Public interest defence must be created for leakers violating Official Secrets Act, government told

Law Commission says parliament would have to decide ‘which factors define the public interest’

Lizzie Dearden
Security Correspondent
Tuesday 01 September 2020 23:06
There is currently no public interest defence for breaking the law
There is currently no public interest defence for breaking the law

A public interest defence should be created for people who leak information in violation of the Official Secrets Act, the government has been told.

The Law Commission, a statutory independent body that recommends reforms in England and Wales, said the 1989 law needed to be “brought into the 21st century”.

It said that security services personnel, members of the military, civil servants, journalists and civilians should be protected from prosecution in circumstances where illegal disclosures are made for the public good.

“This would require both the subject matter being disclosed being in the public interest and the manner of disclosure also being in the public interest,” the Law Commission said.

“We do not outline which factors define the public interest, as this is a political question and therefore should be determined by government and parliament.”

The body called for an independent commissioner to be established to assess allegations of criminality. It also said protections must be created to uphold freedom of expression.

The recommendations came after a series of controversies relating to the Official Secrets Act, which currently has no public interest defence.

In July last year, journalists were threatened with prosecution under the law if they published leaked diplomatic cables from the British embassy in Washington.

Sir Kim Darroch had resigned as ambassador to the US after his statements on Donald Trump’s administration were aired.

“The publication of these specific documents, now knowing they may be a breach of the Official Secrets Act, could also constitute a criminal offence and one that carries no public interest defence,” said Metropolitan Police assistant commissioner Neil Basu.

The law makes the unauthorised disclosure of protected information – such as material concerning security, intelligence, defence, international relations and diplomatic communications – an offence.

It applies to everyone but is most commonly used against military and security officials, and civil servants.

GCHQ translator Katharine Gun was prosecuted after leaking an email in the lead-up to the Iraq invasion

Famous prosecutions include those of Richard Tomlinson, a former MI6 officer who was jailed after trying to publish a book detailing his career, and former GCHQ translator Katharine Gun.

In 2003, she passed an email showing the National Security Agency calling for the UK to bug the offices of UN Security Council “swing nations” ahead of a key vote on the Iraq invasion to The Observer.

She was charged with breaking the Official Secrets Act but the prosecution presented no evidence at trial, amid suggestions that evidence over the legality of the war would embarrass the government.

The Law Commission said the Official Secrets Acts of 1911, 1920, 1939 and 1989 helped protect Britain from spying and leaks but were “outdated and no longer fit for purpose”.

It added: “The Law Commission’s recommendations aim to ensure the law can protect against the nature and scale of modern threats and allow the government to respond effectively to illegal activity.

“At the same time, our aim is for the recommendations to be proportionate, in line with human rights obligations and ensure that the government can be held to account.”

It called for the law to be reworded to refer to “foreign powers” rather than the “enemy”, and to remove the requirement for proof that leaks caused damage.

It said the law should apply to non-British citizens and that MPs should consider increasing the maximum sentences for serious offences.

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