Protect civil servants if they leak secrets in public interest, lawyers demand

British civil servant and historian Clive Ponting holds his book The Right to Know: The Inside Story of the Belgrano Affair in March 1985

Credit: Colin Davey/Hulton Archive

Most recently, Scotland Yard launched a criminal investigation after the leaking of diplomatic cables from the UK’s ambassador to the US, Kim Darroch, that revealed embarrassing critiques of Donald Trump.  

The Act has, however, been slated as "outdated" and "no longer fit for purpose" by the Law Commission and Parliament’s defence and intelligence committee.   

In September, in response to requests by ministers, the Law Commission proposed a revamp of the Official Secrets Act to make it easier to prosecute leaks of official information to foreign companies such as Huawei.

Ambiguous terms such as ‘"enemy" will be replaced by terminology such as "foreign power" to help target new state and terrorist threats.  

However, the commission recommended that this toughening of the Act should be balanced by the introduction of a public-interest defence that would protect a civil servant or signatory of the Act if they could show that a leak was "objectively" in the public interest.  

The campaign lawyers have drawn up a suggested defence that would give protection based on the subject matter revealed, the seriousness of the conduct exposed and the harm caused by the disclosure. There would also be limits, for example, that the information revealed was "no more than reasonably necessary for the purposes of exposing the relevant conduct" or that it was not "for personal gain".   

They warned that without such a defence, Britain would be out of tune with its partner Commonwealth nations in the "Five Eyes" intelligence network, as Australia, Canada, and New Zealand all have public interest defences in their domestic law.