Recently in HO Prohibited Places - Official Secrets Act 1911 Category

The Ministry of Justice has replied to our reduced Freedom Of Information Act request (the third we have now submitted, counting the initial one to the Home office).

This has implications for defining the very few places in the UK where you might be accused of breaking the law, when taking photographs of buildings or people in public, or at least outside etc.

The vast majority of places in the United Kingdom are not Prohibited Places, even though some of the ones which are not, perhaps should be.

Places which have been declared prohibited under section 3(c) of the Official Secrets Act 1911 are contained in the Official Secrets (Prohibited Places) Orders 1994 (SI 1994/968) and 1955 (SI 1955/1497). The 1994 Order is accessible from the Office of Public Sector Information website (www.opsi.gov.uk) and/or the Statute Law Database (www.statutelaw.gov.uk). The 1955 Order is not available online other than through subscription to a legal database but a hard copy may be obtained from the Stationery Office through their online bookshop (www.tsoshop.co.uk) or by calling 0870 600 5522.

No places have been declared prohibited under section 3(d) of the 1911 Act.

The Ministry of Justice does not hold any maps, diagrams or other information showing the physical extent of the prohibition in the places concerned.

The Official Secrets Act 1911 has been modified by subsequent Acts over the years, especially the Official Secrets Act 1989.

Its use of the word "Enemy" has had little direct relevance since World War 2, as the UK Government has not bothered with any old fashioned formal Declarations of War since then - all the shooting and "cold" wars we have been involved with as a nation have been "police actions" or "self defence" or "in pursuit of a United Nations Security Council Resolution" etc.

Things are further complicated by Anti-Terrorism legislation which certainly defines evil people, and organisations, but which has its own criminal penalties for collecting or passing information, including documents in electronic form, to terrorists, even if they are not officially Enemies. regardless of whether they are actually actually Proscribed Terrorist Groups or not.

Astonishingly, the Taliban never has been, and is still currently not a Proscribed Terrorist Group, even though British military forces are fighting them , supposedly to prevent them from terrorising local Afghans, and providing shelter to Al Quaeda etc. Surely they are our "Enemy" ?

See the legal briefing which argues this point regarding the "Enemy" under the Official Secrets Act 1911, in the current Corporal Daniel James espionage case (a military interpreter accused of passing information to some vague Iranian organisation or Government, in spite of the support of his commanding officer etc.)

See Michael John Smith's blog Operation Billiards - Mitrokhin or Oshchenko ?, who is trying to overturn his own convicting under this Act for passing secrets to the Soviet KGB for details. - Wrong Interpretation of Section 1 of Official Secrets Act

SI 1994/968 The Official Secrets (Prohibited Places) Order 1994 replaces the 1993 Order, and rather redundantly, adds Sellafield, Capenhurst, Harwell and Windscale nuclear fuel factories, nuclear fuel re-processing or research sites to the list .

As noted in our original Freedom of Information Act request, all Licensed Nuclear Sites are declared by the Nuclear Installations Act 1965 Schedule 1 Security Provisions Applicable by Order under S.2 to be deemed to be Prohibited Places under section 3 of the Official Secrets Act 1911.

The current public register of Licensed Nuclear Sites can be found on the Health and Safety Executive's website:

Firms subject to the provisions of Nuclear Installations Act 1965 (as amended) (.pdf)

This listing includes the same nuclear fuel and research sites previously declared in the 1994 Statutory Instrument, along with other nuclear research reactors and nuclear power stations.

We have had to resort to reading a paper copy of the Official Secrets (Prohibited Places) Orders 1955 (SI 1955/1497) . This Order came into force on 1st Octber 1955, signed by "One of Her Majesty's Principle Secretaries of State", James Stuart, who was the then Secretary of State for Scotland, in the Conservative government under Prime Minister Anthony Eden.

The only Prohibited Place it mentions is the Dounreay fast breeder nuclear reactor research site in the County of Caithness, run by the Atomic Energy Authority.

The most interesting part of the Ministry of Justice's reply is:

No places have been declared prohibited under section 3(d) of the 1911 Act.

This echoes the Parliamentary Written Answer, given by the then Labour Home Secretary Merlyn Rees, back on 18th July 1977, under Prime Minister Jim Callaghan.

