Official secrets and spies

The language conjours up an image straight out of John Buchan. Under s1 of the 1911 Official Secrets Act, a person who 'makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy' commits an offence liable to 14 years in prison. 

Alas, threats to national security no longer come from Teutonic-accented gentlemen in bicycling tweeds counting the funnels on Dreadnoughts. In the 250-page final report of a five-year study, the Law Commission this week proposed wholesale reform of laws covering espionage and unauthorised disclosures.

The accompanying summary makes much of the need to update the 'archaic language' of the 1911 act, for example replacing the word 'enemy' with 'foreign power'. This would encompass 'companies controlled by a state', the commission explains, presumably with an eye to Chinese telecom giant Huawei. Another contemporary controversy that seems to be on commissioners' minds is the Wikileaks affair - hence the need to ensure that 'electronic data and programs are clearly within scope'. 

But, as the Law Commission's report perhaps inadvertently makes clear, updating the terminology of the 1911 act would be the easy bit. 

Several of its 33 proposals raise concerns about threats to civil liberty, particularly when they seek to plug perceived loopholes in the 1989 act. They certainly dispell the image of the Law Commission as a bunch of bleeding hearts. 

One such proposal is to remove the requirement to prove that leaks of information by public servants actually caused damage - despite no evidence being produced to show that offenders have escaped unpunished under the current law. Another is to increase the current two year maximum sentence for most offences under the 1989 act. 

The commission also proposes that foreign nationals who commit espionage on the UK from abroad be liable to prosecution, raising the interesting prospect of Chinese or Russian - and, indeed American - security chiefs being the subject of po-faced extradition requests.  

Proposals covering the seeking of legal advice by people suspected of official secrets offences deserve particular scrutiny. It is clear from the report that the government is highly exercised by the risk of sensitive information being leaked, either deliberately or inadvertently, when a suspect seeks independent legal advice. The report illustrates the government's fears with hypothetical examples based on what it says is classified evidence from the security services. They cover hacking of lawyers' information systems as well as leaks by lawyers recruited or corrupted by hostile powers. 

The commissioners suggest that professional bodies 'consider including explicit guidance on the importance of maintaining confidentiality in cases involving the Official Secrets Acts, and the obligation not to receive disclosures unless they have the appropriate security clearance.'

The report is not all bad news. Mercifully, the commission has dropped an earlier proposal that leaks of economic information be brought under the ambit of the act, following widespread opposition by media organisations. It also proposes that a statutory public interest defence be available to anyone charged with an unauthorised disclosure defence. An independent statutory commissioner would be tasked with investigating concerns of wrongdoing. 

Despite the headline recommendation for reform, the report as a whole comes over as a reminder of why these things should not be rushed. It might be better, perhaps to allow the 1911 act to lapse through lack of use - I believe the last conviction was in 2012 - and let more recent legislation such as the Computer Misuse Act, not to mention the terrorism acts, do what is required to meet current threats. 

History has a clear lesson. Famously, the 1911 act was rushed through parliament in days in a climate of national panic. Its most notorious provision, the 'catch all' section 2, which made it a criminal offence to disclose any official information without authority, remained on the statute book for nearly 80 years, leading to some outrageous prosecutions and threats. Are we confident our present legislators, in the current geopolitical climate, would do a better job?