Convicting Whistle-blowers as Spies?

Why Law Commission’s proposed changes to the Espionage Act are damaging

Last week ORG Brighton were treated to a thorough and thought provoking critique of the Law Commission’s proposed changes to the Espionage Act.

These proposals are a step backwards, moving away from open and accountable government by widening the scope of the crime and, critically, failing to acknowledge the role of whistle-blowing as a proven and effective oversight mechanism.

What follows is a summary of two principal criticisms made by speakers Javier Ruiz Diaz, ORG’s policy director, Paul Lashmar, investigative journalist and academic, and Tristram Hicks, Brighton and Hove Green Party Executive Committee. You can listen to the full discussion below (link here).

The end of a public interest defence

The proposed changes to the Espionage Act remove the public interest defence. This means it would not be possible for someone accused of espionage to claim they had been acting in the public interest by disclosing the information they had.

To understand the significance and impact of this proposal it is helpful to first look at the broader picture of the inevitable tension between liberty and security.

There is an implicit agreement between the state and its citizens that a certain amount of freedom must be sacrificed for security. As a result, there is a natural tension between journalists and the security services. By working to uncover the secrets of government and the security services journalists hold those in power to account.

This is a messy compromise. None the less it is an effective one, says Paul Lashmar. Journalists, working with whistle-blowers, frequently uncover government wrong doing that the official channels of oversight failed to prevent. We have seen this in recent years with the Snowden revelations and the uncovering of the Police’s shambolic and damaging undercover officers.

By removing the public interest defence, the Law Commission has failed to acknowledge the positive role of whistle-blowing and journalism in identifying failures within government, particularly the intelligence services. In doing so they have overlooked the Public Affairs Select Committee in their 2009 conclusion that “much more should be done to ensure that whistle blowers who raise concerns in good faith should be protected”.

The Law Commission’s own report even acknowledges this issue:

We are aware of the existence of those who disagree with the proposition that the unauthorised disclosure of information should be criminalised. Our terms of reference did not permit us to question this underlying assumption.

Proceeding with such narrow terms of reference was a failure of the law Commissions. Setting such narrow terms was a failure of government.

Widening the definition of espionage

In addition to the removal of the public interest defence, the Law Commission’s proposals broaden the definition of espionage, increasing secrecy within government.

Currently, espionage is defined as disclosing official secrets to ‘the enemy’, resulting in damage to the state. The enemy is replaced with ‘foreign power’ — a less old fashioned but more vague term. Does this just cover officials in other counties or any foreign national? Additionally, the offence is changed from covering cases where disclosures actually cause damage to cases where disclosures are made with an awareness or knowledge that damage be may caused.

Under these changes, the defence would find it very hard to demonstrate that there was zero awareness of risk of damage, but how can you ever demonstrate zero risk? The end result: A greater legal threat to whistle-blowers and journalists reporting on surveillance.

How to stop the proposals becoming law

In failing to discuss the role of whistle-blowing and by broadening the definition of espionage, “the Law Commission has put forward proposals that conflate legitimate concerns of espionage with the release of information with intent to protect citizens from excess of government” concluded Tristram Hicks. The effect: to increase legal protection of the state at the expense of transparency and whistle-blowing. This can only result in poorer oversight of the government and ultimately an unnecessary reduction in freedoms.

The public consultation on these proposals runs until the 3rd of May 2017. Let the Law Commission know what you think by visiting the public consultation page or emailing them at pod@lawcommission.gsi.gov.uk. Alternatively, contact your MP and make them aware of the negative impact these proposals will have.

Finally, help Open Rights Group mount legal challenges to these and many other damaging plans to restrict press freedom. Join here.