Public Interest Defence: If the government has nothing to hide then there’s nothing to fear

26th April 2017

Among the many alarming proposals within the Law Commission’s consultation into Official Data is one that should dismay anyone who supports whistleblowing or the need for proper public scrutiny of executive government.

The Commission suggested the government should not enact a public interest defence for prosecutions under the Official Secrets Act. Were it in force, a person facing prosecution for disclosing secret information would be acquitted if they successfully argued that the public interest in disclosing the information outweighed keeping it secret.

But the Commission argued the defence would cause more problems than its worth. Public Concern at Work recognises the defence could cause some issues, but do not agree that they outweigh the potential benefits which the Commission has only cursorily explored.

The Commission expressed concern that such a defence could undermine legal certainty, not least as the concept of public interest would be difficult to define.

The Crown Prosecution Service already decides whether proceeding with a prosecution is in the public interest. A public interest defence would therefore create an additional safeguard with a defendant able to argue for themselves that their disclosure was to the benefit of the public with a jury acting as the ultimate arbiter. Instead of a public interest defence, the Law Commission advocates the introduction of a Statutory Commissioner, a former judge to whom members of the intelligence services can turn when they suspect wrongdoing or illegality.

The choice between a Commissioner and a public interest defence is simply not binary and, in fact, they could function well together. In Canada, an individual who has made an unlawful disclosure may rely on a public interest defence provided they have exhausted internal mechanisms. The Commission states it is unconvinced this model would offer any benefits beyond those gained after the introduction of a Commissioner.

This is unimaginative or deliberately obtuse. One benefit is that, in cases where a whistleblower takes an issue to the Commissioner and the subsequent investigation is unsatisfactory, the whistleblower would then be able to disclose the issue to the public. Although the Commissioner reports to Parliament, this will not always be sufficient to ensure the most heinous wrongdoing comes to light. Though creating the Commissioner position will enhance scrutiny, it is overly optimistic to think the position removes the need for a public interest defence.

This optimism is misplaced, and leads one to wonder whether the Commission is really undertaking an impartial review of legislation or merely working backwards to justify more authoritarian, less transparent security apparatus desired by government.

There are many examples of judicial fallibility, particularly in matters concerning the intelligence services. The family of Pat Funicane, an Irish human rights lawyer killed by Loyalist paramilitaries in 1989, have long campaigned for a full public inquiry into allegations of state collusion in his murder. Tony Blair had promised such an inquiry but instead opted for a paper based review undertaken by a QC. This found substantial evidence of state collaboration with Loyalist gunmen but precise details were lacking, leading Funicane’s family to brand the review a “whitewash”. In a meeting with David Cameron the family demanded a full public inquiry, leading Cameron to state rather ominously that there were “people in buildings all around here [10 Downing St] who won’t let it happen.”

Even where an inquiry is capable of bringing truth to light the results are not always assured. The Commission suggests modelling the Statutory Commissioner on the Intelligence Services Commissioner, who currently provides independent judicial oversight of the intelligence services. During an Intelligence Services Commissioner inquiry last year MI6 were criticised for “a troubling tendency to be defensive and unhelpful, it provided inaccurate and incomplete information and generally sought to fence with and close down lines of enquiry rather than engage constructively”.

It is inappropriate for intelligence service personnel to make disclosures public in all circumstances, but where state mechanisms have failed to fully investigate and address matters of grave public interest then a public disclosure will be appropriate, lest the wrongdoing go unchallenged, uncorrected and allowed to repeat. For such individuals to be prosecuted, without the availability of a public interest defence, suggests the need for intelligence services to act in secret is more important than ensuring they act within the law.

‘If you have nothing to hide then you have nothing to fear’ is a trope often wheeled out by government when scrutinizing citizen’s private lives. One hopes this phrase could go both ways, so that security service whistleblowers are able to rely on a public interest defence from prosecution when bringing cases of wrongdoing directly to the public.

By Tom Casey