Newspaper of the Campaign for Freedom of Information Number' Number 15 Autumn 1988

Goodnews • • ~.c.- • and bad newCampaign gains twomore legislativesuccesses . . . fourActs in three yearsThe Campaign for Freedom of Information has this summerachieved two more pieces of legislation.

This means that the Freedom of Information movement hasachieved four pieces of legislation via Private Members' Bills inthe last three years.

It is doubtful whether any other movement can claim such arecord.

The latest two measures are:• The Access to Medical Reports Act, drafted by the Campaign

and introduced by Archy Kirkwood MP, which was passedon July 8.

• The Environment and Safety Information Act, drafted by theCampaign and introduced by Chris Smith MP, which also wasfinally passed on July 8.

The Campaign, together with the Community Rights Project,was the main driving force behind the Local Government (Ac-cess to Information) Act 1985 sponsored by Robin Squire, whichtook effect from April 1986. The Campaign also drafted and pro-moted the Access to Personal Files Act 1987, also introduced byArchy Kirkwood, which is due to take effect early in 1988.

Des Wilson, co-Chairman of the Campaign, said that this seriesof successes underlined the wisdom of the strategy of promotinga series of smaller measures until there is a better climate for afull Freedom of Information Act.

"We have always known that whileMrs Thatcher was in Down-ing Street, the chance of a FoI Act was virtually nil. Rather thanjust sit back and complain about that, we have devised a planto achieveas much freedom of information as we could by a seriesof sharply-focussed measures intended to improve access to in-formation where it affects people directly - at local level, onenvironmental and safety matters, and on access to personal files.

"It is appropriate that the two recent successes should havebeen shared with Archy Kirkwood and Chris Smith, who havebeen dedicated supporters of the FoI Campaign from the dayit was launched, and to whom we owe a considerable debt."

The Kirkwood Act enables patients to see reports written bydoctors for insurance companies and employers. The patient willnow have the chance to ask the doctor to correct inaccuraciesor even not to send the report.

Chris Smith's Bill requires the setting up of public registerscontaining details of enforcement notices served by Safety andEnvironmental agencies on matters affecting public health andsafety and environmental pollution. This was achieved despiteinitial extraordinary resistance by the Minister responsible, MrPatrick Nicholls.

* Full details of the Kirkwood and Smith Bills on next page.

The Home Secretary, me Secretary, DouglasHurd . . . a classic case ,. a classic case of newsmanagement. rent.

TheShadow Home SecreuowHome Secretary, RoyHattersley - promisey - promised theLabour Party would inParty would introduceFreedom of Information. of Information.

The SLD's Paddy Ashdi's Paddy Ashdown -warned secrecy could tsecrecy could be evengreater than before. Ian before.

White Paper 01

Section 2 is a

setback for FoThe White Paper on Section 2 of the Official SecretsAct, pued at the end of June, and likely to form the basis of new IItion this winter, has come as bad news for the freedom of Imation movement.

In essence, it alters the way information is to be contrbut it allows no more disclosure of information than at pr,

Tbe White Paper bows to overwbelming pressure to reduproportion of information protected by tbe criminal law.states bluntly: "that does not mean, however, that there vno inhibition on the disclosure of any of the information'the criminal law will no longer protect".

It specifically states that the Civil ServiceDiscipline Codecontinue to be applied against unauthorised disclosuinformation" .

Indeed, it says that once the new legislation is in place"be necessary to amend the conduct rules for crown servarparticular the rules covering the disclosure of official inftion ... to reflect the fact that the criminal law no longeitects all official information". This can only have one melinternal controls will be made tighter.

The Home Secretary benefitted from a classic case ofmanagement. Prior to publication of the White Paper, Whi"leaked" misinformation intended to create tbe lmpressioithe White Paper would be draconian. It was said tbat the IMinister was insisting that Ministers should have the fin:(in fact, the rejection of Ministerial certificates was the 1Paper's best point). As a result, many commentators and Icians reacted positively to the first news of its contents, andwas much misunderstanding of what it would achieve.

Some newspapers even said that much more information 1now be available, and there would only be controls onspecific categories. It has to be repeatedly stressed tbat Inot the case ... that the White Paper is about the efficientrol of all information - not about its disclosure.

The Campaign for Freedom of Information made it cleathere could only be one test of the White Paper: did it Iit not allow greater access to information? The answer wait did not.

The Campaign plans to mobilise all-party resistance tsecrecy laws based on the White Paper, and is to hold Imeetings at all of the party conferences, as a prelude to Irallies all over Britain.

A key objective will be the addition to the reforms of a Iinterest defence. This has considerable all-party and Isupport.

* Full details of the White Paper, and the Campaign's res- pages 3-7

Shepberd MP, Jonathan AitkenMP, Steve Norris , MauriceFrankel (Director CFol).

• Conserva'bnservatlveTbe Bedford Hotel, (Tbtford Hotel, (Tbe SkitllesRoom), Kings Road, BKings Road, Brigbton.Tbursday, October l3y, October 13, 6.30-7.45pm. Speakers: I Speakers: Rlcbard

6.30-7.45pm.Speakers: Robin Cook MP,

CbrisSmitb MP, Maurice Frankel(Director, CFol), Sarab Spencer,(Director, NCCL). Cbalrman:Cbristopber Price.

Meetings on the White PapePaper at party conference!.SLD

Tbe Imperial Hotel, BlackTuesday , September6.30-7.45pm witb AKirkwood MP.

A joint meeting wltb tbe Na-tionalCouncil for Civil Liberties,New Clifton Hotel, Talbot Sq,Blackpool. Monday, October 3,

• Labour

Advances to to AccessKirkwood's Access tos toMedical Reports Act ~ct

Your new rights tsee your own file

Archy Kirkwood's second suc-cessful private members' bill in twoyears will give people the right tosee reports about them which theirdoctor supplies to an insurancecompany or employer. Insuranceand job applicants are virt uallyobliged to allow their GP to supp -ly a medical report on them, butat present cannot check that the in-for mation is accurate or tha t theirprivacy has not been unacceptablybreac hed.

Although the government re-mained formally neutra l on th eAccess to Medical Reports Bill, thehea lth minister, Mrs Edwi na Cur-rie, made it clear that she welcom -ed it. The government did not backinsurance industry proposals torestrict the scope of the bill, andinstead supported amendmentsthat strengthened individual rights.

This contrasted with the govern-ment's position on the Access toPersonal Files Bill last year. Thegovernment opposed most of thatbill, forcing Archy Kirkwood to ex-clude medical and many of theother classes of reco rds from thefina l Access to Perso na l Files Act1987.

This bill is much narrower inscope. However, the difference inthe government's approach maylargely be explained by Mrs Cur-rie's personal support for themeasure. The support of th eBritis h Medical Association alsocontri buted. The BMA not onlybacked the bill, but ' wanted it ex-tended to cover reports written forother non-medical third partiessuch as housing authorities.

However, it continues to oppose ageneral statutory right of access tomedical files.

In committee t he bill wasst rengthened, allowing people toattach their own comments to ado ctor's report and giving themthe right to prevent the doctor sen-ding a report altogether if they didnot agree with its contents. (Theycannot, however, compel a doctorto suppress relevant information or

Archy Kirkwood MP

change a professional opinion.)Following discussions with the

Association of Brit ish Insurers(ABI), new appl ication procedureswere introduced which will helpavoid delays in cases where an in-dividu al does not wish to see areport .

The government insisted that thebill contain parallel exemptions tothose in the Data Protection Act(DPA), so that doctors will have asingle set of criteria to apply to ap-

plications under both las under both laws. Thismeant an excemption hadi excemption had to be in-troduced to allow any indi to allow any indication ofthe doctor's " intentionst'or's " intentions" towardsthe patient to be withheldnt to be with held, reflect-ing the controversial exemontroversial exemption forintentions under the DP~s under the DPA.

The government origiovernment originally in-sisted tht the DPA exemjt the DPA exempt ion fornat ional security also be ' security also be adopted.This led to protests from to protests fro m Labo ur'sfro nt bench spokesmaench spokesman RobinCo rbett, who said he c, who said he could notunderstand how anything nd how anything in a GP'sreport to an insurance cor an insurance company oremployer could jeer could jeop ard isenational security. The govsecurity. The governmentrecon sidered, an d late r allered, and later allowed thenation al security exempti secur ity exemptio n to bedeleted when Lord Tordwhen Lord Tordo ff tookthe bill through its Lordthro ugh its Lords stages.

During the committee g the committee stage onthe Access to Medica l ReiSS to Medica l Reports Billthe healt h minister, Mrsth minister, Mrs EdwinaCurrie, mad e her own sujnade her own sup po rt forthe measu re clear. She sasure clear. She said of thebill's sponsor, Archy Konsor, Archy Kirkwoo dMP, "broadly speaking, lnadly speaking, he has mysupport . . . in everythi n:. . . in everything that heis seeking to do to give pag to do to give patients ac-cess to their medical rec heir medical records".

