The Home Office wants to reform Official Secrets law by pretending journalism does not exist

Over at the Guardian there is an important article – which is also worth reading just for its byline

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A rare sighting in the wild of Duncans Campbell

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The article in turn refers to this government consultation document.

The document is interesting (and worrying) in many ways – but one significant feature is how it shows the state has realised that the old state secrecy model in unsustainable in the new technological and media context.

The concern primarily used to be about what could be done by means of espionage.

And this generally made sense, as the means of publication and broadcast were in the hands of the few.

Now the bigger threat is mass-publication to the world.

This is a particularly striking passage (which I have broken into paragraphs):

“…we do not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures, in the same way that there was in 1989.

“Although there are differences in the mechanics of and motivations behind espionage and unauthorised disclosure offences, there are cases where an unauthorised disclosure may be as or more serious, in terms of intent and/or damage.

“For example, documents made available online can now be accessed and utilised by a wide range of hostile actors simultaneously, whereas espionage will often only be to the benefit of a single state or actor.”

Unauthorised disclosure is, of course, at the heart of investigative journalism – indeed some define news as being what other people do not want to hear.

And there is already an offence in respect of unauthorised disclosure by third parties.

But that offence was enacted in the happy halcyon days of 1989 – the year incidentally that the WWW was conceived.

A time where the technological extent of unauthorised disclosure was Spycatcher being published as hard copy books in Australia.

So to a certain extent, the consultation paper is not new: the state still wants to control and prohibit what unauthorised third parties can disclose to the world.

What has changed, however, is the scale of potential disclosures – and that also has changed the priority of dealing with such onward disclosure.

But, as the Duncans Campbell aver, this reorientation of the law of official secrets needs to accord with the public interest in accountability and transparency.

In the consultation paper, ‘journalism’ is not mentioned – and ‘journalist’ is mentioned in passing twice.

The role of the media – and the rights and protections of those who publish information to the world – should instead be integral in any sensible regime of official secrets.

Else we will have the spectacle of the 2020s equivalent of the misconceived and illiberal (and preposterous and futile) Spycatcher injunctions of the 1980s.

Not having proper regard to the public interest in transparency and accountability in the making of any public policy – and especially in respect of national security and official secrets – means you have to deal with these foreseeable concerns later.

Journalism does not go away, just because you do not mention it and pretend it is not there.

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9 thoughts on “The Home Office wants to reform Official Secrets law by pretending journalism does not exist”

  1. At least Orban needed 2/3 of parliamentary seats to introduce the kind of changes envisaged by this government.

  2. Whilst understanding that this is a legal blog, the pertinent question nowadays seems not to be whether a policy is complete or incomplete, well thought out or partial, but whether it will be passed into law by the present parliament. Given recent history, it seems it probably will…

  3. Un conquered uncompromised certified legal occupation.I agree to that “not foreseeable”.

  4. I was reminded of the Spycatcher affair when reading about the current pingdemic fiasco. Anyone could easily enough get hold of a copy of the banned book even though this might have been unlawful in the UK. And now anyone can easily enough evade the pingdemic by shutting bluetooth or removing the app. Another of Alice’s adventures in Wonderland.

    1. Looking at this another way, how would the proposed new law protect material that Ms Patel wants to keep secret from being published overseas – say in Ireland, or the US? No doubt they can punish the source, if they can find them, but how would they stop the editor?

  5. Letting Priti loose on Official Secrets legislation looks very dangerous.

    Looking back over a long long time the usual reasons OS gets invoked is through official incompetence, foolishness or wrong doing or even crime. Very very very seldom is there a real case of a proper secret getting loose. So, the conundrum is how does anyone know if a secret is a real secret with a legitimate reason for hiding or merely the common knowledge of an official blunder. The Cummings interview points to that sort of thing, perhaps he will be banged up for showing what we all knew.

    The two kinds of secret get painted with the same brush and normal sensible people are not allowed to take a look and say – ‘come off it Priti….’ A sceptical backstop is needed.

    So, if you walk out with a memory stick you have got to have a plan because Priti will be round your gaff pdq and seizing your phone etc. Even for a bit of ministerial canoodling.

  6. Nothing is ever really new, of course. Another Guardian article for some background and context:

    Roy Greenslade’s on Friday 31st July 2015:

    “The D-notice system – a typically British fudge that has survived a century”.

    A watered down “survival”, one has to say.

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