In 1997, the new Labour government published a white paper setting out its proposals for a Freedom of Information Act. The opening paragraph stated: "Unnecessary secrecy in government leads to arrogance in governance and defective decision-making. The perception of excessive secrecy has become a corrosive influence in the decline of public confidence in government.
Moreover, the climate of public opinion has changed: people expect much greater openness and accountability from government than they used to." So, when the Daily Mirror last week published a report, "Bush plot to bomb his Arab ally", which told of a leaked government memo alleging that George Bush planned to bomb al-Jazeera's headquarters in Qatar, did the government welcome the openness that such scrutiny could bring? Not quite. Instead the attorney general, Lord Goldsmith, tried to coerce editors into keeping quiet.
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The memo is said to describe an alleged conversation between Bush and Tony Blair last April, when Bush apparently threatened to use "military action" against al-Jazeera. The government could have tried to sue the Daily Mirror for breach of confidence. However, the newspaper would surely have had a cast-iron public interest defence, so the government chose instead to rely upon the Official Secrets Act.
Under section 3 of the OSA, a crown servant is guilty of a criminal offence if he or she makes a damaging disclosure relating to international relations without lawful authority, where they came by that information because of their position in government. Also, under section 5, a person who receives such information from such a person is guilty of a criminal offence if he or she then discloses it knowing it is protected under the OSA.
A disclosure is held to be "damaging" if it is likely to endanger the interests of the UK abroad, seriously endanger the protection by the UK of those interests or the safety of British citizens abroad. According to the Daily Mirror report, the memo turned up in the office of the former Labour MP for Northampton South, Tony Clarke. A civil servant has been charged under section 3, and a researcher for Clarke under section 5, in relation to the leaked memo. But also, Lord Goldsmith is threatening newspaper editors under section 5 if they publish its contents.
Clearly, there is a need for secrecy in relation to genuinely sensitive information which could endanger the UK's national security or British citizens' lives. However, the information apparently contained in this memo clearly raises questions of public interest. For example, whether George Bush was seriously recommending that a news organisation located in a US ally's territory be bombed in order to stop unfavourable coverage of the Iraq war.
One wonders whether the prosecutions have more to do with political expediency than a genuine attempt to safeguard the national interest. Indeed, it could be suggested that the lack of openness of the government in this case does more harm to national security than good.
This potential conflict has been recognised by the courts as long ago as the Spycatcher case in the late 1980s. More recently, Lord Bingham in the David Shayler case stated:"There can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments."
The House of Lords in that case held that there was no public interest defence available under the OSA for members and former members of the security services, but one would expect the strictest restrictions to be imposed on security services personnel.
The media are in a different position and thus a public interest defence may apply when journalists are alleged to breach the OSA. For, as the government itself noted, without openness and accountability, the public confidence will disappear.
Ian Felstead is a media lawyer at Olswang
