In contrast, sections concerning defence, international relations, information resulting from unauthorised disclosures or entrusted in confidence and information entrusted in confidence to other States or international organisations require proof of damage. Section 1 of the Act contains a ‘catch all’ strict liability offence for members of the security and intelligence services and persons notified by the Secretary of State (such as members of the Intelligence and Security Committee of Parliament) who disclose security and intelligence information. The Official Secrets Act 1989 criminalises the disclosure of official information without authority. There is a clear difference between “availability” the authorisation to make a disclosure to a person or organisation in law, and “feasibility” the practicalities of reporting security sensitive information, the existence of whistleblowing policies and procedures and the protections (employment law, safeguards against actions in civil law breach of confidence or prosecution by the criminal law) available to persons who make reports. From day one, the law has arguably failed to provide access to a safe authorised whistleblowing channel with the ability to investigate and rectify allegations of wrongdoing. The availability of authorised channels, which include the Commissioner of the Metropolitan Police and the Prime Minister (to name two) has always been questioned. It therefore prevented whistleblowers from raising concerns outside of their organisation to persons not authorised to receive the information. The Official Secrets Act 1989 Act was intended to be more tightly drafted than the s.2 Official Act 1911 it replaced: It removed the ability for persons who make an unauthorised disclosure to claim that they were doing so in the public interest. If not rectified, the Home Office proposals could lead to a situation whereby a law which prohibits whistleblowers from going outside of their organisation, and is thus incompatible with Article10 ECHR, could be replaced with an even worse law, which inhibits expression, and prevents journalists from lawfully reporting on important matters of public interest. The proposals therefore have a direct impact on the right to journalistic expression which is well-established in the jurisprudence of the European Court of Human Rights. Journalistic organisations and online disclosure outlets such as Wikileaks are most likely to be in the firing line because they are the actors most likely to publish and disseminate the information. This is not a full-frontal attack on journalists, but it is obvious that journalists will be directly affected by this change. Whether intended or not, the Home Office are suggesting that maximum sentences for unauthorised disclosure be increased. A document leaked and then published online could be accessed by hostile states, and thus the effect is the same. The Home Office argue that the “unprecedented developments” in technology mean that a leak could have the same impact as espionage. It aims to modernise the laws to meet the threats of modern times, namely increased hostile state activity and the increased risk of unauthorised disclosures caused by advancements in technology. The Home Office consultation, which closed on 22 July 2021, draws upon recommendations from the UK’s Law Commission, a statutory independent body tasked with law reform. These are contained in the Official Secrets Acts 1911, 19, The Official Secrets Act 1989 deals with unauthorised disclosure offences, so called ‘leaks’ of information. At present, there are three Acts which deal with espionage offences. However, the situation is more complex than that. Some allege that journalism could be recast as spying. In the United Kingdom, proposals to reform official secrecy laws could have damaging implications for journalistic expression, whistleblowing and government transparency.
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