Interests of the United Kingdom. Nor does the duty to conform or

deny arise in these circumstances, (ss. 26, 27, 28, 29, 31);

. audit functions;

. communications with the royal family;

. health and safety matters;

. environmental information subject to regulations made under s. 74

(see above).

. information concerning the ‘formulation or development’ of gov-

ernment policy (s. 35). This also includes communications between

ministers, cabinet proceedings, advice from the law officers and the

operation of any ministerial private office. It also seems to include

advice from civil servants. However, once a decision has been taken

statistical background can be released.

. Information held by government departments, and the Welsh

Assembly which ‘in the reasonable opinion of a qualified person’

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would or would be likely to prejudice collective ministerial respons-

ibility or which would or would be likely to inhibit ‘free and frank’

provision of advice or exchange of views or ‘would otherwise preju-

dice or be likely to prejudice the effective conduct of public affairs’

(s. 36). This would again ensure that civil service advice remains

secret. A ‘qualified person’ is the minister or other official in charge

of the department. Because the test is subjective it appears that

the Commissioner would have no power to intervene except where

the qualified person’s decision was ‘unreasonable’. A question here

would be whether the minimal Wednesbury version of unreason-

ableness would apply.

22.4 Unlawful Disclosure of Government Information

22.4.1 The Official Secrets Acts: the criminal law

The Official Secrets Act 1989 protects certain kinds of government

information from unauthorised disclosure. It was enacted in response

to long-standing and widespread criticism of the Official Secrets Act

1911 s. 2 which covered all information, however innocuous, concern-

ing the central government (see Franks Committee Report, Cmnd

6104 (1972)). A series of controversial prosecutions culminated in the

Ponting trial in 1995 where a civil servant who gave information to an

MP concerning alleged governmental malpractice during the Falk-

lands war, was acquitted by a jury against the judge’s summing up.

Section 2 required the Crown to show that the disclosure was not

made under a duty to the ‘state’. The judge emphasised that civil

servants owed absolute loyalty to ministers and held that the ‘state’

meant the government of the day, thus making it clear the ‘public

interest’ could not justify disclosure. However, Ponting’s acquittal

meant that the government could no longer resist reform.

The Official Secrets Act 1989 is narrower but more sharply focused.

It identifies four protected areas of government activity and provides

defences which vary with each area. The aim is to make enforcement

more effective in respect of the more sensitive areas of government.

The protected areas are as follows.

(1) Security and intelligence (s. 1). This applies (i) to a member of the

security and intelligence services; (ii) to anyone else who is ‘notified’ by

a minister that he is within this provision; (iii) to any existing or former

Crown Servant or government contractor. In the case of (i) and (ii) any

disclosure is an offence unless the accused did not know and had no

556 General Principles of Constitutional and Administrative Law

reasonable cause to believe that the information related to security or

intelligence. The nature of the information is irrelevant. In the case of

(iii) the disclosure must be ‘damaging’. This includes cases where the

actual disclosure is damaging and also where the information or docu-

ment is of a kind where disclosure is likely to be damaging (s. 1 (4)).

‘Damaging’ does not concern the public interest generally but means

only damaging to ‘the work of the security and intelligence services’.

This might include, for example, informing MPs that security agents

are breaking the law. It is a defence that the accused did not know

and had no reasonable cause to believe that the disclosure would be

damaging.

It is arguable that these provisions which lack proportionality tests

violate the Human Rights Act 1998. However in R. v. Shaylor (2001)

the Court of Appeal held that there was no public interest defence to

s. 1 or to s. 4 (information relating to criminal investigations). At best

an accused might raise a defence of necessity on the basis of propor-

tionate action taken in order to avoid an imminent peril of danger to

life or serious injury to himself or to someone for whom he reasonably

regarded himself as responsible. The accused, a former member of

MI5, had handed over documents to journalists which according to

him revealed criminal behaviour by members of the service including a

plot to assassinate President Gadiffi of Libya. His motive was to have

MI5 reformed in order to remove a public danger. It was held that the

defence of necessity was not available because he could not identify

particular individuals who would be protected by the disclosure. Lord

Woolf also held that the blanket ban on disclosure was not dis-

proportionate so as to violate the right to freedom of expression in the

ECHR. This was because national security was a particularly impor-

tant public interest which required a strong deterrent. Moreover the

Act contained some protection for the individual in the form of a right

to obtain authorisation for a disclosure (below) ‘and to make his voice

heard not only by his superiors but by those of undoubted integrity

and independence’. Given that the press would pay well for security

information this arrangement also helped to ensure objectivity. How-

ever, his Lordship did not specify who the objective authorisers were.

The Act itself does not create any independent mechanism.

(2) Defence (s. 2). This applies to any present or former Crown

Servant or government contractor. In all cases the disclosure must be

damaging. Here damaging means hampering the armed forces, leading

to death or injury of military personnel, or leading to serious damage

to military equipment or installations. A similar defence of ignorance

applies as in (1).

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(3) International relations (s. 3). Again this applies to any present or

former Crown Servant or government contractor. Two kinds of infor-

mation are covered: (i) any information concerning international rela-

tions; (ii) any confidential information obtained from a foreign state or

an international organisation. The disclosure must again be damaging.

Damaging here refers to endangering the interest of the UK abroad or

endangering the safety of British citizens abroad. The fact that infor-

mation in this class is confidential or its ‘nature or contents’ may be

sufficient in itself to establish that the disclosure is damaging (s. 3 (3)).

