The Law Commission is an important body with a proud history. Set up in 1965 to provide independent advice to government on law reform, it describes itself as non-political and has often made meticulous recommendations on overlooked but vital areas of the statute book, from criminal and family law to that governing property, trusts and other areas of commerce. Its status, value and prestige have been greatly enhanced by a succession of judicial chairs, usually of the high court and then promoted to the court of appeal.
Yet in an age of high-octane media and politics, legislative policy has been driven __more by kneejerks and soundbites than reason and research. The commission has felt neglected, with too many reports unimplemented by parliament, and it may be concerned for its long-term future. Some years ago I was visited in my Liberty office by commission officials concerned about their declining brand and influence, and with a healthy curiosity as to how better to communicate with the world beyond Whitehall. So the government’s invitation to the commission in 2015 to look at what is bureaucratically called the “protection of official data” must have caused considerable excitement.
Coming two years after Edward Snowden’s revelations on the blanket surveillance of entire populations without parliamentary or judicial sanction and with an extremely spurious basis in law, no one can have imagined this to be a routine spring clean of the Official Secrets Act or simple “future-proofing”, as was suggested in the consultation paper published on 2 February. This is an extremely political area of the law, and venturing into this territory brings great risk to an independent body that would never want to be seen as a proxy for any government or the security state.
This is why there is considerable concern about the consultation process so far, and the fact that only seven weeks remain for public input – let alone some of the provisional recommendations.
Protecting national security is important, but investigative journalism and individual ethics have a place in democracy
Then there is the lopsided nature of who has been consulted. It seems that government departments, the police and security agencies have understandably had the ear of the commission, but no journalists or past whistleblowers. Three NGOs are said to have been consulted, but they don’t seem to agree that this happened. Finally, and tellingly, the consultation paper was not openly launched in the media. It was given as an exclusive to a publication thought to be onside. A commission spokesperson is said to have explained that this was because that “it’s a nuanced issue. We wanted to secure an opinion editorial first.” That is spin worthy of a political operation, not public communication from a quasi-judicial body.
The provisional recommendations include sentencing provisions stipulating draconian jail sentences, which place leaking and whistleblowing in the same category as spying for foreign powers. According to the proposals, these sentences would apply to any leaker, whether or not they were a British citizen or operating within the UK. More alarmingly still, the commission says there should be no statutory public interest defence for anyone accused of the offences. Threatened by such grave consequences and offered little-to-no legal protection, it is surely __more than we can ask of any journalist or genuine whistleblower to come forward in order to protect the public interest.
Journalists and the whistleblowers with whom they work perform an essential service in ensuring transparency – often where government would keep us in the dark. There are at present very few means by which wrongdoing within government agencies can be exposed, and as a consequence it falls to individuals. There is no question that protecting national security is important, but public interest journalism and individual ethics have their place in democracy alongside security and the law.
With just a few weeks left for the consultation, I hope the commission will seek to get it back on track by reaching out to the journalists, human rights lawyers and whistleblowers who have so far been excluded from the process. It is essential for the credibility of the report (and the commission) that a greater balance between the two sides of this debate are reflected. In this brief window, I also urge the wider public to get involved, responding to the commission’s call for input. In this age of Donald Trump, democracy has to be about more than filling a ballot box every few years.
• You can contribute to the consultation by emailing pod@lawcommission.gsi.gov.uk