She said: "I am incaid: "I am increasinglyminded to be syrnpat to be sympathetic tomoves to open up ate open up access tomedical records ... From records ... From time im-memorial, patient recoal, patient records havebeen regarded as belongiarded as belonging to thedoctor. In the current stan the current state of thelaw there is no way that e is no way that a patientcan gain access to those access to th ose records.The doctor has an abso:tor has an abso lute vetoover them. Surely in a wan. Surely in a world of in-telligent , educated peo; educated peo ple, thatcannot be Tighe' be Tighe'

The Access to Medical Reports Actwill give people the right to see amed ical report about themprepared for an employer or in-surance company before it is sent,and for 6 months afterwards.Repo rts written by a person's GPor other doctor, including a con -sultant or psychiatrist, who hastreated them are covered. But areport by an independent doctoracting purely for the employer orinsurer is not.

Before applying for a report theemployer or insurer would have toobtain the individual's written con-sent an d tell the person of his orher rights under the Act. The in-dividu al would be asked to say ifhe or she wishes to see the medicalreport before the doctor sends it.If the answer is yes, the doc tor willbe notified and will have to waitfor up to 21 days before sendingthe report to allow for access. If nocontact is made within this period,the report can be supplied.

People who do not initiallynotify the insurer or employer thatthey want access are still entitle dto it as lon g as they contact thedoctor before th e report has beensent.

There will be no charge for in-specting the report. But if the per-son wants to have a copy of it, thedoctor can charge "a reasonab lefee".

If the pat ient believes the reportis incorrect or misleading he or shecan ask th e doctor to correct it. Ifth e doctor refuses the person willbe able to attach to it a written

statement of his or her viewthe disputed matter. Afterthe report, the patient meconsent before it can be s

The right of access alsofor six mo nths after after ahas been sent, an d the doc«quired to keep a copy onat least th is period .

ExemptionsTh e bill con tains exen

based on th ose applying t,puterised health records unData Protection Act. A docwithhold infor mation abcthird pa rty includi ng the iof someone who has sup pformati on about th e ~However, the identity of adoctor or hea lth professionnot be concealed . Inforlikely to cause serious harnindivid ual, or others, canwithheld.

At the government's ins:an exemption allowing !dicat ion of the doctor 'stion s" in relation to the indhas been added to thesimilar provision exists in tlProtection Act.

Th e doctor is required tcthe individual if any exempmation is withheld. If sefeels that information iswrongly withheld, or thata breac h of the Act they cato the court, which cancompliance.

The Act is due to conforce on Ja nuary I 1989.only apply to medicalwhich are prepa red after th

Smith's Environment and ~andSafety Information J

Chanceeance to inspect Land Regist~

Chris Smith's Environment andSafety Information Act requ iresthe authorities who enforce fourmajor safety, fire and environmen-ta l laws to set up public registerscontaining details of enforcementnotices they have served.

The sta tu tes• the Fire Precautions Act 1971,

enforced by fire authorities;• the Health & Safety at Work

Act 1974, enforced by th eHealth & Safety Executive in-spectorates including the fac-to ry, agriculture, nuclear in-stal lations, mines & quarries in-spectorates and by the railwayinspectora te, industrial pollu-tion inspectorate an d loca laut hority environmental healthofficers;

• the Safety of Sports Grou ndsAct 1975, enforced by localauthorities;

• the Food & Environment Pro-tection Act 1985, which dealswith pesticide use, and is enforc-

Chris Smith MP

Page 2

ed by the agricultural inspec-torate and other authorisedpersons.In general, two types of notice

exist. An improvement notice canbe issued when there has been abreach of a statutory requ irement.A prohi biti on notice is issuedwhere the risk to health or safetyis so great that an activity must bestopped.

The registerEach of the authorities would

set up a register containing detailsof notices issued after the Actcomes into force on April 1 1989.The register would be indexed an davailable for inspection at allreasonable hours without charge atthe authority's premises. A na -tional inspectorate would be ableto keep a local register in each ofits areas instead of a single cent ralregister.

The autho rity would supplycopies of register entries to anyoneinspecting it, an d could make area so nab le charge fo r t his.However, they would not be oblig-ed to supply copies to anyone whodid not inspect the register inperson.

The register would containnotices affecting the public, butnot those which exclusively affectemployees (who should alreadyhave access to them). However, anotice which primarily affected theworkforce but also had public im-plications would go onto theregister.

The register would not have tocontain the full notice, but mustgive "sufficient particulars to con -

vey th e substance of thesubstance of th e notice".Thus, an authority whin authority which keepssummaries of notices odes of notices on a co m-puter dat a base woul d hta base woul d be able touse th e data base as its data base as its register.

Timescales alesA notice would have tcice would have to go on to

the register within 14 dayaer within 14 days of beingserved. However, where However, where there is astatuto ry right of appealy right of appeal against anoti ce, details woul d details would only beentered 14 days after the

Action on SESection TW4

continued 0 1

• a journalist could be prosecuted for repeating informthat is already in the public domain. A newspaper Ibe prosecuted'for summarising news stories about Bwhich have been published in Washington or Bru

• journalists prosecuted for writing stories which rethe security services will have less of a defence opthem than foreign agents prosecuted for spyin]convict a spy under section 1 of the Official Secretit is necessary to show that the actual informobtained is likely to be useful to an enemy. A jourcan be gaoled for publishing information which falla general class of information which might harroperation of the security services is an offenceevidence is required that the actual information Icause harm, and it would not be a defence to shovharm had not in fact been caused.

• no public interest defence will be permitted. A jouror official who is prosecuted would not be able to :that a disclosure was justified because it revealednegligence, corruption, fraud, serious miscondureckless disregard for public safety. A person whcin order to prevent such abuses would be treated tcourt in exactly the same way as a corrupt officialsells information for personal gain.

1979 approach modifiedSome of the much criticised features of the governrr

1979 attempt to reform the Official Secrets Acthowever, been abandoned.

Ministerial certificates have been dropped, and thwelcome. In the 1979 bill, harm to the national interest,have been proven by a ministerial certificate whicldefence could not challenge. Now this will have to be pto the satisfaction of a jury. Certificates were not adornfeature of the old proposals. They would have been Ion only in a minority - 2 out of 8 - of the classinformation protected in the 1979 bill. In certain other Ias in the current proposals, an offence was committedif no harm occurred, rendering certificates unnecess

Information supplied to government by companie:not be protected, as it would have been in 1979. Menof government advisory committees who handle cominformation on food, drug and consumer product s:on pollution, or on health issues will no longer have tothe Official Secrets Act'. This, too, we welcome.

Previous defences SCmpplEIn other ways, however, the new proposals are act

more restrictive than those of the 1979 bill.The 1979 bill contained a defence for prior disclosure

has now been dropped. The 1979 bill provided this dein relation to disclosures of information from fogovernments and international bodies, and informuseful to criminals. No such defence is now to be perm

The strict test of harm used in the 1979 bill hasdiluted. In 1979, disclosures about defence or internatrelations would only have been offences if likely to I"serious injury" to the nation's interests. This correspoto documents classified as "Secret" and above. Undecurrerit proposals, documents of much lower classifies"Confidential" and above, would be covered . Inster"serious injury" the current proposals refer to disclowhich merely "prejudice" or "obstruct" the governmemuch greater volume of documents will thereforprotected, and much lower level of injury will be an off

The White Paper is not the basis for reforming Brhofficial secrets laws. A white paper which concen1exclusively on "the need to protect information vdisclosure would harm the public interest" yet has noword to say about the public interest in the disclosuinformation, is more than unbalanced: it represents a Iof view wholly alienated from and dismissive of the Iof the citizen in an informed democracy.

We should be clear about the consequences of the ~Paper. By creating new, all-embracing protected categof information which cannot be reported undercircumstances, the government is signalling that Jnegligence, abuse of authority, or disregard for humacan take place unchecked. The press will know that to r,any abuse based on information about interceptiocommunications, the comments of security or intelli!Financial Timcial Times,

August 1, 1988 ist 1, 1988

"... there can bethere can be noinalienable obligatimable obligation ofconfidence whendence when itcomes to the disclos to the disclosureof iniquity. If a crinquity. If a crime ora fraud is commiud is committed,the deed and deed and theperpetrator shouldtrator should berevealed. The Pded. The PrimeMinister recognisecter recognised asmuch when she : when she gaveParliament the fament the factsabout Sir Antht Sir AnthonyBlunt, even though, even though thismight have embarra have embarrassedthe service. On service, On thiscentral matter - thtl matter - that itcannot be crimimt be criminallywrong to point g to point thefinger at iniquity --..,. at iniquity - thejury should decidtshould decide. Ifthe Government caiovernment cannotaccept such an amu such an amend-ment, it would be br it would be betterto withdraw the erthdraw the entireproposal;' isal,"

"It is not good eng not good enoughto maintain, as ralntaln, as theWhite Paper on ~ Paper on ouroutdated and deued and deeplyharmful Official Seliul Official SecretsAct published last wblished last weekseeks to do, that tl to do, that therecan never be any lever be any cir-cumstances untances underwhich members ofl members of theservices can disclosees can disclose anydetail of their offi of their officiallives without risk without risk ofprosecution. . . cution . . .

"... there must . there must andwill be occasionsbe occasions ...when illegalities wilillegalities will becommitted, actsnitted, acts oftreachery perforhery performedand high constitutiugh constitutionalprinciples betraiiples betrayed,which we can l!I we can onlydefend ourselves agal ourselves againstif we have the opporaave the opportun-ity of knowing whi knowing what isbeing done in our nsdone in our name.

