So experience proves. The overwhelming majority of people in the public service take that view and are happy to abide loyally and willingly by the rule. I should like to say a few words about the arrangements within those services. I think that many speakers have underestimated the importance of that issue, but I shall not anticipate an important point which I understand that my noble and gallant friend Lord Carver will take up. And they were joined in that by no less a person than Sir Robert Vansittart, at one time Head of the Foreign Office. The noble Lord said that on this occasion he thought it would be better to be Franks than Ferrers. However, almost anything about their work might be valuable to a terrorist organisation. The noble Lord, Lord Knights, asked what the counsellor will do with the information that he is given. That cannot be left to governments alone. Of course journalists are up in arms about this - and so they should. That is a classic example of moving on to the contents of the information. That leaves their service, constitutionally speaking, at the will and pleasure of the Crown. These headlines concern, the reform to the 1989 Official Secrets Act. Talking about Official Secrets Act reform, he said that government wants to, "make sure that we don't do anything to interrupt the operation of good journalism." We urge the home office to make good on his commitment and abandon the elements of this reform which would damage independent journalism. I submit that it is wholly unacceptable that information in any of those categories should be protected by the criminal law merely because of its This defence does not mean, for example, that if you steal with the motive of giving to the poor, or you refuse to pay taxes because you believe the money should not be spent on nuclear arms you are not guilty. The establishment of a staff counsellor will provide Ministers, Parliament and the public with the assurance that the legitimate anxieties about the work of members of the security and intelligence services will not be overlooked or overridden. Tales that embarrass the UK authorities may land journalists in jail below proposals being thought-about. of the freedom of public information". As the government claim, this means that current legislation is out of date and failing to capture the threat that the UK faces today. In my experience which, as I say, is a long one, 'politically enmbarrassing' is always a much higher security classification than 'top secret"'. All this helped me to form and fortify my opinion about the Hitler Movement. Another class of information, which, if disclosed, would again apparently constitute an absolute offence is unauthorised disclosure of information by members or former members of the security or intelligence services or those who work closely in support of or who are in frequent contact with the services. Lobbied persistently by Vernon Kell of the new Secret Service Bureau (later divided into MI5 and MI6), the UK parliament passed a new, catch-all Official Secrets Act in 1911. we do not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures, in the same way that there was in 1989.” Many in the media have extrapolated this to mean that, in the government’s eyes, journalism is no different from spying. They will make their own responses in due time. The element of public accountability has become absolutely vital at a time when, obviously, things have gone badly wrong. That does not mean that I agree with everything else or that I disagree with everything else. The D-Notice Committee in my day was an effective body. The reforms have also highlighted a lack of legal literacy and transparency. I admired very much the way in which he abided by the conventions of the House on controversy without draining all interest from his speech. Unauthorised disclosures and other press expositions to the public have constituted some of the most controversial and revealing discoveries. The Official Secrets Act (OSA) 1989 - used to protect government data from unauthorised disclosures by criminalising those that disclosure such information without authority - has been a contentious law for many civil society groups, including Protect, who have long been calling for its reform. It would appear under that prohibition that one would he unable to reveal anything about negotiations on air routes or information on consumer protection or safety. We could not just repeal it and put nothing in its place unless it was possible to argue that there was no official information whatever so sensitive that the national interest required it to be protected by the criminal law. I believe that this is right. I would rather be called farcical than that! I was also the chairman of a small group of former Cabinet Ministers appointed by Prime Minister Callaghan to investigate the use and risks of Cabinet documents on their way round from hand to hand. If we look at the Wright case, we realise at once that Mr. Wright wrote his account outside the United Kingdom. That brings into question once again the position of the Prime Minister. He said that he had made a controversial maiden speech. They would leave too much information subject to the criminal law and do nothing to improve public access to information". I should like to join with other noble Lords in congratulating the noble Lord, Lord Armstrong, on his maiden speech; on succeeding Dame Edna Everidge on "Desert Island Discs"; and on the controversy he has