The Official Secrets Acts and Official Secrecy

What is the Official Secrets Act?

The Official Secrets Acts 1911-1989 provide the main legal protection in the UK against espionage and the unauthorised disclosure of information. Section 1 of the Official Secrets Act 1911 (as amended by the 1920 and 1939 Official Secrets Acts) sets out offences related to spying, sabotage and related crimes. The Official Secrets Act 1989 creates an offence for the unlawful disclosure of information in six specific categories by employees and former employees of the security and intelligence services, and for current and former Crown Servants and Government contractors.

Prosecutions under the Official Secrets Act

The decision of whether to prosecute someone under the Official Secrets Acts lies with the Attorney General. Prosections under the Acts are rare – fewer than one a year.

The maximum term of imprisonement for offences related to espionage under section 1 of the Official Secrets Act 1911 (as amended by the Official Secrets Act 1920) is fourteen years. However, longer sentences are possible for a series of offences.

The maximum penalty for offences connected with the unauthorised disclosure of information under the Official Secrets Act 1989 is two years’ imprisonment or an unlimited fine, or both.

Do you have to sign the Official Secrets Act to be bound by it?

It is not necessary for a person to have signed the Official Secrets Act in order to be bound by it. The 1989 Act states that a person can be “notified” that he or she is bound by it; and Government employees will usually be informed via their contract of employment if they must observe the Act.

How long is a person bound by the Official Secrets Act?

There is no specified duration under which a person is bound by the Official Secrets Act. However, the length of time between an unauthorised disclosure and the event or situation it relates to may be a factor in the Attorney General’s decision to prosecute someone under the Official Secrets Act 1989.

Official Secrets Act 1911

The Official Secrets Act 1911 was passed in response to the growing threat of international espionage. When orginally enacted, section 1 of the Official Secrets Act 1911 established offences related to spying, while section 2 made it an offence for a Crown Servant to disclose any official information without lawful authority.

The Official Secrets Act 1911 has been amended a number of times. Most notably, section 2 of the Act, which was described as a “catch all” section and much criticised, was repealed and replaced by the Official Secrets Act 1989. However, parts of the Official Secrets Act 1911 remain in force. The main offences which still form part of current law are those contained in section 1.

Section 1 of the Official Secrets Act 1911 creates offences connected with spying and espionage. Under section 1, a person commits the offence of spying if, “for any purpose prejudicial to the safety or interests of the state”, they enter a prohibited place defined under the Act; make a plan, sketch, model or note which is calculated to be useful to an enemy; or communicate a plan, sketch, model or note calculated to be useful to an enemy.

Following a notable legal case in 1962, the Lord Laws ruled that section 1 was not solely limited to spying, but included sabotage and other acts of physical interference.

Official Secrets Act 1989

The Official Secrets Act 1989 replaced the “catch-all” section 2 from the Official Secrets Act 1911, under which it was a criminal offence to disclose any official information without lawful authority. The 1989 Act creates offences connected with the unauthorised disclosure of information in six specified categories by Government employees. These are:

• Security and intelligence
• Defence
• International Relations
• Information which might lead to the commission of crime
• Foreign confidences
• The special investigation powers under the Interception of Communications Act 1985 and the Security Services Act 1989

Distinction between government personnel under the 1989 Act

For employees or former employees of the security and intelligence services, any unauthorised disclosure of a document or information relating to security and intelligence is an offence. However, a Crown Servant (e.g. civil servants, government ministers, members of the armed forces or police) is only guilty of an offence if they make an unlawful disclosure in one of the six categories which is deemed “damaging”.

When is a disclosure deemed damaging?

The Official Secrets Act 1989 sets different criteria for a damaging disclosure for each category of information. These so-called “damage tests” essentially require the Government to prove that a disclosure is damaging.

It is for the Attorney General to decide whether a disclosure is deemed damaging, and to bring a prosection under the 1989 Act.

When is a disclosure made without lawful authority?

For a Crown Servant, a disclosure is only made with lawful authority “if, and only if, it is made in accordance with his official duty” For government contractors, a disclosure is made with lawful authority only if it is made in accordance with an official authorisation or for purposes of their function as a government contractor and without contravening an official restriction. In any other circumstance, a disclosure is made without lawful authority.

Other legislation concerning the disclosure of official information

Other legislation relating to the disclosure of information includes the Public Records Acts, which provide a statutory right of access to government records after a twenty-year closure period. However, these Acts also allow for records to be retained “for administrative purposes or…for any other special reason”. Risk to national security is regarded as a special reason.

Members of the public can also make requests for information from Government departments under the Freedom of Information Act 2000. A Freedom of Information request must be complied with, unless one or more of the exemptions in the Act are relevant. Most exemptions are subject to a public interest test, but matters related to security bodies, e.g. the Security Service, have an absolute exemption.

Similarly, the Public Interest Disclosure Act 1998, which protects ‘whistleblowers’ who disclose information about malpractice at their workplace, also excludes disclosures relating to the security services.

The security services

The security services themselves – that is, the Security Service (MI5); the Secret Intelligence Service (MI6) and the Government Communications Headquarters (GCHQ) – were placed under statutory control by the Security Service Act 1989 and the Intelligence and Security Act 1994.