Got a tip off? Well, watch out as it may be 14 years imprisonment if you reveal it.

The reform of the UK’s Official Secrets Acts 1911, 1920, 1939 and 1989 (‘OSA’) should be of concern to all those interested in whistleblower legislative reform, protecting the rights of whistleblowers and of safeguarding quality investigative journalism, but will it see the death of democracy by 1,000 cuts – a fear many commentators have expressed?

I agree with my colleague, Ian Foxley, at Parrhesia about the Government’s proposed reform of the OSA. Some reform is overdue. Technology has changed the nature of espionage and leaks. The OSA needs to keep apace in the interests of national security. Few of us would disagree. In light of this, the Law Commission made some sensible proposals in September 2020.

The recommendations included:

• Updating the archaic language of the Official Secrets Acts to ensure the legislation is fit for purpose. For example, replacing the word “enemy” with “foreign power”, which would include terrorist organisations and companies controlled by a state.
• For prosecutions of public servants (crown servants and contractors) who leak information, to remove the requirement to prove that the leak caused damage. Instead, the offence should require proof of a sufficiently culpable mental state (which should be decided by Parliament). For example, knowledge or belief that the disclosure would cause damage.
• For cases of espionage carried out against the UK from abroad, that an offence would be committed irrespective of whether the individual is a British citizen, provided there is a significant link between the individual’s behaviour and the interests of the United Kingdom.
• A statutory public interest defence should be available for anyone – including civilians and journalists – charged with an unauthorised disclosure offence under the Official Secrets Act 1989. If it is found that the disclosure was in the public interest, the defendant would not be guilty of the offence.
• Public servants and civilians should be able to report concerns of wrongdoing to an independent statutory commissioner who would be tasked with investigating those concerns effectively and efficiently.
• Parliament should consider increased maximum sentences for the most serious offences in relation to leaks. However, the Law Commission does not make a recommendation on what new maximum sentences should be.

In the careful weighting that is always required when protecting the interests of national security whilst upholding human rights and the public interest, the Law Commission also stated:

The Law Commission’s recommendations aim to ensure the law can protect against the nature and scale of modern threats and allow Government to respond effectively to illegal activity. At the same time, our aim is for the recommendations to be proportionate, in line with human rights obligations and ensure that Government can be held to account.

The Government’s consultation closed on 22 July 2021. In relation to the Law Commissions recommendation for a statutory public interest defence the Home Secretary is not enamoured with that, and at page 24 of the Government’s consultation it states as follows:

‘Press freedom is an integral part of the UK’s democratic processes, as is the ability for individuals to whistleblow and hold organisations to account, when there are serious allegations of wrongdoing. However, a balance must be struck with safeguarding official information (including national security information), where its compromise could harm the UK, its citizens or interests, given the unlawful disclosure and/or subsequent publishing of sensitive documents can lead to serious harm in many cases. We are not convinced that the Law Commission’s recommendations strike the right balance in this area. Our fundamental concern is that a person seeking to make an unauthorised disclosure, whether in Government or otherwise in possession of official material, will rarely (if ever) be able to accurately judge whether the public interest in disclosing the information outweighs the risks against disclosure. Even if the case is subsequently made that the disclosure was not in the public interest, and the person 25 who published the information has committed a criminal offence, this does not undo the potential damage caused by the disclosure.’

So, if we had the Government’s reported legislative reform in place after 1989, we may not have had the disclosures of Edward Snowden in 2013 of the activities of US and UK spy agencies, including major global surveillance programmes, and the wider debate about the role of the state in facilitating mass surveillance.

Where would my colleague Ian Foxley be when he disclosed (now proven) corruption at GPT/Airbus and was threatened under section 2 of the OSA?

Journalist, Neil Mackay commented on Twitter that he would have been jailed under these reforms for his reporting on the work of British Intelligence in both Northern Ireland during the Troubles, and in the run up to the Iraq war.

And, perhaps it is coincidental timing to the reform of the OSA, but there are a number of High Court claims against the Government citing misfeasance and bias in the award of public contracts. The ‘activist lawyers’ (as the Home Secretary likes to call them) are reliant on whistleblowers and a reliable evidential trail. Indeed, the Good Law Project’s website states

Got a tip off?

Share confidential information securely here →.

The Home Secretary’s cherry picking of the recommendations has serious implications in silencing whistleblowers, making it harder for investigative journalists to rely on good quality sources of information and for evidence to be obtained to support legal claims that may expose corruption. The government ensured that the OSA was signed by the doctors and nurses employed by Atos Healthcare as medical assessors for the continued payment of disability benefits. This was an insidious mission creep of the use of the OSA to ensure the system’s failings were not exposed by those administering it.

This reform is likely to make Government less accountable and less open to public scrutiny for issues that do not concern national security at all. As some public commentators have remarked ‘this is how democracies die, slowly and by 1,000 cuts‘.

I await the Government’s response to the consultation with trepidation.