During some welcome down time over the Christmas break, I found myself watching Tinker Tailor Soldier Spy, a film based on John le Carre’s novel. Smouldering and enticingly opaque, with superb acting and artful filming, it was gripping.
It is a Cold War story about detecting a soviet agent working at the heart of MI6 and, as a criminal lawyer, I could not help reflecting that the law relating espionage and secrets that applied then largely remains the framework for prosecutions now.
In 2015 the Cabinet Office, on behalf of the government, asked the Law Commission to review the effectiveness of the laws that protect Government information from unauthorised disclosure. There followed a period of consultation culminating with publication of the Law Commission’s Protection of Official Data Report on 1 September 2020.
In its summary accompanying the report, the Law Commission stated:
‘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 However, the Official Secrets Acts 1911, 1920, 1939 and 1989 that help protect the country from spying and leaks are outdated and no longer fit for purpose.’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 Report thus contains recommendations designed to ensure that the law governing espionage and unauthorised disclosures of state secrets addresses the nature and scale of contemporary threats, that the criminal law can respond effectively to illegal activity and that criminal law provisions are proportionate and commensurate with human rights obligations, bearing in mind the competing interests of national security and government accountability.
The Law Commission recommends a new statute for updated espionage offences, written in modern language that will specifically refer to electronic data; and will replace the word “enemy” with “foreign power”, which would include terrorist organisations and companies controlled by a state. It also recommends extending the territorial ambit of the offences to include cases where there is a “significant link” between the individual’s behaviour and the interests of the United Kingdom and to include conduct relating to a site or data owned or controlled by the UK government as well as cases where the defendant is a Crown employee or contractor.
The Law Commission recommends harmonizing unauthorised disclosure offences in the Official Secrets Act 1989, increasing maximum sentences, providing for authorised disclosures for legal advice subject to security clearance of the lawyer, and extending the territorial reach of all offences to people who make a disclosure outside the UK and irrespective of whether they are a British Citizen.
The Law Commission states ‘There is an important balance to be struck between two competing public interests: in national security on the one hand and in accountable government on the other.’
For civilians, including journalists, the Law Commission recommends a statutory public interest defence, covering circumstances where the court finds that the disclosure, and manner of disclosure, was in the public interest. The legal burden of proving the defence should rest on the defendant. However, a public interest defence would only be available for public servants in circumstances where an unauthorised disclosure was necessary and a last resort. The Law Commission took the view that the primary concern in respect of public servants is that there should be an effective investigative mechanism for addressing their concerns of illegal wrongdoing. This would take the form of an independent commissioner to receive and investigate complaints of serious wrongdoing where disclosure of the matters referred to may otherwise constitute an offence under the Official Secrets Act 1989. That commissioner would also be responsible for determining appropriate disclosure of the results of that investigation. The Law Commission recommended that there should be a residual statutory public interest defence for public servants in rare and exceptional circumstances, where the independent commissioner process would be insufficient.
The Report and summary of the recommendations in the Report is here.
It remains to be seen how long it will take Parliament to consider and debate the recommendations. In the meantime, the Cold War era law will continue to be the framework for investigations and prosecutions, in conjunction with any other applicable criminal laws that can complement or overlap with the Official Secrets Acts.
At Bindmans LLP we have experience of acting in cases that engage public interest considerations involving official secrets and the most sensitive work of journalists.