When Should Unauthorised Disclosures be Prosecuted?

3175 words (13 pages) Essay in Security Law

11/04/19 Security Law Reference this

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Unauthorised disclosures should only be prosecuted if, and only if, they cause harm to national security


National security is connected to the idea of protection of the nation and its interests, and if officials were to cause harm and put the national security at risk, then they can be prosecuted under the Official Secrets Act. Leaking classified information to the public can cause serious harm to the public and more importantly, to the government. A debatable subject that gives different views and perspective.

Information must not pose a disproportionate burden on national security[1]. Potential whistle-blowers have their own reasons to leak information to the public, this may be to procure revenge on their employer, or simply because they don’t agree with the practices carried out. Previously, S.2 of the Official Secrets Act 1911 made it extremely difficult to bring in a claim and made it easy to breach this act, leading to imprisonment even though they were unaware of its consequences. The theory given by Lon Muller explains the law can’t be specific, rather expressed in general terms[2], but the criticism of this is that there is no full understanding of what is meant by justice, only elucidating what good law might look like. The Act was then reformed to the Official Secret Act 1989, an important aspect of this reform helps the society for public organisations being accountable for their wrongdoings, and to enhance transparency. 

The judgement in Hadjianastassiou v Greece National states that national security matters can fall within Article 10(2) ECHR[3]. Section 1 of the Official Secrets Act places current members of the security and intelligence services under a lifelong duty to stay silent, and also former members. Some may argue that if they’re not working as civil servants then why should they stay silent? As well as this, S.1 of the Act can be quite controversial, in Lord Advocate v The Scotsman Publications[4], Lord Templeman disclosed there was a breach in S.1 of the act but stated that the information that was to be published wasn’t going to cause or be likely to cause damage, to the work of the civil servants mainly because the information was inaccurate or insignificant. Nevertheless, the respondents were restrained from publishing the information.

More importantly, R v Shaylar[5] gives a whole different discernment of S.1 as well as S.4 of the act, stipulating that Article 10 ECHR would not apply. Meddling with the rights of citizens. Briefly, the defendant, in this case, made disclosures about Gaddafi, that MI6 had come up with a plot to capture Gaddafi, and thought this was wrong and therefore decided to resign. After doing so, he went to the media and disclosed the information. Claiming what he did was in the public interest. There was no concrete explanation as to why Article 10 did not apply, merely leaving the decision up to the House of Lords. Applying the fairness principle in this situation, freedom of speech/expression is thought to be a ‘cornerstone’ by many of a liberal democracy. Individuals are free to say and do what they want. However, as we can see, this has its limits when it comes to national security. Protecting the national security holds more value than free speech.

In addition to the right of free speech/expression, Attorney General v Guardian Newspaper[6] explains these rights to be recognised in common law. Nevertheless, a modern democratic government means government of the people, by the people, for the people[7]. There can be no government if people chose to disregard issues that are to be resolved.  Justifiably, issues can’t be resolved if they are not raised publicly by the government. But then again, sometimes issues are best kept private and if the law specifies one should keep certain information classified, then they must do so. The reason for this is because publicity may harm the reputation of themselves or humiliate civil servants. To ruminate, public servants have to agree to a restriction of their expression rights in contrast to ordinary citizens. From their point of view, they may see this to be unfair due to the confidentiality and magnitude of the information they deal with on a day-to-day basis. Marcus Beale, an assistant chief constable was recently prosecuted under the Official Secrets Act not because of directly leaking the information, but failing to adequately protect the information that was stolen from his car[8]. In this instance, there should be some sort of protection for civil servants that didn’t intend to leak information to the public. Signifying the rights of civil servants are the same as ordinary citizens.

