10:27, February 16 240 0 theguardian.com

2017-02-16 10:27:13
Draconian secrecy measures are being quietly ushered in. We must fight them

Last year, suspicionless surveillance of the lawful activities of ordinary citizens was authorised on a scale unprecedented in any other western democracy. Those of us who warned that the Investigatory Powers Act’s provisions in respect of the indiscriminate collection and retention of electronic communications were of dubious legality have already been vindicated by the court of justice of the European Union. The precise impact of the decision will now be confirmed by the court of appeal, which referred the matter to the court of justice.

Now, only months after the passage of the act, proposals that pose a further significant threat to civil liberties and freedom of expression have been quietly published by the Law Commission with no fanfare and not even a press release. The recommendations of the Law Commission of England and Wales are contained in a 326-page consultation paper entitled Protection of Official Data. Their proposals are extensive and could lead to a new espionage act replacing the Official Secrets Act.

While there can be no doubt that the law needs to be updated for the digital era, the need to simplify, clarify and modernise the law should not be used as an excuse to introduce draconian powers that fly in the face of the previous consensus that the “mere receipt” of official information should not be a criminal offence. Unfortunately, this is just what is proposed.

The changes in the law envisaged include criminalising obtaining and gathering as well as publishing government data – provided the UK government claims there would be damage. The previous requirement that the government should prove that there would be damage is to be dispensed with. The proposals put leaking and whistleblowing in the same category as spying for foreign powers. If enacted, they would criminalise hackers, leakers, elected politicians, journalists and NGOs.

There will be no definition of “national security”. This is particularly problematic, because the courts tend to respond with considerable deference to government claims of national security, viewing them not as a matter of law, but as executive-led policy judgements. National security as a legal test is therefore meaningless.

There is to be no statutory public interest defence for those accused of these offences – and the sentences to which journalists and whistleblowers, as well as foreign agents, are to be subject would be extended from two years to a suggested maximum of 14 years.

There is considerable disquiet about the way in which these proposals have come about. It seems the Cabinet Office asked the Law Commission to examine “the law surrounding breaches of protected government data” with particular regard to “the effect of technological change on the way in which data is shared, stored and understood” in the wake of the Snowden revelations. The Law Commission have stressed that they are independent of government and that they make suggestions based upon evidence. They are right to claim a proud history of promoting law reform. However, this should not distract us from the very real concerns that these proposals have been reached without adequate consultation and published with very little publicity.

The commission has undermined its own claim to have consulted widely in preparing the proposals by admitting that they were devised without meaningful input from civil liberties groups or the NUJ. It seems there is some suggestion that they failed to consult as widely as originally planned because the project became bigger than they had initially envisaged. Now less than two months remains for further consultation.

This begs the question of why the haste to publish these proposals? For the first time ever, persons who gather or leak documents containing sensitive economic information could be guilty of an offence. This might be thought rather convenient for a government that is about to embark on a hard Brexit with potentially huge implications for jobs and the British economy.

At a time when the government has afforded itself the power to monitor ordinary citizens so closely, it is extraordinarily hypocritical for them to seek the absolute right to avoid scrutiny of their actions. To do so could be seen as part of a disturbing trend towards the silencing of dissent that has developed during the Brexit debate.

Despite the dubious legality and the threat to civil liberties posed by the IP bill, the only real opposition during its passage through parliament came from the SNP in the Commons and the Liberal Democrats in the Lords. It is to be hoped these new proposals will face more widespread opposition. The consultation is open until 3 April. All those who care about civil liberties and freedom of expression should respond.

You can contribute to the consultation by emailing pod@lawcommission.gsi.gov.uk