EVEN under the current UK Government's standards, the Home Office public consultation due to close this week - with the title Legislation to Counter State Threats (Hostile State Activity) - seems fairly anodyne and has fallen under most people’s radar. Yet a closer look shows the department headed by Priti Patel has not steered too far from the controversy she appears to relish.
Ostensibly these proposals are to reform the British state’s secrecy law in the face of threats from the more sophisticated technology of foreign nations. This would include changing the Official Secrets Act 1989 – in force across the whole of the UK.
But the most radical parts of these proposals do not apply to overseas lands at all, but to journalists and whistleblowers based right here. What it says is that there should be no legal distinction between “espionage” – that is spying on behalf of another state and “unauthorised disclosure of information”. The latter would include people who leak information to journalists. Also, the criminal sanction for the person that discloses the information and the writer that reports on it would be the same. In some instances this could amount to a 14-year jail sentences.
Journalism internationally has a long honourable history of exposing the worst excesses of states during war and peace time relying on whistleblowers providing them with sources. Endless Holywood blockbusters – like The Post with Tom Hanks in 2017 – and various TV boxsets have illustrated the heroic role in challenging injustice played by newspapers and principled writers.
Notoriously, civil servants Clive Ponting (who died last year) and Sarah Tisdall were prosecuted under the Official Secrets Act in the 1980s for highlighting information on the Falklands War and US Cruise Missiles. Ponting had charges dismissed by a jury whilst Tisdall served four months in jail.
These proposals would spread the possibility of these legal attacks to the journalists who published the material with much heftier jail sentences.
In another shocking element it is proposed the burden of proof or in other words the level of evidence needed to convict under secrecy legislation should be changed. Currently if someone leaks information it would need to be shown that there should be “proof or likelihood of a damage” by revealing the information. The new scheme only needs to show that it was theoretically “capable” of causing damage – and this also applies to journalists publishing the information.
It would be a common defence for whistleblowers and writers that their actions were in “the public interest”. Indeed, that was the argument Ponting successfully used in his case. However, the Home Office is explicit in its rejection of this defence being used in their new legal approach. Incredibly they argue that journalists are not qualified to judge what the public interest is when publishing material. This role, it seems, is solely reserved to the Government itself.
It is difficult to see how such a repressive approach to freedom of the press is compatible with human rights legislation. Criticism of the Scottish Government’s hate crime proposals resulted in amendments to the law which make explicit mention of the European Convention of Human Rights and its sections on protecting free expression. Nothing of that nature is mentioned in the Home Office consultation.
At a time of increasing state repression across the planet and instability caused by economic division, climate change and the pandemic proposals to criminalise the exposure of injustice and the abuse of power must be seen as extremely worrying. They seem more like laws promoted by dictatorial regimes internationally.
It has never been more important to hold politicians and public figures to account in the UK and Scotland. This should include when necessary leaking and publishing critical information. Just having this law on the statute books would have a chilling effect – putting off whistleblowers and the campaigning journalists of the future.
Hopefully the lack of knowledge and scrutiny of these proposals will end when Patel and Johnson come out in the open with their plans for state secrecy and the freedom of the press
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