The Official Secrets Act, so an old joke runs, exists not to protect secrets but to protect officials. An overhaul of the UK’s espionage apparatus — the first since the Official Secrets Act was updated in 1989 — means this is now no laughing matter. The loosely worded, wide-ranging national security bill, which has reached report stage in the House of Lords, risks lumping in investigative journalists, whistleblowers and civil-society groups with spies. Leaks that merely embarrass the government could result in swingeing jail sentences; all from a government that so readily provides ample material to discredit itself. The bill, if passed as drafted, could become a draconian tool for a future government even more shy of accountability than those of recent years.
The national security bill makes it a criminal offence to publish or disclose protected information that could prejudice the UK and assist, directly or indirectly, a foreign power. The bill does not differentiate between hostile powers and allies — and does not distinguish between spies and overseas civil society groups that receive some state funding. An NGO that receives a Danish government grant for reporting on bribery, for instance, would be treated the same as a Russian agent. This is clearly worrisome in an age when media groups, whistleblowers and NGOs work together across borders to expose abuses of power. An easy fix would be to insert into the bill a statutory public interest defence for journalists — a recommendation of the Law Commission, whose original suggestions the Home Office otherwise took up when sponsoring the bill. Despite wide cross-party support for such a clause, the government has so far demurred.
It is reasonable to update the UK’s antiquated espionage laws, parts of which are over 100 years old. They currently fail to capture 21st-century threats from hostile states that can attack British infrastructure and institutions with impunity from an overseas computer. New laws to deter state-sponsored cyber attacks and foreign influence campaigns are needed, particularly in the context of Russia’s war in Ukraine and an assertive China.
But without additional safeguards, the bill will further chill responsible journalism. Since Russia invaded Ukraine, the UK has pledged to crack down on oligarchs’ and despots’ legal tactic of choice to silence their critics: Slapps, or strategic lawsuits against public participation. But the reality is murkier. A Financial Times investigation found that lawyers for Yevgeny Prigozhin, the sanctioned founder of Russia’s notorious Wagner Group, received UK government authorisation to sue for libel in the English courts.
Improperly gathering information is already an offence, as phone hackers found out. But responsible journalists must already contend with a UK framework where there is no US-style constitutional protection of free speech, and where contempt of court, claimant-friendly libel laws that favour deep pockets, the threat of private prosecution and data protection laws are all invoked to suppress unfavourable articles. Little wonder the UK has slipped down the Index on Censorship’s rankings of press freedoms. Yet another punitive, vague law means newsrooms and whistleblowers will self-censor.
Tightening up the bill is imperative. But from a government that consistently uses loose language to draft sweeping measures that erode established checks and balances — from cracking down on protesters to weakening institutional oversight — a pattern emerges. Bad drafting is not the result of carelessness but of wilful vagueness designed to evade accountability — exactly the kind of accountability that public interest journalism bolsters.