" . .. one alw • one alwaysreturns to the sns to the sameprinciple. There wilple. There will beoccasions when lions when it isessential that the puial that the publichas the knowledgdte knowledge torestrain and puhin and publishofficial misdeeds al misdeeds andwickedness;' dness,"

.. • and wh and whatthe papers ·paperssaid . .• t:I •••

Mail on Sunday, JUJn Sunday, July 3

The view of view of

the CampaCampaignfor Freedorreedomof Informatlformation

Extravagant claims have been made for the government'sWhite Paper on reform of the Official Secrets Act. TheHome Secretary says that his objective is that "Parliamentshould clip the wings of any possible abuse of the criminallaw by the Executive". The reforms, he says, strike a balancebetween the need to protect critical secrets and "the public'sright to know how their government works;'

The White Paper itself makes no such claim. On thecontrary it frankly acknowledges that it does nothing for r, -"open government:

"The White Paper . . . does not . . . addresssuch mattersas the question ofpublic access to official informationnot covered by the Government's proposals. That is aseparate issue which does not arise directly out of thereform of section 2." (para 5)The proposed reform, it says:"does not mean . . . that there will be no inhibition onthe disclosure ofany ofthe information which the criminallaw will no longer protect . . . Ministers will continue todetermine what information should be disclosed"(para 71)Despite the Home Secretary's claims, nothing in his

proposals will, or is intended, to reduce official secrecy. Noinformation which is presently unobtainable will becomeaccessible. Pa rliament will have no new power to demandinformation from reticent ministers; the public no new rightto information on pollution, or dangerous products, or theconsequences of new policies for their communities, orpersonal files held on them. The White Paper is about thecontrol of information - not about access to it. It will leadto a new secrecy law, not greater freedom of information.

The reform of section 2 of the Official Secrets Act 1911is broadly on the lines proposed in the Franks report of 1972.Instead of penalising the unauthorised disclosure of anyofficial information, the new law will apply to informationin six broad classes: defence, security and intelligence,interception of communications, international relations,information supplied by other governments or internationalbodies, and information useful to criminals.

Unauthorised disclosures of other information will bedealt with by disciplining or dismissing those responsible.In practice, this is what happens to civil servants who leaksuch information now.

As the White Paper says:"the Civil Service Discipline Code already providespenalties for unauthorised disclosures which can beinvoked where it is not thought right to bring aprosecution under section 2. The Discipline Code willcontinue to be applied against unauthorised disclosure ofinformation.

"Once new legislation is in place it will be necessaryto amend the conduct rules for Crown servants, inparticular the rules covering the disclosure of officialinformation , , to reflect the fact that the criminal lawno longer protects all official information': (paras 72-3)The implication is clear: where information is no longer

protected by the criminal law, internal discipline will betightened.

In addition to internal discipline, the government willcontinue to seek injunctions under the law of confidenceto prevent publications and broadcasts which makeunauthorised use of official information. And the 100 orso individual statutes which make it an offence to revealspecific types of information will remain in force.

Oppressive elements retainedThe law that will replace Section 2 will retcln many of

the old legislation's most oppressive features:• the unauthorised disclosure of any information about 'last

segments of public life will be an offence.• in crucial areas, any disclosure, however trivial, will attract

criminal penalties - the prosecution will not have toshow that harm was likely. Any disclosure of informationobtained from other governments or from internaticnalbodies like UN agencies or the EEC, would be an absoluteoffence. A journalist could, for example, face prosecutionfor revealing EEC plans to change VAT, force Britain tocomply with a pollution directive or abandon its ownconsumer protection proposals on the ground that theyare a barrier to trade. All disclosures about telephonetapping, or postal interception would be a criminaloffence, even if they revealed blunders or gross abusesof authority. No current or former intelligence agentcould at any time in their lives disclose anything abouttheir work.

Our guide to thEthe White Pape

Action on Section Two ... corD ••• continued from page 3officers, or on communications from foriegn governments,will be an abso lute offence. The knowledge that if chargesare brought a journalist, editor or publisher will have nolegal basis for a defence must deter the press from exposingabuses.

The government's arguments for such a blanket offencehave been argued at length in front of the High Court andthe Court of Appeal in the Spycatcher case. Both haverejected them as an intolerable attack on the freedom of thepress. In the words of Mr Justice Scott, "The press has alegitimate role in disclosing scandals in Government. Anopen democratic society requires that that be so .. the abilityof the press freely to report allegations of scandals inGovernment is one of the bulwarks of our democraticsociety" .

The White Paper would remove that freedom. Withoutit, Parliament will not learn of abuses, and the public willnot be protected from them.

New controls over the release of information, and newpenalties for disclosures, will be acceptable when the rightsof the public, parliament and the press to information areacknowledged.

If legislation is to concentrate solely on the control ofinformation then to be acceptable even on its own terms,it must contain fundamental protections against abuse.

The first, essential, safeguard is a defence for disclosureswhich the court accepts are in the public interest. This isnot a leaker's charter. A public interest defence has long beenestablished under the law of confidence. The formulationadvanced in Richard Shepherd MP's 'Protection of OfficialInformation Bill' in January 1988 provided a framework.

.It would have been available only where specified types ofmisconduct were reasonably believed to exist, where themlsconduct was significant enough to justify revealingPage 4

information which nation which normally should not be disclosed, andwhere civil servants civil servants could show they had attempted toremedy the problem the problem through internal procedures beforegoing public. iublic.

The second, is that iecond, is that disclosures should not lead to criminalpenalties unless they es unless they are shown to involve serious injury tothe national interest.ional interest. The Franks report recommended a"serious injury" test s injury" test before prosecutions could be broughtfor disclosures relatitlosures relating to defence, international relations,security and Intelllge and intelligence. That should remain the test.

The third, is that third, is that penalties should not be possible forrepeating informatiomg information which is already in the public domain.The government acceeernment accepted this principle in its 1979 bill. Itsembarrassment over assment over Spycatcher should not be allowed todeprive us of this ba us of this basic, common sense protection.

The government argovernment argues that the White Paper has a specificfunction - to deal win - to deal with control of information - and thatwe should not expectJld not expect the issue of freedom of informationto arise in this conte in this context.

But there is no otlhere is no other context in which it can arise.It is sometimes sugsometimes suggested that freedom of information can

be approached in a troached in a two stage process. First reform section2; then define the infcdefine the information to which the public may havea right of access. Bu of access. But this White Paper, with its catch-alloffences across great :sacross great areas of public life, cannot be regardedas a preparation for eparation for greater access. On the contrary, it isa restatement of the .ement of the fundamental Section 2 principle in amore concentrated fmncentrated form: the presumption of secrecy, withmiuisterial discretion rial discretion governing everydecision on disclosure.

The tragedy is thatragedy is that it misses the opportunity for muchgreater concensus, b: concensus, based on the broad agreement that weneed both freedom oth freedom of information and the protection ofinformation in a Iimation in a limited number of areas.

It is that balance ·that balance which we will continue to press for.

II

I

1. The information to beprotected

(a) The current proposalsSection 2 of the Official Secrets

Act 1911 makes the unauthoriseddisclosure of any official informa-tion an offence . The new law willapply criminal penalties to theunauthorised disclosure of infor-mation falling within a number ofspecified categories. These are:• Defence• Security and Intelligence• International Relations• Information obtained in con-fidence from other governmentsor international organisations• Information useful to criminals• Interception of communica-tions .

The categories will be broadlydefined, covering a considerablevolume of information.(b) Comparison with the 1979

billAll six categories appeared in

the government's 1979 bill toreform section 2 of the OfficialSecrets Act.

One category of informationcovered in the 1979 bill which thegovernment no longers intends toprotect is information supplied tothe government in confidence bythird parties including companies,nationalised industries and in-dividual citizens.

The Campaign has argued thatthis would give protection to infor-mation about industrial pollution,unsafe consumer products, foodadditives, and pesticides and otherareas - such as discrimination inemployment - where the govern-ment enforces standards on behalfof the community . The govern-ment has accepted the argumentthat if such information involvescorporate trade secrets, companiescould protect them, or recoverdamages if the information is leak-ed to a competitor, by civil actionfor breach of confidence.

The White Paper suggests thatthe government does not intend toexempt all private information,particularly that obtained from in-

dividuals , from the protection ofthe criminal law:

"The Government is consider-ing whether the reform of sec-tion 2 and the consequent nar-rowing of the range ofinforma-tion protected by the criminallaw would leave without acriminal safeguard any privateinformation provided to theGovernment in confidencewhich merits such protection . Aparticular area for considera-tion, for example, is informa-tion provided to tax authorities.Consideration will, ifnecessary, be given to the crea-tion of separate specific of-fences of disclosure. " (35)

(c) Comparison with RichardShepherd's bill

Richard Shepherd MP's privatemember's 'Protection of OfficialInformation Bill' introduced in theCommons in January 1988 wouldhave protected information aboutdefence, security, intelligence, andinternational relations if, in eachcase, disclosure would be likely tocause serious harm to the interestsof the nation or endanger safety.

Information useful to criminalsand information provided togovernment by an individual inconfidence under a statutory re-quirement would also have beenprotected . The Shepherd bill didnot protect information suppliedby third parties, information sup -plied by foreign governments orinternational organisations (exceptwhere its disclosure would causeserious harm to international rela -tions) or information about in-terception of communications (ex-cept where its disclosure wouldcause serious harm to security orintelligence).

