The Official Secrets Act explained
When revealing state secrets becomes a criminal offence
The shady world of the Official Secrets Act has been put under the spotlight by the sacking of Gavin Williamson as defence secretary for leaking information relating to national security.
What is the Official Secrets Act?
First created in 1911 and most recently updated in 1989, the law makes it an offence for anyone subject to it to make a “damaging disclosure of any information or document” relating to security or intelligence.
“The law is strictest for those working for the security and intelligence services, past and present,” says the BBC. “Any unauthorised disclosure - under any circumstances - is a criminal offence, but the rules are different for Crown servants (for example, civil servants, government ministers, the armed forces or police).”
In these cases, a person is only be found guilty of an offence if the leaked information is “damaging”, and relates to security and intelligence, defence, international relations or information which might lead to a crime.
A person does not have to formally sign the Official Secrets Act to be bound by it, instead they can simply be notified it applies to them.
“Government employees are usually informed they are subject to it in their contracts,” says The Sun, although “many are still asked to sign the act as a way of reinforcing its content”.
What are the penalties?
The maximum penalty for an unauthorised disclosure under the Act is two years’ imprisonment or an unlimited fine, or both. There is an exception for crimes relating to spying or sabotage, which, under the 1911 and 1920 acts, carry a maximum 14-year sentence.
Proposals revealed by The Daily Telegraph in 2017 would have resulted in the scrapping of the Official Secrets Acts scrapped and its replacement with an Espionage Act and data disclosure law, resulting in increased jail terms.
Under the proposals drawn up “in the face of the growing threat from Russia”, spies and civil servants who leaked national security secrets would face up to 14 years in jail, while foreign spies who stole information from the UK government and leaked it overseas, or those who snooped on British embassies, would also have faced prosecution in British courts for the first time.
However, the plans were put on hold amid outcry from freedom groups, who warned they could be used to jail journalists as spies and target whistleblowers.
Has anyone gone to jail for breaching the Official Secrets Act?
According to the House of Commons Library, prosecutions under the Official Secrets Act are rare, numbering about one a year.
Over the years there have been some high-profile convictions. In 1983, civil servant Sarah Tisdall was given a six-month jail term after being found guilty of handing over documents to The Guardian relating to the arrival of missiles to an RAF base.
In 2002, MI5 agent David Shayler was jailed for six months for giving information to the Mail on Sunday, while in 2007, Scotland Yard civilian police worker Thomas Lund-Lack was sentenced to eight months for leaking information on planned al-Qaeda attacks on Britain to a Sunday Times journalist.
And in September 2017, The Sun reported that a 65-year-old woman contracted to carry out government work had been arrested by counter-terrorism police on suspicion of breaching the act.
So could Williamson face jail?
Despite strong protestations of innocence, Williamson was removed from his post as defence secretary on Wednesday after Theresa May released a letter saying she had “compelling evidence” he had been behind the leaking of key information surrounding the contract with the Chinese tech giant Huawei to the Daily Telegraph.
The subsequent internal investigation run by the Cabinet Office shocked Westminster for its speed and decisiveness.
But while Number 10 clearly hopes Williamson’s departure will draw a line under the furore, others are calling for a full police inquiry.
A Scotland Yard statement given to ITV News suggested police would need to be handed details showing that criminal activity may have taken place.
Metropolitan Police Commissioner Cressida Dick confirmed the Cabinet Office would need to make a referral before police would launch an investigation – something de facto deputy PM appeared to rule out when addressing MPs.
Asked if it was on the face of it a breach of the Official Secrets Act, Dick said police would seek advice at an early stage from the Crown Prosecution Service to establish that.
“Whether or not a disclosure is deemed ‘damaging’ is a decision for the attorney general,” says the BBC. “Any prosecution, under the 1989 Act, has to be done with their consent.”
If the police do decide to investigate, they would aim to determine the nature of the leaked information and who did it.
“It may be that some of the evidence against Williamson, by the very nature of the confidential way it was obtained, is inadmissable in a court of law,” writes HuffPost UK’s Paul Waugh. “It’s further argued by some that the burden of proof is much lower in a political judgement about a sacking than in a criminal case involving state secrets.”
Even so, Williamson may not be safe from prosecution. “There is a lesser charge of misconduct in public office that is sure to be seized on by critics,” Waugh says.
The former defence secretary has denied responsibility for the leak and accused Downing Street of a “witch hunt”.