aroused as to the true attribution of the phrase "economy of truth". Would they have been revealed under the terms of a Bill drafted on the lines proposed in the White Paper? Official Secrets Act reform could see journalists treated like 'foreign spies' and jailed for 14 years - Helen Martin Journalism was known for centuries, in many countries as well as the UK, as . It would have been possible to leave the debate for the spill-over, but in order to try to accommodate the concern of Parliament we thought it was right to have the debate now, despite the inconvenience of its being held on the last day before the recess and despite the fact that that day is Friday. They are perhaps the last people to be likely to know. As they stand, I do not believe that they would meet any of those criteria. The Taschereau/Kellock Commis sion set up in 1946 following the Gouzenko revelations recommended that the Act be "studied in the light of the information contained" in its report and I was reading Public Law in the spring of 1987 which examined this question in some detail for the first time. If so, in the light of the constitutional position of the police, who will take that decision? My Lords, I start by echoing something that the noble and learned Lord recently said. As Labour leader Sir Keir Starmer continues to occupy himself with persecuting the left wing of his own party, the government – spearheaded by delightful home secretary Priti Patel – is busy pushing forward with legislation that would radically extend the scope of the Official Secrets Act and make really independent journalism in Britain, already a rarity, a thing of the past. A lack of probing on the exact figure will feel like an omission to some, and is a further ambiguity in a heated news climate. Buckingham Palace rang him up to say that King George V took it hard that the draft of the King's speech contained no reference to AG. I am sure that the noble Lord will accept the fact that often it is in the public interest that the interests of the Government should be protected. 'You must not expose Sir Anthony Blunt. Found insideThe Official Secrets Acts 1911-1989 of the United Kingdom Rosamund Thomas. 3 Oral Evidence pp. 248–51 and 260–65. ... 40 See White Paper Reform of Section 2 of the Official Secrets Act 1911June 1988 p. 6. 41 Section 1 of the Official ... It has become routine for misleading accounts to Parliament of intelligence disasters to he corrected only when the press can no longer be restrained from exposing matters further. The Question was: In 2006, just after the enactment of Right to Information Act, a report by the Second Administrative Reform Commission was rejected in regard to repeal the Official Secrets Act,1923 as the Right to Information Act overrides it. The electorate cannot make judgments unless it is fully informed. I certainly support it myself. However, we now see that the former Secretary of State, who resigned on the grounds that he had not been protecting the integrity of public life and his duty as a Secretary of State, has been appointed as the British representative in Brussels. I hope that it will not be regarded as controversial if I remind the noble and learned Lord, Lord Elwyn-Jones, that my visit to Australia was not in defence of the Official Secrets Act, over which the Australian courts have no jurisdiction. It has always been no more than a matter of opinion. What the law eventually says, and how Parliament decrees that law, is a matter for the future. Many Members of both Houses have at some time had § These laws prohibit people from sharing certain types of information, which in turn makes it illegal for a whistleblower to disclose. I am glad that the principle is still to be maintained, and I hope that it will be more clearly applied in future with no room for misunderstanding. Perhaps your Lordships will not be surprised to hear me say that I welcome the evidence in the White Paper of the Government's special determination to ensure the protection from unauthorised disclosure of information relating to security and intelligence. 549 The Law Commission became the first official body to make an observation regarding the OSA in 1971. He had reached a level in that department which entitled him to express responsible opinions upon policy, and to use a wide discretion in his contacts, official and unofficial … He saw as clearly as I did, but with more certain information, the awful peril which was closing in upon us. Proposed legislation could inhibit criticism of the Government for 'safety reason' But there are concerns that reporters could be hit with lengthy prison sentences I must confess that I agree with the noble Lord, Lord Armstrong, in thinking that a freedom of information Bill is not a natural part of an Official Secrets Bill. However much the Government are to be congratulated on departing from the idea of an absolute ministerial certificate—and the move is welcome—they detract from that wholly by a determination to return to the doctrine of dividing cases between what are described as "contents cases" Not only did the poorest workers suffer the most during the pandemic (both from lockdowns and from the disease itself), but they continue to bear the brunt of the severe economic recession that struck back in March 2020 and which has been presented by our rulers as the inevitable economic fallout of the pandemic. If Section 1 were wider, it would be wide enough to cover the requirement of criminality with