Priti Patel’s new threat to British journalists

Richard Norton-Taylor was The Guardian’s defence correspondent, its security editor for three decades and is the author of several books, most recently The State of Secrecy. 

The UK’s Coronavirus Act is a serious threat to our civil liberties. The Police, Crime Sentencing and Courts Bill will undermine them further. Now, Boris Johnson’s government is taking us even more down a very dangerous slippery slope.

A largely unnoticed and unreported consultation paper on changes to Britain’s Official Secrets Acts drawn up by the Home Office shows that the government is preparing far-reaching threats to the media and the public’s right to know.

It intends to abandon the existing distinction between spying and leaking, and between leakers, whistleblowers and journalists. “Both primary and onward disclosures have the potential to cause equal amounts of harm”, the paper states. 

This makes it clear the government wants to claim a journalist responsible for an “onward disclosure” — a publication in a newspaper or website, for example — would be as liable and on a par in criminal law with a primary source, such as a whistleblower in a government agency.

The government is determined to make it easier to prosecute whistleblowers and make it harder to mount a defence for disclosing information the government claims is damaging to national security. 

Journalists and others publishing information the government claims damages national security face the prospect of 14 years in jail rather than the current maximum of two years.

The 1911, 1920, 1939 and 1989 secrecy acts are designed to protect information deemed to be damaging to the work of the security and intelligence agencies, the capability of the armed forces or the interests of the UK abroad, with the overall intention of protecting “national security”, a notoriously elastic concept. The scope of the acts could in future extend to cover information relating to the British economy and other policy areas.

The paper from the Home Office, which is run by Priti Patel, draws on recommendations from the Law Commission, a statutory body, and suggests that government prosecutors should benefit from a much lower burden of proof and not have to show that the disclosure of information actually damaged national security at all.

Leakers and journalists could be charged with disclosing information that was merely “capable” of being damaging. They could be sent to jail on a hypothesis.

The Home Office makes clear it wants to prevent sensitive information from being disclosed in court. One way of doing this would be to lower the burden of proof prosecutors would need to secure a conviction. A jury would not need to know evidence of how damaging a disclosure of information was. Mere claims by government lawyers would be enough to convict.

The enemy within

Maurice Frankel, director of the Freedom of Information Campaign, says the Home Office paper makes it clear the government wants to make it easier to secure convictions under the secrets acts, increase penalties and abandon key provisions that now provide a public interest defence for disclosing information.

He told Declassified: “The outlines suggested in the consultation document will have enormous consequences for whistleblowers and journalists. It claims that reform of the 1989 Official Secrets Act which deals with leaking is essential ‘to tackle hostile state activity’ and that there may be no ‘distinction in severity between espionage and the most serious unauthorised disclosures’. The Law Commission expressly rejected any blurring of this distinction.”

Frankel continued: “This disproportionate and oppressive set of proposals is presumably intended to ensure that officials and journalists are too terrified of the consequences to risk making or publishing unauthorised disclosures about intelligence, defence, international relations or law enforcement.” 

Tony Bunyan, emeritus director of Statewatch, a group devoted to monitoring threats to civil liberties, warns that British leakers of information would be treated the same as foreigners indulging in espionage — what Margaret Thatcher called the “enemy within” would be treated the same as foreign spies.

Bunyan also points to the Home Office paper’s suggestion that extra powers should be given to the police under a new Police and Criminal Evidence (Pace) act. The paper says new powers would be needed to “enhance our ability to detect, deter, disrupt and prosecute those acting against the UK and its interests”. 

He says this clearly refers to the use of “remote access” to any computer or phone anywhere to collect evidence or to alter files which are part of the armoury of GCHQ, Britain’s signals intelligence agency.

‘Government by WhatsApp’

The government is using and seeking every opportunity to protect itself from scrutiny. It plans to restrict the way individuals and independent bodies can challenge government decisions in the courts through judicial reviews.

It is also adopting an increasingly hostile response to requests made under the Freedom of Information Act. And it is hiding behind what is being called “government by WhatsApp” where there is no written record of discussions and decision-making as required by the Public Records Act.

In 2017, the Cabinet Office acknowledged that the transition from paper-based to email and electronic documents created “real and immediate risks for accounting officers, who may be unable to provide evidence for past decisions and actions or to meet their statutory obligations for public records and FoI [freedom of information]”.

Ministers are ignoring those Cabinet Office’s warnings. Plans are being drawn up to challenge in the courts the government’s reportedly growing use of WhatsApp and other electronic messaging platforms to avoid scrutiny. 

Smartphone apps can automatically destroy messages without needing a paper shredder. (Photo: Yoppy / CC 2.0)

Floral tributes on London Bridge, a scene of repeated terrorist attacks in recent years. (Photo: Viv Lynch / CC 2.0)