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04 May 2023

‘Dated’ Official Secrets Act must now include public interest defence

Whistleblowing to hold government to account should not be deterred by matters of national security, writes Matthew Proctor and Hanna Basha from our Privacy and Media Team.

Jack Teixeira — a 21-year-old American airman — has been charged in a Boston court for leaking classified military and intelligence documents and faces prosecution under the US Espionage Act of 1917.

Meanwhile, in a separate case in the UK, Thomas Newsome, 36, a serving member of the armed forces, was charged with disclosing information in breach of the Official Secrets Act 1989.

The Official Secrets Act is a complex and increasingly dated statute. Unauthorised disclosures by members — or former members — of the security and intelligence services relating to security or intelligence information are automatically deemed to be an offence.

In the UK there is no public interest defence to an unauthorised disclosure, as confirmed in a 2002 case involving David Shayler, a former MI5 officer. Shayler, who was employed by the domestic security service between 1991 and 1996, was prosecuted for leaking documents ranging from secret to top secret to the Mail on Sunday.

He argued that his disclosures were in the “public and national interest”. And while the court acknowledged these arguments, its hands were tied and Shayler was found guilty and sentenced to six months in prison.

The absence of a public interest defence sets the Official Secrets Act apart. In other areas of civil law involving whistleblowing, misuse of private information and breach of confidence, the leaking of information can be defended on public interest grounds. The same defence applies to areas of criminal law, such as some offences under the Obscene Publications Act 1959 and the Data Protection Act 2018.

With more focus on transparency and accountability in government than perhaps there was in 1989, when the Official Secrets Act came into force, it is arguably odd that the public interest in leaking classified material can never override the secrecy inherent in the material.

It is a debate that has triggered considerable discussion. The Law Commission’s 2020 report on the protection of official data examined the possibility of reforming the law, acknowledging that “there is an important balance to be struck between two competing public interests: in national security on the one hand and in accountable government on the other”.

A Home Office policy paper that was updated in March explains the government’s reasoning for omitting a public interest defence. Mainly, the law is designed to stop espionage by foreign powers, rather than whistleblowing.

The laws and courts in the UK are moving towards greater transparency and are often supporting whistleblowers and those wishing to override the provisions of non-disclosure agreements.

It will be interesting to see how this discussion develops and whether the UK will embrace public interest defences to disclosures in line with Australia, Canada and New Zealand.

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Matthew Proctor
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Hanna Basha
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