The Official Secrets Act 1989 (OSA) might seem like a particularly good idea to particularly ardent viewers of BBC 1's "Spooks" (unfortunately for the Beeb, it can't be invoked to hide the dismally low viewing figures of Sunday's premier of season 10). The very nature of government (and especially of the jobs of the police and of the intelligence services) suggests that certain things done in the public interest should be kept under wraps, but I think most people would agree that this stifling of information should only happen in very specific cases, i.e.: in order to protect people or an ongoing investigation.
The OSA is the act which is gives the government the power to do this and enables injunctions against passing on sensitive material in the UK. Section 4 (2) of the act outlines the guidelines for prosecution for "a person who is or has been a Crown Servant or government contractor" and who leaks information
"the disclosure of which--
i) results in the commission of an offence; or
ii) facilitates an escape from legal custody or the doing of any other act prejudicial to the safekeeping of persons in legal custody; or
(iii)impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders; or
(b)
which is such that its unauthorised disclosure would be likely to have any of those effects."
We learned on Saturday that Scotland Yard is going to use the act against reporters from The Guardian in order to elicit information about their sources who provided information during the Hackgate scandal. What is even more disturbing is that the word "damaging" was bandied around, the police ostensibly believe that they could use the clause in Section 1 (4) of the act that stipulates OSA can be used if "[the leaking of information] causes damage to the work of, or of any part of, the security and intelligence services". But read it again, and it doesn't seem to apply to the police, but rather to the "security and intelligence forces" (that is, Mi5 and SIS). Why the Met believe they can use this legislation when it is phrased like this is beyond me.
Yesterday, the plot thickened when it was reported that Hugh Grant and MPs Simon Hughes and Tom Watson have criticised the move, putting pressure on the Home Secretary Theresa May, Mayor of London Boris Johnson and Attorney General Dominic Grieve to order the Met to back down. Even The Daily Telegraphpublished an article condemning the Met's actions.
Today, The Guardian's front page informed us that by way of a provision in Section 9 (2) of the act, OSA requests must be filed through the Director of Public Prosecutions (DPP). Worryingly the officers in charge of filing the OSA request only contacted the DPP for advice on the case last night.
This latest twist in the 'phone hacking scandal (Hackgate) suggests that the OSA as it currently exists is not being used within the terms outlined above and it can be used to unnecessarily stifle information that is in the public interest in order to save ministers and the police from embarrassment. It seems that the interests of the State, however petty they are, are often placed above those of the general public.
I agree with The Independent, which argued in an editorial that it is a "travesty" that these powers are being used to stifle journalists, and the suggestion in Stephen Glover's column that it is plausible that "the boys in blue may be trying to get their own back" also wouldn't surprise me. After all, it was the Guardian's reporters that pioneered the Hackgate investigation; while the rest of us might want to give the paper an award for exemplary investigative reporting, there were more than a few feathers ruffled not only at News International, but also at Scotland Yard and at Number 10. Connections with Murdoch executives caused a great deal of embarrassment to the police and to the Tory Party. Especially telling is the fact that, while Lib Dem and Labour MPs have been quick to criticise the Met for their OSA action, the Conservatives have maintained their silence.
But the problem lies not simply with the Metropolitan Police and the case against The Guardian, but with the OSA legislation itself, if it is being used like this. The OSA has failed to be used against journalists and writers before (in the 1998 Wilde and Geraghty case http://www.guardian.co.uk/media/2011/sep/16/phone-hacking-met-court-order), so it is unlikely it will work again. Government attempts to suppress information resulted in embarrassment (as in the Spycatcher case in 1988) before the act was introduced. These high profile embarrassments were part of the reason that the 1911 legislation was renewed in 1989 was to provide a more robust framework within which the government can prosecute those who leak vital information. Unfortunately, as this episode has yet again proven, these strictures are not robust enough. The government needs to seriously consider clarify the guidelines of OSA and restricting the times when this act can be used so that it is not used to essentially stifle free speech and freedom of the press.
If this alarming trend towards using OSA to limit government information for the sake of it and the clamping down on the freedom of the press continues, the United Kingdom might end up like the USA. I took a course a couple of years ago with the editor of a major North American broadsheet, and half of every class was spent lamenting that Freedom of Information had been severely restricted by the Bush administration in the US. Requests under the Freedom of Information Act to view quotidian statistics and information on any civil projects were most often denied by the paranoid regime. For the past few days, I've been trying to read US spy Valerie Wilson Plame's autobiography, Fair Game, and it's impossible -- so much has been censored. She was made to redact even personal information about her pregnancy by the CIA. Word is that under Obama, things aren't any better -- in fact they're often worse -- as the Democrats seek to cloak things like deficits and government failings.
Thankfully in the UK, we have an alert and attentive press today, and things like MPs expenses and Hackgate can still come to light in respectable newspapers. Due to ill-defined and legislation with the potential for misuse, however, we might soon see the end to these freedoms. With this demise would surely come an unchecked police force and a state that is less accountable to its electorate and freer to act in a rash and impetuous manner.