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The decision by the Federal Bureau of Investigation to not seek prosecution of Hilary Clinton for using a private email server to store and send thousands of sensitive documents does not come at a surprise. In fact, it is the same old story. In public organisations across the globe, politicians and senior officials are likely to receive a very different response to their subordinate officials if they mishandle documents. Ashley Savage explains.

Over in the United Kingdom, July saw the release of the long awaited Iraq Inquiry report. The third and the longest of the three inquiries into the war promised extensive critique of executive action and inaction and it delivered. One of the first aspects that the outgoing Prime Minister David Cameron chose to highlight in a statement to MPs was the need to provide a culture where officials could challenge official policy “without fear or favour”. All three inquiries contained testimony from public officials who had attempted to raise concerns internally without success, or as in the case of Katherine Gun, had risked criminal prosecution to go public with the information that GCHQ were involved in the electronic surveillance of UN member states considering whether or not to vote for a second UN resolution in support of military action.

Since the launch of the inquiry in 2006 and its final publication on 16 July 2016 many may question whether the criticisms of culture and practices in government departments still hold weight today. After all, the UK government had considerable time to digest the findings of both the 2003 Hutton Inquiry report and the 2006 Butler Review and to implement reform. Governments have come and gone and there is a likelihood that with the passage of time, inevitable departures of staff, rebranding and reorganisation that the cultures and internal process will be somewhat different to as they were in the run up to the Iraq war. We cannot know for certain if things have changed. However, it was perhaps telling that as the media hastily attempted a post-mortem (without the benefit of time to digest the 2.6 million word report) those ‘in the know’ were quick to go on the record to make clear how much things had changed from the Blair era.

What we can say for certain is that officials who work for the Security and Intelligence Services and for the Armed Forces are still exempt from the UK’s whistleblowing law, the Public Interest Disclosure Act 1998, even if they use available official channels. Moreover, the Intelligence and Security Committee of Parliament appear reluctant to report on how effective these official mechanisms are in handling concerns. The Official Secrets Act 1989, the law which protects against the unauthorised disclosure of official information remains a relic of the Cold War, drafted at a time where leaks were inevitably paper-based and were most often disseminated to journalists in brown envelopes rather than via the online disclosure outlets and international consortia that we are more likely to encounter today.

We have to question whether officials will feel empowered to engage in frank and open discussion without being protected if they suffer reprisals for doing so.

Most importantly, Cameron’s desire for a culture of openness is still required to take place against a backdrop where secrecy is paramount. Effectively this requires the maintenance of a ‘world within a world’ or what I term in my forthcoming book as an “intramural community.” A place where in return for agreeing to a restriction on freedom of expression and a set of community specific legal obligations and values, employees have access to clear and effective whistleblowing mechanisms and to employment protection if things go wrong. This may appear to some as a utopian ideal, the reality is that if we are to learn the lessons from Chilcott and the inquiries that came before it we must seek to engage in long overdue reform. The starting point is the Official Secrets Act 1989. My research found that the sections contained within the Act are overly broad and the evidential requirements too easy to satisfy. Using freedom of information requests, I obtained data which identifies that the Act has resulted in few successful prosecutions. The Act does not allow for assessment of the public interest value in any disclosure, nor does it provide a codified public interest defence. It is therefore open to challenge on art.10 (the right to Freedom of Expression) grounds, particularly as Strasbourg has made clear that art.10 can protect whistleblowers including those working in public service and the security and intelligence services. In my view, it is not clear under the current legislative regime whether employees working in the services would be able to directly raise concerns with members of the Intelligence and Security Committee of Parliament (ISC) without technically breaching the Act and it is even less clear whether they would or could do anything about those concerns. A brief mention in the Committee’s recent Privacy and Security Inquiry report suggests that there does not appear to be the appetite to change this.

If the Committee are not prepared to receive whistleblowing concerns they need to at least be more open to assessing whether the current whistleblowing arrangements for agency staff are working effectively.

Providing access to the Public Interest Disclosure Act 1998 (PIDA) for staff working in the agencies would also be a substantial improvement. This would not open the floodgates to unauthorised leaking. On the contrary, the Act does not protect whistleblowers who break the law in raising their concern. PIDA is far from perfect. It only provides ‘post detriment’ or ‘post dismissal’ protection meaning that a whistleblower has to wait until something bad has happened before they can lodge a claim with the Employment Tribunal. Another difficulty, and something which I attempt to fully explore in my book is that PIDA is unlikely to protect concerns raised about the content of government policies unless the whistleblower can argue that these fall within one of the protected disclosure categories, most likely a risk to health and safety or a breach of a legal obligation. There are possible alternatives to reform, for example, by providing specific legislation tailored to the agencies and by using staff employment codes and policies to offer protection from disciplinary action for those who raise genuine concerns and disciplinary action for individuals who mistreat whistleblowers.

Ultimately, across government departments the culture of secrecy must be addressed as a whole which bring us back to the example of Hilary Clinton, regardless of the rights and wrongs in her case it provides an acknowledgement that if we are to strive for a more democratically accountable executive we must reassess how official information is governed, how we respond to mishandling of documents at all levels and, most importantly, how we treat officials who see no option but to blow the whistle because their concerns have not been listened to.

Leaks, Whistleblowing and the Public Interest
The Law of Unauthorised Disclosures
Ashley Savage, University of Liverpool, UK

Read chapter 1 free on Elgaronline