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Fri 17 September 2021

Proposed changes to the Official Secrets Act by the Home Office would see investigative journalists threatened with up to 14 years in prison for ‘unauthorised disclosures’

The scrutinising eye of public interest journalism has exposed countless scandals, but this key tool of holding the powerful to account is now under threat by new proposals to tighten up the laws around national security.

The Home Office has just closed a consultation to change the Official Secrets Act, which includes plans suggesting that journalists should be treated in the same way as those who leak information (‘unauthorised disclosures’) and commit espionage offences. It has also proposed increasing maximum sentences for such offences from two to 14 years in prison – longer than those for child cruelty crimes and the same as causing death by dangerous driving.

Priti Patel’s department has said that it does not consider that there is “necessarily a distinction in severity between espionage and the most serious unauthorised disclosures”.

The proposed changes would remove the public interest defence for breaching the Official Secrets Act, and would likely discourage whistleblowers and public servants from corroborating stories – which is vital to investigative journalists exposing scandals.

The plans have prompted widespread concern among media organisations and charities, with the Media Reform Coalition describing them as a “serious threat to journalism”. 

Its chair, Tom Mills, told Byline Times: “The greater powers being sought by the Government will further weaken journalists’ ability to hold the powerful to account. What the Home Office refers to as ‘unauthorised disclosures’ has played a crucial role in bringing to light corruption, incompetence, and state crimes, and the Official Secrets Act already undermined democratic accountability.”  

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Rachel Oldroyd, the editor of the Bureau of Investigative Journalism, added: “Sources, leaks and whistleblowers are all crucial to holding power to account – including our Government. Removing the public interest defence for such disclosures is deeply troubling.”

The Crown Prosecution Service states in its guidance that, when prosecuting cases in which public servants have disclosed confidential information to journalists, journalists have a special right to protect their sources. Article 10 of the European Convention on Human Rights – which is incorporated into British law through the Human Rights Act – guarantees the qualified right to freedom of expression, as well as the right to both receive and impart information without government interference.

The Home Office has said that retaining a public interest defence for journalists in the Official Secrets Act would “undermine our efforts to prevent damaging unauthorised disclosures, which would not be in the public interest”. The legislation is being proposed “so security services and law enforcement agencies can tackle evolving state threats and protect sensitive data”, according to a spokesperson. 

However, there are concerns that these changes to the Official Secrets Act will put the decision of what is in the ‘public interest’ in the hands of the Government instead of journalists and editors. 

Without a legal defence of working to expose wrongdoing in the public interest written into the Act, journalism charities have suggested new legal protections for journalism in the public interest – with the Centre for Investigative Journalism stating that “the UK Government’s plans to reform the Official Secrets Act, treating journalists like spies, shows that an overarching public interest defence for investigative journalism in British law is long overdue”.

Meirion Jones, investigations editor at the Bureau of Investigative Journalism, said: “For decades, honest juries have refused to convict whistleblowers and journalists when the Government tried to misuse the Official Secrets Act to cover-up wrongdoing by those in power. Now it is trying to tighten the law to make journalism and whistleblowing in the public interest automatically a crime.

“The Bureau calls on MPs to vote down this authoritarian proposed new law which smacks of something out of a police state with much to hide rather than a democratic country which welcomes scrutiny.” 

Currently, the Defence and Security Media Advisory Notice System (DSMA) advises journalists on ‘damaging’ matters of national security before publication. To avoid inadvertent publication of UK military or intelligence operations, or information which may risk the safety of those involved in such operations, the DSMA works between government departments and the media to provide guidance to journalists on stories which may breach the Official Secrets Act. However, this is a voluntary system of cooperation and who considers what is a ‘national security’ concern is often unclear.

The Home Office’s proposals come alongside other concerns for press freedom after an Information Commissioner’s Office raid on the homes of two suspected whistleblowers involved in the exposé of former Health and Social Care Secretary Matt Hancock’s affair with an aide – a story encapsulated by footage of the pair kissing which was published on the front-page of the Sun newspaper.

“It reflects a growing global pushback on journalism and access to information,” Oldroyd told Byline Times. “Press freedoms are being chipped away and this means our democracy is getting weaker.” 

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