The United Kingdom already has some of the strictest rules on official secrecy in the world. As Ian Cobain details in his recent book The History Thieves, Britain’s strong secrecy culture has ben used to keep information about colonial policy and foreign policy, and even entire military campaigns from the British public. Large archives held by UK government departments in contravention of public records laws, containing some information that is centuries-old, have come to light in the past few years.
Proposals announced in the Telegraph last week are now suggesting broadening of the scope, and increasing the severity of the penalties for those who disclose government information under a new “Espionage Act” to a potential 14 years imprisonment. Given the increasing use of the 1917 Espionage Act in the United States to enforce a blanket official-secrets-like prohibition of information disclosures, even when done in the public interest, the proposed name change should not be taken as a coincidence.
As we noted when the commutation of Chelsea Manning’s sentence was announced, her conviction for whistleblowing under the rubric of “espionage” set a truly dangerous precedent. While whistleblowers in the UK have been prosecuted under the Official Secrets Act, these cases are rare and the authorities have at times declined to present evidence where clear public interest considerations are at stake. The new proposals would slant UK law against defendants, removing the need for prosecutors to show that national security was actually damaged in order to obtain a prosecution and creating the possibility that officials could be prosecuted for disclosing information that was already in the public domain.
The present set of proposals, which are at consultation stage, were prompted by a 2015 request from the Cabinet Office, the same part of the British government that made threats to the domestic news organisations publishing the Snowden revelations in 2013. Though the consultation has been presented in the media as a reaction to increased espionage threats, including allegations of Russian hacking, comments made about the scope of digital disclosure and the proposal to extend extra-territorial jurisdiction over foreign nationals indicate that recent examples of whistleblowing were prominent in the authors’ minds:
In the digital age, the volume of information that can be disclosed without authorisation is much greater than when the Official Secrets Act 1989 was originally drafted. It could be argued that this means that the ability to cause damage to the national interest and the risk of such damage occurring has also increased. It could be argued that there is also a corresponding increase in culpability in such cases.
Bad laws have consequences
Significantly, the consultation paper points to the UK’s new surveillance law, the recently passed Investigatory Powers Act, as a precedent for a tightening of the
rules. The Investigatory Powers Act introduced a range of new offences for disclosing surveillance orders, some of which – the paper notes – carry sentences that are longer than some comparable offences under the Official Secrets Act. Again, following the lead of the Investigatory Powers Act, the paper recommends bringing “information that impacts on the economic well-being of the United Kingdom as it relates to national security” into the scope of Official Secrets legislation.
International standards-setting bodies have asserted time and again that blanket disclosure prohibitions on intelligence service personnel are not appropriate: where a disclosure is sufficiently serious, the public has a right to know. Recent comparative studies of whistleblower protection laws in the G20 call the exclusion of “service members” from UK whistleblower protections “a glaring gap… especially considering the highly secretive nature of such employers”. Whether this situation has acted contrary to the interest of people in the UK is not in doubt. A number of rulings in the Investigatory Powers Tribunal made possible as a result of Edward Snowden’s revelations have made clear that the UK’s intelligence agencies acted unlawfully by withholding details of their activities from the public.
Elsewhere, we have explained why legal regimes for whistleblowers need to include a comprehensive public interest defence. The consultation document – again following the government line offered in Parliamentary debates on the Investigatory Powers Actrejects this approach in favour of establishing “internal channels” for employees subject to the Official Secrets Act. The limitations of such an approach are epitomised by the experience of NSA whistleblower Thomas Drake, who was betrayed by the offices that were su=pposed to protect him.
A worsening situation internationally
The worsening environment for truthtellers in the United Kingdom is unfortunately part of a pattern replicated internationally. Fellow Five Eyes countries Australia and New Zealand have both passed tough new laws on information disclosure since the first publication of Edward Snowden’s revelations.
Japan’s own Act on Protection of Specially Designated Secrets passed into law despite in late 2013 despite being the subject of mass protests and fierce criticism from local civil society organisations. It was suggested at the time that increased protection for state secrets may have been insisted on by the United States as a condition of continued intelligence sharing.
A public consultation on the British plans runs until 3 April.