Did the Guardian comply with an “official direction” under the Official Secrets Act?

by Carl Gardner on August 21, 2013

Alan Rusbridger revealed in a piece first published on the Guardian website at half past ten on Monday evening how GCHQ security experts supervised the destruction of hard drives containing “Snowden material” in a basement at the Guardian’s offices. This is how he explained what happened:

A little over two months ago I was contacted by a very senior government official claiming to represent the views of the prime minister. There followed two meetings in which he demanded the return or destruction of all the material we were working on …

There followed further meetings with shadowy Whitehall figures. The demand was the same: hand the Snowden material back or destroy it. …

During one of these meetings I asked directly whether the government would move to close down the Guardian’s reporting through a legal route – by going to court to force the surrender of the material on which we were working. The official confirmed that, in the absence of handover or destruction, this was indeed the government’s intention. Prior restraint, near impossible in the US, was now explicitly and imminently on the table in the UK.  …

And so one of the more bizarre moments in the Guardian’s long history occurred – with two GCHQ security experts overseeing the destruction of hard drives in the Guardian’s basement

I’m interested in some of the precise language used by Rusbridger in these passages. He says the official demanded something – he did not make a request. And what was demanded was the return or destruction of material. Later, he uses the words handover or destruction. And of course it’s clear that the official threatens forcing the surrender of the material in court.

This language makes me wonder whether the Guardian was facing an “official direction” for the return or disposal of the material under section 8(5) of the Official Secrets Act 1989.

It would be an offence under section 6(2) of the Act for the Guardian to knowingly make a damaging disclosure of any information, document or other article which (section 6(1)(a))

(i) relates to security or intelligence, defence or international relations; and

(ii) has been communicated in confidence by or on behalf of the United Kingdom to another State …

and (also section 6(1)(a))

has come into a person’s possession as a result of having been disclosed (whether to him or another) without the authority of that State …

Documents leaked by Edward Snowden about the work of GCHQ must I think fall within the scope of section 6(1), having presumably been communicated in confidence by the UK intelligence agencies to another state, the US, and having come into the Guardian’s possession without US authority.

If that’s right, then, as I’ve said, the Guardian and its editor would risk committing an offence if it published any of that information which was “damaging”. By the interaction of section 6(4) and section 1(4)(a), by the way, disclosure of security or intelligence information would be “damaging” if (section 1(4)(a))

it causes damage to the work of, or of any part of, the security and intelligence services

In those circumstances,  section 8(5) would apply. It says

Where a person has in his possession or under his control any document or other article which it would be an offence under section 6 above for him to disclose without lawful authority, he is guilty of an offence if he fails to comply with an official direction for its return or disposal.

an “official direction”, by the way, means (section 8(9))

a direction duly given by a Crown servant

There’s no explicit requirement that the direction be given in writing although, if I were a lawyer prosecuting Alan Rusbridger for failing to comply, I’d want there to be clear evidence of his having received the direction, so I’d want a document to exist.

Note that the statutory term “direction” is arguably reflected in Rusbridger’s use of the word demand, and that the statutory phrase “return or disposal” may be reflected in Alan Rusbridger’s return or destruction and handover or destruction.

If an official direction were made at one of the first “two meetings” mentioned by Alan Rusbridger, but compliance did not immediately follow, then the government might well contemplate court action. There could be criminal proceedings against him, or, more likely, the government might seek an injunction to compel return or disposal and to restrain further publication. This was presumably the prior restraint Rusbridger mentioned in the passage I quoted earlier as being threatened at one of the “further meetings”.

When he was replying to commenters last night I asked Alan Rusbridger whether the Guardian had received an official direction under the Official Secrets Act. But he didn’t reply, I’m afraid.

Rusbridger defended his decision to agree to the destruction of the hard drives on Channel 4 News last night - and I think made a good case under pressure from Jackie Long. Applying to court would have been a high-risk move for the government. But it would have involved real risk for the Guardian, too, particularly, as he implies in the interview, the risk of being restrained from publication or having to give undertakings on an interim basis while the case was argued.

By taking the less dramatic of the options open to him, Rusbridger has preserved his paper’s ability to publish without immediate constraint – and it may well end up being able to publish more than if he’d taken the other route. His decision seems to me fully justified.

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