Imagine a country where the authorities target investigative journalists as spies, and outlaw news and campaigning organisations that receive foreign funding. At Index on Censorship, we have been writing about such countries since the darkest days of the Cold War.
Now, a coalition of organisations promoting free expression and the rights of journalists is raising serious concerns about sweeping measures contained in new legislation here in the UK.
An unusual bout of consensus appears to have broken out in Westminster over this particular piece of new legislation. In part, this is due to the British government’s tactical retreat from a full-scale overhaul of the 1989 Official Secrets Act – which would have caused concern for libertarians on the government benches.
The importance of national security in a time of global instability is something we can all understand. And a toughening of measures to crack down on bad foreign actors is relatively easy to sell.
But it is wise to be vigilant when parliamentary consensus occurs – especially when citizens are being asked to trade personal freedoms in exchange for promises of greater security. Civil liberties risk being squeezed between a government desperate to show its toughness in the face of presidents Putin and Xi and an opposition keen to burnish its security credentials.
The new legislation is designed to address serious new threats that have only emerged since the start of the 21st century. There is no question that the growth of the internet has posed challenges to UK security. This, combined with the direct hostility of Russia and the growing geopolitical significance of China, has led to concern in Whitehall about the suitability of existing legislation.
The Home Office claims that the new bill “completely overhauls and updates our outdated espionage laws” – a bold assertion. It also promises a “range of new and modernised offences, with updated investigative powers and capabilities”. These, it says, will “ensure those on the front line of our defence will be able to do even more to counter state threats”.
Such language is designed to instil maximum reassurance in the face of a terrifying and unspecified threat from a hostile foreign government.
But where are the limits to such legislation?
Public interest defence
Our coalition has identified several areas of concern, but chief among them is the chilling effect the new legislation will have on the practice of investigative journalism. The absence of meaningful free-expression protections means that whistleblowers in government will be further deterred from disclosing official wrongdoing.
The new legislation makes it clear that those in receipt of information or documents deemed to benefit foreign powers will face the most severe penalties – up to a maximum of life imprisonment. Although ministers gave assurances under questioning that these measures are not designed to target journalists, such protections are not written into the legislation. The decision to prosecute would ultimately lie with the attorney general of the day.
In the face of such sweeping measures, we are demanding the introduction of a public interest defence to increase protections for those exposing genuine wrongdoing in the sphere of national security.
Fundamental to the concerns of our coalition are the so-called “foreign power conditions” woven throughout the new legislation. Our fear is that the measures are so broadly drawn that journalists and free-speech organisations could be swept up in a future crackdown.
The scope of the National Security Bill as presently drafted is so vast that any organisation receiving foreign funding – including foreign news services – could be caught up by it.
Democracy depends on vibrant and critical journalism. The UK government should resist the desire to sacrifice media freedom on the altar of national security.
The Prince of Wales delivers the Queen’s Speech during the State Opening of Parliament 2022. Alastair Grant/PA Wire/PA Images
Unintended consequences and ideological incoherence. These phrases have dominated all discussions I have had in recent days about the British Government’s current approach to freedom of speech and expression.
There are now at least six pieces of legislation, outlined in last week’s Queen’s speech, which will be debated by the UK Parliament, which have a direct impact of our collective ability, in the UK, to exercise our rights to free expression. As individual pieces of legislation some are of value, but others are seemingly a political tool to set the scene for a battle about culture wars at the next British General Election, rather than to fix a problem in our society. That would be bad enough, but when considered in the round, rather than as individual laws, we are seeing a hotchpotch approach to free speech which is both ideologically incoherent and inconsistent as well as having numerous unintended consequences.
The best case in point is the proposed Higher Education (Freedom of Speech) Bill, which sets out to protect academic endeavour on campus, aiming to ensure that some of the most controversial and/or obscure issues are protected areas of academic enquiry. The Bill aims to give academics stronger protections in law to both study and discuss these issues. I have written previously about my concern that this is attempting to fix a problem that doesn’t exist and that most of the proposed provisions are already accessible under other legal frameworks, but as a principle how could Index on Censorship not seek to protect academic freedom both at home and abroad? But that brings to me to one of the inherent contradictions in the Government’s overall approach.
The Bill would provide legal protections to enable an academic to give a lecture on replacement theory – the idea that white populations risk becoming minorities as a result of immigration and high birth rates among migrants – something which I consider to be a racist and pernicious doctrine.
