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| Long title | An Act to replace section 2 of the Official Secrets Act 1911 by provisions protecting more limited classes of official information. |
|---|---|
| Citation | 1989 c. 6 |
| Dates | |
| Royal assent | 11 May 1989 |
| Commencement | 1 March 1990[2] |
| Other legislation | |
| Amends | Official Secrets Act 1911 |
Status: Amended | |
| Text of statute as originally enacted | |
| Revised text of statute as amended | |
TheOfficial Secrets Act 1989 (c. 6) is anAct of theParliament of the United Kingdom that repeals and replaces section 2 of theOfficial Secrets Act 1911, thereby removing thepublic interest defence created by that section.
Lord Bingham of Cornhill said that the white paper "Reform of Section 2 of the Official Secrets Act 1911" (Cm. 408) (June 1988) was the immediate precursor of this Act and that its recommendations bear directly on the interpretation of this Act.[3]
The offences under sections 1(3), 2(1), 3(1) and 4(1) can be committed only by persons who are or have been, and the offence under section 8(1) can be committed only by persons who are, Crown servants or government contractors.
The offences under the Act, that can be committed only by persons who, as the case may be, are or have been Crown servants, government contractors, or members of the security and intelligence services, can be committed only where the information, document or other article in question is or has been in the possession of the person in question by virtue of their position as such.[4]
The offences under sections 5(2), 5(6), 6(2), 8(4), 8(5) and 8(6) can be committed by any person.
Sections 1(3), 2(1), 3(1), 5(3)(a) and 6(2) provide that the disclosures to which they apply are not an offence unless they are "damaging". Section 4(2) is similar.
Offences under any provision of the Act, other than sections 8(1) or 8(4) or 8(5), committed by any person in theUnited Kingdom, theIsle of Man, theChannel Islands, or in any colony, or committed by British citizens or Crown servants in any place, are cognisable as offences under the law of the United Kingdom.[5]
InEngland and Wales, offences under any provision of this Act other than sections 8(1) or 8(4) or 8(5) were formerly classified asarrestable offences, initially by virtue of sections 24(1)(c) and (2)(bb)[6] of thePolice and Criminal Evidence Act 1984, and then by virtue of sections 24(1)(c) and (2)[7] of, and paragraph 18 of Schedule 1A[8] to, that Act.
The offences under sections 8(1), (4) and (5) are triable onlysummarily; the others are triableeither way.
Sections 7(5), 8(9), 12 and 13(1) confer powers on the Secretary of State to "prescribe" bodies and persons for certain purposes. These powers have been exercised by the following instruments:
TheIntelligence and Security Committee (ISC) annual report for 2005–2006 on UK intelligence services states:
Official Secrets Act113. 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 ofduress 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.[9]
Section 1(1) creates an offence of disclosing information, documents or other articles relating to security or intelligence.
It can be committed by any person who is or has been a member of the security andintelligence services, or who is or has been a person notified that he is subject to the provisions of section 1(1).
Cases under this section:
Section 2(1) creates an offence of disclosing information, documents or other articles relating to defence. This section applies only toCrown servants andgovernment contractors.
Section 3(1)(a) creates an offence of disclosing information, documents or other articles relating to international relations. This includes confidential information, documents or other article from a State other than the United Kingdom or an international organisation. This section applies only to crown servants and government contractors.
This section relates to disclosure of information which would assist a criminal or the commission of a crime. This section applies only to crown servants and government contractors.
This section relates to further disclosure of information, documents or other articles protected from disclosure by the preceding 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.
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Section 6 creates an offence of making a "damaging disclosure" which "relates to security or intelligence, defence or international relations" where that information was provided in confidence "by or on behalf of the United Kingdom to another State or to an international organisation" where that person obtained it without that State or organization's authorization, and where no other offence under the earlier sections of this Act applies. Lawful authority and prior authorized disclosure are defences against this offence.
Sections 7(1) to (3) provide that a disclosure is made with lawful authority if, and only if, the conditions specified therein are satisfied.
Section 7(4) provides a defence.
