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Last Updated: Thursday, 26 February, 2004, 19:44 GMT
What now for Official Secrets Act?

By Jon Silverman
Legal affairs analyst

The government's announcement that it is to review the Official Secrets Act in the wake of the failed prosecution of Katharine Gun is unexpected.

But if there are to be amendments, they are as likely to make it a more rigorous tool against "whistleblowers" as to provide a right to leak material in the public interest.

The act, in its present form, is clear that passing on confidential material is unlawful.

What concerns the Attorney-General is the lack of anything in the legislation which would enable a prosecutor to rebut a defence argument that disclosure was taken out of "necessity".

Katharine Gun
The prosecution offered no evidence against Mrs Gun
The best way of tackling this would seem to be to allow a public interest defence for the disclosure of secrets but only where an individual had exhausted every possible avenue for preventing serious or illegal conduct by the organisation concerned.

Interestingly, this was the course favoured by the former Lord Chancellor, Lord Irvine, when New Labour was still in opposition.

Failure to demonstrate such a defence would give the prosecution the necessary ammunition to fire in court.

In such a case, a judge would presumably then be empowered to direct a jury that they had no option but to convict.

What, if anything, to do about the law is one consideration for the government.

Spying allegations

The legal limits of spying are, understandably, a grey area - especially covert action abroad
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The other is the fallout over Clare Short's revelation, on the BBC Radio 4's Today programme, about government-sanctioned spying at the UN.

"Insiders" have long known this kind of intelligence-gathering goes on, with friends as well as enemies spied upon.

Three years ago, a European Parliament report revealed that a joint US-UK surveillance operation called Echelon, was eavesdropping on millions of electronic communications in Europe - phone calls, faxes and emails.

Yet, officially, Echelon did not exist.

The legal limits of spying are, understandably, a grey area - especially covert action abroad.

Organisations such as M15, M16 and GCHQ have their own internal guidelines and the Regulation of Investigatory Powers Act has put domestic surveillance on a statutory footing, with codes of practice available for scrutiny.

The former M16 agent, Richard Tomlinson, predicts that in the light of the Gun affair, the US will find it much harder to "ask the UK to get involved in its skulduggery".

But with global terrorism the preoccupation of Western intelligence agencies, the pressure to push at the frontiers of what is acceptable may be impossible to resist.


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