New UK Laws Could Criminalize Journalism
May 30, 2020
The British government is pursuing "espionage legislation" that could
criminalise the release of public information as part of an "epidemic of
secrecy," reports Richard Norton-Taylor.
By Richard Norton-Taylor
Declassified UK
British journalists and their sources are facing an unprecedented assault on
freedom of speech, including the prospect of criminal prosecution. Threats
aimed at whistleblowers and journalists were evident before the coronavirus
crisis struck, but went largely unnoticed.
The government's Queen's Speech in December included plans for new
"espionage legislation". It stressed the need to combat "hostile state
activity" and make the UK "a harder environment for adversaries to operate
in" - an indirect reference to the poisoning in Salisbury of Russian double
agent Sergei Skripal.
But it also insisted that the Official Secrets Act, drawn up in 1989, must
be "updated" and confirmed that the Law Commission, the body that reviews
the law in England and Wales, has been commissioned by the government to do
this.
Yet proposals drawn up by the Law Commission to review the Official Secrets
Act pose major dangers. Whistleblowers and journalists could be convicted
for revealing information about defence, international relations or law
enforcement, even if it was unlikely to cause harm. They would make it
easier to secure convictions by weakening the existing tests for proving an
offence.
Neither would someone revealing danger to the public, abuse of power or
serious misconduct be able to argue that they acted in the public interest.
In addition, maximum prison sentences on conviction, currently two years
under the Official Secrets Act, would be increased.
Moreover, it would not be a defence to show that the information had already
lawfully been made public - unless the information had also been "widely
disseminated". How would that be determined?
Maurice Frankel, director of the Campaign for Freedom of Information, has
warned that the Law Commission's proposals could criminalise the release of
a vast amount of additional information.
Keira Knightley plays GCHQ whistleblower Katharine Gun who was charged with
breaking the Official Secrets Act. The case against her was withdrawn when
it reached the Old Bailey (Photo: Official Secrets)
Instead of applying, as now, to unauthorised disclosures "likely" to damage
defence, international relations or law enforcement, he points out that it
would be an offence to reveal information that the discloser should have
realised was simply "capable" of causing such damage.
"A whistleblower revealing information, or a journalist or blogger
publishing it, would commit an offence even if there was only the remotest
possibility of harm", says Frankel.
Douglas Hurd, the home secretary responsible for the 1989 Official Secrets
Act, assured the public that the measure would not apply to "information of
a general nature that might conceivably be useful in committing an offence,
where the chain of circumstance is too long and too uncertain".
The Law Commission's proposals would scrap this crucial limitation, Frankel
warns. Importantly, officials who released information knowing that there
was no realistic chance of harm would still risk prosecution, without any
public interest defence.
Furthermore, under the proposals, leaking information that anyone could
obtain by making a Freedom of Information (FOI) request could be an offence.
More Secrecy
Queen Elizabeth II, with Prince Charles, delivers the second Queen's Speech,
December 2019.
(UK Government)
The Queen's Speech included two other little-noticed measures that would
bolster official secrecy. The government's Environment Bill would prevent
the proposed Office for Environmental Protection from disclosing
information, including about suspected failures by public bodies and
organisations to comply with the law.
Under the Health Service Safety Investigations Bill, a new body would
investigate patient safety accidents or incidents in the National Health
Service. But the disclosure of information held by the new Health Service
Safety Investigations Body (HSSIB) would be severely limited.
The measure would remove existing rights of access to information under the
FOI Act and the right of individuals to see their own personal data under
data protection legislation.
"The scope of this prohibition is remarkable", says the Freedom of
Information Campaign.
"It applies to any information held 'in connection with' the HSSIB's
function that is not already published, whether or not it relates to an
identifiable individual, whether or not it relates to an identifiable
investigation and whether or not it is capable of deterring participants
from speaking frankly to investigators, inhibiting investigators in reaching
their conclusions or causing any other adverse effect at all."
The current crisis has exposed the government's instincts to run for cover
behind a wall of official secrecy. It has revealed what Frankel calls "an
epidemic of secrecy", insisting that "it is following scientific advice
while withholding the advice".
It has only been leaks which have allowed the public to know the membership
of the important SAGE group of scientific advisers addressing coronavirus
and the report of a simulated influenza pandemic exercise in the National
Health Service in 2016. At the time of writing, just 28 of more than 100
expert papers on the crisis have been published.
NHS staff revealing shortages in protective equipment have been threatened
with disciplinary action by their managers, who are themselves more likely
to be responsible for those shortages.
Instead of regretting, explaining, or justifying its decision to impose a
quarantine on people returning to Britain after holidays or business trips,
the home secretary, Priti Patel, and the head of the UK Border Force, Paul
Lincoln, appeared at a recent joint press conference to revel in the
prospect of being given new powers.
But "Take Back Control" - the cry of the Brexiteers led by Dominic Cummings,
Boris Johnson's chief adviser - takes on a whole new meaning as the
government relishes the prospect of imposing more and more restrictions on
the disclosure of information.
The official appeal to "Stay Alert" to protect people from the coronavirus
should now be adopted in the fight against increasingly oppressive official
secrecy.
Richard Norton-Taylor is the author of The State of Secrecy, published by IB
Tauris, an imprint of Bloomsbury. He sits on the board of Declassified UK
and is the Guardian's former security editor.
This article originally appeared on Classified UK.
