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Without a general public interest defence, the law lacks a vital safety valve to ensure that governmental secrecy is not abused to cover up serious wrongdoing.
There is widespread and growing concern about the government’s proposed reform of the Official Secrets Acts. The media are right to be alarmed that government has not adopted the powerful independent recommendation of the Law Commission that there should be a general public interest defence to the Official Secrets Acts.
That is a glaring omission in the government’s current stance, and cuts across government’s claim that it seeks to “future-proof” the legislation. The calls for a public interest defence are not new and the need for it is well-established, with the Law Commission’s recommendation just the latest in a line of authoritative and compelling backers of a defence.
If a test case were brought challenging the human rights incompatibility of our current secrecy laws, it would likely succeed
Responsible, diligent people – whether civil servants, members of the public or journalists alike – ought not to be prosecuted for exposing misconduct and journalists cannot be criminalised for publishing material which holds the government to account. Without a general public interest defence, the law lacks a vital safety valve to ensure that governmental secrecy is not abused to cover up serious wrongdoing.
The lack of any statutory defence which decriminalises public interest disclosures leaves the UK in breach of its international law obligations and is incompatible with basic freedom of speech protections. The Law Commission, a mild-mannered law reform body by any stretch, confidently predicts that if a test case were brought challenging the human rights incompatibility of our current secrecy laws, it would likely succeed.
Experts from Matrix Chambers, Mishcon de Reya and Powerscourt have drafted a calibrated statutory defence which they have submitted to the Home Office and are campaigning to ensure it is properly considered by the government. The campaign is backed by former Cabinet Ministers, including David Davis MP, Alistair Carmichael MP, and former Attorney General Dominic Grieve.
The defence strikes a balance – it would not be a carte blanche for whistleblowers, nor would it encourage information anarchy where nothing can be kept secret. Instead, a claim that a disclosure is in the public interest would need to be assessed, by a judge and jury, against objective criteria and the manner of the disclosure would also need to be carefully considered.
Key factors in the assessment include the gravity of the misconduct exposed, whether the disclosure was done altruistically or for gain, and whether there was a realistic prospect of a more limited disclosure. Other Five Eyes nations, including Australia, Canada and New Zealand, have similar forms of public interest defence and the sky has not fallen in there.
The Official Secrets Acts are a legacy of the Cold War era, a time when the internet had not been invented and legal notions of freedom of information were still nascent. There is widespread agreement that the current spy laws not fit for purpose. The government currently has a golden opportunity to enact a public interest defence. If it rejects the growing public clamour for this overdue reform, it is only a matter of time before the next Official Secrets Act prosecution in the Old Bailey ends up on appeal in the Supreme Court – and then it will be the government which has no defence it can rely on.
Alex Bailin QC is a human rights barrister at Matrix Chambers.
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