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Five years ago, Scotland Yard was forced to close down its attempt to make journalists reveal their sources after its failed effort to find out who told them the phone of murdered teenager Milly Dowler had been hacked. The Metropolitan Police had argued that Guardian journalist Amelia Hill could have incited the source to break the Official Secrets Act and that she’d probably broken the law herself. Once the threat had been robustly and successfully challenged, a senior police source told the Guardian: ‘It’s off the agenda.’
Official secrets are now back on the agenda, however. In February, the Law Commission announced a short consultation on proposals to change the existing legal framework. It has highlighted that the 1911 Official Secrets Act remains in force and claims its consultation provides a ‘unique opportunity’ to review laws that have not been subjected to ‘rigorous independent scrutiny for over a century’.
The consultation proposes to replace a range of legislation with a single Espionage Act that could extend the remit of the legislation and increase the associated prison sentences from a maximum of two years to 14. The new proposals offer no public interest defence for whistleblowers or journalists.
The National Union of Journalists (NUJ) has been campaigning against the secret state over the last few years, so it is possible to compare the recent changes to the laws on investigatory powers and the proposals regarding official secrets. As with the Law Commission proposals, the Investigatory Powers Act 2016 provides no effective safeguards for whistleblowers or journalists. In both instances there seems to be very little regard for the impact on press freedom.
The new law relating to investigatory powers – described as ‘extreme surveillance’ by campaigners – enables the authorities to access or hack phones or computers in secret. The state can access electronic devices, documents, diaries, contact books, photographs, messaging chat logs and location records. Microphones and webcams can also be turned on and the law compels commercial companies to log information about everyone’s web browsing history. This data is stored for a year. A total of 48 official bodies can access these ‘internet connection records’, including government departments, the police, NHS, DWP and immigration service.
The Law Commission consultation echoes the same pattern by proposing to extend the new Official Secrets law
to cover more areas of public life, including revenue and taxes.
When trade unionists and political activists have tried to find out more information about known incidents of unlawful surveillance by undercover police officers, attempts have been blocked on the grounds of ‘national security’. This has also happened when campaigners have tried to access information about corporate blacklisting of trade unionists.
The latest moves have been legitimised by the authorities on the basis that the law needs to be updated for the digital age. In practice, these measures will deter and criminalise journalists for doing their job and they will persecute and punish whistleblowers and other sources of information that is in the public interest.
Downing Street has attempted to distance itself from the Law Commission consultation. But the latest proposals are alarmingly similar to the thrust of the Investigatory Powers Act, which was spearheaded by the prime minister, Theresa May, during her time in charge of the Home Office.