Why wasn't the Official Secrets Act used against David Miranda?

I have enjoyed reading the ongoing controversy over David Miranda case – especially the support of Janet Daley in the Sunday Telegraph for the Guardian I probably fall into the camp of those she attacks as apologists for the government actions, albeit I have no intention of defending the abuse of anti-terrorism legislation – at least until I have heard a good argument as to why the Official Secrets Act was not used.

Section 7 of the 1920 Official Secrets Act closed loopholes in the 1911 Act which had been passed in under a day under Britain’s most totalitarian of Home Secretaries, Winston Churchill, in response to the spy scare of day. In a delicious irony Churchill was himself nearly prosecuted (in 1938) when he refused to reveal the sources for some of his attacks on appeasement

It has been suggested that the reason for using Anti-terrorism was that is was less embarrassing to abuse the Anti-Terrorism Act than to admit that legacy legislation was more effective. In my previous blog I pointed out, however, that the 1920 Act was used as recently as 1989 to convict Erwin Van Harleem, the sleeper spy whose true nationality and identity remained as unknown as the traffic he conveyed. until after the wall came down and he was repatriated to Czechoslovakia, the secrets he had passed still unknown. I personally suspect, therefore, that the “real” reason was to try to build up political commitment to extend current  Anti-terrorism legislation instead of succumbing to pressures for repeal and reform. 

Another suggestion was that is was to do with the likely Brazilian reaction . Given Brazilian public opinion on the trigger happy British reaction to intelligence mistakes that was not a good idea. 

I may, however, have got the question wrong.

Perhaps I should not have contrasted Google and GCHQ. Given the revelations regarding LOVINT , I should have contrasted both with Investigative Journalists and the revelations that may begin to emerge after News International employees are finally given a chance to defend themselves in court . I have heard it said that the reason for the delay is legal argument over the attempt by the defence to ensure that evidence of the behaviour of their peers in other newspapers, as well as of those commisioning research on behalf well-known law firms, admitted as evidence of common behaviour.

I commend the Commons Library Brief on Official Secrecy (last updaed in December 2008), including its summary of Sir Oliver Franks‘ attempt at a serious reform in 1971 -2, as a succinct and balanced introduction.

I also suggest that those MPs who are serious about the issues request an update to that briefing before they jump into competing Select Committee Enquiries. Perhaps this topic is worthy of a joint enquiry, with members drawn from the Culture Media and Sport, Home Affairs and National Security Strategy committees.  

P.S. I have just read the excellent set of questions to the Guardian from Louise Mensch. These indicate evidence of clear breaches of the Official Secrets Act, including by David Miranda as a courier. They also, however, raise even more questions regarding the conduct of investigative journalists: a common cover for espionage, whether for “us” (as with those overseen by Ian Fleming when was at the Sunday Times) or “them” (as when Kim Philby was a correspondent for The Times).