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Disclosures, public interest & the Official Secrets Act

At Protect, we believe that whistleblowing is a bedrock of our democracy and crucial to holding the government accountable, detecting fraud and preventing serious wrongdoing. The Official Secrets Act 1989 (the “OSA”) ensures civil servants keep some key national security information confidential but should not prevent whistleblowing altogether.

A workshop on ‘Civil Society, National Security, and Breaking Down Barriers for Public Interest Disclosures’ was recently organised by Protect, Dr Kaeten Mistry of the University of East Anglia and Anna Myers of the Whistleblowing International Network.  The event featured two roundtables: ‘Disclosures and the Public Interest’ and ‘The Official Secrets Act’, the purpose of which was to debate the government consultation on the OSA and the proposed inclusion of a public interest defence in any reform of the existing statute (*spoiler alert* – all participants were unanimously in favour of including such a defence). Below is a summary of the key takeaways from what was an incredibly invigorating meeting of minds – among them former ministers, journalists, experts in whistleblowing and academics of law, history, international relations and business.

Nobody disagreed that the OSA is in need of reform – it was referred to by turns as an ‘antiquated’ and ‘out of date’ law – a ‘blunt instrument’. However, there was genuine worry regarding the government’s proposed reforms, which would put the actions of journalists and whistleblowers on a par with espionage:

  • Increasing the maximum jail sentences for journalists and whistleblowers from 2 to 14 years;

 

  • Removing the need for an unauthorised disclosure to have caused damage before prosecution– meaning the discloser would be guilty of the offence if they knew or reasonably should have known that disclosure was capable of causing harm. (At present, the OSA creates an offence for the unlawful disclosure of information in six specific categories which are deemed ‘damaging’, including security and intelligence; international relations and defence…)

 

  • Rejecting calls for the OSA to have a public interest defence (a public interest defence has been recommended by Protect, the Law Commission and many civil society stakeholders).

One delegate was keen to stress that a considerable impact of the OSA reforms would be symbolic – its ability to intimidate people into believing that any disclosure for which they do not have permission might lead them to go to prison. Increasing the maximum jail sentence might deter criminals but might also deter would-be-disclosures of real public importance. By removing the need to establish ‘damage’, the consultation is moving the OSA back into a historic realm of punishing breaches of trust, a far lower hurdle for any prosecution to overcome compared to public harm. The inclusion of a public interest defence is therefore vital in counterbalancing the symbolic, as well as the practical, impact of this punitive law.

The broad scope of the OSA was highlighted, with national security being only one issue it covers. One participant posed a powerful hypothetical scenario to emphasis this point: if a worker were to raise concerns about inadequate security outside an animal testing organisation and the compromising effect this had on the safety of staff, they might commit an offence under the OSA, as simply by disclosing that there are weaknesses in security, they are disclosing information likely to prejudice law enforcement. The legitimate purpose of raising the concern would be immaterial. Without a public interest defence, the OSA, even in its current, less severe form, risks discouraging workers from raising concerns that would very clearly be in the public interest.

It was noted that the OSA is not, at present, applied consistently: politicians are treated differently, and preferentially, to more junior civil servants like GCHQ whistleblower Katharine Gun, the former often evading prosecution. Also unpredictable is the approach to disclosures deemed to be in the public interest. As noted in the discussion (and written about in detail by Matrix Chambers and Mishcon de Reya on their briefing paper on introducing a public interest defence), a public interest defence has already snuck in by the back door. One example of this was when Katharine Gun’s proposed defence of ‘necessity’- which would have likely incorporated public interest arguments- led to her case being dropped, as the CPS deemed it irrebuttable.

Surely, if a public interest defence is already effectively being applied, it would be beneficial to give it statutory footing and with it, clarity; it is a basic principle of the rule of law that ‘the law must be accessible and so far as possible intelligible, clear and predictable’ (Lord Tom Bingham, The Rule of Law)- not arbitrary, ill-defined and left to the discretion of juries. The Government may oppose a public interest defence, because they believe that only they can decide what information should be kept secret in the national interest, but many believe this is a convenient cover to stop stories emerging that may embarrass the Government.

The chilling effect of the proposed reforms was repeatedly emphasised but, as one speaker urged, care should be taken not to accept the removal of the few safeguards and robust ‘tests’ that already exist in the OSA (jury trials, need to prove harm etc.) in exchange for a public interest defence.

The Law Commission has also called for the introduction of a Statutory Independent Commissioner, with legal powers to receive and investigate complaints of serious wrongdoing, where a disclosure of such information would be an offence under the OSA. Some participants were more enthusiastic about this Commissioner role than others. Protect are on the positive side of such a reform, as long as it is well resourced, independent and put in place with a public interest defence. It would certainly address a gap in the law for workers in public sector organisations, who having signed the OSA, find themselves afraid to raise concerns about any sort of wrongdoing to anyone for fear of placing themselves in breach of the Act: there is no channel to either raise concerns or find definitive advice on what would and would not constitute a breach of the OSA. This lack of clarity would be addressed by the existence of an independent commissioner.

There was some debate about whether or not anonymous reporting should be encouraged, as a way to allow whistleblowers to blow the whistle without fear of reprisal. It might indeed encourage people to raise concerns but also risks damaging ‘data dumps’ and in fact could lead to a more compromised position should the identity of an individual whistleblower subsequently come to light. Through the lens of the Public Interest Disclosure Act 1998, which affords whistleblowers protection from negative treatment at work, confidential reporting is almost always preferable to anonymous reporting, so that a record of having raised concerns exists, should detrimental treatment follow as a result (it would be much more difficult to prove that one had been treated negatively as a consequence of raising concerns if there was no record of the initial disclosure).

The discussion ended on a hopeful note – not least because of the sense of solidarity that had been fostered by sharing (virtual) space with so many people who recognised the importance of whistleblowing, independent journalism, freedom of expression and a continued open dialogue.