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Tell the government how harmful Official Secrets law could be

THE NUJ has warned journalists and media outlets to respond to UK government proposals to change Official Secrets laws. The government consultation was published without much fanfare on 13 May.

The NUJ first launched a campaign opposing Law Commission proposals to reform Official Secrets legislation in 2017. The union argued at that time for the introduction of a public interest defence in law for journalists. The Law Commission did recommend this; but in the current consultation the UK government says it rejects that proposal.

Other notable features of the consultation include:

  • The government seems to want the protection against seizure of journalists' notes and so on - "Special Procedure Material" under the Police and Criminal Evidence Act 1984 (PACE) - not to apply to searches under Official Secrets law, and to reduce the threshhold for authorising such searches - which currently need a Superintendent's say-so.
  • That those accused of Official Secrets offences should have their choice of defence restricted to a lawyer who "must have undergone security vetting to the appropriate level and systems/premises assurance".
  • A deeply alarming and utterly vague suggestion of "Civil Orders" to "disrupt" the activity of those "considered to be involved in hostile activity on the behalf of states". The point of these would, of course, be that the government could obtain them on the basis of a "balance of probabilities" - a much lower standard than convincing jurors in a criminal prosecution that they are "certain so that they are sure".
  • How those "Civil Orders" could affect journalists is illustrated by the proposal for a requirement that agents of "state actors" must register with the authorities. Russia Today would almost certainly fit the definition of a "state actor"; and would Deutsche Welle be considered one after its journalists reveal corruption in procuring parts for a UK nuclear submarine?
  • Of course, the purpose of a registration requirement is to create grounds for arrest and prosecution without going into the content of what someone has done. This makes it particularly dangerous for journalists working for state broadcasters, and it would seem to be an attempt to circumvent any considerations of human rights such as freedom of expression and information.
  • That a "Statutory Commissioner should be established with the purpose of receiving and investigating allegations of wrongdoing or criminality, where otherwise the disclosure of those concerns would constitute an offence under the Official Secrets Act 1989". This is framed as a sort of whistleblower provision, but it is unclear whether journalists could be required to submit allegations to such a Commissioner.
  • Nearly hidden in an appendix we find a proposal to allow Ministers to make orders instantly extending the list of "Prohibited Places" under the Official Secrets Act. Parliament would be informed later.

The consultation is framed rather remarkably in its introduction: "States who engage in hostile activity in or against the UK are becoming increasingly emboldened, asserting themselves more aggressively, to advance their geo-political objectives and undermine our own. At a strategic level, this activity seeks to undermine the UK's security, prosperity, social cohesion, resilience, democracy, values, institutions and strategic advantage, as well as the rules based international system and associated organisations that underpin all of the above." Apart from sub-editorial tooth-grinding at that "States who," the implications concerning the EU referendum are stunning.

NUJ General Secretary Michelle Stanistreet says: "We remain fundamentally opposed to any moves by the state that would make it harder to report on national security or pose harsher penalties for journalists, their sources and whistle-blowers. The NUJ has a proud history of defending a free press and the public's right to know and now we want to alert the whole industry to the potential dangers that are currently emanating from government."

She recalls that Duncan Campbell and Mark Hosenball faced such threats when they wrote about electronic state surveillance in Time Out magazine in May 1976. Hosenball, who had been working for the Evening Standard, was subsequently deported on the grounds that he was a danger to national security. "The most recent example of official secrets legislation being used in an attempt to threaten and silence journalists was the case of Trevor Birney and Barry McCaffrey who were forced to spend two years fighting a press freedom battle arising from their investigative and award-winning film No Stone Unturned. Trevor and Barry were arrested in Belfast in August 2018 and their homes and offices were raided. In May 2019, Belfast appeal court judges quashed the warrants for their arrests." In November 2020 the pair settled with the UK government, getting compensation of £875,000.

The NUJ remains "fundamentally opposed to any moves by the state that would make it harder to report on national security or poses harsher penalties for journalists, their sources and whistle-blowers". Please send a copy of your response to the consultation to osa@londonfreelance.org.