Transparency data

Notes on the Security and Intelligence Instrument

Updated 24 February 2022

1. Under section 3 of the Public Records Act 1958 (PRA), records selected for permanent preservation must be transferred to The National Archives (TNA) or other place of deposit appointed by the Secretary for Digital, Culture, Media and Sport, not later than 20 years after their creation subject to transitional arrangements laid under section 45 of the Constitutional Reform and Governance Act 2010.

2. However, under the proviso in section 3(4) of the PRA, records selected for permanent preservation may be retained for longer than 20 years (and not transferred to TNA or other place of deposit) if, in the opinion of the person responsible for them, they are required for administrative purposes or for any other special reason and the Secretary of State for Digital, Culture, Media and Sport has been informed of the facts and has given her approval.

3. The risk of prejudice to national security is the ‘special reason’ in relation to the retention of security and intelligence records. Previously, Lord Chancellors have given their approval for the retention of defined categories of security and intelligence records under the proviso – and that approval has been recorded in instruments signed by those Lord Chancellors.

4. Those instruments authorise, rather than require, the retention of records where retention remains necessary for national security reasons. Records retained by public bodies under security and intelligence instruments are reviewed at intervals of no more than 10 years. The security and intelligence agencies review their records retention policies at least every 10 years.

5. The first security and intelligence instrument issued in 1967 and ran for 25 years. However, the Government Response to the Report of the Wilson Committee in 1982 (Cmnd 8531) indicated that each instrument would be reconsidered after 20 years and that those who retained records would have to seek fresh approval from the Lord Chancellor at intervals of no more than 10 years for the retention of each successive batch of records.

6. There have been three security and intelligence instruments since 1967. The then Lord Chancellor signed the most recent instrument on 19 December 2011. It took effect on 1 January 2012 and will expire on 31 December 2021. This change from a 20-year instrument to a 10 year instrument is in line with the government’s earlier undertaking.

7. The instrument records that each person listed in Schedule 1, who is responsible for records falling within the description set out in Schedule 2 (in brief, records relating to the security and intelligence agencies), is of the opinion that those records ought to be retained for a special reason in accordance with the proviso in section 3(4) of the PRA. The special reason is that the transfer of those records to TNA or other place of deposit would create a risk of prejudice to national security. The instrument also records that the Secretary of State has been informed of the facts and has given her approval for the retention of these records.

8. In short, the new instrument records the Secretary of State’s approval for the retention of all records relating to the security and intelligence agencies specified in Schedule 2 of the Instrument that ought to be retained for national security reasons after the period referred to in section 3(4) of the PRA.

9. Section 3(4) of the PRA does not require approval to be given in the form of an instrument (or any other form). Accordingly, there is no requirement to lay this instrument before Parliament before or after it is made or publish it in any other way. However, in the interests of greater transparency the Secretary of State has decided that the instrument will be made publicly available online.

10. The Secretary of State has consulted the Advisory Council on National Records and Archives on the new instrument.