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Law Commission pulls back on official secrets laws plans after Reg exposes flawed report

Scrutinised? Consulted? Really? Thought so.

hands through the jail bars. Photo by shutterstock

The UK government's Law Commission, reeling from a Reg-led torrent of press, political and even judicial criticism of proposals for punitive new official secrets laws, has branded their first report "only provisional".

Launching an extra round of public consultation this month, the Commission said that "our final recommendations will be influenced by our open public consultation". The deadline to respond "has now been extended to 3 May ... due to the large amount of interest in the project", they added.

The PDF document in the iframe below (link here – 6-page PDF – if your browser is not cooperating) was written on 29 March and sent out late last week but is not available on the Law Commission's website.

Multiple legal sources told The Reg the Commission was "clearly bruised" by the criticisms made when their plans were publicised. The sources added that Commission staff claimed to be in "listening" mode, saying that no decisions had been made.

The pullback and re-evaluation was triggered by a Reg exclusive and an immediate follow-on wave of adverse newspaper reports. The Guardian splashed the story on its front page the next day. This was followed, unusually, by both the Daily Mail and the Daily Telegraph.

The Telegraph described the Commission's proposals as "outrageous, nothing less than a threat to Britain's free press and thus its democracy ... The Law Commission and the ministers it answers to must ensure that responsible British journalists are not subjected to any new official secrecy law. The free press must remain free."

Free speech and civil liberties groups, as well as non-government organisations and media unions, united with the Guardian, Mail and Telegraph in criticism. Michelle Stanistreet, general secretary of the National Union of Journalists, said: "The scope for change is huge, wide-ranging and possibly detrimental. We are concerned at the ramifications for journalists and press freedom."

By day four after The Reg story, Downing Street appeared ready to drop the plan, according to the Guardian. A "No 10 source" was reported as saying: "This is a consultation by an independent body instigated by a previous prime minister ... It will never be our policy to restrict the freedom of investigative journalism or public service whistleblowing.”

The Telegraph's sudden U-turn contrasted with the paper's role a week earlier in agreeing to publish unchecked claims by the Commission, including sweeping but inaccurate boasts to have conducted the "first overhaul of the Official Secrets Act in 100 years". The law commissioner responsible, Prof David Ormerod QC, also penned that the report offered a "once in a century" opportunity to "meet 21st century challenges" with "future proofed" laws.

The Telegraph's initial and supportive publicity for the report had first been managed as a public relations exercise and placed exclusively in the Telegraph, in return for the newspaper agreeing to print an editorial opinion from Ormerod. The Law Commission did not then send out press releases or consultation letters. "Consultations and related documents" were placed only on the Commission's website and were not actively distributed.

The Commission claimed that, in its year-long consultation in preparing proposals, it “met extensively with and sought the views of ... human rights NGOs and the media”. Ormerod wrote: “We’ve scrutinised the law and consulted widely with ... media and human rights organisations.”

Ormerod's claim was not correct, as The Reg first revealed. Only three NGOs and three media organisations were listed as consulted, compared to 27 government departments and their officials. The NGOs concerned - Liberty, the Open Rights Group (ORG) and Public Concern at Work (PCAW) - now say that the consultation was "derisory", limited to a single short presentation, with no follow-up or subsequent consultation. ORG said they had no meeting at all. Organisations like the BBC and a raft of whistleblowers' support organisations were not consulted at all.

On day seven after the Reg story, former appeal court judge and Law Commission chair Sir Henry Brooke blogged that "a typical law reform project used to last for three years", adding "unfortunately... [in this case the Commission] very soon perceived the scale to which relevant legislation on interlocking topics had grown up haphazardly like Topsy ... it could not possibly do full justice to the topics it had been asked to address without very much deeper and lengthier research".

Brooke described it as "unfortunate" that "the Commission felt constrained ... to limit the consultation period". Their former boss advised, "It is greatly to be hoped that in view of the massive adverse publicity this consultation paper has provoked, the Commission can be persuaded to extend the consultation period by another month."

Law Commission missed the only case where the existing Official Secrets Act had been tested in relation to journalism

Stung by the wave of criticism, the Commission tweeted an argumentative "Myth and FACT" list, claiming that offences in the existing "Official Secrets Act can already be committed by anyone - including journalists".

This is true, in theory. But it is only true if journalists are accused of full-blown espionage, under current spying laws. The older and far wider part of the Official Secrets Act, called Section 2 and directly aimed at journalists, was repealed in 1989.

According to the judge who presided over the only trial when two British journalists were accused of espionage for reporting, the current espionage law is "an extremely oppressive piece of legislation, suitable only for dealing with saboteurs or spies in the service of a foreign power. It [permits] guilt by association, it [reverses] the burden of proof".

This writer was one of the two journalists to face these spying charges, in the "ABC" case of 1978. The trial is described in a book by Geoffrey Robertson QC, one of the trial lawyers. Robertson reports how the trial judge, Mr Justice Mars-Jones, told the government that he was "extremely unhappy" about the "'oppressive prosecution".

The judge criticised the government for allowing the law to be abused. "If the Attorney General can authorise the prosecution, then he can unauthorise it," he said. The next day, the government abandoned the espionage charges. No government since has ever attempted to use these spying laws against journalists.

In its "rigorous, independent" review of British secrecy laws, the Law Commission left out this case, the only case where the existing Official Secrets Act had been tested in relation to journalism.

The Commission also appears not to have known about new laws which have updated protection for UK critical infrastructure.

Explaining why new offences should replace "archaic" laws, the Commission has claimed that "in the modern world, the sites that need protection may include very different places such as data centres which may store vast quantities of information. We suggest the introduction of a new statutory mechanism by which sites can be designated as protected".

But data centres can already be protected and have been protected for more than 10 years by being designated as "protected places" under the up-to-date Serious Organised Crime and Police Act 2005 (SOCPA). One specific data centre is GCHQ's standalone computer centre at Harp Hill, near Cheltenham, described to Reg readers four years ago.

GCHQ Oakley remnants

GCHQ Oakley ... recreation and razor wire live side by side these days

Similar regulations also protect intelligence agency headquarters and bases, nuclear power stations, military bases, and even "royal residences".

The Commission would not even have to have read the Reg to find this out, as lists of protected places are officially published by the government. But the lists are published, officially, on the internet, a subject never discussed in the 326 page Law Commission report. One paragraph refers only to "the amount of personal information which can be disclosed with relative ease".

Martha Spurrier, Director of Liberty, said: “It’s disturbing that the Law Commission considers [it has held] adequate consultation to inform such drastic and dangerous proposals."

“This is the latest hypocritical move from a Government intent on operating in the shadows while monitoring every move the rest of us make", she added. "When the agencies’ illegal mass surveillance was exposed by Snowden’s courageous actions, this Government responded with the eye-wateringly authoritarian Investigatory Powers Act."

But the Law Commission has now taken the hint from its former boss about consultation. The end of its public consultation has been delayed until 3 May. ®

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