Too much happens in the shadows

Nik Williams is a Reader Director at The Ferret. He coordinated our response to the UK Government consultation on Legislation to Counter State Terror Threats.

My grandfather was an engineer in the RAF. This took him from his family home in India to Singapore, Germany, Cyprus and finally, the UK, where him, my grandmother and the rest of my family eventually settled.

When he passed away, we worked our way through his paperwork and documentation. Inside the front cover of his Tradesman’s Record of Training and Experience is a short paragraph in italics, which caught our attention as the rest of the text on the page is standard typeface.

The paragraph read “Attention is drawn to the possibility of security infringements which could occur through the use of this Form. Airmen having doubts as to whether an entry has any security implications, should consult higher authority before making the entry.”

This casts the entire form in doubt. Is it an accurate picture of my grandfather’s postings or is it only what the “higher authority” allowed to be noted down? 

It does make me think, were there any other places his work sent him? What work would that be to invite the censor’s hand?

This is the significance of the UK’s visible and partially visible architecture of secrecy rules, guidance, and laws. As much happens in the shadows as it does in the light.

The Official Secrets Act (OSA) and the numerous iterations since 1911 is perhaps the most wide-reaching and prominent aspect of the pro-secrecy legal environment in the UK.  It is also a series of laws that journalists butt up against time and time again, especially when reporting on issues around national security, the military, and intelligence services.

However, in the OSA, the UK Government has seen a gaping hole in their protections against foreign state espionage. As a result, the Home Office announced a consultation into potential reform. On the face of it, this urge is unsurprising and not without reason.

Following myriad of accusations of foreign interference in elections and referendums in the UK and USA, as well as cyber-attacks on institutions such as the NHS and assassination plots carried out by foreign intelligence agencies on British soil, legislative steps to respond to these threats may be necessary.

In fact, the Law Commission stated in its analysis of the OSA that the “four Official Secrets Acts that help protect the country from spying and leaks are outdated and no longer fit for purpose.” But digging under the surface demonstrates a broader focus in this consultation that should terrify everyone: the equating of journalists with spies.

Last year, the Law Commission undertook a study to analyse the “effectiveness of the criminal law provisions that protect official information and makes recommendations for much needed reform.”

The resultant report offered a detailed dissection of the existing laws (predominantly focused on Official Secrets Acts 1911, 1920, 1939 and 1989) and where change was needed. This included the nature of the current sentencing regime and how the law should reflect new technology, most notably online and social media platforms and how that can transform the unauthorised sharing of official documentation. 

This established the foundation for the consultation framework. However, while the consultation is set up as a series of questions, the Home Office appears to know what kind of answers it wants.

For example, in the consultation document, the Home Office states: “[o]ur fundamental concern is that a person seeking to make an unauthorised disclosure, whether in Government or otherwise in possession of official material, will rarely (if ever) be able to accurately judge whether the public interest in disclosing the information outweighs the risks against disclosure.”

The baseline assumption here is that the apparatus of state monopolises the ability to identify the public interest. But it is not in their exclusive control. In fact, their drawing of the public interest has for too long been too narrow and too partial. At times it is indistinguishable from the government’s interest.

The enduring impact of the Snowden revelations made in 2013 demonstrates the unassailable fact that others can identify the public interest as a compelling motivation to leak information to inform and structure public knowledge and bring about necessary legal and political change. In fact, as demonstrated time and time again, others may be better placed to sort between the public and government’s interest.

Throughout the consultation, direct espionage is placed on the same level as unauthorised disclosure (primary and onwards disclosure, using Home Office lingo), which will place journalists, publishers, and whistle-blowers on the same level as spies.

Suddenly motivation and justification are erased. Suddenly the publication of information shared in the public interest is no different to information accessed for economic, military, or political purposes.

As a free and independent press is vital for a functional democracy this blurring of actions is a direct and unmistakable threat to the rule of law and democracy at large. 

In the Law Commission’s report, they recommend the establishment of a public interest defence and a statutory commissioner as an effective investigative mechanism with the power to “act expeditiously, and have the legal authority to compel cooperation with its investigations.”

More importantly, the commissioner would be able to receive and investigate “allegations of wrongdoing or criminality, where otherwise the disclosure of those concerns would constitute an offence under the Official Secrets Act 1989”.

But considering how existing oversight regimes, watchdogs and commissioners are side-lined, ignored, defunded, or undermined – in June 2021, it was reported that Boris Johnson intended to strip the Electoral Commission of its power to prosecute law breaking – the government’s animosity to the establishment of another independent oversight body is unsurprising if short-sighted.

The creation of an independent statutory commissioner would establish, if trusted and meaningfully independent, a formal channel that whistle-blowers could turn to instead of the press. This should be welcomed by the state, but the Home Office labels this recommendation, alongside the proposed, and much needed, public interest defence, as something that could “undermine our efforts to prevent damaging unauthorised disclosures, which would not be in the public interest.”

The story we tell ourselves about journalism is that it is a fight between those seeking to expose what is hidden and those working to ensure it remains unobtainable.

This is a romantic story, but at times where Freedom of Information laws are warped beyond expectation, surveillance powers are extended to cover both targeted and indiscriminate data capture, participation in state media briefings is not assumed as a given for critical outlets, and public business is being delivered through private WhatsApp conversations, it is not wholly inaccurate.

The broader media environment and the freedom by which journalists and media workers can carry out their work and the ability of readers to access the reporting, is narrowing across the UK (in a development mirrored in other countries across the globe).

Some of these threats are more conspicuous than others, but the trend towards reshaping the legal environment within which journalists operate will have lasting impacts on both what journalists can report and what the public can read.

If the Home Office gets its way it will be more dangerous for whistle-blowers and outlets, like The Ferret, to inform the public and strengthen democratic accountability based on information accessed and shared in the public interest. 

Too much happens in the shadows. 

Read our full consultation submission

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