The principle of open government is too often seen as an issue for the left, but for I firmly believe that it is profoundly Conservative to believe that transparent administration is what should lead to higher standards, greater efficiency and better value for taxpayers’ money. As Conservatives, we believe that the State should be our servant, not our master.
Next year, the Government will introduce its Counter-State Threats Bill. The Home Office has stated that the bill has three main ambitions:
· To modernise existing counter espionage laws to reflect the modern threat and modern legislative standards
· To create new offences, tools and powers to detect, deter and disrupt hostile activity in and targeted at the UK
· To improve our ability to protect official data and ensure the associated offences reflect the greater ease at which significant harm can be done
The bill will overhaul the various Official Secrets Acts, the first of which was passed during the age of the carrier pigeon back in 1911. The most recent version went on the statute book at the end of the Cold War - and before the dawn of the internet - in 1989. Most experts agree that the acts are outdated and no longer fit-for-purpose. They are right.
The Bill will be largely based on the Law Commission’s report: Protection of Official Data, which was published in September last year. Many of the report’s recommendations, have been welcomed by the government, but there has been more wariness about the last of the report’s recommendations, which is to introduce a statutory public interest defence. This would protect individuals from jail for revealing confidential information for the greater good. Public servants Clive Ponting and Katharine Gunn are among those who would have been able to rely on such a defence, rather than get lucky through a jury ignoring the directions of a judge or relying on persuasive advocacy.
Too often, the main argument against such a defence has been left unchallenged. Critics say this would become a ‘leaker’s charter’ for those who want to see anarchy.
The truth is much the other way around. At the moment, data dumpers are relying on uncertainty in the law to push for acquittal. They could not possibly meet a defined test, because they are not discerning in what they reveal. Instead, they are revealing far more than is reasonable, even if their aim is to expose wrongdoing.
Juries would finally know what a public interest defence really means and data dumpers would come to realise that they could no longer rely on a lack of understanding to escape imprisonment. There would, in fact, be less incentive to try and run a public interest defence now that it is in place.
A concern that I know exists in government is how to define the public interest. This is understandable and any definition would, no doubt, be refined by future generations as social norms change.
We already have a perfectly sensible legal definition to use as the basis of this defence. In an excellent recent briefing paper issued recently by leading lawyers in this field, the Public Interest Disclosure Act 1998 provides an excellent, objective template. This piece of employment law prevents whistleblowers from negative treatment or unfair dismissal after reporting their concerns. The Act states that when assessing whether the disclosure itself and the manner in which it was made are in the public interest, many factors must be taken into account:
- the subject matter of the disclosure
- the seriousness of the misconduct exposed
- the harm caused by the disclosure
- whether the disclosure is made in good faith
- whether the disclosure is made for purposes of personal gain
- whether the extent of the disclosure is no more than reasonably necessary for the purposes of exposing the relevant conduct
- whether the individual reasonably believes that the information disclosed, and any allegation contained in it, are substantially true
- the availability of any other effective authorised procedures for making the disclosure and whether those procedures were exercised
- whether, in all the circumstances of the case, it is reasonable for the disclosure to have been made in the relevant manner
Government or Parliament might look to tweak the definition for this different context, but the template is a sound one. If we introduce the above then we are no longer in the perverse situation that someone who passes confidential information to an MP or peer can go to jail, when that politician can use parliamentary privilege. A carefully-drafted statutory public interest defence will afford a legitimate defence to legitimate journalists and others whose actions serve the national interest. This is not, and should never be, a Wikileaks Charter, where indiscriminate and reckless disclosures threaten life, limb and livelihood.
The Counter-State Threats Bill is going to strengthen security legislation, which is understandable given the emergence of cyber threats. The UK is, however, renowned around the world for our commitment to legal checks and balances.
A statutory public interest defence will act as the safety valve we need to make sure we do not go too far and make the state all powerful and unaccountable, which is something that no Conservative wants to see.
