It beggars belief that a government led by a former journalist wants laws that would make criminals of ... journalists
THE great Sunday Times editor Harold Evans was once branded a traitor by the Foreign Secretary of the day, George Brown. His crime? Revealing the shocking double life of the notorious MI6 agent Kim Philby. Would the threat of jail have stopped Harry?
In your dreams.
Would the prospect of prison have caused him second thoughts about publishing the diaries of former Labour Minister Richard Crossman, who defied the government of the day and laid bare the secret workings of the Cabinet? I rather doubt it.
Would this paper have flinched from publishing the controversial emails from Sir Kim Darroch, which – highly critical of Donald Trump – led to his resignation as our man in Washington in 2019? I can’t imagine it.
Would I have stepped back from publishing the important disclosures about state surveillance from the American whistleblower Edward Snowden? No.
I’m willing to take a bet that time inside wouldn’t have stopped the Sun’s editor, Victoria Newton, from publishing the story exposing the yawning, mid-pandemic hypocrisy of Health Secretary Matt Hancock. And I am absolutely certain that Ms Newton means it when she says she’d willingly go to jail rather than
British people rather admire those who take risks to expose corruption
reveal how she came by the video that eventually led to Mr Hancock’s abrupt downfall.
Go further back in history to the 1930s when Winston Churchill regularly received numerous disclosures of secret information about Britain’s readiness for war. His sources included senior Foreign Office officials and RAF officers, all of whom were in breach of the Official Secrets Act.
The government of the day protested that the leaks were dangerous and damaging. The government of the day was wrong.
Maybe officials advising the Home Secretary, Priti Patel, hadn’t read much about the history of journalism in Britain before proposing new legislation that would almost certainly see quite considerable numbers of journalists, editors and whistleblowers in jail.
I wonder if she has thought this through? Journalists are, as a profession, not greatly loved. But the British people do care about free speech and the liberty to think for themselves. They rather admire people who take huge risks to expose corruption, hypocrisy or deception in high places.
The sight of journalists and their sources going to prison in the cause of the public’s right to know will not, I predict, play well.
How has Ms Patel got herself into this mess?
It is common ground that the existing collection of laws protecting official data is haphazard and out of date. For some years the Law Commission, a body charged with reforming muddled areas of legislation, has been wrestling with how to modernise and improve them. It eventually proposed longer jail sentences as a deterrent but came round to the view that anyone charged under a new official secrets act should be able to have a public-interest defence: ie, they could explain in court why they felt it important people should know.
The problem with a public-interest defence is that juries might actually agree with the defendant.
There is a history of whistleblowers escaping punishment because juries refused to convict them. So Ms Patel has decided that anyone accused of breaching official secrecy in future will not be allowed to offer any kind of defence explaining their actions.
The new legislation is billed as acting ‘to Counter State Threats (Hostile State Activity)’. Some of it is aimed at officials who work with secret material. But then comes a subtle sleight of hand in which ‘espionage’ is blurred into ‘serious unauthorised disclosure’.
Pause on the words ‘unauthorised disclosure’. That sounds like a bad thing, but much of the most valuable information that appears in the press or media is unauthorised information over which a source may have taken a great risk – with their reputation, livelihood or even life – to disclose matters they officially should not disclose. Brave sources are the lifeblood of journalism, and, I would argue, of a civilised democracy. Even with Snow White in charge of a completely truthful administration, ‘official’ information would still be partial, opaque and misleading. And Boris Johnson is no Snow White.
In other words, we need leaks and leakers. People pass on information for all sorts of reasons – ‘good’ and ‘bad’. We might think of ‘good leakers’ as whistleblowers: people who feel compelled to disclose supposedly official information out of a sense of wider public interest.
Society might approve of such people, either at the time or later, but under the Patel proposals they would have no chance to put their case. Neither would any journalist who spoke to them.
‘Bad leakers’ might be motivated by money, or revenge, or political ends. There may be an ‘in-between’ category of leaker. Whoever went to the Daily Telegraph in 2009 with the eye-popping details of MPs’ expenses wanted to be paid. But few would argue the information wasn’t in the public interest.
Who, then, should decide the question of public interest – politicians, who might have every reason in the world to fear disclosure, or a jury of one’s peers? To ask the question is to provide the answer. Politicians through history have been desperate to keep control of information.
The Law Commission also recommended that journalists could be prosecuted under a new Act simply for holding secret material, never mind publishing it. The commission envisaged increasing jail sentences to up to 14 years.
Put simply, these threatened measures amount to an attempt to criminalise journalism and it is astonishing that a government led by a former journalist should be proposing them. Is it conceivable – shocking suggestion, I know – that Boris Johnson has not been paying full attention?
They do things differently in the United States. Ever since Richard Nixon tried to prevent the truth about the Vietnam War being published in the New York Times and Washington Post 50 years ago, American journalists have had infinitely greater protection from injunctions, let alone the threat of jail. Under the Patel doctrine, great publishers and editors such as the NYT’s Arthur ‘Punch’ Sulzberger or the Post’s Katharine Graham and Ben Bradlee would have ended up in jail for daring to publish Nixon’s dirty secrets.
The official line was that the disclosures by the two papers were so devastating they would cause ‘great and irreparable damage’ to the security of the US. Yet judge after judge dismissed that view.
Murray Gurfein, a federal judge appointed by Nixon himself, said this: ‘Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, an ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.’
In the American Supreme Court, Mr Justice Black said that ‘in revealing the workings of government that led to the Vietnam War, the newspapers did precisely that which the Founders hoped and trusted they would do’. Fifty years later, the settled view is that Nixon was a crook and that, as celebrated in the 2017 Steven Spielberg thriller The Post, the heroes of the day were the whistleblower Nixon tried to jail – along with the journalists who toughed it out.
The Prime Minister is, famously, not a details man. But I suggest he asks an official to take a close look at the menacing threat to free speech that Ms Patel is proposing and stops them before this country’s jails start filling up with editors, sources and journalists who still care about the value of our free institutions.
Few would argue leaking MPs’ expenses wasn’t in the public interest