Whistleblowers and journalists could be imprisoned for revealing documents that can be obtained through freedom of information requests, campaigners have warned.

Responding to the consultation on Law Commission proposals for a new espionage act with more punitive powers, freedom of speech organisations have condemned plans for lowering the threshold for prosecutions.

The Campaign for Freedom of Information and the rights group Article 19 fear that the proposals would make it easier to secure convictions by weakening the test for proving an offence and even criminalise passing on information discoverable under FoI requests.

Under the 1989 Official Secrets Act, some offences require proof that a disclosure is likely to damage defence, international relations or law enforcement, or fall into a class of information likely to damage the security services’ work.

The Law Commission says the “likely to damage” test prevents prosecutions being brought because proving this requires more damaging information to be revealed in court. It wants the harm test to be reduced from “likely” to cause harm to “capable” of causing harm.

The Freedom of Information Act, however, only exempts information about defence, international relations and law enforcement using the threshold of “likely to harm”. Leaking information which is capable of, but very unlikely to, cause harm would therefore potentially become an offence, it is claimed.



The Liberal Democrat Foreign Affairs spokesperson Tom Brake said: “These draconian proposals beg the question of what the government has to hide. It is a hallmark of our democracy that government should be accountable and transparent.”



The Lib Dem manifesto will include a commitment to end the ministerial veto on release of information under the FoI Act. The party will also pledge to reduce the proportion of FoI requests that result in information being withheld by government departments.

“We would expand the Freedom of Information act to stop ministers and departments from being able to block the publication of information they see as politically inconvenient,” Brake said.



Maurice Frankel, the director of the Campaign for Freedom of Information, said: “These proposals are not only oppressive but unworkable. It is beyond common sense to make it an official secrets offence to leak information which anyone could obtain under FoI.



“The proposals would deter officials from discussing information that has lawfully been made public. It will set the FoI Act and the Official Secrets Act on a collision course. It is not the Law Commission’s job to make an ass of the law but that’s what its proposals would do.”

Thomas Hughes, the executive director of Article 19, said: “The Law Commission’s proposals would move the clock backwards, undoing improvements in the UK’s 1989 Official Secrets Acts, and setting a dangerous example of eroding freedom of expression protections, which may be copied by oppressive regimes globally.”

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











