AAL Insight: UK v EU on Whistleblowers

Feb 10, 2018

Written By Jack J Collins, Editor of AllAboutLaw.co.uk

The UK government has come under severe scrutiny for what has been called a “full-frontal attack” on whistleblowers, after it revealed proposals to dramatically lengthen prison sentences for revealing state secrets.

In contrast, the European Union has announced new plans to enshrine and safeguard the rights of those people speaking out against the state in the public interest, further piling the pressure on the UK to protect whistleblowers.

Number 10 has suggested that their needs to be a complete redrafting of the secrecy legislation that currently exists, because they feel it is completely at odds with the new digital age in which we live. They believe that in a world where government employees could dispense highly valuable information with relative ease, new measures are needed to protect this information.

As such, the drafted recommendations have suggested that the maximum prison sentence for those who leak information should be increased sevenfold, from two to fourteen years, and that ‘espionage’ should now include the obtaining of information, instead of the previously defined passing on of sensitive materials.

There has been real concern that the punishments suggested would severely impact the number of people coming forward in the bests interests of the general public, and a prominent critic stated that the legislation was “squarely aimed at the Guardian and Edward Snowden”. Further criticism was elicited by media groups who accused the Law Commission of lying in their assertion that they consulted various companies in their plans.

The Guardian, human rights group Liberty and the Open Rights Group are just three of the organisations who are listed by the Law Commission as being part of the consultation process for the new proposals, but they all state forcefully that there were no substantial discussions that had taken place.

The law commissioner, Professor David Ormerod QC, who oversaw the drafting of the new proposals stated that: “We’ve scrutinised the law and consulted widely with ... media and human rights organisations.” But Liberty claimed that while a meeting was held, it was “not on the understanding that this was a consultation”, and a further source said that: “Liberty do not consider themselves to have been properly consulted. And we will be responding in detail to the consultation.”

Cathy James, the chief executive of Public Concern at Work, claimed that she was shocked to see her own charity in the listings of consulted bodies. Talking to the Guardian, she said: “I didn’t actually know we were listed in the document as we have been working our way through it so it is a big surprise to me. I believe my colleague met with them initially but we were not consulted in the normal sense of the word consultation. That is not what happened.

“We are very worried about the extent of the provision in the recommendations both for whistleblowers and public officials. It’s a huge backward step and we are very worried.”

Jim Killock, the CEO of the Open Rights Group, said: “This is a full-frontal attack, recommending criminalising even examining secret services’ material. The intention is to stop the public from ever knowing that any secret agency has ever broken the law.”

He was further enraged by the new definitions of espionage, claiming that “the mere handling of documents becomes a criminal offence on the basis of the risk [of] handling those documents causes, not that you actually hand them to a foreign state. So spying becomes possession of secret information. This is not what any of us would recognise as the definition of spying. It’s spying as China might define it.”

And it’s not just media executives that are worried. Two former whistleblowers, Ben Griffin and Peter Francis, both have hit out over the proposed changes, claiming that the government is trying to shut down the idea of whistleblowers in general.

Griffin, who was in the SAS but quit over the abuse of prisoners in Iraq, and then went public with what he had seen in order to combat the treatment of future prisoners in the same way, stated that “the British government not only refuses to answer questions, but it is actively misleading the public. Given these facts, it is of no surprise that they have decided to clamp down on whistleblowers.”

And Francis, a former policeman who revealed the dark truth behind undercover Scotland Yard Units, stated that he would fear for his own security with the new laws in place. “I have been threatened, several times, with possible prosecution under the Official Secrets Act. Not a single suggestion, within the entire 326 pages, gives me any hope whatsoever that as a whistleblower, I would then be treated any more fairly with this new law in place,” he said.

“In fact to the contrary, all that would now happen is that I would have to be prepared to serve 14 years’ imprisonment instead of currently two, which I personally am, but [this type of sentence] might deter other officers from coming forward in the future.”

The Institute of Advanced Legal Studies claimed, on the back of the publishing of the proposals, that increased legal protection is necessary for whistleblowers, and that journalists are finding it much harder to protect the anonymous nature of any sources they may have due to the monitoring and interception of phone calls and emails.

Their report, which is called Protecting Sources and Whistleblowers in a Digital Age, will be launched in the House of Lords this week and will be a direct challenge to the Investigatory Powers Act, the digital economy bill, and the new proposals suggested by the Law Commission regarding the treatment of whistleblowers.

A government spokesperson said: “Far from weakening protections for sources as this report suggests, this government has strengthened safeguards through the Investigatory Powers Act. Now any public body seeking to use communications data to identify a journalist’s source must first gain approval from a senior judge.

“We believe in the freedom of the press, and would never do anything to undermine legitimate whistleblowing or investigative journalism – it’s not government policy and never will be.”

However, in the EU, the European Parliament last week debated and voted positively on increasing safeguard for whistleblowers, building on the foundations created by the Greens in Europe in 2016.

Jean Lambert, the Green MEP for London stated that “whistleblowing is essential to ensuring the accountability and integrity of the public and private sector. It’s the only way in which otherwise secret information can be brought to light, and hence it’s often the best way to uncover wrongdoing, corruption and downright immoral behaviour.

“Recent scandals uncovered by whistleblowers include illegal mass surveillance, industrial-scale tax avoidance and the sexual abuse of children by peacekeepers. The biggest leak in history to date, revealed in the Panama Papers, highlighted just how important whistleblowers are for allowing in-depth journalistic investigations in the public interest.”

With Brexit in the wings, it remains to be seen whether these new laws will even apply to Britain, but it is crucial for government accountability and the morality of the state. The EU appears to be moving forward in this sense whilst the UK moves backwards, and it remains to be seen if this trend will be reversed in time to stop new draconian measures being pushed through.

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