DECLASSIFIED UK OP-ED

Priti Patel’s new threat to British journalists

By Richard Norton-Taylor 15 June 2021

UK Home Secretary Priti Patel. (Photo: Simon Dawson / No 10 Downing Street)

UK government’s little-known proposed reforms to Britain’s Official Secrets Acts pose far-reaching threats to the media and the public’s right to know. They could land journalists and others in jail for 14 years for publishing information the government claims damages national security.

Richard Norton-Taylor

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)

The action is being brought jointly by Foxglove, a non-profit organisation pursuing what it calls “justice in technology” and The Citizens, a group set up to hold governments and big tech to account.

“We believe communicating in this way is a blatant attempt to dodge transparency and democratic accountability and that it’s unlawful”, says Martha Dark, Foxglove’s director. 

The Public Records Act 1958 requires that messages between politicians, officials, and advisers about government business must be reviewed and retained — for historical archives, and for any future investigations or inquiries into how a decision was taken.”

She adds: “The stakes are high. We simply won’t be able to hold the government to account for what they do if the evidence is automatically erased within minutes. Disappearing message apps are the modern equivalent of politicians shredding the evidence. It’s the perfect tool for people who just want to get away with it.”

It emerged last week that ministers and civil servants are allowed to set messages to delete instantly, increasing concerns that self-destructing communications are being used to avoid scrutiny of decisions taken in Whitehall.

The government does not always get its own way. Last week, after a protracted court case, it lost its battle to prevent the release of documents about a sinister “Orwellian” unit charged with blocking the release of information under the FoI act and first revealed by openDemocracy

The so-called Clearing House circulates details of FoI requests by journalists, campaigners and others around Whitehall and advises on how to respond to them.

Referring to the attempts by the Cabinet Office to counter FoI requests, Judge Hughes of the information tribunal which heard the case described a “profound lack of transparency about the operation” which “might extend to ministers”. 

He accused the Cabinet Office, headed by Michael Gove, a close ally of Boris Johnson, of making misleading claims about the Clearing House. Gove previously accused critical journalists of making “ridiculous and tendentious claims” about how the government dealt with FoI requests.

Protecting themselves

There is ample evidence to demonstrate that successive British governments have used official secrecy and the threat of criminal prosecutions merely to protect themselves from embarrassment and cover up wrongdoing. Without proper scrutiny and transparency, they cannot be trusted.

Britain’s security and intelligence agencies should be allowed to conduct operations in secret. But claims under the guise of a need to protect “national security” must not be allowed to cover up serious mistakes or wrongdoing by any government agency, not least MI5, MI6, and GCHQ from public and parliamentary scrutiny.

The recent inquest into the terrorist attack at Fishmongers’ Hall in central London in November 2019 that left two people dead criticised MI5 and other agencies for their failure to monitor the killer, Usman Khan, despite clear warning signs

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

MI5 was strongly criticised for failing to cooperate with the police. The agency faced similar criticism for not cooperating with the police in surveillance operations before the London bombings in 2005.

Questions about what MI5 and MI6 knew about Salman Abedi, the 2017 Manchester Arena suicide bomber, and his brother, Hashem, and why they did not act against them sooner remain unanswered

The parliamentary Intelligence and Security Committee (ISC) criticised MI5 and the police for not doing enough to disrupt and monitor the activities of the two Libyan brothers who were known to MI5 and MI6.

The ISC in 2018 published a damning report on how British security and intelligence agencies were involved in the torture and rendition of hundreds of terror suspects. Those agencies had for years misled MPs about their role. They were found out by journalists, sometimes with the help of independent lawyers exposing wrongdoing in open court.

The way government departments can use the notion of national security as a weapon was exposed during the litigation into the wrongful imprisonment of sub-postmasters who were warned they were subject to the Official Secrets Act.

Between 2000 and 2014, the Post Office prosecuted 736 sub-postmasters and sub-postmistresses based on information from a new computer system called Horizon. 

Some were convicted of false accounting and theft and many were financially ruined. The Post Office knew the Fujitsu-developed IT system had “faults and bugs from the earliest days of its operation”, the court of appeal heard. The convictions were quashed.

The Home Office insists that “reform” of the Official Secrets Acts is needed to enable the security and intelligence agencies to combat terrorism, cybercrime, and the activities of foreign spies, more effectively.

The government cannot be trusted to get away with such assurances. The devil in its plans will be very much in the detail. It must be watched like a hawk, and responses to the consultation paper must be very, very robust. DM

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All Comments 15

  • The country that once ruled the world, and not so long ago, and created colonialism worldwide, and the destruction that followed, seems to have a few “minor” problems of their own. Not that I care one bit. A country that still support a royalty club costing more per annum than possibly South Africa’s entire GDP. A country where every tom, dick and harry (with apologies to the real Harry, the only one in the family with any backbone and a degree of self-respect) is either called Lord, Prince, Sir, or whatever. The Trump lookalike, Boris Johnson (wonder if he got his name from the Soviet Union) appears to be as big an idiot as Trump himself.
    That being said, what I like about this article, is the name that DM created: “DECLASSIFIED UK OP-ED”. Has in nice ring to it, like “Planet of the Apes”. The article itself however explains (exposes?…ala Bell Bottinger) that there is a heck of a lot of “classified” information, loosely called “hidden secrets”. I guess if the Daily Maverick’s journalists and Scorpio investigators were based in London, the whole bunch would within a matter of weeks face the Red Kakie firing squad, as these classified information and hidden secrets won’t stay hidden for long

    • “Not that I care one bit.”