The bill proposed that where anoffence depended on a test ofserious harm (this was the case forinformation about defence, inter-national relations, security or in -telligence) the serious harm wouldbe indicated by a ministerial cer-tificate . However, unlike the un-

challengeable ministrreable ministrial cer-tificates proposed in the proposed in the govern-ment's 1979 bill the Shep979 bill the Shepherd billwould have allowed the cave allowed the certificateto be challenged by an aallenged by an appeal tothe Judicial Committeeicial Committee of thePrivy Council, a body mauncil, a body made up ofthe Law Lords. Lords.

2. Controls over inlttrols over informa-tion not protectei not protected

Disclosures of other isures of other informa-tion will be dealt with I be dealt with in threemain ways: iys:

Disciplinary measures iary measuresThe White Paper says/hire Paper says that the

Civil Service Discipline evice Discipline Code:,'already provides penady provides penalties forunauthorised disclosurhorised disclosures whichcan be invoked wheree invoked where it is notthought right to brinht right to bring a pro -secution under sectioion under section 2. TheDiscipline Code willcoiline Code willcontinue tobe applied against uruplied against unauthoris-ed disclosure of infomclosure of information".(72)The Code will probablode will probably now be

strengthened to make cened to make clear thatthere should be no relaxiuld be no relaxation inthe handling of informatiling of information simp-ly because it falls outside te it falls outside the scopeof the new law . ew law .

The law of confidence of confidenceThe government will stiivernment will still be able

to use the law of confihe law of confidence tosuppress newspaper reponnewspaper reports, booksor radio and TV broadcasand TV broadcasts whichmake unauthorised use 0 authorised use of officialinformation. The Whittion. The White Papersays :

"There may also ire may also be cir -cumstances in which ranees in which it is rightfor the Government tie Government to seek toenforce its rights on tee its rights on behalf ofthe public under the cisblic under the civi/law ofconfidence, notwithdence, notwithstandingthat no prosecutior.no prosecution for acriminal offence is pnal offence is possible. "(14)An injunction to pnjunction to prevent a

publication may be soion may be sought (a)when the information faIl: information falls outsidethe scope of the new law e of the new law (b) whenthe proposed publication osed publication will takeplace overseas (c) to su·erseas (c) to suppress a

report after an unsuccessful pro-secution in which the defendant isacquitted .

Other statutory restrictionsMany individual statutes, par-

ticularly those which give thegovernment power to obtain infor-mation from corporate bodies orindividuals , contain -secr ecyclauses. For example, the Animals(Scientific Procedures) Act 1986,which regulates animal experimen-tation, provides penalties'of up totwo years imprisonment for theunauthorised disclosure of infor-mation given in confidence. A fireauthority inspector who reveals in-formation obtained during the in-

". . . isn't there still a dangerthat a Government could usethe suggested new laws toconceal its ownincompetence under thepretence of protecting Statesecrets?

"Shouldn't the courts atleast be allowed to hear adefendant's claim that a leakwas in the public interest? Orthat the "secrets" allegedlybetrayed had already beenpublished elsewhere?Sunday Express, July 3

spection of premises commits anoffence under the Fire PrecautionsAct 1971.

These will remain in force.Because information supplied togovernment by third parties willnot be covered by the new law, thegovernment will consider whethernew "separate specific offences ofdisclosure" should be created tocover such information. (35)

3. Absolute offences forwhich no defence willexist

The White Paper says the new

law should apply only wi"disclosure may be su,ly harmful to the publicto justify the applicacriminal sanctions" (2Categories of infor

which will not cause sucshould not be subject 1sanctions:

"For the most part,disclosuremay obstructand equitable adminiscause local damagedividuals or groups or ipolitical embarrassmentnot impinge on an}public interest to a degnwould,justify applying,sanctions." (24)Despite this claim, no I

of ha rm will apply formajor classes of informatigovernment argues thaiwould be caused by any diin these areas, therefore Itcategory must be protectedson disclosing any such irtion will automatically COloffence. Even if it can bethat the actual disclosurenocuous, this will noldefence.

Disclosures of any info:in the following classes"stitute an offence, to widefence applies:• information suppliedfidence by a foreign goveor international body. Adant would be convictedhe or she can show that thmation was innocuousdisclosure did no harmBritish or foreign governrto relations between the 1• information about tetapping or the interceptionand information obtainedmethods• disclosures by a curformer member of the secintelligence services,designated classes of offimembers or the armedwho work closely with th• disclosures of intellig:security information by ,journalists or others will bfence if the information fa class likely to cause harrthe government has never fthat any type of disclosureareas is harmless, this maytice amount to a blanket Ition or something very ,one.

These categories are dein more detail later.

4. Where harm musproved

A test of harm will adisclosures about defencenational relations . In ea.the test is less strict thaned in the government's I'

The 1979 bill proposdisclosures about defencenational relations would c,an offence only if they weto cause "serious injurygovernment now proposdisclosures about defence'an offence if they merely"prejudice" . This corresja lower classification lev,

The Franks report descrfour basic security classifiThey are defined in termdamage that would resudisclosure:

TOP SECRET - Excely grave damage to the n

SECRET - Serious itthe interests of the natioi

CONFIDENTIAL - Pial to the interests of the

RESTRICTED - Undin the interests of the na

The 1979 bill's proposeshould only be an off"serious injury" was likbased on Franks' suggestonly documents classi

"Secret" or above should be pro-tected by criminal law. The currentproposals, which refer to " pre-judice", appear to includedocuments of the lower " Con-fidential " marking. Much lessharmful disclo su re s co uldtherefore lead to prosecution . Amuch wider range of less sensitiveinformation would be covered .

A similar downgrading appearsin relation to international rela-tions information. Where the 1979bill used a test of "serious injury"th e cur rent proposals refer toI ' jeopardise or seriousobstruct . . . or prejudice" I enor-mousl y widening the scope ofwhat is to be protected .

A test of harm is said to be in-herent in the definition of the re-maining class: information likelyto be useful to cr iminals.

5. Ministerial certificatesIn the 1979 bill, two of the pr o-

tected categories - defence andinternational relations - involvedtests of harm, which would havebeen demonstrated in court by anunchallengeable min isterial cer-tificate. The proposal was regard-ed as the mos t oppressive elementof the much criticised Bill, and thegovernment has now decided todrop thi s approach:

" The Government . . . believesthat if the issue is not to bedecided by a Minister it m ust,like all other issues relating tothe reformed off ence, be left tothe courts. The Government ac-cordingly p roposes that, whereit is necessary fo r the courts toconsider the harm likely to arisefrom the disclosure of par-ticular information, the pro -secution should be required toadduce evidence as to that harmand the def ence would be freeto produce its own evidence inrebuttal. The burden of proofwould be on the prosecution, inthe normal way . There wouldbe no Ministerial certificates.(18)The scrapping of the proposed

ministerial certificates is welcome ,though not as great a liberalisationas has been suggested. In 1979, theconcept of minis terial certificatesapplied to only 2 of the 8 protectedcategories. Politically, it was th eissue on which the governmentwas most likely to be defeated inParliament.

Its position would have beenalmost in defensible given it sformer criticism of the concept. Inopposition in 1978, the Conser-vative front bench condemnedconclusive ministerial certificates,

"Time and time again thepoint is trenchantly madethat it is not feasible tolegislate in a democraticsociety for the control of of-ficial information withoutfirst establishing the princi-ple and the extent of freedomof information .. .

. . . The White Paper'sproposals are absurdly one-eyed. Everything is perceivedwithin the straight jacket ofthe criminal justice system,as if by creating criminal of-fences the problem of controlis achieved.

• • . There is Inevitablyalways a tension between thedemocratic requirement ofopenness in governmental af-fairs and the need to keep arelatively small section ofthose affairs away from thepublic eyes.The White Papermakes no genuflection in thedirection of openness:''Justinian: Financial Times,July 4

which had been proposed in theLabour government's 1978 officialsecrets White Paper. Sir MichaelHavers, the the n shadow AttorneyGeneral said " . . . the review as towhether th e classification at thetime of the disclosure was the pro-per classification should not restwith the Minister. That wouldsmack to o much of the Mini sterbeing judge and jury in his owncause." (Hansard, 15 June, 1978,col 1261)

The Conservative front benchrapidly abandoned its objectionson tak ing office. The conclusiveministerial certificate appeared inits 1979 bill and did much todi scredit the measu re evenamongst th ose most sympatheticto the new government. The billwas variously described as "trulyappa lling" (Daily Telegraph), "apathetic document" (Daily Mail),

".•. there will be uneaseabout some provisions: inpaticular, the WhIte Paper'srejection of the defence ofpublic interest (on the argu-ment that personal idealismis no justification for othercriminal acts); and thedefence that a piece of infor-

"a disgr ace" (Daily Express) and" a depl orable Bill, so bad that itis impossible to study it without asense of shock" (Spectator).

The suppo rt which RichardShepherd obtained on this issuemade it clear to Ministers that anyrevival of th e concept would haveprecipitated a revolt amongst itsown supporters.

6. DefencesThe Shepherd bill contained two

princi pal defences . That adisclosure was justified in thepubli c interest, and that the infor-mati on in question had previous-ly be en made public . Bothdefences exist in the civil law ofconfidence. Indeed. it is on thebasis of these two defences that theHigh Cour t and the Court of Ap-peal have refused to gra nt thegovernment' s ap plication for per -mane nt injunctions in the Spycat-cher case.

