Yesterday, Solicitor-General Rob Allcock cited a recent ruling in UK House of Lords (Regina v Shayler) on UK Official Secrets Act. In that case, the Law Lords ruled that the unavailability of public interest defence in the Act was not in breach of UK Human Rights Act.

 

However, this is only one side of the story. The court, on the other hand, defended citizen's right of receiving information of public importance and reporter's right to investigate and report. When the Police applied in 2000 for an order to require Guardian and Observer to hand over any information they might possess because of Shayler, the appeal court roundly dismissed the case.

 

The judge said, "unless there are compelling reasons of national security, the public is entitled to know the facts and, as the eyes and ears of the public, journalists are entitled to investigate and report the facts..."

 

The two principles of freedom of speech and the right of protection against self-incrimination, the judge said, were "bred in the bone of the common law", let alone established in the European convention on human rights.

 

"Premises are not to be entered into by the forces of authority or the state to deter or diminish, inhibit or stifle the exercise of an individual's right to free speech or the press of its freedom to investigate and inform," said the judge.

 

Furthermore, in July this year, the Home Office has given Shayler the go-ahead to publish his novel, The Organisation, based on his time at the heart of the British internal security agency, MI5. (For details, please see Guardian's Special Report on the Shayler Case)

 

In fact, there are differences between Hong Kong and UK that deserve attention:

 

1.  The SAR Government proposes a new offence of making an unauthorised and damaging disclosure of information protected under Official Secrets Ordinance that was obtained (directly or indirectly) by unauthorised access to it. Similar provision is not found in UK legislation.

 

2.  The Government adds a new category of information that requires protection - "relations between the Central Authorities of the PRC and the HKSAR". Likewise, no similar provision in UK legislation and no court case has given a clear definition on this category. It may lead to possible abuses.

 

3.  UK has enacted Freedom of Information Act, detailing right of individual to gain access to Government information. Until now, we only have an administrative code with insufficient protection on citizens. Given such difference and imbalance of power, it may not be unreasonable to have a public interest defence in our legislation.