The UK government has proposed new legislation to counter state threats, including an overhaul of the Official Secrets Act. According to the Home Office, the new legislation is necessary because “the existing legislation does not sufficiently capture the discernible and very real threat posed by state threats”.
If passed, this new legislation has serious consequences for journalism and its ability to hold governments to account. This is because the proposed bill includes a major crackdown on “unauthorised disclosures”, or leaks of sensitive information.
Much hard-hitting investigative journalism is based on such leaks. High-profile examples of stories based on unauthorised disclosures include Edward Snowden’s revelations in 2013 of the activities of US and UK spy agencies, including major global surveillance programmes, in 2013. The leaks led to a broader debate about the role of the state in facilitating mass surveillance.
Unauthorised disclosures also paved the way for the 2009 MPs’ expenses scandal. This provided evidence of widespread abuse of the parliamentary expenses system, including MPs taking advantage of a generous second home allowance, and charging the public purse for £1,700 floating duck houses and £2,000 for moat cleaning.
These leaks brought to light important information in the public interest, and led to widespread resignations and legislative and policy change, including the establishment of the Independent Parliamentary Standards Authority.
The Official Secrets Act has been used in the past to prosecute individuals responsible for disclosing sensitive information. For example, David Shayler, an MI5 agent, was found guilty of releasing documents about the spy agency’s activities to the Daily Mail in 1997.
However, as the Home Office consultation makes clear, the proposed law enables harsher punishments for journalists and their sources. In a remarkable twist, it equates investigative journalism with spying. The consultation suggests that the Home Office does “not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures”.
At the same time, the Home Office takes a dim view of the need to protect journalists. In response to the Law Commission’s proposal to introduce a “public interest” defence which would provide protection to journalists, the consultation document argues that “these proposals could in fact undermine our efforts to prevent damaging unauthorised disclosures”.
To highlight the serious threat posed by such disclosure, it proposes an increase in prison terms for such offences, from two years and up to 14 years.
This represents a direct threat to the ability of journalists and their sources to make public information about wrongdoing in the public interest.
Press freedom under threat
The legislation arrives at a fraught moment for press freedom around the world. Recent years have seen growing physical and legal threats to journalists, against the backdrop of a rise of authoritarian and populist regimes. In that context, national security laws often provide the grounds for prosecution of journalists and others who may hold governments to account.
Over the past two decades, scholars have identified the rise of “securitisation” – a process whereby claims about national security come to override any other concerns, and are used widely to limit the scope for dissent and challenge.
The new law should be seen as part of a broader project on the part of Priti Patel’s Home Office to cut down civil liberties by legislative means. For example, the Police, Crime, Sentencing and Courts Bill, which was recently passed in Parliament, allows for police to shut down protests in England and Wales at will.
Such laws are not merely pieces of paper. Instead, they are frequently used to crack down on critical voices. In 2019, 15 activists were convicted of a terrorism offence after chaining themselves around an immigration removal flight at Stansted Airport. While the conviction was later overturned, the case highlighted the potential for creative and politically charged interpretations of security-related laws.
The Official Secrets Act reforms, if passed, are likely to have a significant chilling effect on journalists and their sources. As research has shown, the threat of prosecution and prison makes sources more reluctant to share sensitive information in the public interest, and makes journalists less likely to pursue such information in the first place.
The Home Office has responded to concerns about the chilling effect of the proposed legislation, stressing that journalists will “remain free to hold the Government to account.”
Karin Wahl-Jorgensen received funding in 2009 from Public Concern at Work, the whistleblowing charity (now re-named Protect) to investigate the media representation of whistleblowers. Between 2014 and 2016, she was a co-investigator on the project, "Digital Citizenship and Surveillance Society: UK State-Media-Citizen Relations after the Snowden Leaks,” funded by the Economic and Social Research Council.