Replacement theory, while abhorrent, is not considered to be illegal speech, it could however be viewed as harmful speech. If the lecture was, however, then placed on a social media platform, under the Government’s proposals in the Online Safety Bill, it could be considered to be “legal but harmful” content and subject to deletion. So, you could give a lecture using protected speech in an auditorium, but your students wouldn’t be able to access it online, to debate and challenge it, and other academics wouldn’t be able to challenge the assertions of the controversial academic in any meaningful way online. So how does that protect free speech?
The British Government is also proposing a new Bill of Rights to enshrine UK human rights in a post-Brexit world. The Justice Secretary, Rt Hon Dominic Raab MP, has stated that: “We will still be clamping down on those who try and use either media or free speech to incite violence, to radicalise terrorists, or to threaten children. All of those safeguards will be in place. But we’ve got to be able to strengthen free speech, the liberty that guards all of our other freedoms, and stop it being whittled away surreptitiously, sometimes without us really being conscious of it. So it will have a different status in the pecking order of rights and I think that will go a long way to protecting this country’s freedom of speech and our history, which has always very strongly protected freedom of speech.”
Which of course to someone like me who cherishes our right to freedom of expression is manna from heaven – or is it? Because at the same time as the Justice Secretary is seeking to make freedom of speech the foundational human right in the British system, the Home Secretary is reviewing the Official Secrets Act in the guise of a new National Security Bill. This time, an exemption for a public interest defence, a longstanding provision which protects journalists when they publish the accounts of whistle-blowers relating to national security, seems to have been forgotten. This completely undermines the premise of media freedom and journalism being able to hold power to account.
The British Government is also proposing new legislation to severely limit the right to protest in the UK under a new Public Order Bill and a new Data Reform Bill which will change our rights to privacy online. The Government is also consulting on new legislation to counter strategic lawsuits against public participation (SLAPPs) in order to stop the misuse of our libel system to silence the media and campaigners.
In other words, the Government is speaking a great deal about freedom of speech in the UK at the moment, but seemingly without any of the relevant departments or Government agencies talking to each other. As the inherent contradictions in their use and definition of free speech become more obvious, we will see a national picture in the UK which is even more convoluted and probably open to legal challenge. Index is calling for a more strategic and defined approach to free speech in the UK and will be working with partners across the political spectrum to try and get to a place that protects all of our speech.
Earlier this month the UK House of Lords voted down a series of measures in the government’s Police, Crime Sentencing and Courts Bill, many of which were introduced at the last minute without the chance for debate. These included the power to stop and search anyone at a protest (or simply passing by a protest) without the need for reasonable suspicion. The new measures would also have allowed the courts to ban people from attending protests in future even if they hadn’t been convicted of any offences in the past. These are what are technically described as “precautionary powers”, usually reserved for counter-terrorism and serious crime rather than peaceful protest. Police would also have been able to intervene if protests were judged to be too loud. Despite its failure at this stage of the legislative process, the government has made it clear it intends to reintroduce these draconian proposals.
The day after the government defeat a guest appeared on the BBC’s flagship Today programme to express his opposition to the measures:
“What you are doing with some of these powers,” he explained, “is removing from people who may not feel there is much they can do to influence government policy, the power even to make a lot of noise. And you are treating gatherings and marches as crime scenes rather than occasions for the legitimate exercise of free speech or the freedom to assemble.”
These are not the words of a representative from one of the groups targeted by the legislation (Extinction Rebellion or Insulate Britain) nor do they come from a civil rights organisation such as Liberty. The speaker was Lord Anderson of Ipswich KBE QC, the former Independent Reviewer of Terrorism Legislation who sits as a crossbench peer, which means he is not aligned to any political party. He even voted for some of the proposals, including a measure to stop people locking themselves to street furniture or interfering with key national infrastructure. It is hard to imagine a more establishment figure and the government should listen when he accuses them of turning protests into crime scenes. Even former Metropolitan Police Commissioner, Lord Hogan-Howe, who voted with the government, made the point that many of the offences in the bill are covered by existing legislation.
Although there have been public demonstrations against the Policing Bill, most notably in Bristol, public and media attention has understandably been elsewhere during the pandemic. The government’s own issues with potential law breaking in Downing Street has provided a more recent distraction.
But the Policing Bill is not the only authoritarian weapon in this government’s armoury. Index has warned before about proposals for a new Official Secrets Act that will increase maximum sentences for unauthorised leaks and judge some journalistic disclosures as more serious than espionage. The government’s consultation document on the reform makes this abundantly clear: “there are cases where an unauthorised disclosure may be as, or more, serious in terms of intent and/or damage.”
