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Politics and Law

Campaign to introduce a statutory public interest defence to Official Secrets legislation

Mishcon de Reya, together with Matrix Chambers and Powerscourt Group, is coordinating aspects of a campaign to introduce a Public Interest Defence (PID) to the Official Secrets Act 1989 (OSA89). The campaign is funded by Janus Friis, a tech entrepreneur and philanthropist. The team includes James Libson, Ben Brandon, Katy Colton and Harry Eccles-Williams from Mishcon de Reya, Alex Bailin KC and Jessica Jones from Matrix Chambers, and Mark Leftly and Harold Amoo from Powerscourt.

The campaign has argued that a PID is necessary because:

  1. It would bring clarity and predictability to the law. At present, public interest considerations enter prosecutions for OSA89 offences by the back door – for example, by juries taking the law into their own hands and giving effect to their personal view of the public interest by acquitting contrary to law, in so-called ‘perverse acquittals’.
  2. The introduction of a PID would act as a deterrent to the making of unauthorised disclosures. At present, the law treats a reckless and indiscriminate data dumper in the same way as a conscientious person who makes a targeted and limited disclosure which they have carefully assessed to be in the public interest. The introduction of a PID would draw a clear line between these cases and would therefore disincentivise data dumping.
  3. The OSA89 is incompatible with the right to freedom of expression (article 10 of the ECHR) because it creates criminal offences without any regard to the proportionality or public interest in any particular disclosure. The Law Commission has recommended the introduction of a PID because existing law is not compatible with international legal standards.

The introduction of a PID to offences in the OSA89 has already attracted widespread public support from a number of prominent members, including former Ministers, a former Lord Chancellor and former Attorneys-General, and the issue has received widespread national press coverage as a result, including:

PressGazette - November 2022
The Mirror - November 2022
The Telegraph - September 2022
The Times - June 2022
Conservative Home - December 2021
The Telegraph - October 2021
Politics Home - July 2021
Sunday Mirror - May 2021
I News - May 2021
The Times - March 2021
The Times - January 2021
The Telegraph - December 2020

Reform of the Official Secrets Acts: Should there be a public interest defence?

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