Katharine Gun says expanded jail terms for leaking state secrets will deter people from revealing abuses of power

Published in The Guardian 2/13/2017

By Owen Bowcott, Legal Affairs Correspondent, published in The Guardian, 2/13/2017

A former GCHQ whistleblower has condemned plans by government lawyers to increase prison sentences and expand the definition of espionage for the digital age.

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, has spoken out following the publication of Law Commission plans suggesting that maximum jail terms for those leaking information should rise from two years to 14 years.

In the past, Gun has called for a public interest defence to be introduced into the Official Secrets Act (OSA) to protect whistleblowers and prevent governments from hiding politically embarrassing information.

She said: “The Official Secrets Act 1989 may need reforming for the digital era, but I would argue that at its heart there should be protection for whistleblowers. As it stands, the OSA is reputedly one of the most draconian secrecy laws in the world. It seems to me to have been very effective at dissuading and preventing the 99.9% of British citizens who have signed to it from making unauthorised disclosures.

“On the rare occasions where it has been breached, it could be argued that it was done to expose lies or misrepresentations of the truth and other forms of skulduggery. Examples include Clive Ponting, Peter Wright, David Shayler, myself, David Keogh and Leo O’Connor. Peter Wright’s case followed the publication of his book, Spycatcher, Lord Goff [a judge] said at the time, ‘In a free society, there is a continuing public interest that the workings of government should be open to scrutiny and criticism.’

“It seems to me that we are living in an increasingly unfree society. The government and its intelligence and security apparatus have amassed ever broader and deeper powers through legislation like the Justice and Security Act 2013 and the Investigatory Powers Act 2016. These laws enable it to survey all private communications and online activity, carry out bulk collection and storage of data, hack private devices, detain and interrogate at whim and demand CMP [closed material procedures] in court, preventing evidence and information from being disclosed in the interest of national security.

“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.”

Gun was charged under the OSA in 2003, but the prosecution was dropped when it came to court the following year amid speculation that there would have been a political outcry.

Referring to the request in 2003 from the US National Security Agency to bug the offices of countries on the UN security council before the vote on invading Iraq, Gun said: “I was enraged by the subterfuge and potential blackmail they wanted us to carry out. I went public and it was published in the Observer.”

Commenting on the Law Commission proposals, the the Liberal Democrat peer and civil liberties campaigner Paul Strasburger said:“This attempt to suppress dissent and prevent the public knowing the truth is typical of Mrs May’s time at the home office. She has carried the same authoritarian approach into Brexit by doing everything she can to limit debate and keep voters in the dark.

“These proposals might be appropriate for a banana-republic dictatorship. They are completely out of the question in our democracy which depends on brave whistleblowers and a free press to hold the government to account when they let us down through incompetence or corruption.

“Liberal Democrats will strongly resist these extremely dangerous proposals.”

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. We don’t – and we will be submitting a thorough response to the public consultation.

“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 whistle-blowers and gag our press.

“This is the latest hypocritical move from a government intent on operating in the shadows while monitoring every move the rest of us make. When the agencies’ illegal mass surveillance was exposed by Snowden’s courageous actions, this government responded with the eye-wateringly authoritarian investigatory powers act. That law makes it illegal to disclose even the mere existence of warrants to intercept people’s communications, meaning those who are unlawfully spied on, including journalists, will never know about it – unless whistle-blowers come forward.”

The National Union of Journalists said it would robustly defend the rights of its members. Michelle Stanistreet, NUJ general secretary, said: “The ramifications of these recommendations are huge for journalists and freedom of the press. Journalists face being criminalised for simply doing their job and the public’s right to know will be severely curtailed by these proposals. The union will respond robustly to the Law Commission’s consultation on changes to the Official Secrets Act.”

She said: “It was the present prime minister Theresa May who was the ‘Big Sister’ and original architect of the snoopers’ charter. We need to protect the public from a government which seems intent on threatening journalists from finding information the government finds inconvenient to be exposed. Democracy is under attack when a government does all it can to do its business in secret.”