The White Paper rejects bothdefences .

(a) a public interest defenceThe White Paper ru les out a

public interest defence:A person who acts in order to

expose crime, fraud, corruption,negligence or danger to life willnot be able to present this as adefence. The person will be asguilty as someone who sellsgovernment secrets for perso nalgain . Even if they can prove thatthere was wrongdoing of the mostser iou s kind and that theirdisclo sure brought it to an end,they have no defence. The factthat any harm from the disclosurewas minimal in comparison to thepublic interest benefit, would notbe a factor .

The Government's argumentson the public interest defence con-sistently misrepresent what thiswou ld invol ve by implying that itis the motives of the discloserrather than the nature of the infor-mation revealed which constitutesthe proposed defence. TheGovernment accepts that some in-dividuals might make unauthor-ised disclosures for what theythemselves see as altruisticreasons, but arg ues that motiva-tion does not constitute a defencein law. But the concept of publicinterest defence, as establishedunder the law of confidence, restson the nature of the informationrev ealed , irrespective of themotives of the discloser. This isalso the basis of the public inte restdefence as proposed in RichardShepherd's Bill:

"It shall be a defenceJail be a defence f or a per-son charged with an harged with an of fe nceunder this Act to prove this A ct to prove that thedisclosure . . . of the isure ... of the informa-tion . . . was in the p. . was in the public in-terest insofar as t ins ofar as he hadreasonable cause to benable cause to believe thatit indicated the exislicated the existence ofcrime, fraud, abuse of, f raud, abuse of auth ori-ty, neglect in the perfglect in the performanceof official duty official duty or othermisconduct. " -nduct."Where a civil servant: a civil servant was in-

volved (rather than a jorather than a journalist)the defence wou ld only lnce would only have beenavailable if other means 0 : if other means of redress-ing the problem ha- problem had beenexhausted . .d .

(See page 6 for detailecage 6 for detailed analys isof public intere st ilic interest defenceproposals) Is)

A public interest defendic intere st defenc e did ex-ist in the original Officia original Official Secret sAct, passed in 1889. Unsed in 1889. Under this

mation has been pu has been publishedpreviously. There musly. There must alsobe concern over thecern over the clauseallowing proseeutlomg prosecutions whereinformation is dlscloatlon is disclosed of a"class or description'n description" whichwould damage the wdamage the workingsof the intelligence seintelligence services:'The Daily 1elegraph, tily 'Ielegraph; June 30

Act a disclosure of officsclosure of official infor-mation was an offence was an offence if it wasmade to someone to w, someone to whom "itought not, in the intereot, in the interest of theState or otherwise in the (Dtherwise in the public in-terest, to be communicate be communicated at thattime. " The 1911 Act whiche 1911 Act which replac-ed this , removed the refeemoved the reference tothe public interest, but rdc interest, but retained adefence for disclosures for disclosure s by th edefe ndant to a per son " nt to a per son " to whomit is in the interest of the ie interest of the State hisduty to communicate it communicate it ". ClivePanting built his defencebuilt his defence aroundthis phrase, though the jurse, though the judge in hissumming up rejected tg up rejected the argu-ment, ruling that the intiling tha t the interests ofthe state were defined ex were defined exclusivelyby ministers . The goves ters . The government' sproposed legislation will d legislation will eliminatethis last vestige of the d,vestige of the defence .

A public interest defenlic interest defence existsalready under common under common law. Thecourts have ruled that aave ruled that an obliga-tion of confidentiality cconfidentiality cannot beused to suppress evid suppress evidence ofwrongdoing. ling .

In a 1856 ruling the ju856 ruling the judge said :"there is no confidence ; no confidence as to thedisclosure of iniquity. Yo.e of iniquity. You cannotmake me the confidant oethe confidant of a crimeor fra ud , an d be entitled, and be entitled to closeup my lips upon any secrps upon any secret whichyou have the audacity toe the audacity to discloseto me relating to any frelating to any fraudulentintention on your part; SUl on your part; such a con-fidence cannot exist". cannot exist" . Subse-quently the courts have ~he courts have held that"iniquity" is not limitedy" is not limited to crimeor frau d but includes mi: but includes misconductgenerally. v,

This is the basis of ths the basis of the rulingsagains t the governmem the government in theHigh Court and Court oiurt and Court of Appealin the Spycatcher case. T1ycatcher case. The judgeshave held that allegations! that allegations made inPeter Wright's book are s'ight's book are so seriousthat they shou ld hey should not besup pressed. .ed .

The Law Cornmissioi.aw Commission's 1981report , "Breach of Con'Breach of Confidence"(Cmnd 8388), propose(8388), proposed a newstatutory law of confid... law of confidence withpublic interest defence witerest defence worded asfollows:

"A public interest miublic interest may be in-volved in the disclosud in the disclosure or useofinformation notwitlormation notwithstandingthat the information h e information does notrelate to any crime, • to any crime, fraud orother misconduct" . misconduct".The Law Society in taw Society in 1979 pro-

posed that any law to repat any law to replace sec-tion 2 should contain a pould contain a public in-terest defence which: fence which:

" .. . should be a should be availablewhen, though it was c though it was clear thatinformation had been nation had been disclosedin breach of the Act, 'ach of the A ct, this hadbeen done in the publidone in the public interest,to bring to an end iling to an end illegal ac-

tiviti es, for example, corrup-tion; or abuse of the process ofgo vern me n t, fo r example,wilful deception of thepublic. .. Our proposeddefence is intended to operatewhere concealment would causemore damage to the public in-terest than exp osure, even ifthis meant the disclosure ofsen-sitive information".(Official Information .Memorandum by the Council'sLaw Reform Committee, July19 79)A similar view was expressed in

1973 by a member of the presentCa binet during the Commonsdeb ate on the Franks report:

" Basically, I believe thatnewspaper editors are right insaying they should have theright to plead as their defencethe public interest . . . "(No rman Fowler MP, Han -sard, 29.6.73, cols 1918-1922)

7. Prior publicationThe government has rejected

any defence of prior pub lication.The fact that the informationdisclosed is already in the pub licarena will not be a defence foranyone charged with repeating it.

In this respec t the proposals aremore oppressive even than thegovernment' s 1979 bill . That billallowed what Lord Hailsham call-ed "a usefu l defence" that the in-formati on had "been madeavailable, or had become availableon request, to the pub lic or a sec-tor of the public" . The defenceapplied only in certain categories,chiefly to information about lawenforcement and information sup-plied by foreign governments.

The defence would have appliedeven if the original publication hadresulted from a leak: "So long asthe information is available it doesnot matter how it became so -whether officially or not" (LordBelstead, Hansard, 5.11.79, col677)

The White Paper says:"The rationale for this defence(in the 1979 bill) was that, if theinformation in these categorieswaspublicly available, a seconddisclosure could not be harm-ful. It seems to the Governmentthat this rationale is flawed.There are circumstances inwhich the disclosure . . . maybe harmful even though it haspreviously been disclosed. In-deed in certain circumstances asecond or subsequent disclosuremay be more harmful. For ex-ample. a newspaper story abouta certain matter may carry lit-tle weight in the absence offirmevidence of its validity. Butconf irmation of that story by,say, a senior official of the rele-vant Government Departmentwould be very much moredamaging . In such cir-cumstances, the Governmentcon siders that the officialshould still be subject tocriminal sanctions. Similarly,the publication of a list of ad-dresses ofpersons in p ublic lifemay capture the interest of ter-rorist groups m uch more readi-ly than the same informationscattered in disparate previouspublications. (62)

"The Government does not,

''A good test of a democracyis that there should be apresupposition in favour ofopenness, not a presupposi-tion in favour of secrecy. InBritain it is the other wayround - a principle now en-shrined in this newlegislation ...

Instead of 'reforming' Sec-tion 2, we should haveabolished It altogether andreplaced It with Freedom ofInformation Act, bringing

theref ore, propose thoshould be an absolute (or prior publication jcategory ofinf ormationcases in which the pros,would under the Governproposals have to shodisclosure would result ilthe offence would not bout if no further harm ito arise f rom a ,disclosure. The prior ption of the informationbe relevant evidence Jcourt to consider in de,ing whether harm was IIresult f rom a second dis,but it would not be -the Government's view,no t be - conclusive . ~

"In those cases in whproposals in this Whit'do not prov ide for the qofharm to be an issue ilmining whether an offebeen committed, that isJly because the Govemmisiders that any disclosurfo rmation in such charmful; and that apt:respective ofwhether th.motion has previouslymade pu blic in some fiinform ation is p utunlawfully, it is difficulwhy it should ipsobecome lawful at an.thereafter to publish th,motion as widely Gwhatever form the pi;chooses. " (64)The government 's in,

that the harm done by a di:is repeated each time the diis repeated , however ofthappens, is not credible,name of an individualtel epho ne is bein g tapdisclosed , any harm wilwhen that individual is tip

"Ostrich-like, determiinsulateBritain from tlside world, the Goverpulled up the blanket jtucked it in tighter, co,ing the establishedamong Britain's puzzkclosest allies that thesion with secrecy is ,vice anglais ..."Richard Norton-TayiThe Guardian, July J

to the fact th at he or she iobse rva tion. Subsequenttion s cannot add 10 the t

To threaten prosecutisuch a repet ition is not a Iresponse. But this is whatposed in relation to informcategories (such as interceicommunicat ions) wherefence is committ ed regarharm. Any liability shoiwith th e person who firstth e information.

