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15 January 2021

Open secrets

In a tribute to John Le Carré, Athelstane Aamodt reflects on the operation & enforcement of official secrets laws

© Kirsty Wigglesworth/AP/Shutterstock

ne of the things that nearly everyone knew about the late John Le Carré was that he had communication of information’ under (the now-abolished) s 2 of the Official Secrets Act 1911. The basis for prosecuting them was an article that they had written in the magazine Time Out about the intelligence services. One of the photographs that had featured in the article was a photograph of the Post-Office Tower. The trial was a cause célèbre, with the first trial being abandoned after it was discovered that, among other things, the security services had been vetting the jury. The second trial ended in a conviction on one charge because the journalists technically had no defence. The sentences that the judge imposed were exceptionally mild and noncustodial. The trial and the evidence from the security services were widely ridiculed and it was perceived to be evidence of an intelligence establishment fanatically obsessed with secrecy for its own sake. The trial, in effect, had collapsed. have. Further, the House of Lords’ decision most likely caused sales of the book to increase, thereby making things even worse. The House of Lords eventually

saw sense and in A-G v Guardian

O

worked in British Intelligence, first for MI5 (domestic counterintelligence) and then for MI6 (foreign intelligence). His life as an intelligence officer provided ample inspiration for his many novels. For years, the British Government would not even acknowledge the existence of MI5 and MI6. MI5 was first mentioned in parliament in 1952 and was recognised in law in 1989. MI6 (as well as GCHQ (signals intelligence)) were only formally acknowledged in 1994. Since then, things have changed remarkably: Stella Rimmington, a former directorgeneral of MI5, and the first to be publicly identified as such, published her memoirs in 2001. MI5 now has a website. Richard Moore, the chief of MI6, has a Twitter account. We all know a great deal more about what the intelligence services do. Some things, however, we do not know, and we probably never will. The various iterations of the Official Secrets Act (five Acts since 1889) prevent people from divulging highly sensitive government information by punishing such divulgence with fines and/or imprisonment. People who work with sensitive intelligence information are often described as ‘signing the Official Secrets Act’. In reality, the Act—like any law—operates without a statement being signed, and people signing a statement about official secrets is for symbolic purposes only.

Newspapers Ltd (No 2) [1988] 3 All ER 545

discharged the interim injunction on the basis that the worldwide dissemination of the book had already caused the harm that the British government had complained about. Unsurprisingly, the UK government’s conduct in this matter was held to have been in breach of Art 10 of the European Convention on Human

Rights in The Observer and Guardian v United Kingdom (1991) 14 EHRR 153.

‘Prior restraint’, as it is often called, is not something that official secrets’ legislation grants; the offence of communicating information is only punishable after the event, with the government having to rely on civil causes of action such as breach of confidence and copyright, which unlike serious criminal charges, are not judged by juries.
Even more preposterous than the ABC prosecution was the ‘Spycatcher’ affair. Peter Wright, a former MI5 officer who had retired to Tasmania, decided to write a memoir called ‘Spycatcher’ about his experiences working for the intelligence services. A great many things were revealed in the book, not least the revelation that the intelligence services had been conspiring against former prime minister, Harold Wilson. When Wright first published his memoirs in 1985, the government immediately applied for (and was granted) an interim injunction on the basis that the publication was a breach of confidence. This proved to be a fairly useless measure because the injunction that was granted only applied to England and Wales. The book was published in other parts of the world, not least in Scotland, where readers south of the border could easily go and buy a copy. Despite that, the House of Lords in A-G v

Guardian Newspapers Ltd [1987] 3 All ER

316 upheld the interim injunction, despite the fact that the book was by this stage being widely published elsewhere. The basis for this appeared to be an objection to an ex-MI5 employee making profits by revealing information that he should not
However, once an injunction is granted, any breach can be punished by contempt.

Comment

The government appears to be taking a slightly more relaxed approach about official secrets breaches; in 2000 the newspaper that published information gleaned from the ex-MI5 employee David Shayler was not prosecuted for revealing that politicians such as Peter Mandelson and Harriet Harman had MI5 files. Shayler was prosecuted however. In the age of the internet, and as a result of a change in the law (the Official Secrets Act 1989 is a slight improvement on the notorious and hastily-drafted 1911 Act) trials of the kind that we saw at the end of the 20th century are far less likely. GCHQ now appears (labelled) on Google Maps.

Official secrets

The operation and enforcement of official secrets laws has not always been satisfactory. For instance, the Post-Office Tower (now called the BT Tower) was considered (bizarrely) for many years to be an official secret. This was despite the fact that it is 189m high, visible for miles around, and a famous London landmark. The absurdity of all this was revealed during the ‘ABC’ trial in 1978 (the letters stand for the surnames of the defendants), when three journalists went on trial for—among other things—the ‘wrongful

Perhaps the era of Smiley’s People

is over?

NLJ

Athelstane Aamodt, group legal

advisor, Associated Newspapers Limited

(www.dmgmedia.co.uk).

Recommended publications
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