Lord Goff quoted “In a free society, there is a continuing public interest that the workings of government should be open to scrutiny and criticism[9].” However, Glasenapp v Germany confirms the fact that the right to freedom of expression of public servants is allowed but has its limits, restricting the right to expression in relation to matters regarding their work. We all have the right to have rights[10] and these rights are for the many.[11] Public organisations are expected to act virtuously from the general public, which benefits whistleblowing procedures as it encourages them to voice their opinion, creating a culture of sincerity. But there doesn’t seem to be an awful lot of protection under the Official Secrets Act. In addition, the way they treat whistleblowers will have an impact, depending on the information that was leaked.

Democracy is an overarching theme. J.S Mill’s views the government in somewhat greater detail, and judges that form of government by 2 fundamental principles; the fact that they promote the virtue and intelligence of the people, and making use of virtue and intelligence to generate socially beneficial policies. Mill also views and talks about the functions of political participations[12], meaning citizens should take part in politics and voice their opinions.  Commonly, organisations have internal departments where individuals can address their problems discreetly and effectively. However, based on the judgement given by Strasbourg in Guja v Moldova[13], if there is no way to raise the concern internally, then they are allowed to go publicly. This was the first time a whistleblowing case was brought up in court, which may have had an influence on the new framework in helping to conduct a proportionality analysis. In addition, the verdict was mainly down to democracy and the significant effects the information would’ve had on a democratic society.

There are many ways to disclose information without having to go the media, raising the concern to the attorney general, the director of public prosecutions[14] etc. But they don’t guarantee to resolve your issue. In R v Ponting[15], the government were accused of covering up the real reason as to why the Argentinian ship had sunk. Ponting knew the reason and informed parliamentary immediately and was informed he’d be safe. But, was charged under the Official Secrets Act. The foundation question when dealing with justice, the most important moral and political concept, is ‘what is the right thing to do?’ Leviticus clarifies that legal sense is to do with punishment, corrective justice; what you did should be done to you, suggesting that punishment has to correspond with the harm suffered. However, civil servants can’t take more eye for an eye. The purpose of justice is no more than to maintain law and order and should exercise our rights and keep agreements.[16] It’s an offence for an individual to disclose sensitive information without lawful authority, particularly important for journalists and media as they often come into contact with crown servants. Due to this, the information must be constrained from divulging in the media. Rightly so, if according to the law, the information must be confidential then it should stay confidential but in some circumstances, information can be repugnant and the public have the right to know what’s going on[17]. However, applying Rawls’ theory, we should try to avoid disputed philosophical interpretations, as well as disputed moral questions, not because they are regarded meaningless, but because there is no way to resolve them politically.[18]

The legal definition of Equality is the doctrine that all persons, regardless of wealth, or political power wielded by them, are to be treated the same before law. Bernard Williams gives an example on formal equality, in this case, civil servants and organisations, enjoy long-standing unfair advantages and its members hold greater power. Whistleblowers are given the responsibility to do everything themselves without any legal help, all they can do is go to the public and leak the information, or go to a relevant authorised body and discuss their problem, but this doesn’t always go to plan as mentioned. It seems like public authorities have a greater advantage compared to the ordinary citizen. If the ordinary citizen is taken to tribunal it can be cost effective and they may not be able to afford themselves due to limited use resources. On the other hand, organisations have the money and resources to win them the case in ease.

Moreover, another possible reason for unauthorised disclosure is civil disobedience, one may break the law in order to pursue a greater good. Utilitarianism focuses on what is best and how actions can benefit the greater number, maximising human benefit and minimising the harm, and measuring the degree of moral decisions impacting others. Employees may believe their actions lead to the greatest good for the greater number. As suggested by a whistleblower, Paul Moore, who believed “the greatest good for the greater number was to raise the concern because it would feed into policy debate”[19], advocating the importance of utilitarianism for the moral predicament of whistleblowers. The same thing applies to crown servants, there are times in society when the government must act in faith on behalf of the greater good to protect national security, even if that leads to imprisonment.

