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Official Secrets Act 1989
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Official Secrets Act warning sign,
Foulness.
The Official Secrets Act is any of several Acts of the Parliament of the United Kingdom for the protection of official information, mainly related to national security. The latest revision is Official Secrets Act 1989 (1989 chapter 6), which removed the public interest defence by repealing section 2 of Official Secrets Act 1911.
People working with sensitive information are commonly required to sign a statement to the effect that they agree to abide by the restrictions of the Official Secrets Act. This is popularly referred to as "signing the Official Secrets Act". Signing this has no effect on which actions are legal as the act is not a contract. As the act is law individuals are bound by it whether or not they have signed it, signing it is intended more as a reminder to the person that they are under such obligations. To this end, it is common to sign this statement both before and after a period of employment that involves access to secrets.
Terms of the 1911 Act
The act applies in England, Wales, Scotland, Northern Ireland, the Isle of Man, the Channel Islands, and in overseas crown territories and colonies. It also applies to British subjects anywhere else in the world.
- Section 1: spying. The section is very broadly drafted, and if spying is proved by the prosecution then the section specifically puts the burden of proof on the defendant to show that he/she acted with innocent motives. The maximum sentence is 14 years in prison. British spy George Blake was sentenced to a total of 42 years for offences under this section.
- Section 7: harbouring spies. Two years.
- Section 8: prosecutions under this act require the permission of the Attorney General.
- Section 9: search warrants. Very unusually, this section gives senior police officers (of the rank superintendent) the power to issue a search warrant in an emergency, if there is no time to obtain one from a judge.
Terms of the 1920 Act
- Section 1: wearing false official uniforms, making false statements, forging official documents, impersonating people, keeping documents or codes etc. without authorisation, and other offences. All punishable by two years in prison.
- Section 2: a specific rule of evidence in prosecutions under section 1 of the 1911 Act. Communicating with a foreign agent is admissible as evidence that the defendant intended to help an enemy.
- Section 3: misleading or obstructing a police officer or soldier on duty at a prohibited place. ("Prohibited place" is defined at length by section 3 of the 1911 Act.) Two years.
- Section 6: refusing to cooperate with a police investigation into a suspected offence under section 1 of the 1911 Act. Two years.
- Section 7: attempting, inciting, or aiding or abetting an offence under the 1911 or 1920 acts. This section also makes it an offence to prepare to commit an offence under either act. This is much wider than ordinary British attempt law.
- Section 8: sets the penalties for the offences under both acts.
Terms of the 1989 Act
The act applies in England, Wales, Scotland, Northern Ireland, the Isle of Man, the Channel Islands, and in overseas crown territories and colonies. Usually, the terms of the act apply to affected persons (who are generally employees of the British government) wherever they are in the world.
- Section 1: disclosure of security and intelligence information. It applies only to members of the security and intelligence services, and to others who work with security and intelligence information (and who have been informed that they are affected by section 1).
- Section 2: disclosure of defence information. This section applies only to crown servants and government contractors (defined in section 12).
- Section 3: disclosure of information concerning international relations. This section applies only to crown servants and government contractors.
- Section 4: disclosure of law enforcement information which would assist a criminal or the commission of a crime. This section applies only to crown servants and government contractors.
- Section 5: further disclosure or publication of information obtained in contravention of other sections of the act. It allows, for example, the prosecution of newspapers or journalists who publish secret information leaked to them by a crown servant in contravention of section 3. This section applies to everyone, regardless of whether they are a government employee, or whether they have signed the act.
- Section 6: secret information belonging to foreign governments or international organisations. This section is intended to protect secrets shared by foreign governments and those of international organisations such as the North Atlantic Treaty Organization and Interpol.
- Section 7: defines the circumstances under which a disclosure of secret information is officially published. It is not a crime to disclose information that has been officially published according to the mechanism described in this section.
- Section 8: makes it a crime for a crown servant or government contractor to retain information beyond their official need for it, and obligates them to properly protect secret information from accidential disclosure.
- Section 9: limits the circumstances under which a prosecution under the act may take place. Prosecutions under section 4 require the permission of the Director of Public Prosecutions, or his equivalent in Northern Ireland. Prosecutions under other sections require the permission of the Attorney General or his equivalent in Northern Ireland.
