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When leaking becomes whistleblowing and why the law makes no distinction

Is the revelation about Government splits over the role Huawei should play in the rollout of 5G technology within the secretive National Security Council (NSC), an act of reckless leaking, or brave whistleblowing?

For many inside and outside of Government, this was a dangerous and corrosive leak. This was the first time the press has been given information about the discussions within the NSC, a body of senior minister and security officials where they informally and openly discuss national security issues. Its discussions and decisions are kept secret, protected by the Official Secrets Act 1989 (OSA) which makes disclosure of certain sensitive information without authority a criminal offence, and the NSC bars members from having mobile phones, computers or any recording devices during meetings.  Jeremy White, Secretary of State for Culture and member of this committee, put the case against the leak, very well in Parliament:

“This (the leak) was unacceptable, and it is corrosive of the ability to deliver good government, which is something for which we must all take responsibility. In discussions of this kind, people are entitled to express whatever views they wish—and they do—but once the discussion has been held, collective responsibility requires that people do not repeat their views publicly, and they certainly should not discuss matters that have a security implication of this kind.”

What’s more there was more then a whiff that the motivation for the leak was less about the public interest and more about leadership ambitions in a Government who have struggled to keep cabinet discussions confidential.  The response from the Labour party, former Government Ministers and former security officials has been to call for an enquiry to discover who leaked the information, with some even saying the guilty party should be prosecuted.  Underlining this argument is the idea that this was a leak, revealing damaging information publicly, for political means and so lacked any public interest.

The case for this being an act of whistleblowing rests on the argument that the decision made over Huawei should be made in the open.  There is the argument about our future relationship with China and the impact on vital technology and there has been a lot of public concern expressed over this decision.  There is a public debate on the issue where the decision is being made behind closed doors. This is not revealing UK defence capabilities or confidential negotiations with a foreign country.  This is an attempt  to make a secret decision on something that needs public airing.

The Backbench MP Anne Main in Parliament best summarises the argument when she said:

“I am a little concerned that the leak may be trivialised by saying that it is as a result of someone’s leadership campaign. I am more concerned that it may be as a result of whistleblowing, because the process is so concerning to someone that they have felt the need to break the bond of trust that has existed for so long.

I accept that the review is going on at the moment in great secrecy, but since this has now been brought out into the open, can my right hon. and learned Friend assure the House that absolutely every consideration will be given to all the concerns that have been raised by hon. Members here today about both our relationship with countries such as Australia and our cyber-security and national security? Importantly, will he make sure that some concept of future deals with China is not colouring what we must now have absolutely at the forefront of our mind—the safety of the British public?”

I’ve so far laid out the arguments put forward for whether it was a leak or an act of whistleblowing which has been based on whether there was public interest in the disclosure.  Yet if there is a leak enquiry, if this uncovers the leaker and this led to a prosecution under the Official Secrets Act (OSA), the distinction between leaking or whistleblowing will not even enter the legal arguments before the jury.

This is due to the OSA lacking any kind of public interest defence, in fact it’s a strict liability offence meaning that the motives or reason are irrelevant to whether someone’s guilty, what’s relevant is whether the disclosure was authorised or not .  Here it doesn’t appear to have been authorised. However, if someone was so concerned about a decision they felt compelled to blow the whistle, knew they lacked authority to do this, then the public interest in the information being revealed is totally irrelevant.

A final thought on the situation, it would be surprising and a first if a Minister was uncovered as the source of the leak and then prosecuted under OSA.  This is not something that happens: all of the prosecutions under the OSA have been against government officials, not politicians.  Some cases may succeed, others result in an investigation with no conviction (Christopher Galley), in others, the case has collapsed (Katharine Gunn). As the media has noted Ministers have been disclosing details of confidential cabinet meetings for months to the press as Theresa May’s administration loses authority on a seeming daily basis.  Theresa May has issued warnings on this behaviour but has not investigated, yet this level of leak appears unprecedented. We’ll see if the noise and fury produces a prosecution, but I can’t help but feel that if an official was suspected of being responsible for the disclose they would almost certainly be prosecuted.

By Head of Policy, Andrew Pepper-Parsons