August 16, 2021

The Official Secrets Act and jail-worthy journalism - clickbait or cause for concern?

The new proposals to amend the Official Secrets Act have been a hot topic in recent press. While general consensus is that in the age of technology the laws regarding official information need revision, there is also concern that the new plans are being used to prevent journalists and whistleblowers from uncovering and reporting on stories that might embarrass official bodies. But to what extent is journalism in jeopardy and should the public be alarmed? 

What is the Official Secrets Act 1989?

The Official Secrets Act 1989 is legislation that protects state secrets and official data relating to national security and information held by the government. 

Although people refer to “signing the Official Secrets Act”, individuals with access to classified information are automatically bound by it because it is the law and not a contract. 

The Act passed in 1989 creates offences related to the unauthorised disclosure of information by government employees. There are protected categories of information that can trigger an offence under the Act. I.e. It is a criminal offence for current or former government employees to release certain information that is considered “damaging”. There are six types of information, including that relating to security, defence, and international relations. 

What are the proposed changes and why is there controversy?

The Home Secretary, Priti Patel, has published plans to widen the scope of the Official Secrets Act. This follows raids conducted by officials from the Information Commissioner’s Office in an attempt to discover who leaked security camera footage of Matt Hancock’s affair with his aide, Gina Coladangelo. In response, Victoria Newton, editor of The Sun newspaper has said she would risk jail before disclosing the source, which she argues was undeniably in the public interest. 

The new proposals include imposing stricter penalties for breaches and also treating journalists that leak “unauthorised disclosures” in the same way as state espionage - criminal punishment will extend to whistleblowers, journalists, and editors. The consultation also discusses whether the current maximum sentence of two years should be increased to fourteen years. 

If the new plans are approved, this would have had implications on those connected to recent stories such as the MPs’ expenses scandal and the bullying allegations in Buckingham Palace. 

Could a ‘Public Interest Defence’ be the answer?

The Government has taken on board a number of recommendations by the independent Law Commission, but not all. For example, the Commission suggested a “public interest defence” to the new rules, which would have acted as a safeguard for journalists - if their disclosure of information was carried out in the public interest, they could not be convicted under the Act. This would follow similar forms of public interest defences enacted in countries such as Australia, New Zealand, and Canada.

However, the Home Office has rejected this proposal, saying it could “undermine our efforts to prevent damaging unauthorised disclosures”. Critics are concerned that without the necessary safeguards, freedom of press will be compromised and it will be much harder to hold public bodies and officials to account. 


Next steps

While critics acknowledge that the law should respond to the changing times and security is important to counter threat, there remains concern that these laws, if implemented, could jeopardise freedom of press and government accountability. 

In an interview on LBC, Boris Johnson said that the government wants to “make sure that we don’t do anything to interrupt the operation of good journalism” and the Home Office has said this will be a priority and that they will listen to the consultation responses before developing the final proposals.

The Home Office consultation period ran from 13 May to 22 July 2021 and the Government will now be looking at the responses. Consultations provide an important stage in the policymaking process and it enables the public to scrutinise preliminary proposals and inform the development of the policy in its later stages. A summary will be published by the Government alongside further action, e.g. laying legislation before Parliament. 

Read more about the proposals here.

With thanks to Samantha Ruston for this post.

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