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It is not a defence under the Act that the disclosure is in the national or public interest. |
It is not a defence under the Act that the disclosure is in the national or public interest. |
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==General information== |
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==Arrest== |
===Arrest=== |
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In England and Wales, offences under any provision of this Act other than sections 8(1) or 8(4) or 8(5) were formerly classified as [[arrestable offence]]s, initially by virtue of sections 24(1)(c) and (2)(bb)<ref>Section 24(2)(bb) of the Act of 1984 was inserted by [http://www.legislation.gov.uk/ukpga/1989/6/section/11/enacted section 11(1)] of this Act.</ref> of the [[Police and Criminal Evidence Act 1984]], and then by virtue of sections 24(1)(c) and (2)<ref>Sections 24(1)(c) and (2) of the Act of 1984 were amended by [http://www.legislation.gov.uk/ukpga/2002/30/section/48/enacted section 48] of the [[Police Reform Act 2002]].</ref> of, and paragraph 18 of Schedule 1A<ref>Schedule 1A of the Act of 1984 was inserted by [http://www.legislation.gov.uk/ukpga/2002/30/schedule/6/enacted Schedule 6] of the [[Police Reform Act 2002]].</ref> to, that Act. |
In England and Wales, offences under any provision of this Act other than sections 8(1) or 8(4) or 8(5) were formerly classified as [[arrestable offence]]s, initially by virtue of sections 24(1)(c) and (2)(bb)<ref>Section 24(2)(bb) of the Act of 1984 was inserted by [http://www.legislation.gov.uk/ukpga/1989/6/section/11/enacted section 11(1)] of this Act.</ref> of the [[Police and Criminal Evidence Act 1984]], and then by virtue of sections 24(1)(c) and (2)<ref>Sections 24(1)(c) and (2) of the Act of 1984 were amended by [http://www.legislation.gov.uk/ukpga/2002/30/section/48/enacted section 48] of the [[Police Reform Act 2002]].</ref> of, and paragraph 18 of Schedule 1A<ref>Schedule 1A of the Act of 1984 was inserted by [http://www.legislation.gov.uk/ukpga/2002/30/schedule/6/enacted Schedule 6] of the [[Police Reform Act 2002]].</ref> to, that Act. |
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===Prescribed bodies and persons=== |
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⚫ | 113. The Home Office has bid for a legislative slot in the next session to amend the Official Secrets Act 1989. (At the time of publication it was still awaiting confirmation of its place in the timetable.) The Home Office has informed the Committee that, in its view, the proposed Bill should remove the common law defence of [[Duress_in_English_law#Duress_by_circumstances|‘duress of circumstance’]] in order to address unauthorised disclosure by members, or former members, of the intelligence and security Agencies. The Bill should also put an element of the associated ‘authorisation to disclose’ procedure onto a statutory footing and increase penalties. This proposal has yet to receive policy clearance across Whitehall." |
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==Specific provisions of this Act== |
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===Section 1 - Security and intelligence=== |
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Section 1(1) creates an offence of disclosing information, documents or other articles relating to security or intelligence. |
Section 1(1) creates an offence of disclosing information, documents or other articles relating to security or intelligence. |
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{{See also|David Shayler}} |
{{See also|David Shayler}} |
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==Sections 2 to 7== |
===Sections 2 to 7=== |
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* Section 2: disclosure of defence information. This section applies only to crown servants and government contractors (defined in section 12). |
* Section 2: disclosure of defence information. This section applies only to crown servants and government contractors (defined in section 12). |
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* Section 6: secret information belonging to foreign governments or international organisations. This section is intended to protect secrets shared by foreign governments and those of international organisations such as the [[NATO|North Atlantic Treaty Organization]] and [[Interpol]]. |
* Section 6: secret information belonging to foreign governments or international organisations. This section is intended to protect secrets shared by foreign governments and those of international organisations such as the [[NATO|North Atlantic Treaty Organization]] and [[Interpol]]. |
