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Dangerous plans could jail whistle-blowers and journalists

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Duncan Campbell at a recent virtual Branch meeting. He spoke to London Freelance Branch on a life in crime reporting in March 2017

THE UK HOME OFFICE has called for comment on proposed new laws with greater reach and harsher penalties to "counter state threats". These are intended to replace and enlarge Britain's aged Official Secrets Acts. Although portrayed as aimed at hostile state actors, the new laws would if passed ensnare journalists and sources whose job is reporting "unauthorised disclosures that are in the public interest".

Calling for "increased maximum sentences", the Home Office claims that there is not now necessarily any "distinction in severity between espionage and the most serious unauthorised disclosures", including "onward disclosure" in the press. Journalism could even create "more serious "damage" than a spy.

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Duncan Campbell spoke to London Freelance Branch on the Investigatory Powers Bill, as was, in May 2016

An unprecedented new proposal for so-called "Civil Orders" would allow the government to bypass courts and control impose controls "against those who may be vulnerable and susceptible to foreign state coercion and influence."

The consultation document, endorsed by Home Secretary Priti Patel, says that press disclosures could be worse than spying, because the work of a foreign spy "will often only be to the benefit of a single state or actor".

Proposed: reversing hard-won gains

Although claiming to have based its plans on a report by the Law Commission in September 2020, the Home Office wants to bin hard-won gains by the NUJ and other groups who campaigned for the initial Law Commission proposals to be changed in 2017. The Commission then spent two years taking in the sustained and extensive criticism – and made new and important charges. It recommended:

  • "a statutory public interest defence should be created for civilians, including journalists, that they can rely upon in court".
  • Journalists and sources should not be convicted if it was in the public interest for the information disclosed to be known by recipients.
  • An independent, statutory whistleblower commissioner "should be established with the purpose of receiving and investigating allegations of wrongdoing or criminality"

The Home Office wants to junk these proposals as "not the right balance in this area". The idea that any unauthorised disclosure of official data could be in the public interest should not be possible, they say. They deride the idea of whistleblower protection, asking for "any evidence … why existing government whistleblowing processes would necessitate the creation of a Statutory Commissioner?"

The Citizens, a campaign for openness started by campaigning journalist Carole Cadwalladr, noted that the Home Secretary's conduct was "one of many reasons why the Johnson government's conduct vitally needed such scrutiny and whistleblower protection", according to director Kerry Shaw.

Responses to 39 questions have to be submitted to the Home Office by 22 July 2021.

The Law Commission started work on "protecting official data" in 2016. It claims the proposed reforms are needed "to bring the law into the twenty-first century and protect the United Kingdom from espionage (spying) and unauthorised disclosures (leaks)."

The the changes were, supposedly, justified because of the ability of "hostile states" to conduct cyber-attacks on the UK and because the potential impact of spying and leaks had increased significantly and the old Official Secrets Acts were, in the dreaded phrase, "no longer fit for purpose."

It all went very quiet, until...

Initial proposals by the Law Commission in 2017 initially did not attract much attention until an article in The Register, the online technology publication, which told readers: "proposals in the UK for a swingeing new Espionage Act that could jail journalists as spies have been developed in haste by legal advisors."

The article went on to point out that the proposals would put leaking and whistleblowing in the same category as spying for foreign powers and that leakers and journalists could face the same extended jail sentences as foreign agents. Sentences would apply even if – like Edward Snowden or Chelsea Manning – the leaker was not British, or in Britain, or was acting in the public interest.

"It is alarming that such a far-reaching proposed reform of laws which could be used to jail whistle-blowers and journalists should have been drafted without any adequate consultation with free speech organisations", said Alan Rusbridger, the former Guardian editor, at the time.

It transpired that there had been very little consultation with either media or freedom of expression organisations, such as the Bureau of Investigative Journalism, the Centre for Investigative Reporting, Reporters Without Borders, Amnesty International, Article 19, Open Democracy or Index On Censorship.