regard to these matters. I do not believe that that can reasonably be argued, so we have to think in terms of reform. The opportunity is now there to do this with these changes to the Official Secrets Act and it should not be lost. NMA: Time For Government to Think Again On Official Secrets Act Reforms Proposals to reform the Official Secrets Act which would criminalise swathes of public interest journalism are a "spectre hanging over the industry" which must be abandoned, News Media Association legal, policy and regulatory affairs director Sayra Tekin has said. A staff counsellor was appointed; he has been in the job for some months. First, the suggestion of increased sentencing. My Lords, I was raising in particular the question of Ministers who have been responsible for the security or intelligence services. I propose to take him at his word and test out the proposals of the White Paper on those grounds with particular reference to paragraph 47 and related paragraphs. I have come to the conclusion that it is a question of ministerial certificate or juries, and having thought more carefully about paragraphs 36 to 53 of the White Paper, I believe that the way proposed to deal with the test of harm is, on balance, manageable and acceptable. At present, our rulers clearly feel they can get away with absolutely any outrageous legislative measure – although enforcing those measures will be another question. Lords will not agree, but I hope that the general principle will be supported. There should surely be a general consensus on the kind of information that should be protected. The White Paper is taking a backward step. They believe that the establishment will cover up. I do not believe it is right to say that everything unauthorised said by them is by definition harmful. I do not think that one needs more than two Privy Counsellors, one from each of the main parties, together with, possibly, a former head of the Civil Service and Secretary of the Cabinet, who no doubt in their retirement would be happy to have a job which only very occasionally would engage their attention. I look forward to the introduction of a Bill on these lines early next Session. Workers will not find that movement in a Labour party in terminal decline; rather, it is the Workers party and its supporters who must build a movement capable of assuming that great responsibility. Moreover, the proposed law seems to me to suffer from the same defect. All of us are to some extent in the grip of practices that we might like to change. He did himself far more harm, as far as I can judge, and I saw the way he was treated here after his book appeared. The Government will have already made that decision. any unauthorised disclosure is harmful, and the Government sees no purpose in setting a test of harm which is bound to he satisfied in every instance". Much fun has been made of that in the context of EC directives, cocoa marketing boards, on so on. I said on that occasion, as some of your Lordships may remember, that I had come to attack the Government with all the zeal that I could command, having regard to that report. She was convicted of a breach of the Official Secrets Act. namely, information relating to the process of interception that is obtained. The official document suggests that the two-year figure should be higher, but fails to name a number. The consensual verdict seems to have been, "Better than we expected from this benighted government, yet not nearly good enough". 546 The noble and gallant Lord, Lord Carver, touched on this point, as did the noble Lord, Lord Blake. After all, what was the ombudsman but the appointment of an independent scrutineer who could deal with complaints against the administration which would stop the cover-up and enable a citizen, subject only to the consent of his Member of Parliament, to have the matter fully investigated. The authorities were quite right, after that interval of time, to release what had rightly been treated in its day as a very top secret affair. Under the system of a staff counsellor something can be done. I agree with those who say that the obligation of confidentiality—the duty not to disclose without authority information derived from the performance of official duties—has to be absolute and lifelong for members of the security and intelligence services. I do not believe that its Richter rating would be quite as high as that in Whitehall. It is not necessary or right for criminal sanctions to apply to Cabinet documents as a class or to advice to Ministers as a class". Part-I OFFICIAL SECRETS Chapter 2 Official Secrets Act and Other Laws 4 2.1 Background 4 2.2 The Official Secrets Act 5 2.3 Governmental Privilege in Evidence 12 2.4 The Oath of Secrecy 17 2.5 Exempted Organisations 18 Chapter 3 Rules and Procedures 20 3.1 The Central Civil Services (Conduct) Rules 20 3.2 The Manual of Office Procedure 21 I rather doubt whether, for instance, the Iranian Government give or this Government receive much in confidence from one another. The White Paper that we are considering today is not about accountability of the security and intelligence services, nor is it about public access to official information and openness of government. However, they are totally different subjects. But I mention also the robust reaction othe London jury to that prosecution. government designation. That would seem to me to make a good deal of journalism a nonsense. I have a great philosophy of life, which is that one