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==Section 7 - Authorised disclosures== |
===Section 7 - Authorised disclosures=== |
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Sections 7(1) to (3) provide that a disclosure is made with lawful authority if, and only if, the conditions specified therein are satisfied. |
Sections 7(1) to (3) provide that a disclosure is made with lawful authority if, and only if, the conditions specified therein are satisfied. |
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Sections 7(5) and (6) define the expressions "official authorisation" and "official restriction". |
Sections 7(5) and (6) define the expressions "official authorisation" and "official restriction". |
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==Section 8== |
===Section 8=== |
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This section makes it a crime for a crown servant or government contractor to retain information beyond their official need for it, and obligates them to properly protect secret information from accidental disclosure. |
This section makes it a crime for a crown servant or government contractor to retain information beyond their official need for it, and obligates them to properly protect secret information from accidental disclosure. |
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==Section 9 - Restriction on prosecutions== |
===Section 9 - Restriction on prosecutions=== |
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Section 9(2) provides that no prosecution for an offence, in respect of any such information, document or other article as is mentioned in section 4(2), may be instituted, in England and Wales, except by or with the consent of the [[Director of Public Prosecutions]], or in Northern Ireland, except by or with the consent of the [[Director of Public Prosecutions for Northern Ireland]]. |
Section 9(2) provides that no prosecution for an offence, in respect of any such information, document or other article as is mentioned in section 4(2), may be instituted, in England and Wales, except by or with the consent of the [[Director of Public Prosecutions]], or in Northern Ireland, except by or with the consent of the [[Director of Public Prosecutions for Northern Ireland]]. |
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The words "[[Advocate General for Northern Ireland]]", in section 9(1), were substituted for the words "[[Attorney General for Northern Ireland]]" by sections 28 and 87 of, and [http://www.legislation.gov.uk/ukpga/2002/26/schedule/7/paragraph/32/prospective paragraph 32] of Schedule 7 to, the [[Justice (Northern Ireland) Act 2002]], on 12 April 2010.<ref>The [[Justice (Northern Ireland) Act 2002 (Commencement No.14) Order 2010]], [http://www.legislation.gov.uk/nisr/2010/113/article/2/made article 2] and the Schedule, [http://www.legislation.gov.uk/nisr/2010/113/schedule/paragraph/19/made paragraph 19(e)].</ref> |
The words "[[Advocate General for Northern Ireland]]", in section 9(1), were substituted for the words "[[Attorney General for Northern Ireland]]" by sections 28 and 87 of, and [http://www.legislation.gov.uk/ukpga/2002/26/schedule/7/paragraph/32/prospective paragraph 32] of Schedule 7 to, the [[Justice (Northern Ireland) Act 2002]], on 12 April 2010.<ref>The [[Justice (Northern Ireland) Act 2002 (Commencement No.14) Order 2010]], [http://www.legislation.gov.uk/nisr/2010/113/article/2/made article 2] and the Schedule, [http://www.legislation.gov.uk/nisr/2010/113/schedule/paragraph/19/made paragraph 19(e)].</ref> |
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==Section 10 - Penalties== |
===Section 10 - Penalties=== |
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This section provides the penalties and mode of trial for offences under the Act. |
This section provides the penalties and mode of trial for offences under the Act. |
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The words "51 weeks" are prospectively substituted for the words "three months" in section 10(2) by [http://www.legislation.gov.uk/ukpga/2003/44/schedule/26/paragraph/39/prospective paragraph 39] of Schedule 26 to the [[Criminal Justice Act 2003]]. |
The words "51 weeks" are prospectively substituted for the words "three months" in section 10(2) by [http://www.legislation.gov.uk/ukpga/2003/44/schedule/26/paragraph/39/prospective paragraph 39] of Schedule 26 to the [[Criminal Justice Act 2003]]. |
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==Section 11 - Arrest, search and trial== |
===Section 11 - Arrest, search and trial=== |
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===Section 11(1)=== |