Last month, Justice Secretary Dominic Raab announced a root and branch overhaul of the Human Rights Act, the centrepiece of progressive reforms from the New Labour era. This will include an erosion of the “positive obligations” on public bodies to protect human rights, which should concern anyone who has ever had reason to question the actions of the police. Meanwhile, under the measures of the Electoral Integrity Bill voters will be obliged to show photographic ID at polling stations despite the low levels of fraud and the large numbers of people on low incomes who don’t possess a driving licence or a passport.
Add to this an increasingly punitive approach to asylum seekers and benefit claimants and it is possible to argue that we are witnessing the most authoritarian British government since the Second World War.
It is now more than 20 years since The Guardian and The Observer fought off attempts by the UK government to force them to hand over documents in the case of MI5 whistleblower David Shayler. At a judicial review, Judge Igor Judge concluded that demands to hand over journalistic material “would have a devastating and stifling effect on the proper investigation of the … story”.
The case reinforced the special status of journalistic sources in law – even in official secrecy cases – and established the principle that the police should not use journalists as informers.
As the Observer journalist responsible for writing the stories about Shayler’s disclosures, which included allegations of the involvement of UK intelligence in a plot to topple Libya’s Muammar Gaddafi, I was particularly concerned to see the latest proposals for the reform of the Official Secrets Act.
These include enhanced search powers to give police access to just the sort of journalistic “special procedure material” (notes, emails and recorded interviews) we fought so hard to keep from the police two decades ago. The new OSA would thus enshrine in law the “devastating and stifling effect” on journalism that so concerned Judge.
Much has happened in the two decades since The Guardian and The Observer’s principled stand in the High Court. The growth of digital technology, the emergence of global Islamist terrorism and the increased national security threat to the UK from Russia and China have given the government good arguments for reform of legislation that was enacted when the world wide web was in its infancy.
But the new act is authoritarianism by stealth – a full-on assault on media freedom, carefully hidden behind an apparently reasonable desire for reform.
The National Union of Journalists has rightly sounded the alarm over plans to increase the maximum prison sentence for breaches of the OSA, which currently stands at two years. This will have significant chilling effect on journalists investigating government wrongdoing and their civil servant sources. More worrying still is the distinction now being made between espionage and so-called “unauthorised disclosure offences” (ie, leaks to journalists). As the consultation makes clear, this government believes “there are cases where an unauthorised disclosure may be as, or more, serious in terms of intent and/or damage”. The argument is that a large-scale digital disclosure could benefit a number of hostile actors, whereas espionage is usually carried out by a single state. The effect, in practice, is that a journalist in receipt of secret documents could face a longer sentence than a spy.
Where the government really lets its authoritarian slip show, however, is in a section of the consultation about the number of successful prosecutions under existing legislation. The truth is that the record here is woeful. The government argument is as follows: “This is primarily due to the sensitive nature of the evidence that would typically be required to be disclosed in order to bring prosecutions, but also because of the age of the legislation, which means many of the offences are not designed for the modern world. Prosecutions, as a result, are challenging and rare.”
This is patent nonsense. In most cases, Official Secrets prosecutions fail because they should not have been brought in the first place.
Since the Shayler case, I have been involved in two other high-profile Official Secrets cases, both of which eventually collapsed. The first concerned Katharine Gun, a GCHQ whistleblower, who leaked details to The Observer of a covert US/UK operation to fix the vote at the UN Security Council in advance of the Iraq War in 2003.
As the recent film of the case – Official Secrets – made clear, the problem was not disclosure of evidence of the crime (Gun confessed to the leak) but disclosure that would lead to ministerial embarrassment about the legality of the war.
The second case involved a Foreign Office official, Derek Pasquill, who leaked details of government policy on radical Islam in 2006. Here again, the trial did not collapse over evidential disclosure. In this case there were serious questions over whether any of his disclosures should have been covered by the OSA in the first place.
For those who care about free speech, civil liberties and democracy, the most serious concern should be the resistance of the government to a public interest defence in such cases. This is where the British state and the British people come into direct conflict.
In the cases of Gun and Pasquill, there is no doubt they acted in the public interest to reveal uncomfortable truths for the government. Their revelations served not just the public interest but the national interest. If the new legislation had been in place at the time, it is quite possible that Gun and Pasquill would both have been sent to prison.
Boris Johnson, the UK’s journalist prime minister, has said he doesn’t want to see a world where people are prosecuted for doing their public duty. I look forward to his column condemning his government’s own Official Secrets proposals, which will create just that nightmare world.
This piece first appeared in the British Journalism Review