UK government conflates journalism and espionage in latest Home Office consultation

  • 19 Jul 2021

The proposals on which the government is consulting create clear new detriments for journalists and journalism.

Anyone concerned about free expression should refer to the original documents – the Home Office consultation paper and the two reports with recommedations from the Law Commission.

In the consultation entitled: "Legislation to counter state threats" the authorities set out their intention to create new offences and "improve" the ability of the state to protect official data.

The proposals appear complex and are presented as a common-sense updating of provisions to protect national security. The issues for journalists, however, are clear.

Blurring the distinction between whistleblowing, journalism and spying for hostile states.

Existing legislation distinguishes provisions and penalties between those who leak or whistleblow, those who receive leaked information, and foreign spies. The government proposes to eliminate or blur these distinctions. The government also wants to increase the maximum penalties that journalists might suffer for receiving leaked material from two to 14 years.

Reducing protections for journalistic material in police searches.

At the moment, the Police and Criminal Evidence Act (PACE) provides protections for ‘special procedure material’  – which includes a journalists’ notebooks and electronic files. A court must rule on police applications to inspect journalistic material. Under the Official Secrets proposals these protections will be watered down, allowing a Police Superintendent to authorise search warrants and inspection of special procedure material. The recent No Stone Unturned case provides a clear demonstration of how tempting it can be for Police to use Official Secrets provisions on the flimsiest of grounds.

Rejects calls for a statutory public-interest defence for whistleblowers.

The NUJ has long argued that where whistleblowers believe that they have acted in the public interest, they should be able to make this case in court, and if a jury agree with them, be protected.

The Law Commission second report accepted the need for and proposed creating a public interest defence and establishing a Statutory Commissioner to help protect whistleblowers.

The government rejects this outright, saying: “a person seeking to make an unauthorised disclosure… will rarely (if ever) be able to accurately judge whether the public interest in disclosing the information outweighs the risks against disclosure.” Yet we know that on countless occasions government have used Official Secrets provisions to protect information that reveals incompetence, wastefulness and dishonesty.

Once this consultation closes, the government has committed to bring forward legislation in the current parliamentary session. This will provide further opportunities to keep dangerous legislation from our statute books.

For now, the more people who make submissions, or tell their Members of Parliament (MP) about their concerns, the better.

Best of all, if you have experience in your own working life of how such changes might affect your ability to report, your input would be particularly valuable. Please send the NUJ  your submission to the consultation and any responses that you receive, email: [email protected]

How a proposed secrecy law would recast journalism as spying
Duncan Campbell and Duncan Campbell

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