The Official Secrets Act: Proposed reforms threaten the future of journalism

The government’s latest attack on UK freedoms proposes a tightening of the Official Secrets Act, which could see journalists muzzled and criminalised, with sentences of up to fourteen years.

These proposed sweeping reforms have been outlined in a consultation overseen by Home Secretary Priti Patel’s department. The same minister who called protestors “criminals” and “thugs” before introducing the Police, Crime and Sentencing Bill, which seeks to clamp down on protest rights.

If this sounds despotic and autocratic, that’s because it is. Legislation that condemns journalists as enemies of the state in the name of counter-espionage is draconian at best. As a result, these proposals are the biggest threat to the freedom of the press in a century.

A consultation with sinister intentions

The Official Secrets Act criminalises the “damaging disclosure” of classified information relating to security or intelligence by those subject to the law. The last time changes were made to bolster the Official Secrets Act was back in 1989 after several leaks were made regarding M15 vetting at the BBC and the exposure of government deception in the Falklands war.

Now the government says the Act is no longer able to fight the “discernible and very real threat posed by state threats”. The consultation document outlines that reforms would “modernise” existing laws by creating new offences, tools and powers to “detect, deter and disrupt hostile activity in and targeted at the UK”. Moreover, the government states that it will allow it to “improve” its ability to “protect official data.”

At first glance, it appears that the document purely relates to counter-espionage measures and is unrelated to journalistic endeavours, but that’s precisely the problem, the document’s vagueness. While the term “journalist” is not mentioned once, and “press” only twice, “unauthorised disclosures” is mentioned 38 times. This is a catch-all. Especially considering the document outlines that the Home Office does “not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures”. This essentially conflates investigative journalism with spying.

The consultation also recommends increasing the maximum sentencing for espionage from two years to fourteen. With this in mind, it seems highly contradictory for former Foreign Secretary Dominic Raab to have commented on the political situation in Hong Kong, saying that national security laws were “being used as a tool to curtail freedoms and punish dissent – rather than keep public order” and that this was a “chilling blow to freedom of expression.”

Disappointingly, while the Law Commission has tried to counteract this, proposing a “public interest defence” to enshrine greater protection for journalists, the government says that this could “undermine” efforts to “prevent damaging unauthorised disclosures.”

Despite this, PM Boris Johnson flagrantly dismissed that the reforms would target journalists. “I don’t want to have a world in which people are prosecuted for doing what they think is their public duty,” he said, adding, with seemingly no irony: “The searchlight by the British press will continue to shine on every crevice.”

Meanwhile, in an article for PoliticsHome, human rights lawyer Alex Bailin QC, said that already our secrecy laws fail to uphold human rights: “If a test case were brought challenging the human rights incompatibility of our current secrecy laws, it would likely succeed.”

The fight against the criminalisation of public interest journalism

There has rightly been an outcry from the world of journalism, and many have united in expressing their concern around the proposed legislative changes. There is a united front across the political spectrum, too. Journalists from The Guardian, The Times, The Sun, The Mail and the BCC have all vocalised their objections to the proposals.

The National Union of Journalists (NUJ) and the News Media Association (NMA) have also hit out against the reforms. Michelle Stanistreet, NUJ general secretary, called the proposed reforms “truly chilling and authoritarian”. Further to this, she outlined: “This has deep consequences for democracy and makes it easier for the government to block newspapers from revealing stories, such as ministers who break social distancing rules.”

In its submission to the consultation, the NUJ outlined a number of recommendations that would protect journalists from criminalisation. This included:

• The introduction of a public interest defence
• The creation of an independent statutory commissioner,
• The removal of extended sentences for whistleblowers and journalists
• Explicit limits within any new legislation to restrict extra-territorial offences in regard to journalists and media organisations abroad
• An end to the conflation of journalism with espionage and the criminalisation of media workers under any future espionage legislation
• New legislation should not remove the requirement for prosecutors to prove that an unauthorised disclosure was damaging

NMA legal policy and regulatory affairs director Sayra Tekin echoed the same sentiments and stated: “As part of any thriving democracy, the public and a responsible press must be free to shed light on the state’s injustices. The proposed measures will deter whistleblowers from coming forward with vital information which the public have a right to know and place a chill on investigative journalism which holds power to account.”

She added: “We strongly urge the Government to reconsider these measures and instead work with the industry to place appropriate protections for journalism at the heart of the Official Secrets Act so that freedom of speech is enhanced by the new regime rather than weakened further.”

The Centre for Investigative Journalism has also outlined that these proposals show that enshrining a public interest defence for investigative reporting in law is “long overdue.”

Holding power to account

This consultation is just another example of the government’s attempt to eradicate our collective ability to hold power to account. It follows the Policing Bill, the Judicial Review Bill, the Covert Human Intelligence Sources Act 2021, and plans to ‘reform’ the Electoral Commission, not to mention the impending threat of the Pegasus project. All of these sinister possibilities focus on the erosion of freedom and the silencing of dissent.

Historically, whistleblowers and the journalists who work with them have exposed serious misdeeds and illegal activities by the government. MI6’s involvement with the CIA’s rendition and torture programme, the uncovering of mass surveillance, lies over the Falklands war; none of these scandals are likely to have been exposed under proposed reforms.

The government’s lack of transparency around these deeply troubling reforms is disturbing and reveals its plans for what they are, an attempt to stifle independent journalism. Of course, the government denies this.

A government spokesperson recently commented: “You’ve heard the Prime Minister speak before about the vital role the press plays in being allowed to investigate things that are in the public interest.”

Adding: “We are clear that freedom of the press is an integral part of the UK’s democratic process, which is why we’ll always be committed to ensuring the right balance is struck between protecting press freedoms and the ability of whistleblowers to hold organisations to account.”

Going forward, the government has said that it will consider all submissions to its consultation, which closed at the end of July. Still, considering their efforts to limit freedoms across the board, this does not seem promising. It is journalists’ responsibility to expose lies and hold power to account, and these oppressive reforms threaten the very foundation of journalism, freedom of the press and ultimately, democracy.