====Section 11(1)==== |
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[http://www.legislation.gov.uk/ukpga/1989/6/section/11/enacted Section 11(1)] inserted section 24(2)(bb) into the [[Police and Criminal Evidence Act 1984]]. It also omitted the reference to the [[Official Secrets Act 1911]] in section 24(2)(b) of that Act. |
[http://www.legislation.gov.uk/ukpga/1989/6/section/11/enacted Section 11(1)] inserted section 24(2)(bb) into the [[Police and Criminal Evidence Act 1984]]. It also omitted the reference to the [[Official Secrets Act 1911]] in section 24(2)(b) of that Act. |
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The repeal was consequential on the replacement of section 24(2) of the Police and Criminal Evidence Act 1984 with a new Schedule 1A to that Act. |
The repeal was consequential on the replacement of section 24(2) of the Police and Criminal Evidence Act 1984 with a new Schedule 1A to that Act. |
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===Section 11(3)=== |
====Section 11(3)==== |
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Section 11(3) extends section 9(1) of the [[Official Secrets Act 1911]] (which relates to [[search warrant]]s). |
Section 11(3) extends section 9(1) of the [[Official Secrets Act 1911]] (which relates to [[search warrant]]s). |
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==Sections 12 - Definition of Crown servant and government contractor== |
===Sections 12 - Definition of Crown servant and government contractor=== |
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Section 12(1) defines the expression "[[Crown servant]]" for the purposes of this Act. |
Section 12(1) defines the expression "[[Crown servant]]" for the purposes of this Act. |
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This includes [[Civil service|civil servants]] (employees of the [[Her Majesty's Civil Service]]), members of the government ([[Her Majesty's Government]]), members of the armed forces and their reserve equivalents (including the [[Territorial Army (United Kingdom)|Territorial Army]]), police officers, and employees and contract employees of government departments and agencies defined by the [[Home Secretary]]. |
This includes [[Civil service|civil servants]] (employees of the [[Her Majesty's Civil Service]]), members of the government ([[Her Majesty's Government]]), members of the armed forces and their reserve equivalents (including the [[Territorial Army (United Kingdom)|Territorial Army]]), police officers, and employees and contract employees of government departments and agencies defined by the [[Home Secretary]]. |
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==Sections 13 and 14== |
===Sections 13 and 14=== |
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* Section 13: contains other interpretation provisions. |
* Section 13: contains other interpretation provisions. |
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* Section 14: provides the procedure for making orders under the Act |
* Section 14: provides the procedure for making orders under the Act |
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==Section 15 - Acts done abroad and extent== |
===Section 15 - Acts done abroad and extent=== |
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Section 15(1)(a) provides that any act done by a [[British citizen]]s or crown servant, which would be an offence under any provision of the Act other than sections 8(1) or 8(4) or 8(5) if done by him in the United Kingdom, is an offence under that provision. |
Section 15(1)(a) provides that any act done by a [[British citizen]]s or crown servant, which would be an offence under any provision of the Act other than sections 8(1) or 8(4) or 8(5) if done by him in the United Kingdom, is an offence under that provision. |
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This power was exercised by the [http://www.legislation.gov.uk/uksi/1992/1301/contents/made Official Secrets Act 1989 (Hong Kong) Order 1992] (S.I. 1992/1301). |
This power was exercised by the [http://www.legislation.gov.uk/uksi/1992/1301/contents/made Official Secrets Act 1989 (Hong Kong) Order 1992] (S.I. 1992/1301). |
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==Section 16== |
===Section 16=== |
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Section 16(1) authorises the citation of this Act by a [[short title]]. |
Section 16(1) authorises the citation of this Act by a [[short title]]. |
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This section also provides for consequential amendments, repeals, a revocation, and commencement. |
This section also provides for consequential amendments, repeals, a revocation, and commencement. |
