Official Secrets Act 1911 & 1989
Under the laws of England and Wales official secrets are protected by Section 1 of the Official Secrets Act 1911 and the Official Secrets Act 1989. The Official Secrets Act 1989 replaced Section 2 of the Official Secrets Act 1911 where it was an offence to disclose any official information without lawful authority. The provisions contained in the 1989 Act made it an offence to disclose information only in relation to six specified categories and only if the disclosure is damaging to the national interest.
What is meant by Official Information?
Official Information means any information, document or article which a Crown servant or government contractor has or has had in his or possession by virtue of his or her position as such.
Protected Categories of Information
Under Official Secrets Act 1989 it is an offence for Crown Servants or government contractors to disclosure of information without lawful authority in relation to the below six categories:
- Security and Intelligence
- International Relation
- Information useful to criminals
- Interception and phone tapping
- Information entrusted in confidence to other states or international organizations
Security and Intelligence
It is a criminal offence for to:
Present and former members of the security and intelligence services and people who have been notified in writing that they are subject to Section 1(1) of the Act as well as Crown Servants and government contractors to disclose without lawful authority any official information about security and intelligence. For members of the security and intelligence services there is no need to prove that the disclosure was damaging whereas in the case of crown servants and government contractors there is need to prove that the disclosure was damaging.
There will be a criminal offence if the disclosure of the information without lawful authority is damaging in the following ways:
- Damages the capability of the armed forces
- Leads to loss of life or injury to members of the armed forces
- Leads to serious damage to the equipment or installations of the armed forces
- Endangers the interest of the United Kingdom abroad
International relations are defined as relations between states and / or international organizations.
Official Information relating to international relations is defined as the following any information, document, or other article relating to international relations or which is both confidential and was obtained from a foreign state or international organization. There will be a criminal offence if the disclosure without lawful authority is damaging in the following ways:
- Endangers the interests of the United Kingdom abroad
- Seriously obstructs the promotion or protection by the United Kingdom of those interests
- Endangers the safety of British citizens abroad
Information Useful to Criminals
A criminal offence will occur if the information is disclosed without legal authority and the following occurs:
- The commission of an offence
The facilitation of an escape from legal custody or prejudices the safe keeping of people in legal custody
The limiting of prevention or detecting of offences or the apprehension or prosecution of suspected offenders
Interception and Phone Tapping
Under this section it is an offence to disclose without legal authority information
Obtained through a telephone-tap or other form of interception which has been authorized by warrant under the Regulation of Investigatory Powers Act 2000
Obtained through actions which are authorized by a warrant issued under Section 3 of the Security Service Act 1989
- Information entrusted to other states or international organizations
It is a criminal offence to disclose any information without lawful authority of any information, document or other article that:
- Relates to security or intelligence, defence or international relations
Has been communicated in confidence by or on behalf of the United Kingdom to another state or to an international organization.
What is meant by Lawful Authority?
Crown servants may only disclose information when to do so is in accordance with their official duty. In the case of government contractors they may disclose information in accordance with an official authorization or for the purposes of their functions as government contractors and without contravening and official restriction. If either of these bodies disclose information in any other circumstances then it will be considered unlawful.
How does this Legislation affect the General Public?
If a member of the general public or more specifically an individual who is not a Crown Servant or a government contractor or does not fit within the specification in relation to security and intelligence has in her possession information relating to one of the six protected categories above and the information has been
- Disclosed without lawful authority or
Entrusted by a Crown servant or government contractor who was required to hold it in confidence
It will be an offence for that individual to disclose the information without lawful authority. This is particularly important when dealing with members of the press as often they may come into contact with official secrets and so they need to be restricted from disclosing them in the media.
The maximum prison sentence for unauthorised disclosure will be two years imprisonment and / or an unlimited fine.
Section 1 Official Secrets Act 1911
Section 1 of the Official Secrets Act 1911 is still in place and relates to the offence of espionage which is specifically concerned with the provision of official secrets to an enemy.
Safeguarding of Official Information
Under the Official Secrets Act 1989 it is also an offence for a Crown servant or a government contractor or a person who has been notified in relation to security and intelligence to:
- Fail to take reasonable care to prevent the disclosure
- To retain a document contrary to official duty
To fail to comply with an official direction for the return or disposal or a particular document or article – this also applies to members of the general public.