Tom Hewitson Reform of The Official Secrets Act 1989 For Your Eyes Only: The case for reform of the Official Secrets Act 1989 Introduction “You’ve had your fun, now we want the stuff back1.” These were the words of a British Government official spoken to staff of The Guardian Newspaper. The newspaper had in its possession drives containing files leaked by Edward Snowden. It wasn’t long before the drives were being destroyed under the steady gaze of GCHQ officials. The Guardian was heeding legal advice that it risked criminal proceedings under the Official Secrets Act 1989 (OSA89). The newspaper had copies in other countries, but the government had made its attitude to secret information clear. The balancing of the right of the public to receive information, and the interests of a state in withholding it, is not an easy task. The material often relates to matters of public interest; those that leak it are often hailed as heroes. However information clearly exists that could damage national security in the wrong hands. It is in OSA89 that we find our current balancing of these competing interests. It was heralded as “a great liberalising measure2” at its introduction. However, it shall be argued that the liberalising did not go far enough. The act criminalises the disclosure of certain information, regardless of its triviality. Additionally, the act does not take into account any merit in disclosures. It will be suggested that the act can be reformed by extension of a ‘harm test’ to cover all categories of information. Additionally, a public interest defence 1
As quoted in Julian Borger (2013), 'NSA files: why the Guardian in London destroyed hard drives of leaked files’, The Guardian Newspaper (21/08/2006). Available from: http://www.theguardian.com/world/2013/aug/20/nsa‐snowden‐files‐drives‐destroyed‐london [Accessed 29th September 2013] 2
Quoted by Edwin Shorts & Claire de Than (1998), Civil Liberties: Legal Principles of Individual Freedom (London, Sweet and Maxwell), p210 1
Tom Hewitson Reform of The Official Secrets Act 1989 should be added. These reforms would create secrecy laws that can still prevent damaging leaks, but allow greater transparency when it is possible. As such, it would help ameliorate a chill on important areas of public debate and prevent the potential future abuse of a powerful act. Official Secrecy and Human Rights Before looking at the domestic laws, it is useful to have a look at our human rights framework. The Human Right Act 1998 brought the European convention of Human Rights (ECHR) into our legal system3. The UK now has a right to free speech enshrined in law. Article 10 states: 10.1.
Everyone has the right to freedom of expression …
10.2
The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety … 4
The justifications for protecting free expression are well known. Mill’s argument from truth and the argument from self‐fulfilment are often discussed. However, most pertinent here is the idea that free expression is essential for democratic self‐governance. This idea, most strongly associated with Alexander Meiklejohn, suggests that only by having an informed electorate can a democracy reflect the people’s will. The European Court of Human Rights (ECtHR) has therefore often recognised the importance of speech acts concerning political matters or those that inform public debate. 3
Human Rights Act 1998 s.1(1), s.2(1), s.3(1) & s.6(1)‐(3)(a) 4
European Convention for the Protection of Human rights and Fundamental Freedoms 1950 2
Tom Hewitson Reform of The Official Secrets Act 1989 As such, they are given a higher level of protection5. It can readily be seen that leaked official information will often fall into these categories; disclosures reveal state actions that we otherwise would not know. However, the right to free expression is not absolute. Article 10 is a qualified right; states can lawfully interfere with it following the methodology outlined in 10.2. This requires that interferences be: prescribed by law, in pursuit of a legitimate aim, and necessary in a democratic society. The aim generally furthered here is national security, which is legitimate under the article. It is the requirement of necessity that is most controversial. Strasbourg adopts a ‘proportionality’ test, with the interference being balanced against the aim being pursued. Given the high value we should place on state information, we must have convincing arguments to persuade us that it is proportionate to prevent its disclosure. It must pose a genuine risk to national security, especially as criminal sanctions are being used. It will be argued that the OSA89 gives powers that go far beyond what is proportionate. Domestic context for The Official Secrets Act 1989 OSA89 was brought in to replace s2 of The Official Secrets Act 1911 (OSA11). It is therefore useful to briefly look at this earlier act to see its weaknesses. The impression given was that OSA11 was largely to cover espionage. However section 2 was aimed at civil servants and other crown employees and was incredibly broad; to ‘disclose the colour of the carpet in the minister’s office’ was technically illegal according to 5
Giniewski v France [2007] 45 E.H.R.R. 23. Cf Norwood v The United Kingdom [2005] 40 E.H.R.R. SE11. 3
Tom Hewitson Reform of The Official Secrets Act 1989 one commentator6. There were a number of controversial cases under section 2 that illustrate its power. In the 1984 case of Tisdall7 a foreign office employee was sentenced to 6 months for revealing an attempt to limit parliamentary scrutiny. In Ponting8, a judge effectively ordered the jury to convict a man for leaking information on the sinking of the Belgrano. The jury acquitted; an embarrassing case for the legitimacy of the act. Finally, in the Spycatcher litigation, temporary injunctions prevented a former spy’s claims being published, despite them being seen in many other jurisdictions9. These injunctions were found, in part, to be violations of the ECHR by Strasbourg10, but the use of prior restraint showed the act’s susceptibility to abuse. The law needed to be changed, ‘so that criminal sanctions are retained only to protect what is of real importance11. The Official Secrets Act 1989 OSA89, the so‐called ‘great liberalising measure’, was brought in to replace s2 of OSA11. To assess its impact, we need to look at some major changes it brought about. Firstly, instead of covering all ‘information’, offences were restricted to 6 categories12. These are: 1. Security and intelligence; 2. Defence; 3. International relations; 6
