Developing a public interest defence to disclosures under the Offical Secrets Acts under English law – Part I

“It has now been
made clear beyond peradventure that members of the Security
Services owe a lifelong duty not to discuss their service experience
with the media….” Lord Kieth of Kinkel, The Spycatcher case at p.27, [1990] 1 AC 109

The above quote from the infamous Spycatcher case has long been entrenched under English Law.

However, it has been advanced that for Article 10 freedom of expression rights to be safeguarded there must be an implementation of a public interest defence to disclosing information that would otherwise be criminalised under the Offical Secrets Acts (“OSAs”).

Practically, cases such as that of Edward Snowden highlighted at an international level the need for such a defence to be clear, practical and consistently applied to ensure that they are effective at safeguarding the public interest and operating as a defence to disclosure in what can be the most sensitive of cases.

In the case of Shayler it was considered whether the provisions of the OSAs were compatible with Article 10 of the Convention. It was concluded that the provisions of the Act, whilst a prima facie limitation on Shayler’s right to freedom of expression, were a proportionate means of achieving a legitimate aim. The case highlighted the critical question- does our legislative framework sufficiently protect freedom of expression in this highly sensitive area? At that time it was consider it did, leaving the question of whether a public interest defence in disclosure was required to fall away.

As is, current OSA legislation does not yet provide a defence where public interest in the disclosure of information is advanced. Rather it has been left primarily unacknowledged by statute that this can cut both ways in article 10 cases where disclosures were made that would otherwise constitute criminal offences under the OSA’s.

It was in the Law Commission’s Report into antiquated spying laws published on 1 September 2020 that it was recommended a statutory public interest defence be introduced to the current framework. It was suggested that the means of the disclosure as well as the subject matter of the disclosure being in the public interest should be factors in the application of any defence.

However, the detail of the defence was not considered at length as it was considered that further consultation would be required for any recommendations to be made.

It is in the context that the campaign for such a defence has launched. Matrix’s Chamber’s press release reveals that person spearheading the campaign is “Janus Friis, a philanthropic technology entrepreneur”. Friis has instructed Mischon de Reya’s James Libson, Ben Brandon and Katy Colton and in turn Alex Bailin QC and Jessica Jones of Matrix Chambers. They are working with communications consultancy Powerscourt and have submitted a evidence to the Joint Committee on Human Rights.

The briefing paper for the campaign can be found here and provides an excellent analysis of the law and detail as to the intial form of the defence which is being lobbied for.

The Telegraph has coverage of this development.

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