no offence is committed by an unauthorised disclosure if it is to someone "to whom it is in the interest of the State his duty to communicate it". Clive Ponting built his defence around this phrase. Although the judge in his trial rejected it, the ruling was not conclusive and would certainly have been challenged on appeal.

Regardless of what those words actually mean, they allow a wider issue to be raised in court. It was only because that phrase exists that Clive Ponting could argue a case on public interest grounds. If the defence is abolished, as the new Bill proposes, the defendants may be silenced on the issue. All they will be able to argue are the elementary questions: whether they disclosed the information; and whether it is protected under the Act.

The law of confidence

A public interest defence exists under the law of confidence. It serves to ensure that the common law obligation to protect the confidentiality of information given in confidence cannot be used to suppress evidence of serious iniquity.

The way in which the defence has operated illustrates precisely the kind of safeguard needed in the new Official Secrets Bill.

The basis of the defence was set in 1856 in a case where a former employee had informed the victims of a fraud carried out by his employer of what had taken place. The employer's application for an injunction to prevent further disclosures was refused, the court ruling that: "The true doctrine is, that there is no confidence as to the disclosure of iniquity. You cannot make me the confidant of a crime or a fraud, and be entitled to close up my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intention on your part".

Gartside v Outram [1856] 26 LJ Ch.113

 

In 1968 the courts refused an injunction to a company trying to prevent its former sales manager revealing the existence of a price-fixing cartel. The company had put out a misleading circular, falsely blaming high prices on the new selective employment tax, when in fact the increased prices would bring in substantial additional profits. Lord Denning said: "It seems to me that if that circular was misleading then it is at least arguable that it was in the public interest that it should be made known. I do not think that an employer can say to a servant: 'I know we are issuing misleading circulars but you are to keep quiet about it, and if you disclose it, I shall sue you for damages.' The servant may well be justified in replying: 'I cannot stand such conduct. I will leave and let the public know about it, so as to protect them'."

Initial Services Ltd v Putterill, [1968], 1 QB 396

 

A more recent case involves a case brought by Lion Laboratories Ltd, the manufacturers of the Intoximeter breathalyser device, who tried to prevent the Daily Express publishing their confidential documents. One showed that the head of the company's calibration department seriously doubted whether the device complied with the Home Office's requirements. He had reached the point where he was no longer prepared to continue to certify that they were accurate. The Court of Appeal refused the injunction, finding that disclosure was justified in the public interest to prevent the unjust conviction of motorists, and permit the vindication of those who might have been unjustly convicted.

Lion Laboratories Ltd v Evans [1984] 3 WLR 539

The recent Spycatcher case illustrates this principle still more clearly. The government argued that no public interest defence could apply to members of the security service: they were under a lifelong and absolute duty of confidentiality, which could in no circumstances be breached. The Law Lords accepted that the obligation was lifelong - but not that it was absolute. Lord Griffiths said that the public interest defence could, exceptionally, justify disclosing information:

"theoretically, if a member of the service discovered that some iniquitous course of action was being pursued that was clearly detrimental to our national interest, and he was unable to persuade any senior members of his service or any member of the establishment, or the police, to do anything about it, then he should be relieved of his duty of confidence so that he could alert his fellow citizens to the impending danger."

The bill to reform the Official Secrets Act introduced in January 1988 by Richard Shepherd MP contained a public interest defence, as follows:

"It shall be a defence for a person charged with an offence under this Act to prove that the disclosure...of the information..was in the public interest insofar as he had reasonable cause to believe that it indicated the existence of crime, fraud, abuse of authority, neglect in the performance of official duty or other misconduct".

Where a civil servant (as opposed to a journalist or other person) was involved the defence would only have been available:

"...if he has taken reasonable steps to comply with any established procedures for drawing such misconduct to the attention of the appropriate authorities without effect".

The government argues that a defence for disclosure is not needed, because it has provided internal remedies for civil servants. Members of the security service can go to the staff counsellor that has been set up; civil servants can ultimately go to the head of the civil service.

But this is a civil service remedy. It does not affect journalists, or their need for a defence in law if they disclose evidence of serious wrongdoing.

Even for civil servants, the internal mechanism is not an absolute guarantee that abuses will be brought to an end. An inquiry may fail to establish the truth, or may move too slowly to deal with an immediate danger. In any case, the above form of public interest defence recognises the importance of using all existing internal remedies. It would come into play only after all reasonable steps to use internal remedies had been tried.

The consequences of such a defence are that:

Maurice Frankel
December 11, 1988

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