Under the laws of England and Wales, official secrets are protected by s 1 of the Official Secrets Act 1911 (OSA 1911) and the Official Secrets Act 1989 (OSA 1989).
OSA 1989 replaced s 2 of OSA 1911 which made it an offence to disclose any official information without lawful authority. The provisions 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 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.
Protected categories of information
Under OSA 1989 it is an offence for Crown servants or government contractors to disclose information without lawful authority in relation to:
- security and intelligence;
- international relations;
- crime and special investigation powers;
- information resulting from unauthorised disclosures or entrusted in confidence;
- information entrusted in confidence to other states or international organisations.
Security and intelligence
It is a criminal offence for:
Present and former members of the security and intelligence services and people who have been notified in writing that they are subject to s 1(1) of OSA 1989 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 the disclosure was damaging, whereas in the case of Crown servants and government contractors there is need to prove that the disclosure was damaging.
It becomes 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 UK abroad.
International relations are defined as relations between states and / or international organisations.
Official information relating to international relations is defined as any information, document, or other article relating to international relations or which is both confidential and was obtained from a foreign state or international organisation. It will be a criminal offence if the disclosure without lawful authority is damaging in the following ways:
- endangers the interests of the UK abroad;
- seriously obstructs the promotion or protection by the UK of those interests;
- endangers the safety of British citizens abroad.
Crime and special investigation powers
A Crown servant or government contractor is guilty of an offence if without lawful authority s/he discloses any information, document or other article which results in:
- the commission of an offence;
- the facilitation of an escape from legal custody or the prejudice of the safe keeping of people in legal custody;
- impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders.
Information resulting from unauthorised disclosures or entrusted in confidence
It is an offence to disclose information without legal authority which is:
- disclosed (whether to him or another) by a Crown servant or government contractor without lawful authority; or
- entrusted to him by a Crown servant or government contractor on terms requiring it to be held in confidence or in circumstances in which the Crown servant or government contractor could reasonably expect that it would be so held; or
- disclosed (whether to him or another) without lawful authority by a person to whom it was entrusted.
Information entrusted in confidence to other states or international organisations
This section applies where any information, document or other article which:
- relates to security or intelligence, defence or international relations; and
- has been communicated in confidence by or on behalf of the UK to another state or to an international organisation,
has come into a person’s possession as a result of having been disclosed (whether to him or another) without the authority of that State or organisation or, in the case of an organisation, of a member of it.
What is lawful authority?
Crown servants may only disclose information in accordance with their official duty. Government contractors may disclose information in accordance with an official authorisation or for the purposes of their functions as government contractors and without contravening and official restriction. If either of these bodies discloses information in any other circumstances, it will be considered unlawful.
How does this legislation affect the general public?
If a member of the general public or 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 his/ 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 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.
OSA 1911, s 1
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 OSA 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;
- retain a document contrary to official duty;
- 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.