Listen, do you want to know a secret?
Gavin Williamson MP has been sacked from the Cabinet for leaking confidential information from the National Security Council regarding Huawei. Theresa May considers that the matter is closed and won't refer him to the police. However, they can investigate anyway, but would need the cooperation of the Cabinet Office. There are some sensitivities when it comes to investigating the workings of government at Cabinet level.
What crime might he have committed?
The Official Secrets Act 1989 covers information like this and applies to the former Defence Secretary because he was a Crown Servant, in other words, a Government Minister.
Doesn’t he have to sign the Act?
No. There is no requirement for a person to sign the Official Secrets Act, although it is often done to reinforce to members of MI5, MI6 and GCHQ that it applies to them. Certain persons do have to be notified that the Act applies in order to trigger liability for certain offences.
What does the Act say?
There are various provisions within the Act, two of which may be relevant. They relate to Security and Intelligence, and International Relations.
Under each section, a Crown Servant commits an offence if he makes a “damaging disclosure” of any information they have access to because of their job.
Members of MI5, MI6, GCHQ, and people who are notifiedthat this part applies to them, commit an offence by making any disclosure. It is this reference to ‘notification’ that leads to people being asked to ‘sign the Act’, but in reality, this is only in relation to people who might not know the importance of the information they might come across.
It is possible Gavin Williamson had been notified this applies to him, in which case his leak would seem to be an offence, but we don’t yet know for certain. The Cabinet Office manual does however contain specific reference to the Act, so notification does seem likely to have been in operation.
If he hadn’t been notified, he was subject to that part of the Act, the leak would have to be damaging to one of the areas above. This would be by damaging the work of the security and intelligence services or endangers the interests of the UK abroad.
Was the leak damaging?
Maybe. It may damage the capability of the security and intelligence services to conduct investigations. Sources may not be willing to cooperate if they feel their information will appear in the Daily Telegraph the next day.
It could also mean that foreign intelligence agencies, such as Five Eyes, are more hesitant to share information with us.
Since the leak related to Huawei and their links to the Chinese Government, it may be that it has damaged our interests in China.
Both could count as damage under the Act.
But if Huawei are Chinese spies, we need to know!
That may be, but there is no “whistle-blower” defence to the Official Secrets Act. Just because it is in the public interest to leak information does not mean it isn’t still a crime.
Has Gavin Williamson breached the Official Secrets Act 1989?
It is possible. There are opposing views at the moment, with Julian Lewis, Chair of the Defence Committee, saying that no secret information was leaked.
Other reports say the opposite, and it has been reported that the NSA has already voiced their concerns.
Whether there is evidence to satisfy a jury of criminality remains to be seen, and the situation may well be complicated by the role of security services and methods employed in order to gather that evidence.
Why not ask the journalist?
The journalist will not voluntarily reveal any information given and given journalistic protections enshrined in law it is unlikely that he could be compelled to cooperate.
Are the offences serious?
If convicted, Williamson could go to prison for up to two years. In the end, it will be up to the police and Crown Prosecution Service, with the consent of the Attorney-General, to investigate and prosecute.
Are there defences to the Official Secrets Act?
Yes. Crown Servants can show the leak wasn’t damaging. It’s also a defence to show that the disclosure was authorised, or that you didn’t believe the disclosure would be damaging.
How we can assist
If you need specialist advice, then get in touch with Balaal Khan on 0800 999 247 2and let us help. Whilst investigations under the Official Secrets Act are relatively rare, the underlying evidential considerations are things that our experts deal with on a daily basis.