NMA Calls For Public Interest Defence In Official Secrets Act

The News Media Association considers that the introduction of a simple, broad public interest defence to the Official Secrets Act is essential to enable matters of public interest to be scrutinised and debated and allow malpractice to be exposed and addressed. 

“Neither whistle-blower nor journalist should be at risk of prosecution for revealing wrongdoing or other matters of public interest. This is not a novel concept – for example, the provision could be modelled on precedents in data protection legislation,” the NMA said, following the second reading of the National Security Bill in the House of Commons on Monday. 

“The National Security Bill does not include a public interest defence, which is a serious omission. The Law Commission was clear that such a defence was needed to ensure that the Government were not able to abuse legislation as a ‘cloak to mask serious wrongdoing,'” the NMA added. 

The Law Commission also suggested a statutory commissioner to investigate allegations of wrongdoing or criminality made by civil servants or members of the public where disclosures of such concerns would be an offence under the 1989 Act.

During the debate on Monday, Sir Robert Buckland, the former Solicitor General, commented of a public interest defence: “We are not suggesting something that is wholly out of place; this idea is well known to the criminal law and can equally apply to disclosures made by public servants, journalists and people acting in the public interest.”

Home Secretary Priti Patel said that we, “need to find the right balance……We want to work through much of the detail, and we will work with all colleagues in this ongoing process.” Damian Hinds, Minister for Security and Borders, said that the government’s position was that “a public interest defence is just not the safest and best way for people to make disclosures.” He said: “The existence of a public interest defence could mean that damage from the original disclosure could be compounded by further disclosures that had to be made to argue against and defeat that use of the public interest defence”.

The Bill aims to modernise the offence of espionage and create a suite of more modern tools and powers for police, security and intelligence agencies to defend the UK against hostile state actors. There was cross-party agreement in the House that the Official Secrets Act regime needs updating as it is not fit for purpose, and in particular that the Acts of 1911 to 1939 must be overhauled for the digital era. However, while the Bill was welcomed it was criticised as not being sufficiently comprehensive.

In particular, concern was expressed that the Official Secrets Act 1989 has been left unchanged by the Bill as currently drafted. This relates to the unauthorised disclosure of sensitive information whether by public servants or by others, such as journalists, who are not employed by the government. The Home Secretary told MPs that the issue was “complicated” and there were “various sensitivities” and it was “about finding the right balance”. She confirmed that work on reform is “under way”, but she has not set out a timetable within which she intends to bring forward legislation.

It is likely that a cross-party amendment will seek to introduce a public interest defence during the passage of the Bill. Draft versions of an amendment are already in circulation. The House of Commons Public Bill Committee will now scrutinise the National Security Bill line by line. Its first sitting is expected to be on 7 July and it is scheduled to report by 13 September. The Committee has issued a call for written evidence from interested parties.