N.B. this volume of Hansard is not properly online yet, but it has been scanned and digitised as part of the Historical Digitisation of Hansard project:



HC Deb 18 July 1977 vol 935 cc369-70W

Official Secrets Act

Mr. Robin F. Cook

asked the Secretary of State for the Home Department (1) if he

369W

will make a statement regarding the operation of Section 3(a) and Section 3(b) of the Official Secrets Act 1911 as regards prohibited places;

[scanning across pages and columns seems to be in error]

(2) if he will provide a list of all places which are, or have been, declared by a Secretary of State to be prohibited places under Section 3(c) of the Official Secrets Act 1911;

(3) if he will provide a list of all places which are, or have been, declared by a Secretary of State to be prohibited places under Section 3(d) of the Official Secrets Act 1911.

Mr. Merlyn Rees

The lists of places which have been declared prohibited places under Section 3(c) of the Official Secrets Act 1911 are contained in the Official Secrets (Prohibited Places) Orders 1955 (SI 1955/1497) and 1975 (SI 1975/182). No places have been declared prohibited under Section 3(d). Sections 3(a) and 3(b) of the Act define certain

371W

types of installation as prohibited places The decision to prosecute in a particular case is a matter for the police in the first instance and is subject to the consent of the Attorney-General.

HC Deb 18 July 1977 vol 935 cc370-1W

The then backbench Labour MP Mr. Robin F. Cook later became the Foreign Minister under Prime Minister Tony Blair.

Therefore, unless the 1955 Statutory Instrument mentions them explicitly, none of the Government Buildings which have been involved in Public Finance Initiative or Public Private Finance sell of and lease back schemes, are own by the Crown any more, and they have not been specifically declared by a Secretary of State as being Prohibited Places under the Official Secrets Act 1911.

This probably applies to the Ministry of Defence buildings (Old and New) in Whitehall, HM Treasury, all of the HM Revenue and Customs estate, the Home Office in Marsham Street, all the Immigration and Passport Agency's new Passport Applicant interrogation offices etc.

It also applies to the privatised Prisons and Detention Centres.

Similarly, the privatised Defence Research laboratories are no longer owned by the Crown either e.g. Qinetiq, Porton Down and so they no longer come under the automatic "owned by the Crown, used for military purposes" criteria of section 3(c),

which is for the time being declared by order of a Secretary of State to be a prohibited place for the purposes of this section, on the ground that information with respect thereto, or the destruction or obstruction thereof, or interference therewith, would be useful to an enemy

.

They might still be Prohibited Places under section 3(b), but the Ministry of Justice says that , aprt from the nuclear sites, there are none.

None of these are Prohibited Places regarding espionage photography.

Apart from the Licensed Nuclear Sites, and Military bases owned by the Crown, the other main categories of site which can be made into Prohibited Places by order are airports owned by the Civil Aviation Authority e.g. Heathrow Such Civil Aviation Authority owned aerodromes are deemed to be owned by the Her Majesty, through the Civil Aviation Act 1982 section 18 Official secrets

That means that civilian airfields e.g. Heathrow airport, could be declared to be Prohibited Places by Order but, at the moment under the Official Secrets Act 1911 section 3(c), but , currently, according to the Ministry of Justice, none of them are currently so declared.

Buildings or sites used by Communications Providers under the Communications Act 2003 Schedule 17 para.2

Official Secrets Act 1911

2 For the purposes of the Official Secrets Act 1911 (c. 28), any electronic communications station or office belonging to, or occupied by, the provider of a public electronic communications service shall be a prohibited place.

This includes British Telecom landline telephone exchanges and the mobile phone network companies e.g. Vodafone, and internet service providers, and cable tv / internet data companies providing telephony or email services e.g. Virgin Media.

This does not includes Royal Mail Post Offices and private letter or parcel delivery companies like TNT or DHL, since these are public postal communications providers , who can be told to physically intercept postal mail deliveries under the Regulation of Investigatory Powers Act 2000, but they are not telecommunications

When the General Post Office ran the telephone system i.e. before it was privatised into British Telecom, , then its exchanges and telegraph offices etc. were Prohibited Places under the Post Office Act 1969 schedule 4 para 21, but
that was repealed by the Postal Services Act 2000 Schedule 9 Repeals and Revocations. The Post Office itself was finally killed off as a legal entity by the Post Office Dissolution Order 2007.

