How Brexit Could Help Criminalise Whistleblowing

If telling the truth goes against the government's "national interest" then it could land you in trouble.

by Yohann Koshy

February 13, 2017, 1:06pm

MI6 (Picture by Nick Ansell PA Archive/PA Images)

One of the more sinister aspects of Theresa May's 17th of January speech to Lancaster House – that vague gesture which formed the basis for the Brexit White Paper – was tucked away near the end. Just before the conclusion, the Prime Minister made a remark about the level of public scrutiny the government would be receiving, from journalists and Parliament, during the upcoming negotiations with the European Commission to leave the EU. It's worth reproducing some of her words in full:

"[T]hose who urge us to reveal more – such as the blow-by-blow details of our negotiating strategy, the areas in which we might compromise, the places where we think there are potential trade-offs – will not be acting in the national interest.

"Because this is not a game or a time for opposition for opposition's sake. It is a crucial and sensitive negotiation that will define the interests and the success of our country for many years to come. And it is vital that we maintain our discipline.

"That is why I have said before – and will continue to say – that every stray word and every hyped up media report is going to make it harder for us to get the right deal for Britain….So however frustrating some people find it, the government will not be pressured into saying more than I believe it is in our national interest to say. Because it is not my job to fill column inches with daily updates, but to get the right deal for Britain."

Given that the main takeaway from the speech was that Britain was leaving the single market, this section didn't get much attention at the time. Her words, however, are pretty remarkable. Clearly smarting from questions about her opaque Brexit strategy, she counterpoised journalistic criticism with "the national interest" – as if the former had an inherent duty to abide by the latter. Invoking a pseudo-Maoist demand to "maintain our discipline", she wants to silence demands for further clarity about Brexit, the most significant political and constitutional event this country has faced since 1945.

An authoritarian at heart, we shouldn't have been surprised by the Prime Minister's threat to the press. That said, it was a bizarre pose to strike – reminiscent of the Trump administration's neurotic attitude toward the American media – and had the simple effect of making the government look insecure.

A recent development makes it worth thinking about those words again. This is because the Law Commission – an independent body whose purpose is to reform the law – published a consultation on updating Britain's espionage laws last week. As was reported by the Telegraph: "Journalists who obtain leaked official material could be sent to prison under new proposals."

Presumably moved to act by the Edward Snowden affair, the Cabinet Office tasked the Law Commission in 2015 with seeing how Britain's espionage laws could be updated to keep up with changes in technology. Drafted in the run-up to the First World War, the Official Secrets Act hasn't been significantly reviewed since 1989 and still has anachronistic references to "sketches, plans, models and documents", rather than digital files.

But the Law Commission's proposals aren't just a technological update – they reflect the consolidation of an increasingly authoritarian state. Drawing from the draconian advances made by New Labour legislation in the 2000s and the Prime Minister's own Snooper's Charter – the "most invasive" surveillance system established in any Western democracy – it suggests increasing maximum sentences to reflect the harm of leaking sensitive information and extending the law's scope beyond Britain's territorial remit.

But the aspect that's most interesting in relation to Brexit – and in putting the Prime Minister's appeals to the "national interest" in a new light – is that the Commission suggests confidential information pertaining to "economic well-being" could be brought under the remit of the new Official Secrets Act. When this was originally considered in 1911, a committee concluded that "some harm to the economy was not a sufficiently sound criterion to justify criminalisation". This might be about to change.

This means, for the first time, that secret documents which reveal sensitive information about the economy could "fall foul of national security laws". The Commission suggests that "there should be no restriction on who can commit the offence", meaning journalists won't be exempt.

As the Telegraph points out, reporters who are leaked "Brexit documents deemed harmful to the UK economy" during the negotiations could soon be committing a serious crime. And that's not only if they publish the documents – the very act of "obtaining" or "trying to obtain" such information could be criminalised, too. All of a sudden, May's subtle threats against loose-tongued journalists with their "hyped up media reports" makes more sense.

None of this is law yet – there's a consultation period before it gets turned into policy – but the proposed changes have not gone done well with those in favour of a free press. Jim Killock from the Open Rights Commission, said, "It is clearly an attempt to criminalise ordinary journalism," while Jodie Ginsberg from the Index on Censorship said the changes, "Have no place in a democracy."

It's a truism that the repressive powers of the state are introduced against threats to "national security" and "national interests" before being turned against the population at large, and it looks like Brexit – an empty signifier that'll haunt us for years – is providing an excuse to use those powers against anyone who wants to find out what leaving the EU really means.

@YohannK

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