Extensive notes and structure for Government and Media assignment based on the Official Secrets Act and whether they should introduce a public interest defence. Argues that it is not fair for journalists who have restrictions on their freedom of speech.
FOR EXAM – LOOK AT THE OFFICIAL SECRETS ACT AND THE LAW COMMISSION PROPOSED
REFORM
Introduction
file:///Users/lydiacrabb/Desktop/The%20Official%20Secrets%20Act%20Gov%20report.pdf
It is not necessary for a person to have to sign the OSA to be bound by it. A person can be
“notified” that they are bound by it. No specified duration for how long an individual is
bound by this act, even after their service has completed.
“damage tests” – require the government to prove that a disclosure is damaging.
Use this reference to see more about public interest. see page 39.
https://pure.solent.ac.uk/ws/portalfiles/portal/24357203/2001_5_1_2_3_.pdf
Public interest – confidentiality can be ‘trumped’ by a competing public interest
“public interest has two sides to it”- Norwich pharmaceutical co v commissioners of customs
and excise [1972] RPC 743 at 766 per Lord Denning.
'the private promise of confidentiality must yield to the general public interest ... truth will
out unless ... a more important public interest is served by protecting the information.’ – D v
NSPCC [1978] AC171 at 218 per Lord Diplock.
Explaining the current law
The OSA has been there to protect information which is withheld from the public in order to
limit fear and panic for the public. This becomes a challenging task when having to balance
this with the requests under Freedom of Information (Act) because sometimes it is viewed
that the public need to know for their own safety. The primary function of the OSA must not
be underestimated to appear inconvenient, because it is functioning in order to maintain a
strong level of national security. There have been few cases of breaching the OSA since its
first introduction in 1911 but whenever one has arose, those in breach feel confident in
their reasoning as to why the information should be leaked. This reasoning is solely based
on the need to alert the public by relying on as some areas of law recognise, the public
interest defence. The OSA continues to discourage inclusion of this defence in its legislation
despite the Law Commission’s encouragement recently. The government fears this will only
increase greater harm than is necessary to the national security, yet this remains a
controversial matter.
Official secrets report - Page 13 - During the Official Secrets Bill’s passage through
Parliament in 1889, objections were raised that the Bill did not contain any sort of public
interest defence.18 The Bill was subsequently amended, following concern that it may
penalise the disclosure of information about corruption and misconduct in government
departments.19 When passed, the 1889 Official Secrets Act therefore established a criminal
sanction for a breach of official trust but this was limited to breaches which could be shown
to be contrary to the public interest. This was added as section 2(1).
, The 1889 Act was seen by many in government as being full of weaknesses and difficult to
operate. 22 Unsuccessful attempts were made to amend and tighten the legislation in 1896
and 1908, before the Act was finally repealed by the Official Secrets Act 1911
Current defences, defence that the individual did not think the disclosure was damaging or
likely to be damaging.
Defence of necessity where the individual believes that the offence of disclosure involved
lesser harm than the crime it sought to prevent. This defence was used by Katharine Gun.
file:///Users/lydiacrabb/Downloads/Tightening%20secrecy%20law%20the%20Official
%20Secrets%20Act%201989.pdf
The purpose of OSA 1989 has been said to reduce the amount of information protected by
criminal sanctions to areas where disclosure would be harmful to the public interest. Yet it
deems more appropriate to conclude that the primary rationale behind this reform is to
tighten the criminal law secrecy, with the aim of making convictions more likely. This also
includes journalists fear of having to limit their freedom of expression, otherwise being
found in breach of the OSA.
The 1989 act has imposed a lifelong duty of confidentiality upon all members and former
members of the security service. This is also upon journalists and editors.
Section 5 of the OSA 1989 includes a liability against journalists who publish information
that was unlawfully disclosed and can face up to a two-year jail sentence. The addition of a
public interest defence embarks a softer approach to the law for journalists to publish
stories they believe are in the public interest and do not have the fear of breaching the law.
Along with journalists, many of the public agree to this addition to the legislation, with the
view that information should be shared with the nation as they feel they have a right to be
aware. A point to consider here is the laws attempt in avoiding disclosing information which
the public may find interesting, as opposed to disclosing information which is necessary to
fulfil public protection and other means of safety.
Members of the general public are also bound by a part of the Act, section 5 of the OSA
1989. It makes it an offence for a person to disclose information which has been specifically
covered by the act which was disclosed unlawfully to them but they continue to tell other
people. They can be guilty of an offence under this section.
Information must be from one of the six categories which are protected, it is also an offence
if the disclosure is damaging.
issues with the current law
The problems with the status quo The problems with the existing Official Secrets legislation
arise in two respects: first, it does not sufficiently protect national security because it is
outdated and therefore does not adequately respond to the modern and technological context
in which risks arise (this was the concern raised by the ISC in its Russia report); and second,
because it fails to protect the ability to make disclosures in the public interest and thus fails to
ensure a sufficient degree of accountability in government (this is the lacuna that would be
remedied by the introduction of a public interest defence).
We will we focusing on the latter for this paper.
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