After the article appeared, there were protests in the press across the political spectrum from the Daily Telegraph to the Guardian to the Daily Mail. An avalanche of criticism from NGOs and press and media organisations followed and the public consultation period for the proposals was duly extended. With further delays added by the Covid-19 restrictions, it was not until last year that the Law Commission published its current version.

Although some of the original proposals were watered down or adjusted what remains - and what could soon become law given the government's large majority and its current authoritarian intentions - are still disturbing. As the former Guardian security editor, Richard Norton-Taylor, puts it in an article for Declassified UK: "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."

Proposed: a lowered bar for easier convictions

Instead of applying, as now, to unauthorised disclosures "likely" to damage defence, international relations or law enforcement, Norton-Taylor points out that it would be an offence to reveal information that the discloser should have realised was simply "capable" of causing such damage. He quotes Maurice Frankel, director of the Campaign for Freedom of Information, as warning that the Law Commission's proposals could criminalise the release of a vast amount of additional information: "a whistle-blower revealing information, or a journalist or blogger publishing it, would commit an offence even if there was only the remotest possibility of harm."

Nor could the whistle-blower now argue that they acted in the public interest.

One of the main changes is to widen the scope for prosecutions. "For public servants," according to the proposals, "offences should not continue to require proof of damage, as is currently the case. Instead, they should require proof of a sufficiently culpable mental state, by which we mean, for example, proof of the defendant's knowledge or belief that the disclosure would cause damage."

Proposed: increased sentences

In addition, maximum prison sentences, currently two years under the Official Secrets Act for such unauthorised disclosures, would be increased to terms as yet unspecified. As it happens, the Police, Crime, Sentencing and Courts Bill, currently being debated outside parliament and the subject of protests across the country, already proposes doubling punishments for those arrested on demonstrations, which would apply to NUJ members such as photographers and reporters. It would appear that the government is anxious to ensure that the United Kingdom at least leads western Europe in one category: the per capita jailing of its citizens.

Proposed: penalties without prosecution

In the new consultation, "Civil Orders" are proposed "in recognition of the fact that there may be cases where it is not possible to prosecute or otherwise disrupt individuals considered to be involved in hostile activity on the behalf of states, the Government is also considering the case for inclusion of a power of last resort that would enable it to impose a range of restrictions on particular individuals."

"The order could include a range of restrictive and preventative measures, including measures to prevent an individual associating with certain people or from visiting specified sensitive locations... our initial view is that… these measures… could be imposed by the executive rather than the courts."

Much is made of the terms used to refer to leaking and spying and the proposals recommend that "the new espionage statute contains modern language and updated provisions. In addition to replacing 'enemy' with 'foreign power', we recommend replacing the terms 'sketch, plan, model, note and secret official pass word and code word' with 'document, information or other article' (which should be defined to include any program or data held in electronic form)" when outlining the type of information that could be stolen.

But, as Barry White, of the Campaign for Press and Broadcasting Freedom, points out "crucially, there is no generally recognised definition of national security in the Act as it currently stands and it won't be defined in any new legislation."

The potential moves have already been defended by the home secretary, Priti Patel. She heralded them on the grounds that they would empower the police and security services and "give them the powers they need to combat new threats."

The NUJ’s major rôle

The NUJ played a major role in opposing the use of the Official Secrets Act in the "ABC" case in 1977-78. It is encouraging speedy responses to the government's proposals before the July 21 deadline.

"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," said General Secretary Michelle Stanistreet; "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."

  • Both authors are members of London Freelance Branch. Duncan Campbell is a former Guardian journalist. The second Duncan Campbell is the author of the 2017 Register article referred to above; he was prosecuted in 1977 under the Official Secrets Act in what was known as the "ABC" case, after the initials of the three defendants - the others being the late Time Out reporter, Crispin Aubrey and the former soldier, John Berry.