100 years ago, the Official Secrets Act, 1911 was enacted. It wasn’t the first secrets act: that dated from 1889. The 1911 act criminalized the sharing, disclosure or publication of government information by employees and former employees of the intelligence and security forces; the act also covered disclosure of information by journalists. At the beginning of the twentieth century, tensions were heightened in Europe as World War I approached. Parliament sought to broaden the scope of the Official Secrets Act.
The details of the new act were formulated in the summer of 1909 by the Committee of Imperial Defence. At the time, Britain was engaged in a naval arms race with Germany that manifested itself in the construction of battleships – the Dreadnoughts. The government of the day wanted a law that would keep the Kaiser’s spies out of the British dockyards. The first part of the act, which dealt with espionage, was directed, justifiably, to this end; but there was a second section to the act that raised concerns about conflicts of conscience and the power of the state to control the dissemination of information.
The new act included provisions that took account of the advances in technology – it criminalized not only the sketching of military installations but also the photographing of them. However, the second section of the act contained some sweeping provisions that remained controversial for nearly eight decades. The act of 1911 gave the government full discretion over what information it considered illegal to disclose. Also, it placed a life-long order of silence on civil servants and military personnel about their actions and any confidential information they gained during the period of their service. Perhaps the greatest controversy that surrounded the act was that it gave inadequate consideration to a test for harm; that is, did the information that might be disclosed really have a detrimental impact on national interests. The provisions of the act specified that it was not necessary to provide a motive or intent to cause harm to proceed with a prosecution. These both could be inferred from the conduct, character or associations of the defendant; the law, furthermore, did not permit a defendant to maintain that the disclosure of the information was in the public interest or that similar information was already in the public domain.
It was the Kaiser, Wilhelm II, who thoughtfully provided the excuse that the British government needed to introduce the new legislation: a wave of anti-German feeling washed over the nation when Germany dispatched a gunboat to the port of Agadir, in Morocco, in what was portrayed as Germany’s pursuit of its imperial ambitions in Africa.
As the century advanced, secrecy took deeper root in the psyche of government and its agents, bolstered as it was by World War II and the cold war between the West and the Soviet Union that followed. Secrecy became part of the code of those who served the government, whatever the complexion of the government of a particular time might have been.
The existence of the act and the prevailing attitude of secrecy that existed among civil servants proved to be hugely convenient to Whitehall. Information that is now routinely given to Parliament and the public was held back. The executive had the advantage of declaring what was and what was not in the public interest.
Criticism of the law increased in the 1960s and 1970s. Journalists claimed that the act allowed the government to prevent information that was merely embarrassing to it from appearing in the press and to prosecute journalists who used government employees as sources of information. In 1989, Parliament took another look at the Official Secrets Act, 1911 and replaced Section 2.
The main change to the act was the definition of the secrets and information covered by the act: this was tightened to include only information that was deemed vital to national security and intelligence interests. However, although civil servants and military personnel were freer to report fraud and abuses they had to do so to government review boards, and they were still prohibited from publicly disclosing confidential government information; whistleblowers and journalists still risked prosecution if they disclosed or published information the government considered damaging to the defence or security of the realm, the country’s interests abroad and information that might lead to a crime being committed.
Some high-profile prosecutions were attempted using the 1911 act. In 1985 a civil servant, Clive Ponting, was charged with breaking the secrets act after leaking documents about the sinking of the Argentine ship, the General Belgrano, during the Falklands war. While preparing answers to written parliamentary questions, he was concerned that Ministers had misled the public into thinking that the ship was threatening British lives, when, in fact, it was sailing away from the battle zone when it was attacked. Although the judge in the case advised the jurors to convict the defendant, they chose to ignore the judge’s advice, and Mr Ponting was acquitted. Another significant case involved the whistleblower Cathy Massiter. She escaped prosecution despite revealing that MI5 was illegally tapping the phones of politicians, public figures, human rights campaigners and pressure groups. (Such illegal activity might be regarded as even more serious than the revelations of phone hacking currently under investigation.)
Alongside the revised Official Secrets Act there is the Freedom of Information Act. The Freedom of Information Act entitles us to ask any public body for all the information it has on any subject. Unless there is a good reason not to, the organization must provide the information within twenty working days. Also, under the Data Protection Act, we can ask for all the personal information organizations hold on us.
Knowledge is power, especially - though not exclusively - in a democracy. If a democratic system of government is to thrive and function effectually (neatly encapsulated in Lincoln’s “…government of the people, by the people, for the people…”) the citizen must have as much information as is reasonably possible; criticism and scrutiny of a government cannot be effectively undertaken if citizens are ignorant of the facts and denied information.
As we are witnessing around the world now, and as history shows us, tyrants, dictators and despots try first to suppress the truth and the exchange of information and then to control the means of communication, thus enabling them to spread misinformation or, at best, a partial truth. Granted that it can be argued that it may be necessary to prevent certain information from being disclosed, there should be, nevertheless, a presumption that information should be freely and openly available to the public so that it can, as an informed citizenry, openly and freely discharge its responsibilities in a healthy democratic state.