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==Prescribed bodies and persons== |
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⚫ | 113. The Home Office has bid for a legislative slot in the next session to amend the Official Secrets Act 1989. (At the time of publication it was still awaiting confirmation of its place in the timetable.) The Home Office has informed the Committee that, in its view, the proposed Bill should remove the common law defence of [[Duress_in_English_law#Duress_by_circumstances|‘duress of circumstance’]] in order to address unauthorised disclosure by members, or former members, of the intelligence and security Agencies. The Bill should also put an element of the associated ‘authorisation to disclose’ procedure onto a statutory footing and increase penalties. This proposal has yet to receive policy clearance across Whitehall." |
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==See also== |
==See also== |
Revision as of 01:03, 10 July 2011
Long title | An Act to replace section 2 of the Official Secrets Act 1911 by provisions protecting more limited classes of official information. |
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Citation | 1989 c. 6 |
Dates | |
Royal assent | 11 May 1989 |
Commencement | 1 March 1990[2] |
Text of statute as originally enacted |
The Official Secrets Act 1989 (c. 6) is an Act of the Parliament of the United Kingdom. It repeals and replaces section 2 of the Official Secrets Act 1911. It is said to have removed the public interest defence created by that section.
Lord Bingham said that the white paper "Reform of Section 2 of the Official Secrets Act 1911" (Cm. 408) (June 1988) was the immediate precursor of this Act and that its recommendations bear directly on the interpretation of this Act.[3]
The Act applies in the United Kingdom, the Isle of Man, the Channel Islands, and in overseas crown territories and colonies. Usually, the terms of the act apply to affected persons (who are generally employees of the British government) wherever they are in the world.
In order for a crime to be committed, the following conditions must apply:
- the disclosure must not be by means permitted in section 7;
- the person making the disclosure must know, or should know, that their disclosure is unauthorised;
- the disclosure must cause harm to the UK or its interests, or it could reasonably be believed that harm could occur; and
- the person making the disclosure must know, or should know, that such harm could occur.
The sections pertaining to crown servants, intelligence officers, and government contractors apply only to information obtained by that person in the course of their official duties; these sections do not apply if the information was obtained by other means (although section 5 would apply).
It is not a defence under the Act that the disclosure is in the national or public interest.
General information
Arrest
In England and Wales, offences under any provision of this Act other than sections 8(1) or 8(4) or 8(5) were formerly classified as arrestable offences, initially by virtue of sections 24(1)(c) and (2)(bb)[4] of the Police and Criminal Evidence Act 1984, and then by virtue of sections 24(1)(c) and (2)[5] of, and paragraph 18 of Schedule 1A[6] to, that Act.
Prescribed bodies and persons
Sections 7(5), 8(9), 12 and 13(1) confer powers on the Secretary of State to "prescribe" bodies and persons for certain purposes. These powers have been exercised by the following instruments:
- The Official Secrets Act 1989 (Prescription) Order 1990 (S.I. 1990/200)
- The Official Secrets Act 1989 (Prescription) (Amendment) Order 1993 (S.I. 1993/847)
- The Official Secrets Act 1989 (Prescription) (Amendment) Order 2003 (S.I. 2003/1918)
- The Official Secrets Act 1989 (Prescription) (Amendment) Order 2007 (S.I. 2007/2148)
Proposed revisions
The Intelligence and Security Committee (ISC) annual report for 2005–2006 on UK intelligence services states:
"Official Secrets Act 113. The Home Office has bid for a legislative slot in the next session to amend the Official Secrets Act 1989. (At the time of publication it was still awaiting confirmation of its place in the timetable.) The Home Office has informed the Committee that, in its view, the proposed Bill should remove the common law defence of ‘duress of circumstance’ in order to address unauthorised disclosure by members, or former members, of the intelligence and security Agencies. The Bill should also put an element of the associated ‘authorisation to disclose’ procedure onto a statutory footing and increase penalties. This proposal has yet to receive policy clearance across Whitehall."
