The Law Commission is proposing a change in the law that could mean that whistleblowers find themselves inadvertently breaching the Official Secrets Act 1989.

At the moment, most of the criminal offences under the Official Secrets Act 1989 require objective proof that the individual’s unauthorised disclosure caused or was likely to cause damage to a relevant interest (for example defence, international relations or law enforcement). The Law Commission is proposing that this test should be changed to a subjective test of whether the individual knew (or should have known) that the disclosure was capable of causing such damage.

If this change is made, it would broaden the scope of what could be a criminal offence under the Official Secrets Act 1989. Campaigners for freedom of information are concerned that this change would have the potential to catch whistleblowers in the civil service who have disclosed documents that could then be obtained by the public through a Freedom of Information request. This is particularly concerning given that the Law Commission are also consulting on whether the maximum penalty of two years’ imprisonment under the Official Secrets Act 1989 should be increased.

Any change in the law which deters people from whistleblowing is likely to receive a negative reaction from whistleblowing campaigners. The protection afforded to whistleblowers under UK employment legislation will be little consolation for individuals facing the prospect of a criminal record.

The Law Commission’s consultation on this topic ended earlier this month and their report is expected this Summer. We await the outcome with interest.