The Law Commission’s proposed changes to the Official Secrets Act go further than anything dreamed up by the notorious Colonel Seely over a century ago
Not only was 18 August 1911 a Friday, it was also the height of the grouse season, and as a consequence only 117 of the UK’s 670 MPs were present at the House of Commons.
Almost all of them appear to have believed Colonel Jack Seely, the under-secretary of state for war, when he assured them that the official secrets billbefore them contained nothing more than minor procedural matters, and that “none of his majesty’s loyal subjects run the least risk whatsoever of having their liberties infringed”.
A motion that the bill be reported without amendments was passed by 107 votes to 10. It then received its first and second readings in minutes, with only one MP suggesting there should be more time for debate. Two other MPs attempted to speak but, as Seely wrote in his memoirs, “both were forcibly pulled down by their neighbours after they had uttered a few sentences”.
The Speaker asked Seely what day would be set for the third reading. “‘Now, sir,’ I replied. My heart beat fast. It was open to any one or all of the members of the House to say that no bill had ever passed … without a word of explanation from the minister.” Not one did.
Seely knew that his bill would not so much infringe liberties as incinerate them. The notorious section two of the 1911 act criminalised the disclosure, and receipt, of any piece of official information whatsoever, and those convicted could face up to two years in jail.
It was a measure that was both draconian and absurd: a civil servant who went home and told his wife how many packets of paperclips he had ordered for the office that day would be committing an offence. So would his wife, unless she put her fingers in her ears.
It is no exaggeration to say that section two utterly transformed the relationship between the British citizen and the state. Civil servants, journalists, MPs, government contractors: all could be prosecuted, and they were, in considerable numbers – sometimes over the most trivial of disclosures.
As the Liberal MP Clement Freud told the Commons in a debate on section two in 1979: “If one wants to find out how to look after one’s children in a nuclear emergency, one cannot, because it is an official secret; if one wants to know what noxious gases are being emitted from a factory chimney opposite one’s house, one cannot, because it is an official secret.”
On the other hand, Freud said, a man who applied for a job as a gardener at Hampton Court was expected to sign the Official Secrets Act in case he gave away information about watering begonias. “What is worse, if someone is good enough to tell one, then one is an accessory to the crime. Section two gives the attorney general more power than a bad man should have or a good man should need.”
It would be a further 10 years before section two was swept away by the 1989 Official Secrets Act, which the Tory home secretary of the day, Douglas Hurd, hailed as a “charter for liberty” and “an essay in openness which has no parallel in the history of our government since the war”.
It was nothing of the sort, of course, but it was a liberalising measure, one founded upon an acknowledgment of increasing resentment not only within the media and the civil service, but also among the general public: juries were showing a reluctance to convict people charged under section two.
But some clearly now want to turn the clock back to the days before 1989. And as before, it appears that they consider that this fresh assault on the right to know calls for a degree of slipperiness.
In 2015, following the Edward Snowden disclosures, the Cabinet Office asked the Law Commission to consider what sort of counter-transparency measures might be required in the digital age. The commissioners then asked representatives of a number of NGOs and media organisations to meet them for what they believed was to be “a general chat”.
The commissioners published their proposals earlier this month not in the usual way, with all interested parties receiving a copy under embargo, but by handing their report to one newspaper, which was persuaded that the proposals were intended to “fight Russian hacking”. Downing Street, meanwhile, claimed that the proposals were intended to offer greater safeguards to whistleblowers and journalists.
In fact, the report is suggesting a new law should criminalise not only those who disclose official information without authority, but anyone “who obtains or gathers information”, much like section two once did.
Prosecutors would not need to prove that the disclosure would be likely to cause damage, as the 1989 act requires, but that it might cause damage. The commissioners are also suggesting that this law might extend to information about the economy; and that it should also criminalise the publication of some information that is already in the public domain.
At the foot of the report, the NGOs and media organisations that had been invited for a “general chat” read, much to their surprise, that they had already been consulted.
Everyone else who has read the report has been transfixed by the way in which the commissioners suggested an increase in the two-year sentence for unauthorised disclosures of official information, and then helpfully pointed out to the government that in Canada the penalty is 14 years.
Not even Colonel Jack Seely would have tried that on.