can never do the right thing. I cite a parallel situation. I deal with one category of public servants; namely, ex-Ministers. Indeed, your Lordships will no doubt have read or will be reading the conclusion of that paragraph: I understand perfectly the Home Secretary's approach of restricting this White Paper to official secrets. You can read more about the Official Secrets Act at our article about it. The White Paper therefore proposes a separate specific test or tests for each category. The matter had been before the courts. I acknowledged in my speech that to leave the issue of harm to the public interest to be decided by the jury carries risks. In that way, he would be treated in a similar manner to recruits who enter into the intelligence and security services. The noble Lord, Lord Mishcon, asked whether, if these proposals were to go foward, this would be an extraditable offence. (p18), The Times lists examples other of journalism that this legislation would have scuppered, including the MPs’ expenses scandal, the exposure of substandard equipment being supplied to frontline soldiers, and the bullying scandal in the royal household. The business of the security and intelligence services has been a matter of considerable concern. I shall also be brief. 547 He always came to our help and tried to persuade the defence people that it was essential to publish if publication was not harmful. I am in a somewhat ambiguous position. It should be comparatively rare to find a justification for absolute offences. I hope that the noble Lord, Lord Armstrong, will write his memoirs and that he will not be unduly inhibited by past times. The Official Secrets Act 1989 (c. 6) is an Act of the Parliament of the United Kingdom that repeals and replaces section 2 of the Official Secrets Act 1911, thereby removing the public interest defence created by that section.. Lord Bingham said that the white paper "Reform of Section 2 of the Official Secrets Act 1911" (Cm. The Telgraph welcomed the measure, which it said "seems genuinely reforming" and though "not open government, American-style, is a step towards common sense". I believe this matter of proving negatives is important because it concerns a great deal of what we are talking about this afternoon. That was one occasion when the Prime Minister was saying that this could be done. This legislation is being put in place just as working-class anger on a cornucopia of issues is ramping up, potentially to fever pitch, and as a real political voice for that anger is emerging. I was a member of the committee on standards of conduct in public life. It is not a question of motive at all. Today gives us a third opportunity to debate the White Paper itself. ), the Committee shall be considered an advisory committee (as defined in section 3 of such Act, except as otherwise provided in the section or as jointly deemed warranted by the Secretary and the Director under section 4(b)(3) of such Act. The noble Lord, Lord Mishcon, queried the business of the lifelong obligation of secrecy. That raises the question of the present staff counsellor system. The Home Office proposes to reform the Official Secrets Act 1989 (OSA) to make it easier to convict those who disclose information without authority and substantially increase prison sentences for convicted whistleblowers or journalists. We agree that it needs to be replaced and not merely repealed. We no longer take that view. The Government does not therefore consider that a specific test of harm can he formulated or, indeed, is necessary or appropriate for this category of information"— That is a measure of the difficulites faced by successive governments over at least the past 20 years in finding a balance between on the one hand, the conflicting requirements of openness in their affairs which is a prerequisitie of a democratic government and, on the other hand, the need to keep secret matters affecting the safety or tactical advantage of the state, as the noble Lord, Lord Franks, put it in his 1972 report. My Lords, I came here this afternoon intending to make one point only, but having heard the speech of the noble Lord, Lord Hatch of Lusby, I fear that it has to be two. It has enough bite in it to protect secrets which justify protection and these are clearly and I believe logically defined. My Lords, simply on the point of curiosity, was the noble Lord checked in an authorised manner, an unauthorised fashion, or both? The volume considers the growing power of the executive branch and its consequences for First Amendment rights, the protection and prosecution of whistleblowers, and the rise of vast classification and censorship regimes within the national ... Should there not be room for a defence that a civil servant's disclosure was in the public interest in that he had reasonable cause to believe that the information in question indicated the existence of crime, fraud or other misconduct which ought to be exposed? Will members of the security services and others they are working with be under this lifelong obligation of confidentiality? Prospective recruits must be clearly briefed beforehand and enter into the necessary obligations before they start work. My Lords, I have no intention of giving an immediate answer, and for one good reason which the noble Lord will understand perfectly well. I hope that we will have an answer to that. It is a concept described by Mr. Justice Scott as unachievable anywhere this side of the Iron Curtain. Of