In March 1984, Foreign Office clerk Sarah Tisdall was sentenced to six months in prison for breaching national security laws after revealing to the press that American cruise missiles would be based in the UK.
Clive Ponting was a senior Ministry of Defence civil servant who in 1985, was prosecuted, too, under secrecy laws after disclosing that the government was misleading Parliament over the sinking of an Argentine ship during the Falklands War.
Acquitted by jurors, Ponting’s case changed the game for UK whistleblowers. The Official Secrets Act 1989 (OSA) was introduced, amending existing 1911 legislation to remove the public interest defence which allowed whistleblowers to defend themselves with the public’s right to know.
Today, there have been a number of high-profile OSA breaches, though prosecution is at the discretion of the Attorney General. Notably, Government Communications Headquarters (GCHQ) translator Katharine Gun, who revealed the US asked GCHQ to bug phones of diplomats from suggestible UN countries in the run-up to a vote on the Iraq war.
Speaking to Screen Shot, the Green party recognised a need to “sometimes breach undertakings” to expose wrongdoing. A spokesperson said, “Over the years, whistleblowers have saved money, reputations—and lives. The power of truth, spoken for the public good, can never be underestimated.”
That’s why, in its manifesto ahead of the December 12 elections, the Green party had pledged to introduce a public interest defence for OSA breaches.
For current and former employees within security and intelligence services, any unauthorised disclosure is a criminal offence under OSA—no matter the circumstance. As a result, employees are faced with a dilemma: break the law or watch the law be broken.
This inability to justify action is not unique to the UK; Edward Snowden claims he would return to the US if there were a public interest defence. The call for a ‘proper’ public interest defence has been made consistently since it was removed.
“Re-instituting it would obviously be a positive move,” said Naomi Colvin, UK Program Director at Blueprint for Free Speech. “The number of adverse Investigatory Powers Tribunal rulings against GCHQ in the wake of Snowden’s revelations suggest external disclosure by whistleblowers to media or politicians is still absolutely vital for holding agencies to account. I suspect this is well understood by the public at large.”
NSA whistleblower Thomas Drake, the first since Daniel Ellsberg of Pentagon Papers to be charged under America’s Espionage Act, believes the use of the “draconian” OSA “reveals tension between openness and transparency versus secrecy and a closed-door government, too often hiding from accountability under the veil of national security.”
Speaking to Screen Shot, Drake highlighted the lack of coherence between what citizens should know and what the government wants them to know, referring to UK whistleblowing laws as “a mixed bag and a conflicted patchwork with huge carve-outs for national security,” that “don’t adequately protect a whistleblower from reprisal, retaliation or retribution.”
He added, “If it is left up to the government to determine what are state secrets, the government is perversely incentivised to declare any disclosures it does not like as state secrets. In the absence of meaningful oversight over secrecy, how do the public trust Government to operate and function in the public interest? Once the pillars of democracy are eroded away, it is quite difficult to restore them.”
The ongoing Ukraine whistleblowing case in the US has been agenda-setting for the Green party, which, a spokesperson told Screen Shot, “highlights the duty of individuals to blow the whistle in the public interest, and the duty of the state to protect them.”
As it stands, any person willing to blow the whistle from within the security and intelligence services does so at great risk—professional suicide, an unlimited fine, a prison sentence of up to two years and 14 for crimes relating to spying and sabotage.
While the Greens are alone in making it the defence a manifesto promised, during the general election a spokesperson for the Liberal Democrats also told Screen Shot, “Those calling out misconduct are vital to tackling misbehaviour across all organisations in our society. These people are doing their jobs. It is paramount those who call time on bad and sometimes illegal behaviour should be given strong legal protection. We must redress the balance of power between employee and employer on this issue.”
When clarifying whether the party believes in a public interest defence specifically for OSA breaches, they said, “In principle, we support a public interest defence for exceptional cases where breaking the law is necessary to expose corruption and criminality.”
However, as minority parties, it was unlikely that the Greens or Lib Dems would be elected with a majority. But the Green’s manifesto should start a wider conversation. Dr Ceri Hughes, a visiting lecturer in communications at Brunel and Middlesex universities, said, “This is an excellent example of thinking from minor parties which can serve to widen or initiate a debate on an issue. Labour and the Conservatives would not have a vested interest in pushing for this sort of scrutiny. Such legislation may negatively impact them in the future.”
Even without the Greens, refreshed laws are to be expected. Brexit will change things, but will national security whistleblowing be one of them? Who knows, only the Conservatives can answer this question. The ball is in your court, BoJo.