Helen Fenwick & Gavin Phillipson (2006), Media Freedom Under the Human Rights Act (Oxford, Oxford University Press), p 924 7
R. v Tisdall (Sarah Caroline) [1984] 6 Cr. App. R. (S.) 155. 8
R. v Ponting [1985] Crim. L.R. 318 9
AG v Guardian Newspapers :td [1987] 1WLR 1248 10
The Sunday Times v United Kingdom (No. 2) [1992] 14 E.H.R.R. 229 11
Home Office, Departmental Committee on Section 2 of the Official Secrets Act 1911, Cmnd. 5104, Septembner 1972, para 275 12
Categories from Fenwick & Phillipson (2006), p 928 4
Tom Hewitson Reform of The Official Secrets Act 1989 4. Information obtained in confidence from other states or international organisations; 5. Information likely to result in the commission of an offence; and 6. Special investigations under statutory warrant Secondly, the act introduced ‘harm tests’, which essentially require that the state prove that a disclosure is, or is likely to be, damaging. The tests vary depending on the nature of the information and who is leaking them. It goes beyond the scope of this essay to analyse each one. It is sufficient to note that there is no test for the leaking of security and intelligence information by employees and former employees of the security services. Additionally, whilst a crown servant leaking this information is protected by a test, it only requires that the information, ‘falls within a class13’ that would be likely to cause damage if it was disclosed. This is clearly very broad. The Official Secrets Act 1989 Case law There is limited case law relating to the 1989 act. Some of it is uncontroversial, criminalising deeds that few would argue should be legal. For example, in 2010, MI6 employee Daniel Houghton was jailed for trying to sell official secrets to the Netherlands14. Selling secrets for profit is clearly not an act that we should attribute much public worth to. However there are a number of more troubling cases that appear more akin to whistleblowing. In 1997, former MI6 employee Richard Tomlinson was jailed for a book that 13
The Official Secrets Act 1989 s.1(4)(b) Reported by BBC (2010), ‘Former MI6 man Daniel Houghton admits secrecy breach’ (14/07/2010). Available from: http://www.bbc.co.uk/news/10629017 [Accessed [03/10/13] 14
5
Tom Hewitson Reform of The Official Secrets Act 1989 revealed an apparent plot to assassinate Slobodan Milosevic15. There was no requirement of damage as he had worked in the security services. In 2007, David Keogh, and Leo O’Connor were jailed for their part in unlawfully leaking a memo16. It detailed a meeting between Tony Blair and George Bush and allegedly revealed that the then president had contemplated bombing the broadcaster Al‐Jazeera. This act would likely have constituted a war crime due to targeting civilians. The argument in favour of secrecy here was that heads of state must be free to talk candidly to each other in such meetings; it is damaging if this confidentiality is breached. There are certainly merits in keeping such conversations confidential; however this should not override the right of the public to know important information. In this case we apparently learnt that the most powerful man on earth contemplated committing war crimes. However, it was in the seminal 2000 case of R v Shayler17 where OSA89 itself came under closest scrutiny. David Shayler, once an MI6 employee, had leaked official intelligence documents to the press. This included an alleged plot to assassinate Colonel Gaddafi. There was no need to show damage and the House of Lords confirmed that the act did not allow a public interest defence. Shayler argued that this blanket criminalising of his actions was a breach of his article 10 rights. The court agreed that article 10 had been interfered with. However they held that the offence only covered ‘unlawful’ disclosures, and so was not a blanket ban. Shaylor could have sought authorisation to reveal the information, and it was possible to seek judicial 15
Reported by BBC (2001), “Former Spy Richard Tomlinson Quizzed’ (13/02/2001). Available from: http://news.bbc.co.uk/1/hi/talking_point/forum/1168409.stm [Accessed 03/10/13] 16
R. v Keogh (David) [2007] 1 W.L.R. 1500 17
R. v Shayler (David Michael) [2002] [2002] 2 W.L.R. 754 6
Tom Hewitson Reform of The Official Secrets Act 1989 review if authority was unreasonably refused. The House of Lords held that the OLA98 here was compatible with the ECHR; it was proportionate as there were safeguards in place. The court’s conclusion may seem like the final answer. After all, the type of disclosure discussed in Shayler, security information leaked by a former agent, has the lowest hurdles in place to constitute an offence. If this section of the act is compatible with the ECHR, the rest must be. However the safeguards discussed are not applicable to all offences under the act. In particular the media, covered by s5 of OSA89, can hardly be expected to seek out permission from the institutions they are criticising. There do not appear to have been any section 5 cases yet, but given the media’s vital role in holding power to account we should ensure we have a law in place that empowers them to do this. Much of the reasoning in Shayler is commendable, and it will help inform discussion of a public interest defence, but it does not go far enough to reign in an act open to abuse. The Proposed Reforms There are two proposed amendments to the act: that all disclosures relating to security and intelligence should be covered by a test for harm, and that a public interest defence should be added to all offences. Extension of the harm test In a White Paper in 1988, the Government gave a number of arguments for the blanket ban on disclosures of security and intelligence information by agents18. Arguments included that 18