It is implausible to suggharm will be done by disccompilation of informatiocan be accumulated from Ied sources. Terrorist orgarmust be assumed to be calbasic planning and reseadeed, their successes illustr

this country into line wipractice in most Wdemocracies • .•

The new restraint o~about Britain's relationforeign governmenespecially insidlous ••attempt to place a csanitaire round this islobjectionable in priand unworkable in praDonald Trelford inObserver, July 3

The case for a public ~Iic interest defenclThe White Paper on reform of Sec-tion 2 of the Official Secrets Actrejects the idea of a 'public in-terest' defence. It concludes that itshould not be possible for a defen-dant to argue that there was ajustification for disclosing pro-tected information.

The Government's argumentson this point consistently misrepre-sent what a public interest defencewould involve.

The White Paper suggests thata public interest defence wouldfocus on the motive of the persondisclosing information:"The Government recognises thatsome people who makeunauthorised disclosures do so forwhat they themselves see asaltruistic reasons and withoutdesire for personal gain. But thatis equally true ofsome people whocommit other criminal offences.The general principle. . . is thatthe criminality of what people doought not to depend on theirultimate motives - though thesemay be a factor to be taken intoaccount in sentencing - but onthe nature and degree of harmwhich their acts may cause:' (para59)

Arguments misrepresentedThis argument fundamentally

misrepresents what is proposed. Apublic interest defence would de-pend not on the motive of thediscloser, but on the nature of theinformation disclosed. This is thebasis of the public interest defenceunder the law of confidence. It isalso what was proposed in MrRichard Shepherd's bill earlier thisyear.

In common law, a person whoaccepts information knowing it tobe given in confidence is under anobligation to respect its confiden-tiality. If necessary, the courts willenforce this obligation. However,the courts have refused to enforce

such an obligation - indeed, theyhold that the obligat ion does notexist - where the informat ionrelates to serious wrongdoing. Thisis the basis of the public interest(or 'iniquity') defence under thelaw of confidence:"The true doctrine is, that the re isno confidence as to the disclosureof iniquity. You cannot make methe confidant ofa crime or afraud,and be entitled to close up my lipsupon any secret which you havethe audacity to disclose to merelating to any fraudu lent intentionon your part: such a confidencecannot exist.n(1856) 26. LJ Ch 113.

The central issue in cases wherethe public interest defence isargued is the nature of the wrong-doing involved. In a 1968 ruling,Lord Denning held that the 'iniqui-ty defence':"extends to any misconduct ofsuch a nature that it ought in thepublic interest to be disclosed toothers. .. The exception shouldextend to crimes, frauds andmisdeeds, both those actuallycommitted as well as those in con-templation, provided always -and this is essential - that thedisclosure is justified in the publicinterest".(1968) 1 QB, 396, 405.

More recent cases have confirm-ed that it is the nature of the in-formation - not the motives ofthe discloser - which determinewhether the defence can succeed:"If the subject matter is somethingwhich is inimical to the public in-terest or threatens individual safe-ty, a person in possession ofknowledge of that subject mattercannot be obliged to conceal italthough he acquired thatknowledge in confidence. In somesituations it may be his duty toreveal what he knows:' (emphasisadded)(1981) 2 WLR 848, 86F-G."the so-called iniquity rule evolv-

ed because in most cases wh in most cases where thefacts justified a p ublicatfied a p ublication inbreach of confidence, f confidence, it wasbecause the plaintiff had be plaintiff had behavedso disgracefully or criminaefully or criminally thatit was j udged in the public ted in the p ublic interestthat his behaviour shoe behaviour sho uld beexposed"(1985) QB 526, 550. 526, 550.Clear evidence that the dence tha t the defencedepends on the informaticn the information, notthe motive of the discloser aof the discloser arose inthe Spycatcher case. The tcher case. The judgeshave been distinctly lack distinctly lacking insympathy for Mr Wright. Ifor Mr Wright. But theissue has been argued in teieen argued in terms ofthe gravity of his allegationsof his allegations - notthe pur ity of his motives. of his motives. In theHigh Court, Mr Justice irt, Mr Justice Scottdistinguished between those.edbetween those allega-tions that involved such : involved such seriouswrongdoing that they couldigthat they could not besuppressed and others whicl and others which in hisview did not meet the 'imot meet the 'iniquity'test. Thus he implied tha he implied that PeterWright's allegations of "allegations of "routineburglary and bugging by l\nd bugging by MI5 of-ficers" were not serious ence not serious enough tofall within the scope en the scope of thedefence, while the alleged rhile the alleged plots toassassinate President Nase President Nasser anddestabilise the Wilson goveithe Wilson governmentwere so serious that they corious that they could notbe suppressed. ssed.

No leaker's charter ~r's charterA public interest defence:: interest defence of the

kind that has been proposedas been proposed wouldnot mean that civil servant that civil servants couldleak at will. This has nevell , This has never beenthe case with the defence unth the defence under thelaw of confidence. Theremfidence. There is nobasis for the White Paper's ~e White Paper's sugges-tion that it could be used or could be used on vaguegrounds to justify disclosua justify disclosures thatwould imperil lives. The oeril lives. The defenceproposed in the Shepherd tinthe Shepherd bill wasdefined as follows: ; follows:"It sha ll be a defence for a e a defence for a personcharged with an offence unith an offence under thisAct to prove that the discios.e that the disclosure . . .of the information . . . wasrmation .. . was in thepublic interest insofar as erest insofar as he had

reasonable cause to believe that itindicated the existence of crime,fraud, abuse of authority, neglectin the performance ofofficial du-ty or other misconduct".

Where a civil servant (as oppos-ed to a journalist or other person)was involved the defence wouldonly have been available:': . . if he has taken reasonablesteps to comply with any establish-ed procedures for drawing suchmisconduct to the attention of theappropriate authorities withouteffect":

Implications of the defenceThe consequences of this ap-

proach are that:

• the defence would be availableto a civil servant only if othermeans of redressing the pro-blem had been exhausted. Itcould not be used by someonewho leaked information as afirst rather than a last resort .

• the disclosure would have torelate to serious misconduct ofthe types mentioned. It wouldnot 'be possible for a defendantto argue that the government'sdeclared policy (eg membershipof NATO) was itself against thepublic interest.

• the misconduct would have tobe sufficiently serious tooutweigh the normal obligationof confidentiality. A defendantcould not claim that a minorbreach of rules would justifyany disclosure. The misconductwould have to be seriousenough to justify the disclosurein the public interest.

• the defence would not beavailable to anyone acting outof unsubstantiated suspicion.There must be "reasonablecause to believe" - enough topersuade reasonable people -that an abuse was occurring.

• It would be the court - not

the civil servant or journawhich determined the pulterest. Anyone who faipersuade the court woulthe possibility of up to 2imprisonment. This woulvery serious deterrent to acasually tempted to diprotected info rmation.

Although such a defencenot be easily invoked it willas a deterrent to those whootherwise engage in illegal aor flagrant abuse of authoritpresent Section 2, and the ntproposed, could both be uprevent evidence of such wrcing becoming public. This i'apparent in those areas wesolute offences would be CI

The courts have recentlyfaced with - and rejectedapplication from the govenfor an injunction imposing ,solute ban of this kind isecurity field.

During the Spycatcher caCourt of Appeal refused toan injunction which wouleprevented the publication (info rma t io n of anyoriginating from a curreformer member of the securivices. Lord Justice Bingham,Court of Appeal, comrnern

"It would . . . p rohibit pub liof material from such a ,even ifit was not confident.even if it did not relate in alto national security and ev,was trivial and even if it disiniquity of the gravestDespite the provisos the p reorder amounts in substanccomprehensive ban on pition. In this area the rulethen be that there was no rfreedom of expression . . . .regime might be tolerable ior war or gravenational emcy. In any other situation itin my view be intolerable .

Our guide - co nt in ued from page 5 5It is not realistic to assume (as theWhite Paper appears to do inparagraph 62 above) that they areincapable of locating the home ad-dresses of potential targets if thoseaddresses are available intelephone directories or otherpublished sources. The disclosureof information which can be in-depend entl y discovered fro mpublic sources should not be anoffence.

A senior official who merelyconfi rms that a previous leak istrue should also not be regardedas committing a criminal offence.This might be different if theoriginal leak was vague and brief,but the confirmation addedsubstantial new detail amount ingto a new seriously harmfuldisclosure in itself.

The government is not only pro-posing that the repetition ofpublished information from oneof the absolute categories shouldbe an offence. It is proposing totake new, specific powers to pre-vent the repetition of leaks abo utBritain occurring abroad .

The government proposes thatwhere disclosu res of defence ,security or intelligence informa-tion occur abroad it should be aspecific offence to repeat the in-format ion in the UK:

H • •• in one respect theGovernment considers that it isnecessary to go further than thepresent law. Increasing interna-tional co-operation in recentyears on defence and on inter-national problems such as ter-rorism has meant that a grow-ing amount of sensitive infor-mation is being shared with

Page 6

1

other governments, oftenthrough the medium of inter-national organisations. A t pre-sent if such information isdisclosed abroad, it is not anoffence to publish it in thiscountry . The Governmentbelieves that there is a gap in thelaw here which is liable to in-hibit effective international co-operation. It accordingly pro-poses that, when information inthese categories has been pro-vided in confidence to anothergovernment or internationalorganisation and has been im-properly disclosed abroad, itsfurther disclosure in this coun-try should be treated in thesame way as if the originaldisclosure had taken place inthis country" (26)In fact the information may not

have been leaked 'improperly' -that is, without authorisation -but divulged unattributably by theminister of another governmentwishing to highlight what theyregard as an unreasonable Britishposition . Newspapers in everycountry in the world would be freeto repeat that information - yetBritish papers could be prosecutedfor doing so.

