Tag Archives: official secrets act

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.

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Draconian changes proposed to Official Secrets Act

Out of the blue, on Saturday, we learned that The Law Commission has been at work. It proposes changing the Official Secrets Act to cover matters that are about what the government of the day considers to be matters of national economic interest. Anyone in unauthorised possession of material that might be included in the scope of the Act, or who transmits it or publishes could go to jail for up to ten years. There would be no restriction on who can commit the offence,” including hackers, leakers, elected politicians, journalists, and NGOs.

What this boils down to is the ability of government to shut people up. Imagine this; The Daily Boot is passed a paper that says that, as part of trade deal negotiations, HMG will allow US chicken treated with chlorine to be sold in the UK. If the news becomes public the trade talks might be jeopardised. The Boot’s editor either publishes and risks jail or lets the matter quietly drop. Ah, but that’s not good enough. Even being in possession or having had knowledge of the information could make the editor liable to prosecution. The Damoclesian Sword hangs forever over the editor’s neck.

The Liberal Democrat MP for Old Sallop can’t raise the matter in the Commons, as that would mean the member admitting they know what is in the material, thus rendering themselves liable to prosecution.

The Law Commission has published an enormous consultation document called Protection of Official Data.

I put consultation in italics because the Commission claims it has already consulted widely, though this statement is as thinner than an After Eight mint crushed by ten-ten road roller.

Posted in Op-eds | Also tagged | 19 Comments
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