None of these Prohibited Places actually ban photography by the public for innocent, non-espionage purposes, but the burden of proof seems to shift to the photographer having to prove his innocence.

However, the power of arrest by the Police under the Official Secrets Act 1911 was repealed i by the Serious Organised Cr me and Police Act 2005, and prosecution could only ever be by consent of the Attorney General (something which is likely to change generally to consent of the Director of Public Prosecutions, if the Constitutional Reform Bill is passed).

There is no excuse whosoever for Police Constables, Police Community Support Officers, military guards or private security guards etc. to claim that any site or building, except for obvious military bases (including our dwindling fleet of 40 naval vessels) and Licensed Nuclear Sites are Prohibited Places under the Official Secrets Act 1911.



We are pleasantly surprised that we have actually received a "substantive reply" from the Home Office, to a Freedom of Information Act request, in only 11 working days - they usually manage to exceed the statutory 20 working day limit.

As seem to be usual with the "not fit for purpose" Home Office IT systems, they managed to mangle the email attachment of the Microsoft Word document which they attached, but we eventually uu-decoded it successfully.

However,

From: public.enquiries@homeoffice.gsi.gov.uk
To: [email address]
Date: Wed, 02 Jul 2008 12:01:46 +0100

Reference : T13353/8

Thank you for your e-mail enquiry of 17/06/2008 5:19:27 PM

A reply is attached.


**********************************************************************
This email and any files transmitted with it are private and intended
solely for the use of the individual or entity to whom they are addressed.
If you have received this email in error please return it to the address
it came from telling them it is not for you and then delete it from your system.

This email message has been swept for computer viruses.

**********************************************************************


Home Office
Direct Communications Unit
2 Marsham Street, London SW1P 4DF
Switchboard 020 7035 4848 Fax: 020 7035 4745 Textphone: 020 7035 4742
E-mail: public.enquiries@homeoffice.gsi.gov.uk Website: www.homeoffice.gov.uk


[email address]


Reference: T13353/8

2 July 2008

Dear Sir

Thank you for your e-mail of 17/06/2008 5:19:27 PM about the names and locations of "Prohibited Places" declared "by Order of a Secretary of State" under the Official Secrets Act 1911.

The Home Office does not hold the information that you have requested.

However, we have shared your email with the Ministry of Justice. It is possible that the Ministry of Justice may hold some information and that they may write to you in due course.

If you are dissatisfied with this response you may request an independent internal review of our handling of your request by submitting your complaint within two months to the below address:

Information Rights Team
Information and Record Management Service
Home Office
4th Floor, Seacole Building.access@homeoffice.gsi.gov.uk


During the independent review the department's handling of your information request will be reassessed by staff who were not involved in providing you with this response. Should you remain dissatisfied after this internal review, you will have a right of complaint to the Information Commissioner as established by section 50 of the Freedom of Information Act.

Yours sincerely

On behalf of Will Stuart

If there is no record of any Secretary of State signing an Order to declare anywhere specifically as a "Prohibited Place" under the Official Secrets Act 1911, then that could be quite important in the current War on Tourism and against Photographers' Rights, currently being waged by untrained private security guards, Police Community Support Officers and even by Police Constables.

There are classes of "Prohibited Places" laid down by Acts of Parliament, notably any Licensed Nuclear Site or telephone exchanges (and internet data infrastructure facilities) , or any Civil Aviation Authority airport (e.g. Heathrow) (although the status of photraphy e.g. by plane spotters from outside the perimeter fencing is not clear)

Military bases are usually Prohibited Places by virtue of being owned by the Crown,

However this is no longer automatically the case, for Government buildings, including some Ministry of Defence ones, and most of HM Treasury's HM Revenue and Customs and the Home Office's Identity and Passport Service ID Card / Passport interrogation centres, as some of these are now owned by private companies (some even hiding the legal ownership of these assets in overseas tax havens), and the land and buildings are only leased back to the Government, under various Private Finance Initiative schemes.

We will try sending the same FOIA request to the Ministry of Justice.

Read our original FOIA request, made on behalf of some very worried photographers (ourselves included):

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This United Kingdom based blog has been spawned from Spy Blog, and is meant to provide a place to track our Freedom of Information Act 2000 requests to United Kingdom Government and other Public Authorities.

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