Section 26 of the Freedom of Information Act provides that:
"Information is exempt information if its disclosure would, or would
be likely to, prejudice-
(a) the defence of the British Islands or of any colony, or
(b) the capability, effectiveness or security of any relevant forces.
In subsection (1)(b) "relevant forces" means-
(a) the armed forces of the Crown, and
(b) any forces co-operating with those forces,
or any part of those forces.
The duty to confirm or deny does not arise if, or to the extent
that, compliance with section 1(1)(a) would, or would be likely to,
prejudice any of the matters mentioned in subsection (1)."
General Points: explanation of key terms
1.1 In order to understand what information falls within
the scope of the defence exemption it is necessary to clarify the meaning
of some of the key terms used above.
1.2 Defence: is achieved by maintaining the ability to
use military force in support of legitimate political objectives, in particular
the protection of the UK, overseas territories and national interests. Defence
can therefore include self-defence, as well as measures taken in conjunction
with other countries or under the auspices of an international organisation.
Such measures may include steps for the detection, prevention and suppression
of aggressive activities of any foreign state or party against the UK, overseas
territories and national interests, and may include counter terrorist and
resilience measures
1.3 The British Islands: is defined in Schedule 1 to the
Interpretation Act 1978 as meaning the United Kingdom, the Channel Islands
and the Isle of Man.
1.4 Colony: is defined in the same Act as meaning any
part of Her Majesty's dominions outside the British Islands except for a
Commonwealth country, a territory whose external relations is the responsibility
of a country other than the UK, and any associated state. The current list
of colonies is as follows:
Anguilla
Ascension Island
Bermuda
British Antarctic Territories
British Indian Ocean Territories
British Virgin Islands
Cayman Islands
Falkland Islands
Gibraltar
Monserrat
Pitcairn Islands
South Georgia and South Sandwich Islands
Sovereign Base Area of Cyprus (regarded as a colony under the terms
of the Cyprus Act 1960)
St Helena
Turks and Caicos Islands
1.5 Capability: Capability involves having the necessary
skills to operate in a particular situation. In relation to defence it is
derived from having trained manpower, serviceable equipment, the supporting
systems and information needed to deploy to and conduct operations that
meet the policy objectives set by government.
1.6 Effectiveness: Effectiveness relates to the successful
use of defence capability. This requires a readiness to undertake operations
in a structured way that is appropriate to the situation, in conjunction
with government departments and, where appropriate, other states and international
organisations.
1.7 Security: Security is achieved through the protection
of the armed forces from attack, both at a collective and at an individual
level, and from the threat of compromise to the confidentiality, integrity
and/or availability of defence assets.
1.8 Relevant Forces: This has two components
The armed forces of the Crown means any member or part of the regular
or reserve naval, land and air forces of the United Kingdom. This includes
the Special Forces [footnote 1] and any unit or part of a unit of the armed forces
which is for the time being required by the Secretary of State to assist
the Government Communications Headquarters in the exercise of its functions.
However, it should be noted that the Special Forces and such units are
not part of the Armed Forces when that term is defined as a public authority
for the purpose of compliance with the Act (Schedule 1, Paragraph 6).
Additionally, information which was directly or indirectly supplied
by or relates to any of the Special Forces or a unit or part of a unit
assisting the Government Communications Headquarters is exempt information
under section 23 of the Act.
Forces co-operating with the armed forces of the Crown would include
any member or part of any foreign armed force involved in collective
defence arrangements with the UK (for example under the auspices of
NATO or under a UN mandate), and any forces that are co-operating on
a specific military operation or exercise (e.g. under the auspices of
the EU or a UN peace keeping mission). It is therefore something that
could change depending on the prevailing circumstances. If forces are
acting in co-operation with the armed forces of the Crown at any particular
time this will, however, be a matter of fact. The key consideration
will be whether the disclosure of information relating to that co-operation
would or would be likely to affect the capability, effectiveness or
security of the foreign force.
Footnotes:
"The special forces'" means those units of the armed forces
of the Crown the maintenance of whose capabilities is the responsibility
of the Director of Special Forces or which are for the time being subject
to the operational command of that Director. (FOI Act 2000, section
84 )