8. The protectedinformation

(a) Defence information"Clearly new legislation mustprotect information relating todefence (including civil pre-paredness) (25) . . the Govern -ment proposes that the prosecu-tion should have to prove thatthe disclosure was likely either

to prejudice the capaliudice the capability ofthe armed forces to coned forces to carry outany of their defence tasltheir defence tasks, or tolead to a risk of loss of' a risk of loss of life, in-jury to personnel or dai personnel or damage toequipment or installatnent or installations, orto prejudice dealings [udice dealings betweenthe Government ailovernment and thegovern ment ofanotheriment ofanother state oran international organisrnational organisation. n(49)The weakening of theeakening of the test of

harm from the 1979 "serrn the 1979 "serious in-jury" to the current "prethe current "prejudice"means that disclosures "at disclosures which inthemselves may not be paes may not be particular-ly damaging could lead to jng could lead to prosecu-tions. The absence of a Pie absence of a public in-

"The Reform of Sedeform of Section 2Tho will, inevitably, II, inevitably, appearas another round in titter round in the eter-nal battle between prde between press andState. So it is. But, even it is. But, evenmorecrucially, Mr Hurty, Mr Hurd hasmanaged to make it 'd to make it a bat-tleground between nd between thosedemocrats who wish ats who wish to havesome insight into hosight into how thesecret world of MIS arorld of MIS and MI6operate in the public hin the public interest,and those who wish trse who wish to makethem hermetically aermetlcally sealed,above and beyond thnd beyond the law.This is Parliament's .Parllament's chanceto draw a balanced Ii: a balanced line andretain some rights of lame rights of its own.It needs to keep thes to keep the issuesclear; and draw it:' nd draw it:'Guardian, June 30 1n, June 30

terest defence will deprive thedefendant of the right to argue anoverriding public benefit from thedisclosure.

Even where the harm may beserious, the public benefit may stillbe greater . For example, to revealthat che mical or bio logicalweapons were being developed insecret or at a secret site might beregarded as harmful to Britain 'sdefence capability . But if periodicleakages of lethal agents were oc-curring, causing injuries or deathsto people nearby and thoseresponsible had been unable toprevent the leaks there would bean overwhelming case for disclos-ing the fact. Under the govern-ment 's proposals anyo ne who didso might be imprisoned.

(b) International relationsinfo rmation

"A disclosure which disruptsrelations between this countryand another state may result inmeasures by that state againstBritish interests and residentBritish citizens or anti-Britishpublic reaction within thatstate, putting at risk the proper-ty or even the lives of Brit ishcitizens . . . (27)

"It is proposed thatdisclosure of informationrelating to international rela-tions should be an offence if itcan be shown that thedisclosure would be likely tojeopardise or serious obstructthe p romotion or protection ofUnited Kingdom interestsabroad, or to prejudice dealingsbetween the Government andthe government ofanother state

or an international or!tion, or to endanger theof a British citizen. " (5The 1979 bill' s definiti

" international relations" Jstrictly to information abougovernmental relat ionsdisclosure would be lik:"cause serious injury to 1terests of the nation or en,the safety of a citizen". ThePaper covers both of these Ipears to add a new third catthe " pro motion or protectUnite d Kingdom intabroad". This could bepreted to refer to privatelyBritish commercial interes

In the absence of a putterest defence, the factdisclosure indicated that twas breaching intemationsty obligations, issuinglicenses for lethal prod uctsed in the country of destiror knowingly repatriating prefugees to face a deat h sewould not constitute justifu

(c)Security and lntelligeneThe Franks report recom

ed that disclosures of infonabout security and inter:should constitute an 0only if they were likecause serious injury to the irof the nat ion. This woukbeen the position under RShepherd's bill also. The gment has never accepted thi

The White Paper propcabsolut e ban on the disclo:information by any currformer intelligence or sofficer:

" (The Government) tak

IOur guide .. .continued from page 6 ~e6

Reform of thaf the Reform

... campaign on thon the Secrets BillCampaign will involve the full FoIcoalition of 50 majororganisations.

Donations. offers ofhelp, suggestionsetc should be sent to Laura Thomas,Campaign for Freedom ofInformation,3 Endsleigh Street, WCIH ODD. 01-2789686. (Or use coupon on back page.)

A key role in the Campaign will beplayed by the National Union ofJournalists and the NCCL , but the

Conclusion"Responsible media rewould no t be affecteaGovernment's proposarepresent a restrictfreedom to publish, Ilegislation in this arelimit that freedom ..

" Under the Goverproposals it will be .courts, and the courts Qdecide whether the disciparticular informalcriminal. The Governentrusting the safeguaithe public interest to th.(79)The White P aper rest,

principle that unautldisclosures in certain aT'never be justified whatevercumstances. This argumrecentl y become familiartion to security matters, asJ ustice Scott 's rejoinderRobert Armstrong in thCour t that the absolute pnthe government was"could not be achieved thi:the Iron Curtain". But nto be extended to new lfamiliar areas. It will applcommunications receiverother governments ortional bodies, though a laiportion of these are cowith matters no more sthan the trans border spacid rain, the setting oftional standards for pesticifood additives, the allocsairline routes or the fire reof consumer goods.

Juries will, as the Whitsays, be asked to make jud,about the 'public interetthey will be instructed to ,themselves exclusively wpossible harm - and Ibenefits - to that interesdisclosure may cause. JOUleditors and authors will knthey risk criminal chargeswhich they will have no dethey attempt to report alleof gross misconduct in vitof public affairs. Some mthe risk: others will turn tand less troublesome sub.

Few would doubt thata need to protect much 01fo rmation covered by th rPaper. But for that pr rto be seen to be reasoneneeds of the public, pnParliament for inforrnaticalso be recognised - in a ,the White Paper has faile

crime, is not only justiessential in the public IThe effectiveness of iJtion would be much recdetails of the practicreadily available . . . (

" , . . no inforrelating to this processdisclosed without the pty of damaging this ,weapon against ferroncrime and vital safeguattional security. The ,ment does not thereft:sider that a specific testcan be f ormulated or,is necessary or approptthis category of inform(53)The disclosure of any ir

tion ob tained by intercepteluding the names of thosphones are tapped, wouldan offence - in order tothe subjects of su rveillam

" Interception inevitavolves interference,their knowledge, Wiprivacy of those who:munications aretercepted . . . (30)

"no information obtcmeans of interceptiondisclosed without . . . .Iy breaching the pri vprivate citizens. " (53)

nalist if asked .All governments experience

leaks: few have laws which putjournalists in gao l for reportingthem. Britain's internati onalreputation is unlikely to be damag-ed if it restricts criminal penaltiesto leaks causing serious harm.

A more fundamental question iswhether any such specific categoryis needed at all. In formation like-ly to cause harm to internationalrelations would in any case be pro-tected under a separate category,which includes disclosures " likelyto ... prejudice dealings betweenthe Government and the govern-ment of another organisation"(50) . That appears to make anyseparate protection for informa-tion sup plied by foreign govern-men ts superfluous.

(e) Information usefu l tocriminals

" . . . there should be an inhibi-tion on the disclosure ofofficialinf ormation which is likely tobe useful in the commission ofcrime, in helping a prisoner toescape from lawful custody orto terrorists. Similarly informa-tion which, if disclose d, wouldobstruct th e prevention ordetection of an offence or theof f ender's arrest or prosectionalso needs to be protected. (29)

" . . . (This) category of in-formation . . . already carriesits own test of harm within it.The prosecution need to provethat the information would belikely to be usefu l for one ofthese obviously, harmful pur-poses. There is no need or scopef or any additional test ofharm . . . " (51)An equivalent provision ap-

peared in the government 's 1979bill , although without specificreference to terrorists.

Problems could arise under thisheading where disclosures aremade in order to draw attention toinadequacies of crime preventionmethods or policing .

In the absence of a public in-terest defence the possible harm ofsuch disclosures would not bebalanced against the benefit of therevelation: a jury cou ld be in-structed mere ly to ru le on thesingle issue of whether in itself theinformation cou ld be useful topotential criminals or terrorists .

(f) Interceptio n ofcommunications

All disclosures about the in-terception of telephone calls, mailand other communications wouldbe protected under the new law.

" ... properly controlled in-terception for limited purposes,such as national security or theprevention and detection or

Canm ofcoahte aorgallDges

12 ofDo

etc s}Cam/ill be3 EnGln of9686.lIt the

governments and intenments and internationalorganisations. For thnisations. For that reasonany unauthorised disunauthorised disclosure isharmful, and the Goiful, and the Governmentsees no purpose in setnopurpose in setting a testof harm which is bourm which is bound to besatisfied in every ified in every instance."(51)The scope of th is cacope of th is category is

vast and indiscriminate.l indiscriminate. It coversnot merely foreign govrely foreign governmentsbut the EEC, a body whEEC, a body which in ef-fect forms part of mns part of our ownlegislature. EEC directivere. EEC directives may re-quire us to introduce legi to introduce legislation orforbid us to legislate on IS to legislate on many ec-nomic, social, consume.social, consumer and en-vironmental matters. Thental matters. The categoryincludes many other bo: many other bodies suchas the UN Food & AlUN Food & AgricultureOrganisation, the UN ation, the UN Environ-ment Program, the In terogram , the Internat ionalLabour Office and th Office and the WorldHealth Organisation. Organisation.

