UK's Official Secrets Acts overhaul provides little protection for whistleblowers

Whistleblowers who leak official information could be prosecuted and jailed regardless of the public merit of the information they revealed, or whether any damage to national interests was actually caused.

Rebecca Sentance
8 February 2017
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Heather Brooke, journalist and freedom of information campaigner who asked for MP's expenses claims to be released. Wikicommons/Paul Clarke. Some rights reserved.The UK's independent body The Law Commission has proposed a major overhaul to the UK’s Official Secrets Acts, in what will be the first comprehensive update of the Acts in more than 100 years. The intent of the reforms is to modernise the Official Secrets Acts to protect against twnety-first century threats such as hacking and mass data leaks. But in the process, the reforms threaten to increase the punishment levied against those who leak official secrets whilst providing no protection for whistleblowers who disclose information in the public interest. The new legislation would make the act of leaking national security secrets punishable by up to 14 years in prison, despite the fact that many of these offences previously carried a maximum sentence of only two years. The proposals would also make it possible to prosecute offenders who “knew or had reasonable cause to believe” that the information they disclosed could damage national security interests, where before it was necessary to prove that the leaks had caused damage in order to prosecute. This means that whistleblowers who leak official information could be prosecuted and jailed regardless of whether any damage to national interests was actually caused, and without regard for the public merit of the information they revealed.

Writing for The Telegraph, Law Commissioner David Ormerod stated that “our proposals aren’t about gagging people who have real concerns. In fact we want them to be acted on.” However, the reviewers of the Official Secrets Acts only seem interested in allowing people to act on their concerns in a very specific way.
The Law Commission recommends that individuals who have concerns about “illegality or impropriety” should be able to bring these concerns to an independent commissioner, who would be under an obligation to investigate the situation and then report to the government on their findings. While this mechanism might be sufficient for dealing with minor internal complaints, it assumes that no official could possibly have concerns that would implicate the government in any wrongdoing – which couldn’t be further from the truth.
The review itself directly cites the example of the MPs’ expenses scandal, which “revealed that the system for claiming expenses was deficient”, leading to “extensive reform of the system for handling such claims.” But the expenses scandal also caused considerable embarrassment to a number of key members of government, leading to dozens of resignations, suspensions and fines. It is hard to believe that – if left up to the government – this information would have been made public, or that the reforms surrounding the scandal would have taken place at all.
During its review, the Law Commission gave serious consideration to implementing a ‘public interest defence’ which would exonerate whistleblowers who revealed official information in the public interest. But it ultimately concluded that “Such a defence would allow someone to disclose information with potentially very damaging consequences.” It seems that the authors of the review believe it is more important to criminalise the leaking of official information than to ensure potential whistleblowers are protected under the law.
As the Pirate Party UK wrote in a recent press release, “Whistleblowers are the last line of defence when it comes to corruption, and we should treat them as part of the solution, not the problem. It takes immense bravery to put your career and freedom at risk so the truth can be let out.”
The Law Commission’s proposed reforms are open to comments and feedback from the public until April 3. The Pirate Party UK and others are writing to The Law Commission to share their concerns on the lack of robust protections given to whistleblowers. If you want to comment, write to [email protected].

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