Peter Binning considers whether the new National Security Bill could have been used to reform Official Secrets law

The expedited passage of the Official Secrets Bill into law in barely a month in the summer of 1911 was described in Parliament at the time as “distressing” and “undesirable” (Law Commission Data Protection Report, at [2.6]). There was concern then about German spies operating in England. In March this year, as Russian troops advanced towards the Ukrainian capital, the Economic Crime (Transparency and Enforcement) Act 2022 was waved through Parliament in a fortnight. Considerably more Parliamentary time must be expended on the National Security Bill (NSB), which is the subject of this article.

Ready, aim…?

The aims of the NSB are clear: to modernise the law on espionage, to counter hostile state threats and to reform the existing legal framework created by the Official Secrets Acts of 1911, 1920 and 1939. In the words of the Home Office, the NSB will ‘make us safer.’ The context for reform is also clear: Russia’s repeated aggression on the world stage, plus a host of other physical and virtual threats, have shaken the rules-based international order, leading to an increased focus on espionage and foreign influence risk.

But as this article argues, the NSB is so transformative it is essential Parliament subjects it to detailed scrutiny with sufficient time for informed debate, not least because it is as remarkable for what it omits as what it contains.

Reform is required

There is no argument reform of the law in this area is needed. After a highly controversial delay, the Parliamentary Intelligence and Security Committee (ISC) published its Russia Report in July 2020, which concluded existing legislation on counterespionage was weak, the official secrets regime was “not fit for purpose” and noting it is not even a criminal offence to be a foreign intelligence agent in the UK. The ISC report highlighted modern threats posed by economic factors, cyber – and “things more to do with influence” (Russia Report, at [113]). The ISC recommended the establishment of a UK equivalent of the US Foreign Agent Registration Act 1938, which requires those acting for foreign powers in a political or quasi-political capacity to register with the Department of Justice, or face prosecution for failure to register. Australia introduced a similar scheme in 2018.

Reviews

The ISC’s Russia Report was followed by the Law Commission’s Report on Protection of Official Data (Law Com 395), published on 1 September 2020. The Law Commission’s work had started in 2015 and covered all of the Official Secrets Acts, including the 1989 Act dealing with the disclosure of information harmful to national security or other state interests by government employees and others. The Law Commission made detailed and wide-ranging recommendations for reform – including the introduction of a statutory public interest defence for an offence under the 1989 Act.

The NSB takes on board some (but hardly all) of the ISC and Law Commission’s proposals. Its main provisions replace the existing criminal offences in the Official Secrets Acts of 1911, 1920 and 1939 with three new espionage offences, an array of associated powers, a new offence of sabotage and new offences arising from foreign interference (including in relation to elections).

Some of these provisions go much further than the ISC and Law Commission’s recommendations. Take the first of the three new espionage offences, found in clause 1 of the NSB. This provides a person commits an offence if they obtain or disclose ‘protected information,’ their conduct was for a purpose they knew, or ought reasonably to have known, was ‘prejudicial’ to the ‘safety or interests of the United Kingdom,’ and the ‘foreign power condition’ is met in relation to the person’s conduct.

Statutory interpretation

The novelty and breadth of some of these elements is striking. For example, ‘protected information’ does not require the information is, in fact, restricted or even classified; this element of the offence is satisfied if it is ‘reasonable to expect’ access to the information would be ‘restricted in some way.’ Determining what information might reasonably be expected to be ‘restricted in some way’ brings a worryingly vast array of data within the remit of official secrets law, far wider than traditional categories of sensitive national security material. A defendant would face an uphill battle at trial in arguing the information should not be regarded as protected – the Crown and its relevant agencies will always be afforded respect in this area, for reasons of institutional competence and democratic accountability.

Power at play

The ‘foreign power condition’ is similarly wide: it is met where the person’s conduct is carried on for or on behalf of a foreign power and the defendant knew, or ought reasonably to have known,  this was the case. The definition of ‘foreign power’ is far broader than the equivalent term ‘enemy’ in the current legislation, as is the scope of the person’s conduct on behalf of the foreign power. Acts are criminalised if they are instigated, directed or controlled by the foreign power, or carried out with the assistance (including financial assistance) of the foreign power, or in collaboration with it. Again, these definitions are so elastic they threaten to become all-encompassing.

The offence could apply to a wide range of journalistic or NGO activity. If, for example, a news organisation was funded by a foreign state and published information which it should have known was information prejudicial to the interests of the United Kingdom, it could face prosecution along with individual journalists, who could face life imprisonment.

This – and the other offences introduced by the NSB – no doubt reflect the more diffuse nature of modern state threats, which are constantly changing and come in multiple forms. Law enforcement clearly needs discretion to investigate and prosecute novel and serious forms of espionage on a case-by-case basis. But whether this new suite of offences represents a fair and proportionate response to the actual threats posed to the UK is doubtful. There is a real risk the offences are similarly diffuse and fail the test of legal certainty. They certainly go far beyond the proposals made by the ISC and Law Commission.

Conclusion

Given the ambitiously wide drafting of these offences, it is remarkable the NSB does not incorporate some of the uncontroversial proposals made by the ISC and Law Commission. Chief among these are that, absence of any amendments to the Official Secrets Act 1989 to create a public interest disclosure defence, a better internal whistleblowing system or a foreign agent registration scheme to counter hostile state activity. These are important measures – and it would have been preferable to include them in the NSB to provide adequate time for them to be debated alongside the other reforms in this area. The government is missing, perhaps deliberately, an opportunity to codify the whole of the law on official secrets. We now risk a repeat of the complexities thrown up by the current succession of Official Secrets Acts of the last century.

Equally disappointing are two thoroughly regressive provisions. The first is clause 23, which amends schedule 4 to the Serious Crime Act 2007 to dis-apply the offence of encouraging or assisting offences overseas when the activity in question is deemed necessary for the proper exercise of any function of the intelligence services or armed forces. The government’s purported justification for this carve-out is to enable better protection to those discharging national security functions overseas, but in reality, it is an extensive granting of impunity against liability for serious criminal wrongdoing. It is alarming the government is prepared to countenance this type of protection.

The second is clauses 57-64, which make extraordinary restrictions on the award of damages and civil legal aid to individuals convicted of terrorism or otherwise involved in terrorism-related activities. In one case where a former Guantanamo detainee was reported to have been killed after his release in a suicide attack in Mosul in 2017, there was speculation civil damages awarded in a confidential settlement in 2010 might have been used to fund terrorist activity. This seems to be the basis for including this highly controversial regime in the NSB. However, it seems to ignore, perhaps deliberately, civil legal aid has always been made available based on two main criteria: the type of case, including its likelihood of success; and the financial means of the applicant. It has never been dependent on the nature of any previous conviction of the applicant in a blanket ban, and certainly not whether they had been convicted of a particular type of offence in the past.

It is hoped both of these regressive provisions will be removed or watered down during the NSB’s passage through Parliament.  

Peter Binning is partner at Corker Binning: corkerbinning.com

Peter Binning
Partner
Corker Binning