The Law Commission’s purpose is to review the state of the law in England and Wales and where necessary to suggest how it should be updated. It is one of those rarely noticed constitutional cogs, an important institution that does important work. The law that relates to official secrets is indeed dated and, in a digital age of global publication, it is also technologically obsolete. Yet this is not at the heart of the proposals the commission is making. Instead, it proposes powers that would herald a new journalistic ice age. Anyone that published an intelligence- or foreign affairs-related story based on a leak would be open to criminal charges. Reporters, as well as the whistleblowers whose stories they tell, would be under threat of sentences of up to 14 years, regardless of the public interest and even if there were no likelihood of damage.
This all began in 2015, when the government asked the barrister Professor David Ormerod, the law commissioner for criminal law and evidence, to examine the protection of official data. The date is significant: the Guardian, together with other European and American newspapers, had recently published some of the huge volume of material leaked by Edward Snowden about surveillance techniques. Some of the information had been shared by British intelligence with the US National Security Agency, where Mr Snowden was a contractor. But there were no grounds for legal action, as no British citizen or resident had been responsible for the leaks. Nor could British journalists be charged with collecting and disseminating the material under the Official Secrets Act of 1911, because, in the terms of the legislation, they did not have a “purpose prejudicial to the safety or interests of the state”. That is, they were not spies. In fact, this paper strongly believes that the stories we published were in the public interest. That view is supported by the debate and inquiries that have followed.
The updated 1989 Official Secrets Act would also have been difficult to apply. To secure a conviction for unauthorised publication, the prosecution would have had to show that it had been “damaging”. This paper was very careful in what information it disclosed. What we published might have been embarrassing, but we believed that it was not damaging. The Law Commission’s proposals for a new act appear expressly designed to make sure that if such a thing happened again, this time charges could be brought with confidence. Its proposals require only that someone had been gathering information that might benefit a foreign power or might prejudice the interests or safety of the state. They would not need to involve any intent to pass the information on to a foreign agency. A journalist would merely have to be notified that the information was capable of benefiting a foreign power for its publication to be banned.
It is not so long ago that the menu in MI5’s staff canteen was an official secret. Now the Law Commission’s proposals would make it almost impossible for anyone who handles such data to publish anything about security activities that the government preferred to keep secret. If they had been in force three years ago, they would certainly have meant that Alan Rusbridger, the Guardian’s editor at the time of the publication of the Snowden files, could have faced criminal charges.
Assurances that these tools of state would never be used in an oppressive way look increasingly hollow when the US judiciary is castigated by President Trump for upholding the constitution, while British politicians fail to defend judges here against media attack.
In its report, the Law Commission lists Guardian Media as one of the organisations that was “consulted” on its proposals. This consultation was brief and informal and ended with a promise, honoured only in the breach, that everyone would be kept informed about the next steps.
News organisations, in an intensely hostile business climate, operate in an ever harsher environment. Section 40 of the Crime and Courts Act 2013 may yet be brought into force, exposing any news organisation that refused to sign up to the recognised regulator to the full costs of both parties in a libel action, regardless of whether it won or lost. The Investigatory Powers Act, which became law last autumn, has in the words of one lawyer, “ripped the heart out” of any ability to protect journalistic sources. In this angry digital age of fake news, where hard fact grows ever more precious, accurate and fair reporting has never been more important. Without it, democracy itself is weakened.
