The government has attempted to distance itself from claims that a new espionage act would outlaw investigative journalism or whistleblowing in the public interest – describing the proposals as the project of a “previous prime minister”.



As a row erupted over a Law Commission report which suggested that the maximum penalty of two years in prison for leaking official information might be too low when set against 14 years in comparable jurisdictions, Downing Street on Monday night vehemently denied that it was trying to stifle a free press.

“This is a consultation by an independent body instigated by a previous prime minister,” a No 10 source said. “It will never be our policy to restrict the freedom of investigative journalism or public service whistleblowing.”

The consultation on how to reform the Official Secrets Acts (OSA) in the digital age was headed by the law commissioner, Prof David Ormerod QC, who confirmed that the initiative for the review had come from the Cabinet Office in 2015 but said that he relished the opportunity to update “archaic” legislation “that was ripe for reform” in the digital age.



Former whistleblowers, civil liberties groups and political opponents all piled in with criticism of the 315-page report, characterising it variously as the encroachment of “state secrecy”, better suited to a “banana-republic dictatorship” and a trait of an “increasingly unfree society”.

Stung by hostile headlines across a wide range of the media, government sources insisted that the Law Commission was an independent body, that its proposals were only an early draft and that the example that prison terms for leaking could increase sevenfold – from two years to 14 years – had been taken out of context.

“One of the points of this review is to consider whether more safeguards are required to protect public sector whistleblowers and journalists,” Theresa May’s official spokesman said.



A government spokesperson added: “The Law Commission is independent of government and any recommendations it makes would need both government agreement and parliamentary approval before passing into law.”

Ormerod said the consultation was now open to the public to submit their views. There had been “engagement with stakeholders” in advance of publication to gather responses from those with “the most practical experience” of the Official Secrets Act.

He said he had added a chapter to his report on freedom of expression rights and other areas as a consequence of preliminary meetings. He discovered that there were 130 offences on the statute books that criminalised leaking official documents. The extra research meant that an earlier publication date was delayed.

“We have made the most comprehensive, independent review and that has taken much longer,” Ormerod said. “Who knew that under the National Lottery Act you can be imprisoned for two years – just as great a penalty as under the Official Secrets Act?”

The law commissioner said he had highlighted the example of Canada’s maximum penalty of 14 years for unauthorised disclosure because it was from a comparable “western democracy with similar legislation”. A maximum sentence of 14 years, however, was “not even a provisional proposal” in his report.

Members of the security services should be given a structure in which they could make complaints to a security official, who would report directly to the prime minister, Ormerod said. That, he said, would be more effective than a public interest defence to leaking, which the consultation rejects.

The consultation is open until 3 April. From evidence received, the Law Commission will then draft clear recommendations that could be published as early as the summer.

Among those criticising the contents of the consultation were Katharine Gun, a former translator for the monitoring agency who leaked details of an operation to bug United Nations offices before the 2003 invasion of Iraq.

She said: “It seems to me that we are living in an increasingly unfree society ... If the proposals to reform or rewrite the OSA extend the overall dragnet nature of the act, increase the penalty limit and disregard a public interest defence, it will exacerbate the concentration of power in the hands of the government and deter or even prevent whistleblowers from revealing government lies and abuse of power.”

The shadow attorney general, Shami Chakrabarti, also criticised the proposals in an article for the Guardian. She wrote: “The provisional recommendations include sentencing provisions stipulating draconian jail sentences, which place leaking and whistleblowing in the same category as spying for foreign powers.

“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 very real public interest.”

Martha Spurrier, director of Liberty, said: “It’s disturbing that the Law Commission considers a single meeting adequate consultation to inform such drastic and dangerous proposals.



“These oppressive plans have no place in a democracy. They would skew the balance even further in favour of state secrecy, irrespective of potentially profound public interest. By increasing the prospect of prosecutions for revelations that are merely embarrassing or inconvenient, they would silence whistleblowers and gag our press.”

Duncan Hames, director of Policy Transparency International UK, said: “Journalists, anti-corruption campaigners and whistleblowers play a vital role in exposing corruption. These repressive proposals could create a culture of silence, where individuals are intimidated into keeping quiet in the face of wrongdoing. It would become far easier for powerful people and government agencies to get away with unlawful action.”