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As rival newspapers band together to scrag Neil Basu, the Metropolitan Police Commissioner, let this site nervously venture out to make a case for him.  When he warned the media that it could be committing an offence by publishing more of Kim Darroch’s diplomatic cables – as the Mail on Sunday gleefully does this morning – he may have technically been correct: under the terms of the Official Secrets Act, newspapers are in breach of the law if they publish material that is “damaging”.

And if publishing cables sent by our man in Washington isn’t damaging to the confidentiality that our diplomats require, you may ask, then what on earth is?  This point of view dismisses the united editorial voices of today’s Sunday papers as special pleading – and views with contempt the politicians, such as both Conservative leadership contenders and Matt Hancock, who are today sucking up to the media, presumably in hope of softer treatment.

However, the newspapers aren’t necessarily wrong simply because it is in their commercial interest to publish leaks, and our trade has a persuasive case to make.  In this instance, it falls into two main parts.

First, it can be claimed that the Darroch cables aren’t “damaging” in the slightest: that it is not as though they contained details of, say, the workings of our nuclear weapons systems, or the whereabouts of MI5 and MI5 agents.  Rather, the argument continues, all that they contain is political anaylsis – and not very original analysis at that.  So Donald Trump was driven in spurning the Iran settlement to spite Barack Obama, who helped to draw it up.  Well, knock us down with the proverbial feather.  We are shocked, shocked, as Captain Renault puts it in Casablanca.

The second point comes if the first fails to persuade – and, in fairness to the Government, some of the material in the cables seems to be more than commonplace.  For example, parts of the material in last weekend’s leaks to the Mail on Sunday concerned the western worlds response to Iran’s nuclear programme.  And as that country’s attacks on shipping in the Strait of Hormuz reminds us, lives are at stake when policy towards Iran comes into play.

The deeper case for publication of the cables is that there is a public interest in knowing the disposition and outlook of our diplomatic service towards Trump – and, more broadly, what it, combined with what we glean from elsewhere, tells us about the worldview of our civil service.  As this site has said recently, the civil service must necessarily have a take on the world: while being impartial, it can never be and has never been neutral.

Michael Quinlan, Charles Farr, Michael Palliser, Simon Fraser, Nicholas Macpherson: the civil service is and has been stuffed full, past and present, by people with views – some of which, as in the latter two cases, become clear after they have retired.  The public interest in this case is whether or not Darroch’s take on Trump was partial, out of date, not as widely-informed as it might have been, or corroded by his pro-EU instincts.

In essence, this is a public interest defence – and the public interest is a well-recognised concept.  After all, the Official Secrets Act does not exist in isolation.  It is balanced by other laws and by important principles.  It is possible both to believe that Darroch should have Ministers’ full backing in telling truth to power as he saw it, while simultaneously asing whether or not he was as well-sighted to do this as some say.

A catch with this line of thinking is that the definition of public interest in the Official Secrets Act is very narrow indeed.  Essentially, it is that the public interest is whatever the Government of the day says that it is.  There is a history to this part of the Act.  In 1985, a civil servant called Clive Ponting was charged with offences under its terms after leaking information about the sinking of the General Belgrano during the Falklands War.

The jury was directed by the judge that the public interest was, as above, whatever the Government says that it is.  It none the less acquitted Ponting: essentially, its members defied the judge and, as outlined to it, the law.  So the Act was overhauled in 1989, and that definition put on to the statute book.  Our readers are unlikely to sympathise with Ponting.  But we should all ask ourselves whether we would want a Jeremy Corbyn-led government having legal backing for its view of the public interest.  Or, frankly, any government at all.

Now let us return from theory to the rough, real world of politics.  As the row over Basu’s words indicates, the Government wouldn’t dream of prosecuting the Mail on Sunday in this case.  The Met is already backpedalling.

For in the turbulent arena in which politics and journalism meet, neither Theresa May, in her last days as Prime Minister, let alone Boris Johnson, in the first days of his, is going to get into the grandmother of freedom-of-the-press ding-dongs with Fleet Street – especially with the Brexit negotiations moving towards another climax, and the prospect of an election in the autumn.

But the fact is that we have concocted a typically British fudge where official secrecy is concerned.  There is a DSMA system (formerly D-notices): the voluntary code under which material perilous to national security is kept out of the public domain, or should be.  Next, there is the idea of “damaging” information set out in the Act.  Then there is a definition of public interest that not all juries will swallow.  And we haven’t even got into human rights legislation.  None the less, one point should be clear by now: Basu isn’t right just because the papers say he’s wrong.

116 comments for: Is the Official Secrets Act fit for purpose?

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