In conclusion, the 89 Act was designed by the government to stop people like Clive Ponting from revealing confidential information. Also, journalists who work well on stories involving official secrets are faced with prosecution even though all they did was write up a story that would increase paper sales. Civil servants can easily access top secret information, that information must be kept secret at all times no matter how unscrupulous it may be. It is their job and they must follow their Civil Servants code, and not doing so would lead to prosecution, as clearly mentioned under case law. Whistleblowers may think that due to the high amount of cases leading to imprisonment, because of leaks, they feel they’ve been let down by the government. Arguing they failed to introduce measures to protect and encourage whistleblowers, even though the government had promised a few years ago to strengthen the laws and practices to protect whistleblowers but failed to do so, as said by Labour’s deputy leader, Tom Watson. The fact that the government are yearning the process in protecting whistleblowers may suggest to the general public that those who leak information, shouldn’t be faced with a ‘slap on the wrist’ because of the seriousness of the information and the effects it can have within the government. It may also indicate that certain information should and must be kept within themselves and the public does not have the right to be in possession of the information.

Those that leak information argue that its freedom of expression, however courts have argued that political expressions may be restricted in a public sector.[20] It is not common practice to leak information to the public that can harm national security. As well as this, case law confirms the fact that freedom of expression is restricted by the operation of s.1(1), which indicates that Human Rights has no impact. A suggestion in this instance would be implying a public interest defence into the 1989 act, which would ensure human rights are protected. There is still room for improvement in terms of equality, because if a potential whistleblower faces tribunal, the organisation has a much better advantage due to being able to afford legal advice.

It’s clear that both the civil servants and whistleblowers give themselves a completely different perception on what is meant by inclusion. Elucidating the fact that certain rights are restricted, the Act contains no real defence of public interest or of prior disclosure. It’s also important to bear in mind that the authorised persons that deal with leaks may not consider looking at the case anyway. In Shaylar, the case did mention investigation was taking place but no further action was taken, confirmed by the judgement given by the House of Lords. From my judgement, whistleblowers keep us safe and it’s not right to keep them silenced, but it’s obvious that many values their reputation and job to risk giving the public that information.  Although the issue of whistleblowing has achieved public recognition and legal protection, there is still room for improvement. Having a professionally planned and structured authorised disclosures can protect national security and can be seen as an improvement of going directly to the media. Doing this would lead to a safer path for potential whistleblowers to freely voice their opinion and solve problems quickly and efficiently as possible.

Bibliography

Cases:

  • Ahmad v UK (1982) 4 EHRR 126
  • R v Ponting [1985] Crim. L.R. 318
  • Attorney General v Guardian Newspapers Ltd [1987] 1 WLR1248
  • Lord Advocate v The Scotsman Publications [1989] SC (HL) 122
  • Glasenapp v Germany (1986) 9 E.H.R.R. 25
  • R v Shayler [2003] 1 AC 247; [2002] 2 WLR 754; [2002] 2 All ER 477 (HL)

Statutes:

  • Official Secrets Act 1911
  • Official Secrets Act 1985

Treaty:

  • European Convention on Human Rights

Websites:

  • Adam Wagner, ‘Human Rights And The Official Secrets Act | Adam Wagner’ (the Guardian, 2016) <https://www.theguardian.com/law/2011/sep/19/official-secrets-act-human-rights-act> accessed 4 January 2018
  • Ian Cobain, ‘This Assault On Whistleblowers Exceeds Even The Draconian 1911 Act | Ian Cobain’ (the Guardian, 2017) <https://www.theguardian.com/commentisfree/2017/feb/15/whistleblowers-law-commission-official-secrets-act> accessed 10 January 2018
  • Rajeev Syal, ‘Whistleblowers Let Down By Government, Say MPs’ (the Guardian, 2017) <https://www.theguardian.com/politics/2016/mar/11/government-failed-protect-whistleblowers-watchdog-cabinet-office> accessed 2 January 2018
  • Shami Chakrabarti, ‘Whistleblowers Keep Us Safe. We Can’T Allow Them To Be Silenced | Shami Chakraborti’ (the Guardian, 2016) <https://www.theguardian.com/commentisfree/2017/feb/13/whistleblowers-official-secrets-act-law-commission> accessed 5 January 2018
  • Simon Neville, ‘Hero Or Pariah? A Whistleblower’s Dilemma’ (the Guardian, 2018) <https://www.theguardian.com/business/2012/nov/22/whistleblowing-autonomy-hewlett-packard> accessed 6 January 2018
  • Vikram Dodd, ‘Senior West Midlands Police Officer To Face Official Secrets Charge’ (the Guardian, 2017) <https://www.theguardian.com/uk-news/2017/nov/08/west-midlands-police-officer-westminster-magistrates-court-marcus-beale> accessed 7 January 2018