The full report can be found here: http://www.cabinetoffice.gov.uk/publications/reports/intelligence/annualir0506.pdf
Specific provisions of this Act
Section 1 - Security and intelligence
Section 1(1) creates an offence of disclosing information, documents or other articles relating to security or intelligence.
It can be committed by any person who is or has been a member of the security and intelligence services, or who is or has been a person notified that he is subject to the provisions of section 1(1).
Cases under this section
- R v. Shayler [2002] UKHL 11, [2002] All ER 477 (21 March 2002)
- R v. Shayler [2001] EWCA Crim 1977, [2001] WLR 2206 (28 September 2001)
Sections 2 to 7
- Section 2: disclosure of defence information. This section applies only to crown servants and government contractors (defined in section 12).
- Section 3: disclosure of information concerning international relations. This section applies only to crown servants and government contractors.
- Section 4: disclosure of law enforcement information which would assist a criminal or the commission of a crime. This section applies only to crown servants and government contractors.
- Section 5: further disclosure or publication of information obtained in contravention of other sections of the act. It allows, for example, the prosecution of newspapers or journalists who publish secret information leaked to them by a crown servant in contravention of section 3. This section applies to everyone, regardless of whether they are a government employee, or whether they have signed the act.
- Section 6: secret information belonging to foreign governments or international organisations. This section is intended to protect secrets shared by foreign governments and those of international organisations such as the North Atlantic Treaty Organization and Interpol.
Section 7 - Authorised disclosures
Sections 7(1) to (3) provide that a disclosure is made with lawful authority if, and only if, the conditions specified therein are satisfied.
Section 7(4) provides a defence.
Sections 7(5) and (6) define the expressions "official authorisation" and "official restriction".
Section 8
This section makes it a crime for a crown servant or government contractor to retain information beyond their official need for it, and obligates them to properly protect secret information from accidental disclosure.
Section 9 - Restriction on prosecutions
Section 9(2) provides that no prosecution for an offence, in respect of any such information, document or other article as is mentioned in section 4(2), may be instituted, in England and Wales, except by or with the consent of the Director of Public Prosecutions, or in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.
Section 9(1) provides that no prosecution for any other offence under this Act may be instituted, in England and Wales, except by or with the consent of the Attorney General, or in Northern Ireland, except by or with the consent of the Advocate General for Northern Ireland.
The words "Advocate General for Northern Ireland", in section 9(1), were substituted for the words "Attorney General for Northern Ireland" by sections 28 and 87 of, and paragraph 32 of Schedule 7 to, the Justice (Northern Ireland) Act 2002, on 12 April 2010.[7]
Section 10 - Penalties
This section provides the penalties and mode of trial for offences under the Act.
Section 10(2) provides that a person guilty of an offence under section 8(1) or 8(4) or 8(5) is liable on summary conviction to imprisonment for a term not exceeding three months, or to a fine not exceeding level 5 on the standard scale, or to both.
Section 10(1) provides that a person guilty of any other offence under the Act is liable, on conviction on indictment to imprisonment for a term not exceeding two years, or to a fine, or to both, or, on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum, or to both.
The words "51 weeks" are prospectively substituted for the words "three months" in section 10(2) by paragraph 39 of Schedule 26 to the Criminal Justice Act 2003.
Section 11 - Arrest, search and trial
Section 11(1)
Section 11(1) inserted section 24(2)(bb) into the Police and Criminal Evidence Act 1984. It also omitted the reference to the Official Secrets Act 1911 in section 24(2)(b) of that Act.
It was repealed[8] on 1 October 2002.[9]
The repeal was consequential on the replacement of section 24(2) of the Police and Criminal Evidence Act 1984 with a new Schedule 1A to that Act.
Section 11(3)
Section 11(3) extends section 9(1) of the Official Secrets Act 1911 (which relates to search warrants).