Sections 7(5) and (6) define the expressions "official authorisation" and "official restriction".
This section makes it a crime for a crown servant or government contractor to retain information beyond their official need for it, and obliges them to properly protect secret information from accidental disclosure.
Section 9(2) provides that no prosecution for an offence, in respect of any such information, document or other article as is mentioned in section 4(2), may be instituted, in England and Wales, except by or with the consent of theDirector of Public Prosecutions, or in Northern Ireland, except by or with the consent of theDirector of Public Prosecutions for Northern Ireland.
Section 9(1) provides that no prosecution for any other offence under this Act may be instituted, in England and Wales, except by or with the consent of theAttorney General, or in Northern Ireland, except by or with the consent of theAdvocate General for Northern Ireland.
The words "Advocate General for Northern Ireland", in section 9(1), were substituted for the words "Attorney General for Northern Ireland" by sections 28 and 87 of, andparagraph 32 of Schedule 7 to, theJustice (Northern Ireland) Act 2002, on 12 April 2010.[12]
This section provides the penalties and mode of trial for offences under the Act.
Section 10(2) provides that a person guilty of an offence under section 8(1) or 8(4) or 8(5) is liable on summary conviction to imprisonment for a term not exceeding three months, or to a fine not exceeding level 5 on thestandard scale, or to both.
Section 10(1) provides that a person guilty of any other offence under the Act is liable, on conviction on indictment to imprisonment for a term not exceeding two years, or to a fine, or to both, or, on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding thestatutory maximum, or to both.
The words "51 weeks" are prospectively substituted for the words "three months" in section 10(2) byparagraph 39 of Schedule 26 to theCriminal Justice Act 2003.
Section 11(1) inserted section 24(2)(bb) into thePolice and Criminal Evidence Act 1984. It also omitted the reference to theOfficial Secrets Act 1911 in section 24(2)(b) of that Act.
It was repealed[13] on 1 October 2002.[14]
The repeal was consequential on the replacement of section 24(2) of the Police and Criminal Evidence Act 1984 with a new Schedule 1A to that Act.
Section 11(3) extends section 9(1) of theOfficial Secrets Act 1911 (which relates tosearch warrants).
Section 12(1) defines the expression "Crown servant" for the purposes of this Act.
Sections 12(2) and (3) define the expression "government contractor" for the purposes of this Act.
This section defines the words and expressions "disclose", "disclosure", "international organisation", "prescribed" and "State" for the purposes of the Act.
This section provides the procedure for making orders under the Act.
Section 15(1)(a) provides that any act done by aBritish citizen or Crown servant, which would be an offence under any provision of the Act other than sections 8(1) or 8(4) or 8(5) if done by him in the United Kingdom, is an offence under that provision.
This is intended to coverespionage (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.
Section 15(1)(b) provides that any act done by any person in any of theChannel Islands, or in theIsle of Man, or in any colony, which would be an offence under any provision of the Act other than sections 8(1) or 8(4) or 8(5) if done by him in the United Kingdom, is an offence under that provision.
Section 15(3) confers a power on The King to extend, byOrder in Council, any provision of the Act, subject to any exceptions, adaptations or modifications specified in the Order, to any of the Channel Islands, or to the Isle of Man, or to any colony.
This power was exercised by theOfficial Secrets Act 1989 (Hong Kong) Order 1992 (S.I. 1992/1301). This part is repealed by the Official Secrets Ordinance in 1997.[15]
Section 16(1) authorises the citation of this Act by ashort title.
Section 16(2) authorises the citation of this Act and theOfficial Secrets Acts 1911 to 1939 by a collective title.
Section 16(5) provides that the repeals of parts of theOfficial Secrets Act 1911 and theOfficial Secrets Act 1920 in Schedule 2 do not extend to any of the territories mentioned in section 15(3), subject to any Order made under section 15(3). The said territories mentioned in section 15(3) are theChannel Islands, theIsle of Man and all colonies. Such an Order was made in relation toHong Kong (see above).
This section also provides for consequential amendments, repeals, a revocation, and commencement.
