THE battle between surveillance and civil liberties is as old the hills, yet every so often the invisible hand of the civil service comes along to rewrite the rule book for the next generation. So, anyone with even the slightest passing knowledge of the UK’s history regarding its powers of secrecy and surveillance, will not be remotely surprised at the contents of a recent consultation document published on reforming the Official Secrets Act (OSA) 1989.
We must remind ourselves that the long and very resilient roots of the OSA are to be traced back to the murky goings on in both First and Second World War. Like something out of a John Buchan drama, "our" spies like fictional Richard Hannay, were the good guys and well, everyone else were the bad guys. Leaking was fine and journalists knew their place, as long as it was approved by Whitehall. The laws of the land protected and preserved this lopsided status quo for decades. However, you only have to visit the National Archives in Kew to read the inevitable flip side to this. I have sat there reading folder upon folder of letters from nosy neighbours sending letters to the Government about locals who may have been traitors of the German variety. It proved wartime security could lay the tram lines for future paranoia and surveillance.
READ MORE: Official Secrets Act proposals could see journalists jailed over 'damaging' stories
Out of such beginnings came the 1989 OSA. This was drafted on the back of "modern" cases like civil servant Clive Pointing’s 1984 leaking of information during the Falklands conflict relating to the sinking of the Argentine vessel the General Belgrano. He subsequently faced trial but was acquitted when he challenged the "interest of the state" detail in the OSA and claimed his actions were in line with that very clause. The outcome was treated with dismay in Whitehall and mandarins stewed over the act in the decades ever since. The 1986-7 Zircon affair, where BBC Scotland’s studios were raided by the police looking for tapes of the "Secret Society" series, underlined the frustration the authorities felt when tension between journalistic scrutiny of security became too close for comfort.
Of course, the world of 2021 is, in so many ways, entirely different from 1984 when Pointing was caught because of a single old-fashioned punch-hole – the unmistakable signature of Whitehall stationery habits - in one of the documents he leaked. Nowadays, the only tell-tale sign would be digital fingerprints and unique encryption measures. Yet, in other ways little has changed. In July 2013 The Guardian’s editor Alan Rusbridger had to witness a hard drive being destroyed by a newly-purchased angle-grinder in the basement of the newspaper under the watchful eye of two security men from the Government. The paper had published leaked documents about mass-surveillance by trans-Atlantic powers from former NSA contractor Edward Snowden. Destroying the hard-drives didn’t stop millions of readers accessing the material online but it proved that the UK Government could still force an editor to buy an angle grinder. This farcical scene also neatly demonstrated the limits of the 1989 Act leading us to where we are now. Yet, so much remains familiar.
The new document, for example, muddies the water between what is espionage and what is journalism. This is not novel, as multiple examples down the decades, like Pointing’s, show. The same goes for threatening to increase jail terms – again, many Downing St residents have tried likewise. Some of its language indicates a concern that a modern "activist" might leak to an independent journalist who simply publishes online at the touch of a key. This is compared to spying, where such a leak might be passed privately from one individual to another – thus cutting out the pesky audience online.
READ MORE: Official Secrets Act: What are the proposals and how will they affect journalists?
If this seems like a simple solution to a complex problem it’s because it is. It lacks thought and nuance. Equally baffling, and also lacking in any true debate, is the notion of allowing a public interest defence provision as recommended by the Law Society who consulted on this paper to the Home Office. Instead, the Government loftily claims, "rarely (if ever) be able to accurately judge whether the public interest in disclosing the information outweighs the risks against disclosure". In other words, they will decide the public interest, thank you very much. Even the threshold protecting journalists from unfair searches could be scrapped.
Again, in causes exhaustively supported by the National Union of Journalists, like the Trevor Birney and Barry McCaffrey case in Northern Ireland, they clearly reveal that hastily procured search warrants under flawed, yet legal, procedures, eventually blew the case out of the water. Finally, whistleblowers, it's claimed, are already protected and should not be running off to journalists. Thus, any notion of the press’s traditional role as the last court of appeal, is ignored. And so on.
Therefore, we are now in a classic Whitehall stand-off. Other media stories catch headlines, pandemics and princes come and go, but this issue rumbles on in the background, as it’s always done. In the country of the political contract of John Locke and the nation that led the Enlightenment, secrets and their explosive potential remains. Common sense and decency go out the window (even Thatcher allowed Clive Pojnting's salary to be reinstated). Lessons do not seem to have been learned, and indeed as the Snowden case proved, most politicians don’t even have the technical knowledge to understand, never mind, scrutinise what a new act could give rise to.
Never has a UK government had the technical ability to access, gather, and store mass data, and utilise algorithms to analyse its contents. It makes George Orwell's stories look rather unimaginative. That ability to make windows into our souls is, make no mistake, a formidable tool for legitimate defence and governance. It is also an equally legitimate concern for journalists charged with interrogating its implications for privacy, human-rights, and legitimate press oversight of a democratically elected administration.
As the Latin saying asks: "Who guards the guards themselves?" We must answer quite simply, "We do" and then act like we mean it.
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