course, it is some deprivation of freedom compared with other people, but individuals join the security and intelligence services of their own volition and know the sort of life that they will have to lead and the fact that, unlike most people, they cannot talk or write about their work. 554 concerned with the disclosure of certain official information without authority. It seems to me that in the light of this White Paper it is unrealistic to expect the Government to return to the ministerial certificate. something to do with the secret services. The paragraphs on interception, on information from foreign governments and on the security services are much too absolute. I am sure that other speakers will expand on that. Often we met at his little house in North Street, and he and Mrs. Wigram came to stay with us at Chartwell. The presumption of damage to the public interest contained in more than one of these proposals is unacceptable. Under paragraphs 28 and 51 the disclosure of any information obtained in confidence from any other government or any international organisation, will be deemed harmful. If the proposals are carried into law, the law will be more effective in a few areas, but more and larger areas—more than were envisaged by the Franks Committee to which we all pay tribute for starting us on the road to the reform of Section 2—would no longer be protected by the criminal law. Although that classification will not be binding on a court in its judgment about whether a disclosure is likely to cause serious injury to the interests of the nation, or endanger the safety of a United Kingdom citizen, it and the date on which it was applied are bound to be taken into account, particularly as evidence on whether or not the discloser and the recipient had good reason to believe that it fell into that category. He must be someone with wide experience—at present it is Sir Philip Woodfield—who is independent of the services but approachable informally by any member of the services who is worried about the ethics or the propriety of any part of the work of the organisation. Although the White Paper refuses to consider a public interest defence, it goes on to visualise, There must surely be room too for basic civil rights to obtain for all servants of the Crown. Some relate to what is in our proposals; some to what is not. In particular I think that we rely greatly upon the wise counsel of the noble Lord, Lord Armstrong of Ilminster. I should not have been at all surprised if he might have agreed with me. This unlikely scenario is most usually suggested in the context of the security service. Found inside – Page 412The Official Secrets Act 1989 is, then, exclusively a reform of the notorious- section 2 of the Official Secrets Act ... While the reduction in the presently over-broad scope of the criminal law of official secrecy is to be welcomed, ... That is, whether or not they were guilty of a criminal offence would depend on what the law states. Boris Johnson has stated with characteristic aplomb that he “doesn’t want to have a world in which people are prosecuted for … doing what they think is their public duty.” This, also characteristically, is in blatant conflict with the truth; as demonstrated by the continued incarceration of principled whistleblowers like Assange. I think that all of us We are all agreed that Section 2 should be replaced, but the Government should radically reconsider their proposals contained in the However, on another occasion, when replying to Mr. Nicholas Soames, MP, she said that the proposal for public accountability by a committee of Privy Counsellors had been considered before and rejected, adding: 523 The question of what information it should be a criminal offence to disclose is separate from the question of public right of access to information which it is not an offence to disclose. But when we come to legislation obviously some refinements will have to be made in order to put the description into more legal language. This legislation, however, is by no means set in stone, and will consider responses to the consultation before making a final document. They tend to slant information. The noble Earl said: My Lords, the subject of official secrets has come before your Lordships twice in recent months. My Lords, I am just coming to help the noble Earl. The same thing was said in 1979. They thought that a conviction on matters relating to defence would be harder to obtain since the prosecution would have to prove to the satisfaction of the jury that actual harm had been caused by a particular disclosure. NMA: Official Secrets Act Reform Could Criminalise Public Interest Journalism. 529 That principle has run throughout every debate we have had over the years as to what is the legal status of a civil servant under contracts of employment and statutory provisions for compensation for wrongful dismissal. This criminalisation would cover everything from the leaking of Matt Hancock’s furtive fumble with an aide, which precipitated his resignation from the Cabinet, to the recent revelations of Dominic Cummings or the more noble and damning indictments of imperialism revealed in many of the WikiLeaks exposures of Julian Assange. A lack of probing on the exact figure will feel like an omission to some, and is a further ambiguity in a heated news climate. Recommended. It is right that we should consider carefully the nature of that reform.
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