Official Secrets Act: Priti Patel's planned changes are dangerous threat to Press freedom that liberal Conservatives will oppose – John McLellan

Whether it’s the UK government apparently spending public money on political polling, the Scottish government snubbing legal advice to press on with allegedly politically-motivated court action, or Edinburgh Council trying to stop the release of a report into the bullying of whistle-blowers, the determination of authorities of all types to stop the public finding out what they’re up to can’t be underestimated.

Boris Johnson and Home Secretary Priti Patel need to reconsider their plans to change the Official Secrets Act (Picture: Yui Mok/pool/Getty Images)

People in power only want you to know what they think you should, and no more.

Freedom of information legislation was supposed to change all this by enshrining in law that embarrassment was no excuse for secrecy, but its architect Tony Blair considered it one of his biggest mistakes and barely a week goes by without an administration somewhere blocking an information release.

In the last month, the Scottish Information Commissioner has issued four rulings in favour of applicants, two against Edinburgh Council, while in England and Wales the Information Commissioner’s Office upheld 40 complaints, three of them against the Department for Digital, Culture, Media and Sport.

Ironically, a week ago Culture Secretary Oliver Dowden had to write to Information Commissioner Elizabeth Denham, warning her of the “chilling effect” on public interest journalism after her officers carried out raids to identify the whistle-blowers who leaked the security video which exposed Matt Hancock’s affair.

Days earlier, he published an article arguing that “a free and diverse media and the right to dissent” was vital to a healthy democracy. There is a big difference between the right to dissent and the right to know, but one follows the other; the more you know the stronger will be your dissent, so access to information is key to your argument. Without knowledge, dissent is little more than a shouting match.

It’s reassuring Mr Dowden seems to understand that blowing a whistle needs someone to hear it, other than another official organisation subject to the same institutional pressures; whistle-blowers need an outlet which doesn’t fear repercussions, or indeed sees causing trouble as an end itself and that’s what a truly free, raucous Press does.

The Hancock raids expose a conflict of interest in which the organisation established to protect the public’s right to know is the same one investigating data and privacy breaches, and as chilling are Home Office recommendations for reform of Official Secrets legislation to toughen laws against revealing information which could threaten national security.

A consultation led by Home Secretary Priti Patel rejects a public interest defence and seeks to replace the current requirement under the 1989 Official Secrets Act for prosecutors to prove damage had been caused with a new “subjective fault” test if the defendant “knew, believed, or was reckless as to whether the disclosure would, was likely to, risked causing, or was capable of causing damage”.

While the Home Office paper recognises Press freedom and whistleblowing as “an integral part of the UK’s democratic processes”, the astonishingly illiberal caveat is that a leaker “will rarely (if ever) be able to accurately judge whether the public interest in disclosing the information outweighs the risks against disclosure”.

By this measure it could be argued that revealing damaging information about the Health Secretary in the midst of a health crisis is not in the national interest and, without a public interest defence, the leakers and journalists could easily find themselves behind bars.

It is worth remembering that the public interest defence in Official Secrets cases was blocked by the 1989 Act after a jury cleared Defence civil servant Clive Ponting for leaking information to the late Linlithgow Labour MP Tam Dalyell about the movement of the Argentinian battleship Belgrano prior to its sinking in the Falklands War.

Although controversial, the revelation that it might have been heading back to port never really threatened national security because the conflict was long over by the time it came out.

There is also the suspicion that the proposed legislation is a delayed reaction to the failed prosecution of GCHQ translator Katharine Gun who leaked information to The Observer in 2003 about American eavesdropping on UN diplomats in the run-up to the Iraq War, or a fast reaction to the 2019 Keira Knightley film about the case.

Under fire from the redoubtable Nick Ferrari on LBC this week, Prime Minister Boris Johnson was forced to defend the consultation, saying he didn’t want “a world in which people are prosecuted for doing what they think is their public duty”, despite that being what virtually every person charged under Official Secrets laws, from Clive Ponting and Katharine Gun to Sarah Tisdall and David Shayler, argued they were doing.

“What we want to do is make sure that we don’t do anything to interrupt the operation of good journalism,” said Mr Johnson. “The searchlight by the British press will continue to shine on every crevice,” he added.

Unfortunately, those crevices did not include state failures to prevent a Loyalist paramilitary massacre of six men in an Ulster pub in 1994, because two Northern Irish journalists, Trevor Birney and Barry McCaffrey, were wrongly arrested in 2018 for their investigation into the murders and were awarded £850,000 damages for their treatment last December. The new proposals make arrests of journalists under Official Secrets legislation like that more likely.

For an issue which has united the media against the UK government, the SNP has been strangely quiet, and with a Culture Secretary like Angus Robertson who has a keen interest in defence that won’t be because it wasn’t noticed. Maybe they have been in government long enough to see the advantages?

But if these proposals make their way into legislation there will almost certainly be trouble within Conservative ranks. The direction in which Ms Patel wants to go is dangerous and unnecessary and liberal Conservatives like David Davis, Ruth Davidson and, it would appear, Oliver Dowden should unite to change them.

John McLellan is director of the Scottish Newspaper Society and a Defence, Security and Media Advisory Committee member

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