- Section 10: sets the penalties for contravening the act. Persons convicted under sections 4, 5, and 8 are subject to six months in prison and a fine; persons convicted under other sections are subject to two years imprisonment and a fine.
- Section 11: amends existing police legislation, making contraventions of this act arrestable offences and allowing for the issuance of search warrants.
- Section 12: defines who is a crown servant and government contractor. This includes civil servants, members of the government, members of the armed forces and their reserve equivalents (including the Territorial Army), police officers, and employees and contract employees of government departments and agencies defined by the Home Secretary.
- Section 15: makes it a crime for British citizens and crown servants to disclose information abroad which would be illegal for them to do so in the UK. This is intended to cover espionage (where someone travels to a foreign country and discloses secret information to a foreign power) and cases where someone travels to a foreign country and discloses secret information, perhaps to a newspaper. The terms of this section do not apply to disclosures covered by sections 4, 5, and 8.
Sections (12, 13, 14, and 16) are present in the act for technical reasons.
In order for a crime to be committed, the following conditions must apply:
- the disclosure must not be by means permitted in section 7;
- the person making the disclosure must know, or should know, that their disclosure is unauthorised;
- the disclosure must cause harm to the UK or its interests, or it could reasonably be believed that harm could occur; and
- the person making the disclosure must know, or should know, that such harm could occur.
The sections pertaining to crown servants, intelligence officers, and government contractors apply only to information obtained by that person in the course of their official duties; these sections do not apply if the information was obtained by other means (although section 5 would apply).
It is not a defence under the act that the disclosure is in the national or public interest.
Proposed revisions
The Intelligence and Security Committee (ISC) annual report for 2005–2006 on UK intelligence services states:
"Official Secrets Act 113. The Home Office has bid for a legislative slot in the next session to amend the Official Secrets Act 1989. (At the time of publication it was still awaiting confirmation of its place in the timetable.) The Home Office has informed the Committee that, in its view, the proposed Bill should remove the common law defence of ‘duress of circumstance’ in order to address unauthorised disclosure by members, or former members, of the intelligence and security Agencies. The Bill should also put an element of the associated ‘authorisation to disclose’ procedure onto a statutory footing and increase penalties. This proposal has yet to receive policy clearance across Whitehall."
The full report can be found here: http://www.cabinetoffice.gov.uk/publications/reports/intelligence/annualir0506.pdf
Other legislation
In addition to the Official Secrets Acts, the Naval Discipline Act 1957 makes it an offence punishable with life imprisonment to spy on Royal Navy ships or overseas bases.1 This was a capital offence until 1981.
Official Secrets Acts in other countries
The phrase official secrets act may also be used to refer to statutes of a similar nature in other countries such as India's Official Secrets Act 1923. Canada has similar legislation titled the Security of Information Act (which was created in the wake of September 11th 2001 to replace the vaguely worded Official Secrets Act2).
The United States also has a law similar to the Official Secrets Act (the Espionage Act of 1917), although much of it has been superseded by developments in First Amendment jurisprudence. See United States v. The Progressive, Inc., Brandenburg v. Ohio, New York Times Co. v. United States.
In the Republic of Ireland the [1], repealed previous British legislation of 1911 and 1920. The Official Secrets Act, as amended, applies to all civil servants and potentially anyone within the state. A suit may only be instigated at the approval of the Attorney General of Ireland, additionally proceedings may occur in camera but the verdict and any sentence must occur in public.
Malaysia has an Official Secrets Act (also referred to as the OSA) prohibiting the collection, possession or distribution of information marked as an official secret—an action which can be made by any public officer. The certification of a document as an official secret is not subject to judicial review, and a violation of the act is punishable with between one and seven years' imprisonment. The act has been controversial for its use to silence dissent and stifling anti-corruption activities.3
New Zealand had a 1951 Official Secrets Act. It was replaced by the Official Information Act in 1983.
Australia has Part VII of the Crimes Act 1914 (Commonwealth), entitled Official Secrets and Unlawful Soundings.
See also
Notes and references
- ^ Naval Discipline Act 1957 (c. 53), Part III Provisions relating to civilians and civil authorities, Section 93. Accessed 15 January 2008.
- ^ Don Butler, "Judge quashes law, warrants authorizing RCMP raid on Citizen reporter", The Province, October 19, 2006. Accessed 15 January 2008.
- ^ Pauline Puah, "OSA stays, says Nazri", Malaysia Today, September 19, 2006.
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