Reform is needed to bring the law into the 21st century and protect the United Kingdom from espionage (spying) and unauthorised disclosures (leaks), according to a report from the Law Commission that has been laid in Parliament today [01 September 2020].
In the last twenty years, new communications and data technology has changed the nature of espionage and leaks. For example, hostile states can conduct cyber-attacks on the UK through multiple servers across multiple countries. At the same time, the potential impact of spying and leaks has increased: a single disclosure could contain terabytes of data.
However, the Official Secrets Acts 1911, 1920, 1939 and 1989 that help protect the country from spying and leaks are outdated and no longer fit for purpose. The Law Commission’s recommendations aim to ensure the law can protect against the nature and scale of modern threats and allow Government to respond effectively to illegal activity. At the same time, our aim is for the recommendations to be proportionate, in line with human rights obligations and ensure that Government can be held to account.
The recommendations include:
- Updating the archaic language of the Official Secrets Acts to ensure the legislation is fit for purpose. For example, we recommend replacing the word “enemy” with “foreign power”, which would include terrorist organisations and companies controlled by a state.
- For prosecutions of public servants (crown servants and contractors) who leak information, we recommend removing the requirement to prove that the leak caused damage. Instead, the offence should require proof of a sufficiently culpable mental state (which should be decided by Parliament). For example, knowledge or belief that the disclosure would cause damage.
- For cases of espionage carried out against the UK from abroad, we recommend that an offence would be committed irrespective of whether the individual is a British citizen, provided there is a significant link between the individual’s behaviour and the interests of the United Kingdom.
- A statutory public interest defence should be available for anyone – including civilians and journalists – charged with an unauthorised disclosure offence under the Official Secrets Act 1989. If it is found that the disclosure was in the public interest, the defendant would not be guilty of the offence.
- Public servants and civilians should be able to report concerns of wrongdoing to an independent statutory commissioner who would be tasked with investigating those concerns effectively and efficiently.
- Parliament should consider increased maximum sentences for the most serious offences in relation to leaks. However, the Law Commission does not make a recommendation on what new maximum sentences should be.
Professor Penney Lewis, Criminal Law Commissioner, said:
“In the last twenty years, the world has moved on but these vital laws protecting our national security have not kept up. They are in urgent need of reform.
“Our recommendations will help to give the Government the tools it needs to respond to espionage and leaks, whilst also being proportionate and protecting individuals’ human rights.”
The recommendations in detail
The recommendations cover two separate areas:
- Espionage offences, i.e. spying
- Unauthorised disclosure offences, i.e. leaking, including when in the public interest
The Russia report, published by the Intelligence and Security Committee of Parliament in July 2020, has highlighted the need for reform of the 1911 Official Secrets Act to ensure that espionage can be properly prosecuted. We agree.
In our Report, we make a number of specific recommendations, which are designed to modernise the law and ensure that it addresses the nature of the threat of espionage now facing the UK. For example:
- Currently, a person who is not a British national or public servant doesn’t commit an offence if they engage in espionage against the UK whilst abroad. In the modern, interconnected world, in which many acts of espionage are committed from abroad, this definition is too restrictive. The offences should be expanded so that they can be committed irrespective of the individual’s nationality. Instead, the test should be whether there is a “significant link” between the individual’s behaviour and the interests of the United Kingdom.
- “Significant link” should be defined to include where the conduct relates to a site or data owned or controlled by the UK government – e.g. data held on foreign servers.
- Finally, we recommend that the new espionage statute contains modern language and updated provisions. In addition to replacing “enemy” with “foreign power”, we recommend replacing the terms “sketch, plan, model, note and secret official pass word and code word” with “document, information or other article” (which should be defined to include any program or data held in electronic form) when outlining the type of information that could be stolen.
We make no recommendations about the registration of foreign agents, which was raised in the ISC’s Russia report, because this was not a matter that we addressed in our Consultation Paper.
Unauthorised disclosure offences
The Law Commission is also making a number of recommendations to reform the Official Secrets Act 1989 to improve protections against leaks. The recommendations include:
- For public servants, offences should not continue to require proof of damage, as is currently the case. Instead, they should require proof of a sufficiently culpable mental state, by which we mean, for example, proof of the defendant’s knowledge or belief that the disclosure would cause damage. It would be for Parliament to determine in new legislation what the mental fault element should be.
- For Parliament to consider increased maximum sentences for the most serious offences related to unauthorised disclosures. We recommend this because the current maximum of two years doesn’t always reflect the damage that a disclosure could cause, or the culpability of an individual. However, the Law Commission does not make a recommendation on what new maximum sentences should be.
- Similar to the espionage offences, an unauthorised disclosure offence is not committed if the disclosure of information is made by someone who isn’t a British citizen or crown servant and is abroad when they make the disclosure. Therefore, a UK government contractor who is not a British citizen would be guilty of the offence if the disclosure was made in the UK but not if the disclosure was made abroad. We therefore recommend that sections 1-4 of the Official Secrets Act 1989 be amended to make clear that an offence is committed when an unauthorised disclosure is made by a government contractor abroad irrespective of whether they are a British citizen.
Unauthorised disclosures in the public interest
The Law Commission’s recommendations offer protections for disclosures that are made in the public interest, ensuring that the UK meets its obligations under Article 10 of the European Convention on Human Rights, concerning the right to freedom of expression.
It is important to stress that we are not making recommendations on the fine detail of such a defence, as we did not consult on the area and believe that there are matters central to that defence that are essentially political. Further work will therefore need to be done to establish a workable defence. We have recommended this model on the basis that this is the what Article 10 requires. There are many reasons (such as how the defence might work in practice) why Parliament may wish to go further than what Article 10 requires.
Our recommendations include:
- A statutory public interest defence should be available to anyone charged with an offence under the Official Secrets Act 1989 (including civilians and journalists), that they can rely upon in court, if the court found that the disclosure was in the public interest.
- This would require both the subject matter being disclosed being in the public interest AND the manner of disclosure also being in the public interest.
- We do not outline which factors define the public interest, as this is a political question and therefore should be determined by Government and Parliament.
- We recommend that an independent, statutory commissioner should be established to receive and investigate allegations of wrongdoing or criminality where otherwise the disclosure of those concerns would constitute an offence under the Official Secrets Act 1989. This would be available to all, although we envisage that it would be used most by public servants.
- In rare cases where disclosing to the commissioner would not be sufficient to protect the public servant’s Article 10 rights, or they nonetheless disclosed without authorisation, they would of course be entitled to advance a public interest defence in line with the above.