Theresa May’s Conservative Government has come under fire recently due to recommendations from its legal advisers to overhaul the Official Secrets Act to include a raised maximum sentence from two to 14 years for leaking documents and data as well as expanding the definition of espionage to include obtaining or receiving sensitive data.
The proposals, which have been heavily criticised by media organisations and civil rights groups, were part of an ongoing, major overhaul of the existing Official Secrets Act (OSA). The Law Commission, an independent body set up to advise the government on law reform, recently published its draft recommendations for a replacement of the OSA, the Espionage Act, that would include the increased maximum sentences and an expanded definition of espionage.
The recommendations have been described by Jim Killock, chief executive of Open Rights Group, as a “full-frontal attack, recommending criminalising even examining secret services’ material.” Killock went on to state that “The intention is to stop the public from ever knowing that any secret agency has ever broken the law.” Open Rights Group were one of the several organisations that the commission had apparently consulted with about the new recommendations, a consultation they claim they did not take part in.
The draft also contained suggestions to include a “Statutory Commissioner Model” of reporting illegality or impropriety, whereby those who may feel compelled to release sensitive information to the press, the public or outlets such as Wikileaks, can instead bring their concerns to the attention of a statutory commissioner. The commissioner would then have the power to investigate the concerns brought to them but would also, however, report to the Prime Minister so as to prevent the release of sensitive data to the public.
This model appears to try to further cover-up government wrongdoing by adding an extra layer of bureaucracy to the process of holding the government and its officials to account for their actions. What is most concerning, however, is the idea that the UK government seems to be heading towards a one-way street approach when it comes to data, sensitive or not.
With the Investigatory Powers Act making the mass surveillance of every viable internet user in the country legal, one might expect (or at least hope) that, in turn for our data, the government would be more transparent about its own actions and own up to its mistakes when they are recognised. These latest recommendations, however, seem to point to the opposite conclusion. Since the high-profile leaks of Edward Snowden, many western governments, the US and UK in particular, seem to be doing as much as they can in order to ensure that further leaks are prevented and whistleblowers deterred via the use of ever more draconian measures.
In a piece written for the Guardian, the Labour Party’s Shadow Attorney General for England and Wales, Sami Chakrabarti, comments on the Commission’s apparent lack of consultation with NGOs, journalists or whistleblowers stating “With just a few weeks left for the consultation, I hope the commission will seek to get it back on track by reaching out to the journalists, human rights lawyers and whistleblowers who have so far been excluded from the process. It is essential for the credibility of the report (and the commission) that a greater balance between the two sides of this debate are reflected.”
Unfortunately, with the perceived threat of being “hacked” being bounding about by politicians so freely since the US election, it seems unlikely that these recommendations will be watered down, or even thought through. Whistleblowers, investigative journalists and those willing to publish their findings are essential for any democratic nation and any government looking to crack down heavily on those who expose corruption, illegality, impropriety or cover-ups should be looked upon with suspicion. The justification for mass surveillance was “If you’ve got nothing to hide, you’ve got nothing to worry about,” So why does the government appear so worried about whistleblowers and journalists?