Sections 12 - Definition of Crown servant and government contractor
Section 12(1) defines the expression "Crown servant" for the purposes of this Act.
Section 12(2) and (3) define the expression "government contractor" for the purposes of this Act.
This includes civil servants (employees of the Her Majesty's Civil Service), members of the government (Her Majesty's Government), members of the armed forces and their reserve equivalents (including the Territorial Army), police officers, and employees and contract employees of government departments and agencies defined by the Home Secretary.
Sections 13 and 14
- Section 13: contains other interpretation provisions.
- Section 14: provides the procedure for making orders under the Act
Section 15 - Acts done abroad and extent
Section 15(1)(a) provides that any act done by a British citizens or crown servant, which would be an offence under any provision of the Act other than sections 8(1) or 8(4) or 8(5) if done by him in the United Kingdom, is an offence under that provision.
This is intended to cover espionage (where someone travels to a foreign country and discloses secret information to a foreign power) and cases where someone travels to a foreign country and discloses secret information, perhaps to a newspaper.
Section 15(1)(b) provides that any act done by any person in any of the Channel Islands, or in the Isle of Man, or in any colony, which would be an offence under any provision of the Act other than sections 8(1) or 8(4) or 8(5) if done by him in the United Kingdom, is an offence under that provision.
Section 15(3) confers a power on the Queen to extend, by Order in Council, any provision of the Act, subject to any exceptions, adaptations or modifications specified in the Order, to any of the Channel Islands, or to the Isle of Man, or to any colony.
This power was exercised by the Official Secrets Act 1989 (Hong Kong) Order 1992 (S.I. 1992/1301).
Section 16
Section 16(1) authorises the citation of this Act by a short title.
Section 16(2) authorises the citation of this Act and the Official Secrets Acts 1911 to 1939 by a collective title.
Section 16(5) provides that the repeals of parts of the Official Secrets Act 1911 and the Official Secrets Act 1920 in Schedule 2 do not extend to any of the territories mentioned in section 15(3), subject to any Order made under section 15(3). The said territories mentioned in section 15(3) are the Channel Islands, the Isle of Man and all colonies. Such an Order was made in relation to Hong Kong (see above).
This section also provides for consequential amendments, repeals, a revocation, and commencement.
See also
- Official Secrets Act
- Richard Tomlinson, former MI6 agent imprisoned in 1997 for breaking the 1989 Act, by attempting to publish a book detailing his career.
- Katharine Gun, former GCHQ translator arrested under the Act whose case was later dropped by the government.
- O'Connor - Keogh official secrets trial
- Al Jazeera bombing memo
- Espionage Act of 1917 (US law)
References
- Halsbury's Statutes,
- John Griffin, "The Official Secrets Act 1989" (1989) 16 Journal of Law and Society 273
- ^ This short title was given to this Act by section 16(1) of this Act.
- ^ The Official Secrets Act 1989 (Commencement) Order 1990 (S.I. 1990/199), article 2
- ^ R v. Shayler [2002] UKHL 11 at [11], [2002] All ER 477 at 485
- ^ Section 24(2)(bb) of the Act of 1984 was inserted by section 11(1) of this Act.
- ^ Sections 24(1)(c) and (2) of the Act of 1984 were amended by section 48 of the Police Reform Act 2002.
- ^ Schedule 1A of the Act of 1984 was inserted by Schedule 6 of the Police Reform Act 2002.
- ^ The Justice (Northern Ireland) Act 2002 (Commencement No.14) Order 2010, article 2 and the Schedule, paragraph 19(e).
- ^ The Police Reform Act 2002, section 107 and Schedule 8
- ^ The Police Reform Act 2002 (Commencement No. 1) Order 2002 (S.I. 2002/2036), article 2(g)(iii)(b)
External links
- The Official Secrets Act 1989, as amended, from the National Archives.
- The Official Secrets Act 1989, as originally enacted, from the National Archives.
- A Basic Guide To The Official Secrets Act 1989