Books:

  • Ashley Savage, Leaks, Whistleblowing And The Public Interest (Edward Elgar Publishing 2016)
  • Bernard Williams, Problems Of The Self (Cambridge University Press 2009)
  • Hannah Arendt, The Origins Of Totalitarianism (Harcourt Brace 1985)
  • Helen Fenwick Gavin Phillipson, Text, Cases And Materials On Public Law And Human Rights (2nd edn, Routledge-Cavendish 2003)
  • John Rawls, A Theory Of Justice (the Belknap press of Harvard university press Cambridge, Massachusetts 2005)
  • Lon L. Fuller, The Morality Of Law (Yale University Press 1964)
  • Lucy Vickers, Freedom Of Speech And Employment (Oxford University Press 2006)
  • Munroe Eagles, Politics: An Introduction To Modern Democratic Government (1st edn, University of Toronto 2008)
  • Sisella Bok, Secrets: On The Ethics Of Concealment And Revelation (Vintage 1989)

Journal Articles:

  • John Rawls, ‘Justice As Fairness: Political Not Metaphysical’ (1985) 14 Philosophy and Public Affairs <http://philosophyfaculty.ucsd.edu/faculty/rarneson/Courses/RawlsJustice.pdf> accessed 8 January 2018

[1] Raul Sagar, Secrets and Leaks: The Dilemma of State Secrecy (Princeton University Press, 2013) 129

[2] Lon L. Fuller, The Morality Of Law (Yale University Press 1964).

[3] Article 10(2) European Convention on Human Rights

[4] Lord Advocate v The Scotsman Publications 1989 SC (HL) 122

[5] R v Shayler [2003] 1 AC 247; [2002] 2 WLR 754; [2002] 2 All ER 477 (HL)

[6] Attorney General v Guardian Newspapers Ltd [1987] 1 WLR1248

[7] Lord Bingham in R v Shaylar [2003] 1 AC 247

[8] Dodd, Vikram. “Senior West Midlands police officer to face Official Secrets charge.” The Guardian. 8 Nov. 2017.

[9] Lord Goff in R v Ponting [1985] Crim. L.R. 318

[10] Hannah Arendt, The Origins Of Totalitarianism (Harcourt Brace 1985). pp. 36-51

[11] H. G. Wells, The Rights of Man: or What Are We Fighting For? (Harmondsworth, Penguin, 1940).

[12] J.S Mill, Utilitarianism; Liberty: Representative Government (London: J.M. Dent, 1964), pp. 215-17

[13] Guja v Moldova [2008] (application no. 14277/04)

[14] s.9 Official Secrets Act 1989

[15] R v Ponting [1985] Crim. L.R. 318

[16] Quoted in Munroe Eagles, Politics: An Introduction to Modern Democratic Government

[17] Sisella Bok, Secrets: On The Ethics Of Concealment And Revelation (Vintage 1989).

[18] John Rawls, ‘Justice As Fairness: Political Not Metaphysical’ (1985) 14 Philosophy and Public Affairs <http://philosophyfaculty.ucsd.edu/faculty/rarneson/Courses/RawlsJustice.pdf>

[19] Neville, Simon. “Hero or Pariah? A Whistleblower’s Dilemma.” The Guardian, 22 Nov. 2012

[20] Ahmad v UK (1982) 4 EHRR 126

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