      Doesn’t look like it. Looks as if you have a large chip on your shoulder re “Perfidious Albion”.

        • OK Archie, I give in. I’ll revise my wording from bit to not care at all. I’m not a pommie, never will be.But reading the article out of interest, I do think citizens of your country do have something to be concerned about. Noticed you did not make a comment at all, preferring to rather insult someone else whom has

          • Dear Coen Gous, I’m sorry you took my comment as an insult. It was not meant to be insulting, merely an observation, albeit facetious.

            I’m not a Brit, Limey, Pommie, Rooinek, Soutpiel or whatever you like to call THEM. My ancestor came to Cape Town from Scotland in 1807, so we’re now in our seventh generation in South Africa.

            My father and his brothers served in the Union Defence Force during the 2nd World War; fighting against the kind or tyranny imposed on Europe by Hitler and Mussolini; and subsequently on Eastern Europe by Stalin. They were thus appalled to have to live under the same kind of tyranny from 1947 to 1994; as were my mother and grandmother who served in the South African Women’s Auxiliary Service during that conflict.

            I volunteered for and was accepted by the South African Naval Gymnasium in the year after I matriculated..

            I’m not an admirer of the present British government, I think they are dreadful. Please not that I referred to England as “Perfidious Albion”

          • Thanks Coen Gous. No need to apologise. You have very good reasons for your antipathy towards the English. They have a reputation of saying one thing and doing the opposite, hence the epithet “Perfidious Albion”.

            They are not the only country who does this. In politics it seems “All’s fair in Love and War”, – until you get caught out. Look at what’s happened here since 2000. Aids denial, disband the Scorpions when they get too close to the truth, corruption, lying, thieving, the list goes on.

            I was not yet two years old when the Nats came to power.

            It’s perhaps ironical that both my sisters married Englishmen. Quite co-incidentally they both live in Norwich. They and their husbands / partners are all disgusted with the present Tory government, especially the younger couple .

            On a lighter note. Cousins of mine had an African Grey. It could cause havoc, by imitating the telephone ringing, pretending to be the husband and calling his wife and vice versa, etc. The imitation was so good that they seldom knew who was actually calling them. The bird must have had a sense of humour. When they acquired it they were told it was a male. Then when they’d had it for about 25 years, it laid an egg!

          • Mt. Aitchison, I then apologise profusely for misunderstanding your comment. By the way, I do not particularly like the English, due to the harm they caused my country for centuries, especially from 1899, and inter alia murdered both my great, great Grandfather and Grandmother on my mothers side during the 2nd Boer War. However I do like the Scottish, who themselves have been at odds with the English Empire, also for centuries. On the lighter side, I love the Scottish national anthem, and in fact taught even my African Grey parrot the words and melody of “The Flower of Scotland”. I commend you for your last 3 paragraphs, as I share exactly the same feelings, especially after Verwoerd (and NP) took power, about 8 years after I was born May you be well

      • No problem, just sorry about the misunderstanding…but then, perhaps not, as it now appears that we both share and believe in many of the same

      • Love you response, Pity DM does not put the responses in the correct order, which would be time written. Nevertheless, lets keep to the lighter side, as what happened since 2000 can be very depressing, as it was before 1994. My parrot, called Vuyo, is definitely female. And she loves me to bits (excuse the punt). I can tell you the most incredible stories about her. She has no fear for my 3 Labradors, and they also adore her. She goes with me when I take the dogs for a walk, even when I go shopping. But she just hates it when I leave her alone, or go to a different room, and immediately starts chatting away, or singing/whistling for the whole neighbourhood to hear as far as 400 meters away. But in my live, with my dogs, she also releases me of a lot of stresses of daily living (like blackouts). And when I get upset about a bad/negative article or reader comment, as I can become vocal, even if alone, and immediately starts to share in my anger. Heaven knows what she will do if she ever meet someone like a Zuma, Gigaba or Magashule. The bite of an African Grey is the worse pain that one can possibly endure. Always said…if I want to torture someone, I’ll put my Grey on his naked chest. Vuyo now is also 25, and she’s still learning. But I love her!

        • If the NPA ever wants a very good prosecutor, Vuyo will be more than a good choice. Except…her method will not be the conventional question and answer way, but more the…you know…a method where the truth gets exposed much quicker.

  • A disturbing read for the people of the UK. Is it possible that the UK or England in particular will be the first Orwellian state? We understand that politicians will do or say anything to stay in power however, what they propose per the article is nothing short of total control of the reality that people believe in or experience. We already know the Hungary is further along this track and may face an upset in the next elections. Do the people support this, they voted for Boris and all his lies, so maybe they do. To what purpose and for what gains other than to enrich the few as the pandemic has shown?

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