Protect Legal Adviser, Emma Darlow Stearn, responds to the governments new National Security Bill, highlighting the grave risk it poses to whistleblowing and the fight against corruption and wrongdoing.
With no specific safeguards for whistleblowers and legal uncertainty regarding whistleblower liability, the National Security Bill (“the bill”), in its current form, is likely to have a chilling effect on whistleblowing, meaning public interest concerns about corruption, fraud and other wrongdoing go unchecked.
Although there are multiple issues with the Official Secrets Acts and the plans to reform them, this article hones in on the potential impact on whistleblowing of two of the bill’s new offences.
The new offences
1/ Obtaining or disclosing protected information
Under Clause 1(1) of the bill, a person commits an offence if they obtain or disclose ‘protected information’ to a ‘foreign power’ and their conduct is for a purpose that they know, or ought reasonably to know, is prejudicial to ‘the safety or interests of the United Kingdom’.
Clause 1(2) defines ‘protected information’ as information to which access is, or can reasonably be expected to be, ‘restricted for the purpose of protecting the safety or interests of the United Kingdom’.
The maximum prison term for this offence is life imprisonment.
2/ Obtaining or disclosing trade secrets
Under Clause 2(1) of the bill, a person commits an offence if they obtain or disclose trade secrets to a ‘foreign power’ and their conduct is unauthorised, or the person knows, or reasonably ought to know that their conduct is unauthorised.
The maximum prison term for this offence is 14 years.
The potential impact on whistleblowing
Protect are not disputing that, in order to safeguard the UK’s safety and interests, it is necessary to have measures in place to prevent the disclosure of protected information and trade secrets to foreign powers.
However, for the reasons set out below, it is vital that there be a public interest defence for such disclosures.
We are concerned that the wide drafting of ‘foreign power’ – defined in clause 25(1) of the Bill as including ‘an agency or authority of a foreign government, or of part of a foreign government’ – could encompass foreign regulators, foreign law enforcement bodies and potentially even foreign media organisations, with whom it is vital whistleblowers feel able to raise concerns without fear of being criminalised.
Without clarification on this point and without a public interest defence for such disclosures, whistleblowers will likely be deterred from raising public interest concerns.
- Whistleblowers may raise public interest concerns with a foreign regulator/foreign law enforcement body if the wrongdoing in question has not, or cannot, be addressed by a UK regulator, and/or if the whistleblower works in the UK for a company based abroad. In 2020, of the concerns raised with foreign regulator the Security and Exchange Commission (“SEC”), after the USA and Canada, the highest number were from whistleblowers based in the UK. Retaining protection when escalating concerns in this way is crucial, as UK regulators/law enforcement bodies will not always have the remit to address whistleblowing concerns relating to foreign and/or international companies.
- Whistleblowers may raise public interest concerns with foreign media organisations where there is, for example, a cross-border element to corruption. In such cases, assistance from foreign journalists, as well as British journalists, may be required to expose payments that have taken place in multiple countries.
Let’s say, for example, that an individual works for the UK branch of a US bank and she raises concerns with the SEC about the illegality of a banking product used only in the US. UK regulators are unable to act because it does not affect UK customers. The individual’s disclosure leads to an investigation, wrongdoing is exposed and a large fine is levelled against the bank. The bank reacts by claiming the disclosures amount to revealing a trade secret.
If the bill is passed without a public interest defence, and without clarity regarding what constitutes a ‘foreign power’ (which, if construed widely, might include a foreign regulator), this individual could be prosecuted for the clause 2 offence of disclosing a ‘trade secret’ to a foreign power.
If convicted, she could face up to 14 years in prison.
That her disclosure is very much in the public interest – indeed, it exposes illegal activity – would not provide a defence.
The potential impact on society
The importance of whistleblowing cannot be overstated. It is one of the most effective ways of holding those in power to account. Whistleblowers are in a unique position to shine a spotlight on what is unethical, illegal or downright dangerous.
It already takes great courage to stick one’s head above the parapet and call out wrongdoing, even with the protections housed in the Employment Rights Act 1996 (as amended by the Public Interest Disclosure Act 1998).
If whistleblowers also risk life imprisonment, or at the very least simply do not know whether or not they can raise concerns without committing a criminal offence, the public interest concerns that never see the light of day will likely see a manifold increase.
And we do not want that as a society.
Discouraging whistleblowing runs against everything a democratic society should aspire to be: transparent, responsive and accountable.
At a time when repeated wrongdoing has taken place at the heart of government, about which staff felt unable to raise concerns properly, it has never been more keenly important to ensure that whistleblowers are protected and the risks to them minimised.
What can be done?
Protect propose that:
- It is clarified whether foreign regulators, law enforcement bodies and media organisations are ‘foreign powers’ for the purposes of the bill; and, if they are, a carve-out is introduced for whistleblowers.
- a public interest defence is introduced for the clause 1 and clause 2 offences. In line with the rationale for introducing a public interest defence to the existing Official Secrets Act 1989 offences (as recommended by Protect, the Law Commission and many civil society organisations), it would be a proportionate and effective safeguard for whistleblowers to introduce a defence to the clause 1 and clause 2 offences, where obtaining or disclosing protected information or trade secrets is in the public interest. This would not undermine the protective purpose of the bill but rather simply acknowledge that in some cases, the public interest in obtaining or disclosing protected information or trade secrets might outweigh the impact of the clause 1 and clause 2 offences on the safety and interests of the UK.
- A requirement to prove damage, or potential damage, is introduced for the clause 1 and clause 2 offences. At present, the bar for both offences is too low, as merely obtaining or disclosing protected information or trade secrets is enough to lead to a conviction, regardless of whether damage was, or was likely to be, caused.
It is hoped that before the upcoming Committee stage of the bill’s passage through Parliament, the adverse impact that the bill could have on whistleblowing is properly considered, appropriate changes are made and the Government dodges the self-sabotaging bullet of critically undermining whistleblower protection.