The Law Commission is an independent body – currently chaired by Lord Justice Bean – which examines the present state of the law in various areas and, after consultation, makes proposals for reform. These are invariably carefully researched, well argued proposals – many of which are, unfortunately, ignored by Governments which do not treat law reform as a legislative priority.
Law Commission consultation reports usually attract very little media attention or comment. This initially appeared to be the fate of a consultation paper entitled “Protection of Official Data” [pdf] issued on 2 February 2017 and open for consultation until 3 April 2017 (see the Overview [pdf] here).
In 196 pages of careful argument, this paper reviews the Official Secrets Acts and other legislation relating to the protection of data, reaches a number of “provisional conclusions” and sets out a number of “consultation questions”.
But, a week after publication, this paper has been at the centre of a “media storm”. The Guardian’s headline was “Government advisers accused of ‘full-frontal attack’ on whistleblowers” – and referred to an “outcry” over “plans to radically increase prison terms for revealing state secrets and to prosecute journalists”. Similar criticisms were voiced by the Daily Mail and the Daily Telegraph – which both suggested that the proposals could lead to journalists being jailed for 14 years.
In characteristic fashion, in the face of media attack, the Government immediately retreated, and suggested that these proposals were the “project of a previous prime minister”: in other words, it’s David Cameron’s fault.
The problem with all this is that there are no proposals to subject journalists to 14 year prison sentences. There is no proposed legislation at all. Instead there are a series of “provisional conclusions” and “consultation questions”.
The Law Commission is seeking views on its proposals which suggests ways in which legislation could be improved to ensure that it protects information more effectively. These proposals include:
- Clarifying the scope of espionage type offences and those related to making unauthorised disclosures.
- Proposed increased maximum sentences to reflect the seriousness of some conduct.
- New measures to ensure sites are protected if necessary to safeguard national security.
- Making clear that the criminal offences protecting sensitive information apply whether the conduct takes place at home or abroad.
- Simplifying and modernising the language to remove anachronistic terms like “code words” and “enemy” and replacing them with language that will future proof the legislation.
- Providing a process for concerns about illegality and impropriety to be investigated in an independent and rigorous way which is compliant with the European Convention on Human Rights.
These may not be good proposals. The purpose of the consultation is to obtain views on their merits. Those who respond to the consultation can point out the problems with them – for example in relation to journalists and whistleblowers. But the suggestion that the proposals “appear tailored to stop the Guardian” publishing something like the Snowden files” is a wholly undeserved attack on the independence and integrity of the Law Commission.
The Law Commission’s proposals are complex and require careful study. If they are wrongheaded and provide insufficient protection for whistleblowers and journalists they should be the subject of careful and considered rebuttal, not inaccurate headlines and accusations of improper motives.