There is a defence of ignorance on the same basis as in (1) (s. 3 (4)).

(4) Crime and special investigation powers (s. 4). This applies to any

present or former Crown Servant or government contractor and covers

information relating to the commission of offences, escapes from

custody, crime prevention, detection or prosecution work. ‘Special

investigations’ include telephone tapping under a warrant from the

Home Secretary (Interception of Communications Act 1985), and

entering on private property in accordance with a warrant under the

Security Services Act 1989 (see below). Section 4 does not require that

the information be damaging as such because damage is implicit in

its nature. There is, however, a defence of ‘ignorance of the nature’ of

the information (s. 4 (4) (5)).

In all the above cases the disclosure must be ‘without lawful

authority’. In the case of a Crown Servant or ‘notified person’ (see

above) this means ‘in accordance with his official duty’ (s. 7). In the

case of a government contractor, lawful authority means either with

official authorisation, or disclosure for the purpose of his functions as

such, e.g. giving information to a subcontractor. In the case of other

persons who may fall foul of the Act (see below), lawful authority

means disclosure to a Crown Servant for the purpose of his functions

as such or official authorisation. There is a defence of reasonable belief

in lawful authority.

Section 5 makes it an offence to pass on protected information, for

example to the press. Protected information is information which has

come into a person’s possession as a result of (i) having been

‘disclosed’ (whether to him or another) by a Crown Servant or

government contractor without lawful authority; or (ii) entrusted to

him in confidence; or (iii) disclosed to him by a person to whom it was

entrusted in confidence. This does not seem to cover someone who

receives information from a former Crown Servant or government

contractor. If this is so, the publisher of the memoirs of a retired civil

servant may be safe (cf. Lord Advocate v. Scotsman Publications (1989)

where s. 5 was applied to a retired civil servant). Nor does the section

558 General Principles of Constitutional and Administrative Law

seem to apply to a person who accidentally finds protected informa-

tion (e.g. a civil servant leaves his briefcase in a restaurant). Could this

be regarded as a ‘disclosure’? (It is an offence for a Crown Servant or

government contractor not to look after the protected information

and for anyone to fail to hand it back if officially required to do so.)

The Crown must prove that the accused knew or had reasonable

cause to believe that the information was protected under the Act and

that it came into his possession contrary to the Act. In the case of

information in categories 1, 2 and 3 (above) the Crown must also show

that disclosure is ‘damaging’ and that he knew or had reasonable cause

to believe that this was so.

Finally it is an offence for any person without lawful authority to

make a ‘damaging’ disclosure of information relating to security or

intelligence, defence or international relations, which has been com-

municated in confidence by or on behalf of the UK to another state or

international organisation and which has come into his possession

without the authority of that state or organisation (s. 6). Apart from

the normal defence of ignorance, there is a defence (unique to this

section) that the information has already been published with the

authority of the state or organisation concerned (s. 6 (3)).

22.4.2 Civil liability: breach of confidence

Information given in confidence can be prevented from publication by

means of an injunction. This may be attractive to governments since it

avoids a jury trial, can be very speedy and requires a lower standard of

proof than in a criminal case. Indeed a temporary injunction which

against the press may destroy a topical story can be obtained from a

judge at any time on the basis of an arguable case. An action for

breach of confidence can be brought by anyone. However, a public

authority must show positively that secrecy is in the public interest,

which the court will balance against any countervailing public interest

in disclosure. Section 12 of the Human Rights Act 1998 reinforces this

(above p. 467). In the case of a private claimant the dependent must

show that disclosure is in the public interest. A public authority can

rely on a public interest in disclosure in order to override private confi-

dentiality even where the information has been given only for a specific

purpose (see Hellewell v. Chief Constable of Derbyshire (1998); Wool-

gar v. Chief Constable of Sussex (1999)).

In A-G v. Guardian Newspapers Ltd (No. 2) (1988) (Spycatcher), the

House of Lords in principle supported the interests of government

secrecy. Peter Wright, a retired member of the security service, had

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published his memoirs abroad revealing possible malpractice within

the service. In A-G v. Guardian Newspapers Ltd (1987) the government

had obtained a temporary injunction preventing publication of extracts

from the memoirs. At the full trial, however, their Lordships refused

to make the injunction permanent but only because the memoirs were

no longer secret, having become freely available in Britain. It was held

that, in principle, publication was unlawful because it was in the public

interest that the security service should have blanket protection; and

that the Crown could probably obtain compensation in respect of

publication in the UK before the memoirs had been published abroad.

This was confirmed by the ECHR as proportionate. In Observer and

Guardian v. UK (1991) the ECHR held that in the area of national

security an injunction is justifiable to protect confidential information

even where the content of the particular information is not in itself

harmful (see also Sunday Times (No. 2) v. UK (1991); A-G v. Jonathan

Cape (1975)).

Spycatcher also confirmed that members of the security services have

a ‘lifelong duty of confidence’. In A-G v. Blake (1998), a former civil

servant had been been convicted of spying but escaped to Moscow

where he published his memoirs. The House of Lords held that, even

though the content of the memoirs created no danger to national

security and were no longer confidential, Blake was liable to account

for his royalties to the government on the ground that he should not be

permitted to profit from his wrong.

The exposure of ‘iniquity’ (serious wrongdoing or crime) by

government officers can justify disclosure (see, e.g. Lion Laboratories