When Governments Gag the Word : Britain: Where a Prime Minister Proposes a More Secret Society

The British government has announced plans to reform the 77-year-old Official Secrets Act, used by successive governments to curb debate by the press and public on any sensitive matters relating to intelligence, defense and the civil service. Many members of Parliament had earlier expected that new legislation would allow for greater freedom of information but, in fact, the proposed new laws will give the government greater powers, perhaps making Britain the most secretive nation in the Western world.

It will be an offense to disclose information in a new range of categories including security, intelligence, international relations, defense, interception of communications and the prevention of crime. Each security category will have a “damage” provision to be satisfied before a prosecution is launched and it will be up to a jury to decide if that criterion has been met.

At the same time, it will not be a defense to argue that information has been leaked “in the public good”--perhaps to expose a procurement fraud or illegal activities by the intelligence services. It will be no defense to argue that information has appeared before; a journalist who puts together a number of small pieces of information to write a major story could be liable for prosecution.

The security services have always argued that even if information is in the public domain, giving it wider circulation can help the Soviets. Recently, for example, a magazine in Britain published details of a spy satellite program, piecing information together in part from press releases. But British intelligence believes that until the story broke, the Soviets were unaware of the program.

The current Official Secrets Act has been widely discredited as Draconian and ineffective. Section 2 of the act has been particularly attacked and this is what the government wants changed. The current law includes an all-embracing clause that allows the prosecution of anyone who has done anything that might be considered damaging “to the national interest.” For example, the writing of this article could, under a rigid interpretation of the act, be considered damaging. Recent juries, however, have been unwilling to convict people prosecuted under this section.

More recently, the government has suffered a series of humiliating defeats in attempting to suppress distribution of “Spycatcher,” a book written by former MI-5 agent Peter Wright. At issue is the duty of a secret agent to keep confidential information he or she has learned at work. But in numerous legal actions brought in Britain, the government has been careful to use almost any law other than the Official Secrets Act to try stopping the media from discussing the contents of the book. This was clear recognition by the government that the act is unworkable in present form. Government also realized that a British jury would see the stupidity of suppressing a book in Britain that is widely available in the rest of the world.

The government plans to introduce tough new contracts for all members of British intelligence. The measures will be in addition to the new Official Secrets Act. The act has clear sanctions against members of the security services who disclose information, but these would not be enforceable abroad and they allow for a maximum fine of less than $4,000. Since Peter Wright lives in Australia and will earn well over $5 million from “Spycatcher,” the new Official Secrets Act would not be an effective deterrent against people like him.

At the same time, there are plans to introduce a review system for ex-spies who want to write books. Although this has wide support in the intelligence community, Prime Minister Margaret Thatcher remains firmly opposed to any former intelligence officer being allowed to write anything at all.

It is difficult for outsiders to comprehend the degree of secrecy still operating in Britain today. MI-6, Britain’s equivalent of the Central Intelligence Agency, does not officially exist. No budgets are published for the intelligence services, there is no Parliamentary scrutiny of their actions and personnel are forbidden from disclosing where they work, instead relying on “the Foreign Office” or “the Ministry of Defense” as a cover. Unlike the United States, there is no handy telephone number for the public to call in case a citizen has spotted a spy . Journalists who want to check information about the intelligence services are generally unable to do so and instead rely on the word of self-confessed former agents--frequently charlatans or out of touch or both.

Yet instead of producing legislation more in keeping with modern society, the government has opted for tough new conditions to plug every loophole that has appeared over the years. The new legislation is the result of an alliance between Mrs. Thatcher and, to a lesser extent, the intelligence services. But the act is largely based on the prime minister’s determination to prevent public scrutiny of all matters relating to national security.

The security services recognize that if they are to do their job, retain public confidence, sustain morale and maintain the present level of recruiting, there must be some form of public accountability. Several times over the past year the intelligence services have suggested to Mrs. Thatcher that some form of oversight be introduced to monitor the intelligence services and that their members be allowed to admit where they work.

But, the prime minister has refused and has opted for the perpetuation of a closed society. At the same time, the intelligence services are anxious to keep a powerful legal weapon to discourage the leakers and the prospective authors in their midst. There are currently at least 10 books in the pipeline by past members of Britain’s intelligence community; so a new law is indeed needed.

Government has to submit the new act to Parliament for debate and then for a vote, probably later this year. In discussions with the prime minister, Home Secretary Douglas Hurd has already made clear that he believes the legislation too tough. Both the Labor opposition and some Tory backbenchers have also made clear that they will oppose the law as being anti-democratic.

But if the new Official Secrets Act does become law, many eminent lawyers believe it will remain difficult for the government to get a conviction. As long as the government insists on tough legislation that allows no freedom of conscience and acts as a restraint on a free press, then juries will remain unwilling to convict. If that is so, by opting for a tougher Official Secrets Act, Thatcher has laid the groundwork for further embarrassment--by courts rather than by “Spycatchers.”