Thursday, February 11, 2010

Time for the UK to Reform the Official Secrets Act?


In the UK, the moniker The Official Secrets Act does not actually refer to a single, stagnant document but rather it is an evolving and expanding body of legislation that has built up from the late 19th century. The first incarnation came into law in 1889, but was refined in 1911, reflecting the paranoia in Britain that German spies were operating in the UK and were carrying out clandestine intelligence gathering.[1]

The possibility of war with Germany was seen as a very real threat at this time. The novel “The Riddle of the Sands” by Erskine Childers was a very popular book and was widely read in the early years of the 20th century. It was published just at the turn of the century in 1903 and is regarded as one of the first examples of a novel with espionage as its primary theme. The main protagonist and his companion stumble across a German plot to invade the British Isles by sea.

The primary concern for Britain was that the unification of Germany, about three decades earlier, had led to German imperial ambitions. The colonial empire had began amassing a number of territories including what is present day Namibia, Cameroon, Papua New Guinea, Burundi, and Rwanda, among others. These far flung dominions required an expansion of naval capabilities that threatened British dominance in the high seas. Thus there was a natural, if exaggerated, atmosphere of distrust in Britain towards Germany.

Since 1889, sections of the act have been repealed and replaced many times, with the most recent changes being applied in the Official Secrets Act 1989.[2] However, the primary purpose of the act, to prohibit the external passage of information obtained while in the employ of the Crown, has not changed in over the century since the act’s initial conception.

However, there is reason to believe that the legislation is inadequately equipped to the threats of the modern day, such as terrorism. For instance, the Canadian equivalent of the act, which was adopted in Canada almost verbatim in 1890, was replaced in December 2001 with the Security of Information Act which is part of the Canadian Anti-Terrorism Act.[3] This new act expands the scope by acknowledging the threat posed by “new players (other than the governments of traditional states) [which] include governments-in-waiting, governments in exile and other foreign powers, as well as terrorist groups”.

Reform of the act in Britain has not been expedient since the 9/11 or 7/7 terrorist attacks. However this may have more to do with protecting the government’s policy actions rather than a simple neglect of important legislative reform. In a press release on the 26th of January, 2010, Liberal Democrat’s leader Nick Clegg implicitly made this case, stating:

“The number one responsibility of civil servants must be to the people of Britain, not self serving Ministers. That is why my party would amend the Official Secrets Act to restore the public interest defence for whistleblowers that was originally removed by the Conservatives. If that protection had been in place when the fateful decision was taken to invade Iraq Tony Blair and Gordon Brown might have been more openly challenged by officials who harboured real doubts about the war. But without cast iron protection for whistleblowers, it was too easy for this government to bully and cajole the civil service into remaining silent about one of the greatest errors of any government in the post war period.”[4]

Perhaps with the interest surrounding the findings of the Chilcot Inquiry, and the public scrutiny of the David Kelly affair, a new resilience will emerge to reform the outmoded act. Also, perhaps, if the much touted election reform referendum is passed next year and brings about a proportionally representative system รก la Duverger's law[5], the LibDems will have a greater pulpit from which to proliferate their message on the much needed revision of the act.

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