Reform of Section 2 of the Official Secrets Act 1911 (Cm. 408) (June 1988), at [40]. 7
Tom Hewitson Reform of The Official Secrets Act 1989 there is a special duty of secrecy imposed on members of these services. This is clearly circular reasoning. They also argued that disclosures by former intelligence employees carried credibility. This may be true, but it poses no problem if the disclosures are harmless. Most compellingly perhaps was that damage was caused in the reduced public confidence in the security services. However it is not clear why the public should have an inaccurate view of these services. The importance of the public making informed decisions about the nature and scope of state power surely outweighs any benefit in their confidence in its abilities. In the case of Richard Tomlinson, the retrospective disclosure of an assassination plot does not carry with it obvious specific damage and we benefit from knowing what our services are capable of. It is therefore suggested that s1 of the act be amended to read: (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 makes a damaging disclosure
of any information, document or other article relating to security or intelligence …
(Bold indicates additions) Additionally, it is proposed that s1(4), where we find a definition of ‘damage’, be amended as follows:
(4)
For the purposes of subsection (1) and (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
8
Tom Hewitson Reform of The Official Secrets Act 1989 (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
This removes the line ‘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’. This should narrow an incredibly broad test and ensure that ‘damage’ is not trivially satisfied. It is acknowledged that the addition of a harm test to cover members of the security services may go against our natural instincts; the secret service is inherently secret (the clue is in the name). However the information being kept confidential can be of huge importance. To be proportionate to criminalise its disclosure there must be genuine harm flowing from it. A public interest defence It might be thought that the harm tests could be sufficient to ensure that public interest disclosures do not fall under the act. However, as it is framed, disclosures that have an overriding public interest may still be offences if they result in some form of harm. What’s more, this danger of criminal action hangs over all those in possession of such information, including the media. This could chill important areas of public debate. The inclusion of a public interest defence was discussed throughout the law’s passage through parliament, but was ultimately rejected. The government’s White Paper stated: It cannot be acceptable that a person can lawfully disclose … simply because he conceives that he has a general reason of a public character for doing so.19 19
Ibid, at [60] 9
Tom Hewitson Reform of The Official Secrets Act 1989 The incorrect assumption here is that the motive of the person accused of committing an offence would form the basis of a public interest defence. In reality, an objective test for public interest is perfectly possible. Such defences already exist in Germany and the Netherlands. However it is the Canadian laws that may provide the best template for our reform. Here, the public interest in revealing wrongdoing must outweigh the public interest in non‐disclosure. In assessing this, the judge must take heed of the following objective considerations: (a)
whether the extent of the disclosure is no more than is reasonably necessary to
disclose the alleged offence …
(b)
the seriousness of the alleged offence;
(c)
whether the person resorted to other reasonably accessible alternatives before
making the disclosure and, in doing so, whether the person complied with any
relevant guidelines, policies or laws that applied to the person;
(d)
whether the person had reasonable grounds to believe that the disclosure would be in
the public interest;
(e)
the public interest intended to be served by the disclosure;
(f)
the extent of the harm or risk of harm created by the disclosure; and
(g)
the existence of exigent circumstances justifying the disclosure20.
It is proposed that these form the basis of a public interest defence in UK law. This would give the media the ability to publish information the public has a right to know, without fear of criminal proceedings. For crown servants it is proposed that there is an additional requirement: that where practical a person exhausts all options to raise his concerns prior to disclosure. This mirrors both the approach of the judges in Shayler and a further element of the Canadian defence. 20
Security and Information Act (R.S.C., 1985, c. O‐5) s.15 10
Tom Hewitson Reform of The Official Secrets Act 1989 It should ensure that disclosure of damaging information is a last resort, but that it is possible should there be an overriding need for the public to know. Conclusion The role of secrecy in the modern world is today more relevant than ever. Leaks by Edward Snowden have given us an insight into the extent of state surveillance. Wikileaks’ activities have shone the light on military events that many have been appalled by. Analysis of any harm caused in these instances goes beyond this essay’s scope, but it is clear that secret information exists that would contribute greatly to public debate. The UK’s Official Secrecy laws may be rarely used. But as the events at The Guardian showed, they are a very real threat hanging over the free flow of information. The proposed reforms would provide strong laws when national security is genuinely at risk, but they would also serve the public’s right to know in areas of important public debate. As such, they would remove a dangerous chill on free speech and result in a more transparent society. (Word Count: 2,984 including footnotes) 11