A public interest defence is an essential part of Official Secrets Act reform

The Queen’s Speech includes plans to reform the Official Secrets Acts. The last of these was passed in 1989, before the dawn of the internet; the first in 1911 – most of the carrier pigeons that served in the First World War had not even been born.

The acts are antiquated and the Counter-State Threats Bill is intended to drag the way we tackle hostile activity from states and new types of actor kicking and screaming into the 21st century. There will be plenty in this bill to keep Liberal Democrats busy in the coming months, not least what Number 10 has briefed The Sun will be “sweeping powers to jail Russian and Chinese spies”.

But my concern is what appears to be a likely omission from the bill. The Queen’s Speech makes no reference to the introduction of a statutory public interest defence. This would create a safety net for people who believe that, for the greater good, they must disclose sensitive information covered by the acts.

Public servants should not, for example, fear jail is inevitable if they are exposing illegalities committed at the top of government. They need to know they can make a public interest defence, albeit one that would later be tested rigorously by a jury. Simply dumping a load of state secrets on the internet would plainly fail that test.

By putting the defence on a statutory footing, civil servants, journalists and others would not have to rely on the creativity of lawyers and juries ignoring the directions of the judge. Katharine Gun and Clive Ponting, the Iraq and Falklands War whistleblowers respectively, escaped jail because of those factors. Others might not be so lucky, while the likes of Sarah Tisdall (the Greenham Common case) did not even have the option of at least testing this defence.

The Cabinet Office asked the Law Commission to review the Official Secrets Acts before drawing up its espionage legislation. Professor Penney Lewis laid her final report before the Houses of Parliament in September. The 33 recommendations included the introduction of a statutory public interest defence. The government has yet to respond.

Alongside top lawyers from Matrix Chambers and Mishcon de Reya, my team at Powerscourt is co-ordinating a cross-party campaign to make sure that defence is included in this bill. We have heavyweight political support, including former Attorney General Dominic Grieve and ex-Cabinet minister David Davis.

Lib Dem shadow home affairs spokesperson Alistair Carmichael has been out in front making the case for this reform. He told The Times earlier this year that public servants “should not be expected to stay silent for political purposes”.

We don’t see this as a party political campaign. We believe the vast majority of Lib Dems will be intuitively supportive, but there are plenty of Conservatives and Labour politicians whose ideological convictions lead them to exactly the same position.

What everyone involved in this campaign shares is a belief that the world has moved on in the past 32 years. Accountability, checks and balances, and transparency at the top of government are accepted tenets of modern democracy.

The government has opened up this golden opportunity for reform. It is the job of MPs and peers of all political hues to make sure ministers take it.

* Mark Leftly is head of public affairs at Powerscourt Group. He was previously press secretary to former Lib Dem leader Sir Vince Cable.

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2 Comments

  • Peter Martin 12th May '21 - 9:38am

    The Establishment will do their utmost to get around a public interest defence even if there is one written into law.

    There is, for example, one already written into the 1997 Prevention Of Harassment Act for those who are seeking to uncover criminal activity. But suppose the Establishment doesn’t want it uncovered? There’s no still no problem.

    They bring an ultra flimsy charge which they drop at the last moment because they don’t want the criminal activity discussed in the court room. But, then they use section 5A of the Act to slap a restraining order on the acquitted defendant. This then makes what they were previously doing illegal, with a much stiffer penalty for breaking the RO than was possible under the PHA, even though Parliament had especially legislated to the contrary. The Act gives the courts the power to do this even though there is never any hope of obtaining a conviction and no evidence need be presented by the Prosecution in the court.

  • Peter Martin, thank you. That is extremely interesting, and an eye-opener to me. And thanks too to Mark Leftly for raising this important matter.

    I am disappointed that there has not been more in the way of visible response. It may be unlikely that any Liberal would wish to argue about the importance of Mark’s point and revelation, but there will always be innocents like me, glad to be told what most members know and agree over.

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