Reform of Official Secrets legislation to recognise contemporary challenges to national security

9 February 2017

On 2 February the Law Commission launched a consultation on a proposed update to the four current Official Secrets Acts (of 1911, 1920, 1939 and 1989), deemed anachronistic, and to replace them with the “Espionage Act” and an accompanying statute addressing data disclosure.

There has been concern for some time in intelligence circles that the existing legislation has been left behind by technological developments that have changed beyond recognition the risks to national security posed by the unauthorised release of information and external hacking (with Russian interference the primary fear). The massive volumes of material disclosed by, for example, Edward Snowden, well illustrate the almost limitless information that can be accessed by an individual in a sensitive position intent on unauthorised disclosure.

All of the Acts currently in force were drafted before the dawn of the digital age and addressed aspects of espionage that are increasingly irrelevant, in terms considered to be no longer of useful application. Material previously described as “sketches”, “plans” and “passwords” – evocative of the golden age of 007-style, cold war spycraft  – will now become merely “information”, and those seeking to access or disclose information without authorisation will  no longer be the “enemy”.

The new Acts will also broaden the definition of protected material, expand the geographical reach of the state in combatting espionage, and raise the maximum sentences for those convicted. The Official Secrets Acts address disclosure of information that imperils national security in its traditional sense (defence intelligence and international relations, for example) and their scope is limited to acts carried out by UK nationals or on UK soil only. The proposed legislation seeks to extend jurisdiction to disclosures which might jeopardise the economic well-being of the UK (and in this way mirrors anti-terrorism laws), to relieve prosecutors from the burden of proving that an unauthorised breach/disclosure in fact damaged national security, and to allow the prosecution in the UK of non-UK nationals who leak sensitive material overseas. Sentencing powers for the most serious offences under the 1989 act are limited to 2 years imprisonment, and the Law Commission recommends increasing the maximum sentence to 14 years, better to reflect the “potential harm and culpability that may arise in a serious case.”

In announcing the consultation, the Law Commissioner Prof David Ormerod, recognised the importance of not criminalising public interest whistleblowing (“our proposals aren’t about gagging people who have real concerns”). However, any proposed legislation will be carefully scrutinised by the many who are suspicious of any governmental move to suppress disclosure of information. One important safeguard is the introduction of an independent body to receive reports from members of the intelligence services of wrongdoing or misconduct. Clearly the extent of such independence will be critical to how well-received this new body will be. The suggestion that it can in turn report to the Prime Minister may well not address concerns, and one can certainly anticipate that journalists will continue to argue that disclosures outside officially prescribed routes can be appropriate and in the public interest.

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