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Published online by Cambridge University Press: 28 March 2014
RECENT DEBATES IN BRITAIN ABOUT SECRECY IN CENTRAL government have become immersed in the traditional tension between espionage and secrecy. Espionage concerns spies and others who intend to help an enemy and who deliberately harm the security of the nation. Secrecy means ‘the compulsory withholding of knowledge reinforced by the prospect of sanctions for disclosure’. Leakage of official information may involve persons having no intention of damaging the nation. However, harm to the country may ensue from information getting into the wrong hands, whether by espionage or leakage. Experience of this tension in practice was a major factor leading to the enactment of the Official Secrets Act 1911, with section 1 covering espionage and section 2 unauthorized disclosure of information, with the risk of prosecution for either offence. Journalists in particular are aggrieved that they may be subject to prosecution under the Act used to charge spies and traitors. Jonathan Aitken, one of the journalists prosecuted in 1970 under section 2 of the 1911 Act over extracts from a British diplomat's report leaked to the Sunday Telegraph about the Nigerian civil war, was acquitted and published his own version of the Nigerian case in his book Officially Secret (1971), which heavily criticized the Official Secrets Act.
1 Shils, Edward A., The Torment of Secrecy, London, Heinemann, 1956, p. 26. Google Scholar
2 Hansard H. of Commons debate on the Official Secrets Act, 15 June 1978, cc. 1299–1300.
3 See Home Office Departmental Committee on Section 2 of the Official Secrets Act 1911: Chairman Lord Franks, Vol. I, London, HMSO, Cmnd 5104 1972, and The Civil Service: Vol. I, Report of the Committee 1966–68: Chairman Lord Fulton, London, HMSO, Cmnd 3638 June 1968, pp. 91–2.
4 Hansard H. of Commons debate on the Franks Report, 29 June 1973, cc. 1885–1973.
5 Statement by the Secretary of State for the Home Department (Mr Merlyn Rees) Hansard, 22 November 1976, cc. 1878–88.
6 Home Office White Paper Reform of Section 2 of the Official Secrets Act 1911, London HMSO, Cmnd 7285, July 1978.
7 Sweden was the first country to enact national legislation on privacy and data protection in 1973, known as the Data Act. The United States followed in 1974 with its Privacy Act.
8 Home Office Report of the Committee on Privacy: Chairman (later Lord) K. G. Younger, London, HMSO, Cmnd 5012, July 1972.
9 Protection of Official Information Bill H. C., London, HMSO, 25 October 1979, Ref. 73.
10 See Hansard H. of Lords debate on the Protection of Information Bill 5 November 1979 and Michael, James, ‘Comments: Access to Official Information’, British Journal of Law and Society, Vol. 7, No. 1, Summer 1980 CrossRefGoogle Scholar.
11 See Mathews, A., The Darker Reaches of Government, Berkeley, University of California Press, 1978 Google Scholar, and the Franks Report Appendix V.
12 Privacy markings such as ‘Commercial‐in‐Confidence’ and ‘Staff‐in‐Confidence’ relate to information which does not require a security classification but nevertheless has been entrusted to the government in confidence or concerns the private affairs of an organization or individual. See Franks Report, pp. 27–30.
13 The term ‘campaign’ is used broadly here and is not limited to the ‘Freedom of Information Campaign’ group which has published literature.
14 See Outer Circle Policy Unit, An Official Information Act (1977); J. Cornford, ‘The Right to Know Secrets’, The Listener, 31 August 1978; ‘Justice’ Report entitled ‘Freedom of Information’ (1978) and ‘Motion for Second Reading of the Hooley Bill’ H. of Commons Hansard, 6 February 1981, cc. 514–73.
15 Documentary advice includes minutes of meetings, internal memoranda, working papers and correspondence insofar as they contain opinions and comments about executive and policy decisions.
16 However, the ‘Justice’ code recommended direct access by the public to the PCA rather than through a member of the H. of Commons as at present.
17 See Hansard, 20 June. c. 1316.
18 Outer Circle Policy Unit An Official Information Act, op. cit., p. 17. Two excellent articles by J. Jacob on recent developments in the law on Crown privilege, particularly since Conway v. Rimmer 1968, are ‘Some Reflections on Governmental Secrecy’, Public Law, Spring 1974, and ‘Discovery and Public Interest’, op. cit.
19 See Hartley, T. C.and Griffith, J. A. G., Government and Law, London, Weidenfeld & Nicolson, 1975, pp. 174–6Google Scholar.
20 See Croham, Lord, ‘Is Nothing Secret’, The Listener, 7 09 1978 .Google Scholar
21 See Franks Report, p. 55.
22 See Scarman, Lord, ‘Public Administration and the Courts’, Public Administration, Spring 1979, pp. 1–5 CrossRefGoogle Scholar.
23 See LordFranks, ‘Open Government’; a paper presented to the Civil Service College, November 1978 (CSC Working Paper No. 6).
24 E. Shils, The Torment of Secrecy, op. cit.
25 See Lord Scarman, op. cit., p. 4 and A. Mathews, op. cit., ch. IX.
26 M. J. Singer, ch. 12 in Administrative Secrecy in Developed Countries ed. by D. Rowat, NY, Columbia University Press 1979, p. 343.
27 E. Shils, op. cit., pp. 98–104.
28 See Drewry, G., ‘Openness and Secrecy in British Government’, Indian Journal of Public Administration, Vol. XXV, Oct.-Dec. 1979, p. 166.Google Scholar
29 See E.Shils, op. cit., pp. 36–44 and Gabis, S. T. Political Secrecy and Cultural Conflict’, Administration and Society, Vol. 10 08 1978, pp. 139–75.CrossRefGoogle Scholar
30 In 1979, the Civil Service Department provided a useful comparative study of practices of open government overseas, including the United States, entitled Disclosure of Official Information, London, HMSO, 1979.
31 See, for example, Green Paper Open Government, op. cit.
32 P. Hennessy and C. Bennett, The Times, 18 March 1980.
33 See Hansard, 16 June 1981, c. 305.