In this week’s post we will discuss The Telegraph’s description of Britain as a ‘word leader for reticence among democracies’.
Click here to listen to Radio 4’s Secret Britain series by Peter Hennessy, the leading Whitehall-watcher. He tells the story of the Official Secrets Act and explores the tension between Britain’s culture of state secrecy and more open government.
Section 2 of the Official Secrets Act 1911 says that it is an offence for any person for any purpose prejudicial to the safety or interests of the State to:
- Approach, inspect, pass over, be in the neighbourhood of or enter any prohibited place.
- Make any sketch, plan, model, or note which is calculated to be or might be or intended to be directly or indirectly useful to an enemy.
- Obtain, collect, record, or publish, or communicate to any other person any secret official code word, or pass word, or any sketch, plan, model, article or note, or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy.
The Official Secrets Act 1911 replaced the 1889 one. However, this section of the Act has been highly discussed as is seem to protect ‘everything’ from being revealed. It seem like this section is trying to make individuals hesitant from revealing any kind of secret that may risk the safety of the state by putting a high punishment level.
However, before making a clear statement of the exceptional section we must look at the case of Clive Ponting (R v Ponting ). Clive Ponting, senior official in the Ministry of Defence, was arrested and put on trial under section 2 of the Official Secrets Act 1911 for leaking two official documents concerning the sinking of the Belgrano during the Falklands War. Clive Ponting was a senior civil servant tasked with preparing a top secret report about the incident. Clive Pointing argued that the leaked documents were in the public interest to know the truth about the scenario of the sinking ship. The jury agreed with him and acquitted him in spite of the law, something they have a right to do. He believed that the government had been concerned only with saving itself from political embarrassment. Ponting was held innocent by the jury as he revealed the truth and thus had acted in the national interest. Pointing has later pointed out that he wanted to know more about the incident. The court held that his duty to the state meant duty to the Crown in Parliament, not to a government concerned only with covering up its own lies.
The aquitance of Pointing was completely against the 1911 Act. Lord Franks therefore in 1978 recommended a reform in his report ‘Departmental Committee on section 2 of the Official Secrets Act 1911’ (1978). Lord Hurd confirmed the Frank report by saying: “The weight of the argument was that if you really wanted an effective Act, it had to be less comprehensive. By narrowing the space in which you were working to defend, you made it more likely that you would succeed in defending it”. Accordingly was The Official Secrets Act 1911 replaced by Official Secrets Act 1989 which indeed changed s.2 by being more limited and accurate. It simply prohibits disclosure of information regarding the following six categories;
- Security and intelligence
- International relations
- Assisting criminals
- Information resulting from unauthorized disclosures or entrusted in confidence
- Information entrusted in confidence to other states or international organisations
The conclusion can be drawn that this new Act makes the government more transparent and open to so called “protected disclosures” (those assessed to be in the public interest). This was easily illustrated when the Freedom of Information Act 2000 came into force and allowed the public to get access to documents relating the works of government and other public bodies. However, there will always be situation where national security will be questioned and challenged.
If you want to know more about the incident of Clive Pointing then you must watch this clip (below) where it is among other things said by the Director of Public Prosecutions, Sir Thomas Hetherington, that “I must live with section 2. It is the job of parliament to decide what should be in the statue book. So if something like section 2 is in the statue book, then it is my job to use it”. Lord Denning is also shown in the clip and says among other things that “it is an Act that must be replaced”;
“We cannot solve our problems with the same thinking we used when we created them.” ― Albert Einstein