It is inappropriate thatiappropriate that informa-tion in any category shouny category should be pro-tected by the criminal lay the criminal law merelybecause of its source , reg.of its source , regardless ofcontent or of any harm dor of any harm done by itsdisclosure. The goverrure, The goverrunent hasaccepted this principle id this principle in relationto information supplied mation supplied by otherthird parties . In formatarties . In formation sup-plied by companies or in companies or individualswill not be protected u be protected under theWhite Paper's proposalsaper's proposals. Like theprevious Labour adminis Labour administration it

has agreed that greed that Cabinetdocuments should not ItS should not be pro-tected merely because nerely because of thei rsource. Only if their subjmly if their subject mat -ter brings them into ongs them into one of theWhite Paper 's 6 pr Paper 's 6 protectedcategories would tlies would they beprotected. d.

The damage that a Ilamage that a leak maycause to relations wito relations with othergovernments depends rents depends on thenature of the leak. Govef the leak. Goverrunentscom municate with each ucate with each other onminor matters as well as tatters as well as on majorand the leaking of informeaking of information onminor matters will not upatters will not upset othergovernments: indeed it isients: indeed it is likely togo wholly unnoticed .illy unnoticed . Wheredisclosures cause no hares cause no harm thereshould be no possibilitbe no possibility of anoffence.

Most comrnunicatior communications fro msuch organisations and franisations and from othergovernments are treated aents are treated as in con-fidence, purely as a matt, purely as a matter of eti-quette . The sender may ,,'he sender may well agreeto them being made publbeing made public if ask -ed. Indeed, in countries sud, in countries such as theUS, Ca nada, Australia aada, Australia and NewZealand many such do many such documentswould be available on ie available on req uestunde r their freedom of ieir freedom of informa-tion acts . Yet under ths , Yet under the WhitePaper's proposals a Britproposals a British jour -nalist cou ld be prosecuuld be prosecuted fo rpublishing a document lag a document leaked inWhitehall, though the goxl, though the goverrunentwhich produced it may hoduced it may have beenprepared to release it to t to release it to the jour-

The Campaign for Freedom ofInformation will coordinate anationwide campaign for changesin plans for reform of Section 2 ofthe Official Secrets Act.

this country 's honour". The anti-Wilson plot if true, he said , was"destructive of our democraticsystem of government" . Theallegations were so serious that thelaw of confidence could not be us-ed to suppress them. He said:

"The press has a legitimate rolein disclosing scandals inGovernment. An open demo-cratic society requires that thatbe so. If an allegation be madeby an insider that, if true,would be a scandalous abuse byofficers of the Cro wn of theirp owers and functions, and theallegation comes to the atten-tion of the press, the duty ofconfidence cannot, in my opi -nion, be used to prevent thepress from rep orting the allega-tion. I do not think it is ananswer to say that the allegationhas been investigated and beenfound to be groundless . . .Nor is it, in my opinion,necessarily an answer to saythat the allegation should no thave been made public butshould have been reported tosome proper investigatingauthority . . . the ability of thepress freely to report allegationsof scandals in Government isone of the bulwarks of ourdemocratic society . ,.

(d) Information obtained inconfidence from othergovernments orinternational organisations

All information received fromforeign goverrunents and inter-national bodies will be protectedunder the proposed legislation:

"If it appears that this countryis unwilling or unable to protectinformation given in con-fidence, it will not be entrustedwith such information . Thegovernment's ability to func-tion effectively in internationaldiplomacy and in relation to in-ternational organisations, andconsequently its ability to pro-tect andpromote this country'sinterests, will thereby be im-paired. Furthermore, the abili -ty and willingness of this coun-try to protect the secrets ofanother state are likely to deter-mine the willingness of thatstate to protect this country 'ssecrets. (28)

" ... the harm arising fromthe disclosure of informationprovided by other governmentsor international organisationson conditions requiring it to beheld in confidence is not simp-ly the disruption of relationsbetween the Government andother governments concerned.There is the wider damage tothe standing of the UnitedKingdom in relation to all

The prosecution would not haveto show that the actual disclosu rewas likely to cause harm: only thatit fell into a general category whichwas likely to cause harm.

Details of actual operations, orintended operations, would all beclasses of information likely tocause harm . The Spycatcherallegations - including the alleg-ed plots to assass inate Nasser anddestabilise the Wilson government- would the refore be suppressed.The government would not haveto contend with the defencemounted in the Spycatcher casebecause the public interest defenceunder the law of confidence wouldnot exist under the proposed newlaw.

The most convincing case for apublic interest defence has beenmade by a judge of the High Courtduring the Spycatcher case. MrJustice Scott ruled that the alleg-ed Nasser plot would have been"iniquity of a high order ... amonstrous thing and a strain on

view that all such disclosuresare harmful to the public in-terest and ought to be criminal.They are harmful because theycarry a credibility which thedisclosure of the same informa-tion by any olher person doesnot, and because they reducepublic confidence in Ihe ser-vices' ability and willingness tocarry out their essentially secretduties effectively and loyal-ly ... (41)

"The Go vernment accor-dingly proposes tha t it shouldnot be necessary for the pro-secu tion to adduce evidence ofthe likely damage to the opera-tion of the security or in-telligence services when infor-mation relating to security orintelligence has been disclosedby a member or f ormermember of one of those ser-vices. " (42)Identical restrictions will apply

to:"Officials in specified posts incertain Departments who dealwith the services on a regularbasis . . . (and who) have thesame sort of access to sensitiveinformation relating to securi-ty or intelligence and to theoperation of the services, asmem bers themselves" (45)A different test will apply to

discl os ures by a uthors andjournalists :

" legislation should make adistinction between disclosuresby members and formermembers of the security and in-telligence services anddisclosures by other per-sons; . .. in the latter case, theprosecution should have toshow that the disclosure waslikely to damage the operationof the security or intelligenceservices. (38)

" ... there is a particulardifficulty in bringing prosecu-tions in some cases whichwould be exacerbated by theneed to show that the propos-ed test of harm had beenmet . . . evidence may need tobe adduced which involves adisclosure which is as harmfulas or more harmful than thedisclosure which is the subjectof the prosecution . . . (39)

" The government proposesto meet this difficulty by pro-viding that the prosecutionshould have to prove either thatthe disclosure was likely todamage the operation of thesecurity or intelligence servicesor that the information concern-ed was ofa class or descriptionthe disclosure of which wouldbe likely to damage the opera-tion of the services. This wouldallow the arguments before thecourt to be less specific. (40)

You could say we don't knowwhether to laugh or cry • • • !

Fol as a money-savel

Call for more opennessMore openness is needed in Brit ish decision-making accordinga report published in May following a lO-year review ofministrative law.

During the course of a wide-ranging review sponsored by Justthe all-party law reform organisation and All Souls ColleOxford, a distinguished committee looked at the processdecision-making by public authorities and the methods usedinvestigate public issues, such as public inquiries.

Recommendations included a general rule of law that reas.must be given on demand for all admi nist rat ive decisions, rmeasures to make it easier for the gene ral public to challengeministrative decisions.

(Administrative Just ice: Some Necessary Reforms, Report ofCommittee of the JUSTICE-All Souls Review of AdministraiLaw in the UK", OUP, May 1988).

J P selectors tonamedFrom 1992 onwards the naimembers of the adviso ry cotees that select JPs will be pied. Between now andmembers of advisory comrwill be free to disclose theirif they wish, but after thathey will be obliged to do ,Lord Chancellor, Lord Madnounced in June. Past secrerounding the appointmemagistrates has fuelled susthat JPs are drawn, intentffrom too narrow a social I

more than the annual costFoI Act .

A second Australian exshows how FoI enhances actability. A senior govenminister was forced to resigrFoI disclosures showed that Imisled parliament. He haded that an independent comhad supported him in a conisial decision involving the awa lucrative contract. A ConseiMP obtained the commminutes unde r the FOIAshowed that it had in fact ophim. The revelation led tminister's resignation frorLabo ur government.

Freedom of information may savefar more than it costs - that is theexperience under the Australia FoIAct. Currently the Australian Actcosts £6.9 million (sterling) annual-ly. Yet a single FoI request recent-ly led to the saving of £266 million.

The Austral ian army had plann-ed to purchase 2.5 million hectaresof arable land in New South Walesfor use as a tank training area. Theproject had been bitterly opposedby local sheep farmers, who hadfought a two year battle against it.However, it was documentsdisclosed under Australia's FoI Actthat finally sealed its face.

The documents, obtained byTim Robertson a barrister actingfor the farmers, revealed that an in-ternal analysis of the project hadrecognised that the land was whol-ly inappropriate for the army'spurposes. It was too mountainousfor effective tank firing practice; itwas covered by fog for 100 days ayear making it impossible toobserve the results of target prac-tice; and the weather was too coldto simulate the tropical combatconditions in which the army ex-pect