The Official Secrets Act (OSA) 1989 – used to protect government data from unauthorised disclosures by criminalising those that disclose such information without authority – has been a contentious law for many civil society groups, including Protect, who have long been calling for its reform.
Protect has been calling for the introduction of a statutory public interest defence (PID) for civil servants and intelligence workers charged under the OSA for making an unauthorised disclosure – and are delighted the Law Commission is now backing our recommendation in its final report into reforming the outdated Official Secrets Act 1989.
When a public servant is faced with serious wrongdoing, if they have little confidence in the whistleblowing internally, they are left with very little choice but to disclose such wrongdoing to the media. We saw this in the case of Katharine Gun, a GCHQ translator bound by the OSA, who disclosed classified documents to the media relating to US intelligence agencies’ influence of the UN resolution in the lead up to the Iraq War in 2003. Without any effective mechanism to report this wrongdoing, Gun went to the media. Whilst the prosecution against Gun for offences under the OSA 1989 was ultimately dropped, Gun would not have been able to rely on a statutory defence that she was acting in the public interest by making this disclosure to the press.
Protect was among a civil society campaign group consisting of charities, journalists and academics who responded to the Law Commission’s initial consultation paper in 2017, objecting to its central proposals. Protect’s main call was for the introduction of a statutory public interest defence (PID) for civilians (journalists) and for public servants (crown servants, government contractors and notified persons) charged under the OSA 1989 for making an unauthorised disclosure.
The Law Commission ruled out our proposal in its 2017 paper but three years later, in this final report published September 2020 the Law Commission acknowledged their reversal was due to responses from Protect and others on this key issue. The Law Commission have not spelt out what this defence should look like – stating this will be for Government and Parliament to secure the details.
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.
Protect remain cautious …
Protect welcomes the recommendations put forward by the Law Commission in their report. Its key recommendations, that Protect advocated for, is a positive step in the right direction of strengthening whistleblower’s rights and the whistleblowing framework under the OSA, which has been long overdue.
However, these proposals are not flawless. We remain concerned, as we were in 2017, on removing the need for the prosecution to prove the disclosure damaged national security, national defence or relations with a foreign country. The report has stuck to its original thinking that this requirement exposed sensitive material to open court and in turn reduced the chance of prosecution because Government’s wanted to avoid this risk. What it underplays is how the courts are well used to dealing with sensitive material e.g. holding sections of the trial behind closed doors to diminish this risk. If the requirement to show that a disclosure damaged national defence or national security is removed, then this lowers the bar for prosecuting civil servants who may reveal information that is embarrassing for the Government but does not damage national interests.
The public interest defence could be a solution here but there is very little detail in the report of what this test should be. Without a robust public interest defence such as that proposed by the Tshwane Principles (and detailed in our Law Commission submission in 2017) then whistleblowers will suffer in this area.
It is now down to Government and Parliament to implement these changes, fill in the gaps, and reform the law.