Save Our Free Speech

The Guard­i­an today repor­ted that the United Nations Com­mit­tee on Human Rights had issued a damning indict­ment of the Brit­ish government’s use of legis­la­tion to sup­press a right that is fun­da­ment­al to all func­tion­ing demo­cra­cies: free­dom of expres­sion.

This is not news to me. But it’s inter­est­ing that free­dom of expres­sion is now being cur­tailed in so many var­ied, inter­est­ing and ima­gin­at­ive ways: libel laws, ter­ror­ism laws and offi­cial secrecy. That’s quite an arsen­al.

Bri­tain is now infam­ous for being the “libel cap­it­al” of the world. Wealthy indi­vidu­als can use our courts to sup­press pub­lic­a­tion of crit­ic­al books and art­icles any­where in the world, if they can prove that the book has been sold in the UK – even if it’s just one, second-hand copy on Amazon. The magazine, Private Eye, has been com­ment­ing on this extens­ively over the last year.

Then, under the slew of new counter-ter­ror­ism legis­la­tion that the Labour gov­ern­ment has intro­duced since 2001, it is now an offence to say any­thing that might “encour­age” ter­ror­ism. That defin­i­tion is so broad that, say, you or I made an inno­cent com­ment about the Palestini­an or Iraqi situ­ation, and this could be mis­con­strued by anoth­er per­son as encour­aging them to viol­ence, this could be assessed sub­ject­ively as a crim­in­al offence by the pro­sec­ut­ing author­it­ies. This is third party thought-crime.

These sort of laws have a neg­at­ive impact on free speech, as pub­lish­ers, edit­ors and journ­al­ists begin to self-cen­sor rather than run informed risks for the pub­lic good.

But it’s the third area of law that res­on­ates most with me, for obvi­ous reas­ons: the 1989 Offi­cial Secrets Act, which crim­in­al­ises any unau­thor­ised dis­clos­ure by serving or former intel­li­gence officers, noti­fied per­sons, and oth­er crown ser­vants and offi­cials. These people are the most likely to wit­ness high crimes and mis­de­mean­ors on the part of gov­ern­ment, police and the intel­li­gence ser­vices, and yet they are the most crim­in­al­ised in this coun­try for speak­ing out. Whis­tleblowers in oth­er areas of work are spe­cific­ally pro­tec­ted by the law under the Pub­lic Interest Dis­clos­ure Act (1998).

How did this hap­pen? Ever since the 1911 Offi­cial Secrets Act came into force, there has been legis­la­tion to pro­tect this nation’s genu­ine secrets against the actions of trait­ors. Under this law, crown ser­vants face 14 years in pris­on if they betray inform­a­tion to hos­tile powers. Of course we need to pro­tect genu­ine secrets, and this is cer­tainly safe­guard enough.

The change in this law was spe­cific­ally designed to gag genu­ine whis­tleblowers in sens­it­ive areas, not pro­tect nation­al secur­ity. This came about in the 1980s after the notori­ous failed pro­sec­u­tion of Min­istry of Defense civil ser­vant, Clive Pont­ing. In 1984 he blew the whistle on the fact the Brit­ish gov­ern­ment knew that the Argen­tini­an war­ship, the Gen­er­al Bel­grano, was sail­ing away from the exclu­sion zone dur­ing the Falk­lands War in 1982. Des­pite this, the order was still giv­en to attack it, and many were killed. Pont­ing was rightly out­raged by this, and went pub­lic. His actions were mani­festly in the pub­lic interest, and this was pre­cisely the suc­cess­ful defense he ran in court. Furi­ous, the Con­ser­vat­ive gov­ern­ment of the time re-wrote the secrecy laws, remov­ing the pub­lic interest defense to deter such prin­cipled whis­tleblowers in the future. And this is the cur­rent Offi­cial Secrets Act cri­ti­cised so strongly by the UN.

Inter­est­ingly, at the time the Labour party strongly opposed this change, rightly think­ing that this would cur­tail cru­cial inform­a­tion reach­ing the pub­lic domain. At this point, of course, many of them cor­rectly sus­pec­ted that they were on the receiv­ing end of illeg­al invest­ig­a­tions by MI5.

The roll call of Labour MPs who voted against the pro­posed Act as it passed through Par­lia­ment in 1988 includes such luminar­ies as Tony Blair, Jack Straw and the former Attor­ney Gen­er­al John Mor­ris. All these people went on to use the 1989 OSA to threaten and pro­sec­ute the intel­li­gence whis­tleblowers of the last dec­ade.

The blanket ban on free­dom of expres­sion for intel­li­gence per­son­nel appears to be illeg­al under the terms of the European Con­ven­tion of Human Rights. Sure, Art­icle 10(2) does give nations the lim­ited right to cur­tail free­dom of expres­sion in a pro­por­tion­ate way to pro­tect nation­al secur­ity. How­ever, the term “nation­al secur­ity” has nev­er been defined for leg­al pur­poses in this coun­try and is used as a catch-all phrase to pre­vent dis­clos­ure of any­thing embar­rass­ing to the gov­ern­ment and the intel­li­gence agen­cies. Plus, dur­ing these cases, law­yers and judges have con­sist­ently con­fused the notion of the nation­al interest with nation­al secur­ity – two very dif­fer­ent beasts. And free­dom of expres­sion can­not be leg­ally cur­tailed under the Con­ven­tion merely for reas­ons of “the nation­al interest”.

So I was heartened to read the UN’s ver­dict on this leg­al mess: “Powers under the Offi­cial Secrets Act have been “exer­cised to frus­trate former employ­ees of the crown from bring­ing into the pub­lic domain issues of genu­ine pub­lic interest, and can be exer­cised to pre­vent the media from pub­lish­ing such mat­ters”.”

Let’s hope this leads to the rein­state­ment of the pub­lic interest defence at the very least. Dur­ing this time of the unend­ing “war on ter­ror”, gov­ern­ments lying to take us into illeg­al wars, and the use of tor­ture and intern­ment, whis­tleblowers play an import­ant role in uphold­ing and defend­ing our demo­crat­ic val­ues. We need to pro­tect them, not pro­sec­ute them.

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