Secrets and spies

In a 250-page report of a five-year study, the Law Commission concludes that it is time to reform our antiquated official secrets acts. Few would disagree. The 1911 act in particular, with its Dreadnought-era references to sketches, plans and models, seems out of kilter with modern threats. But updating the terminology would be the easy bit. Many of the commission’s 33 proposals merit careful scrutiny.

The legal profession should be particularly concerned about what happens when people accused of official secrets offences seek independent advice. It is clear from the report that the government is highly exercised by the risk of sensitive information being leaked by lawyers, either deliberately or inadvertently. 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 legal professional bodies consider setting ‘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’. Other concerns include proposals to remove the requirement to prove that leaks of information by public servants actually caused damage and to increase the penalties available.

Mercifully, the commission has dropped an earlier proposal that leaks of economic information be brought into the ambit of official secrets. It also proposes that a statutory public interest defence be available to anyone charged with an unauthorised disclosure. However despite its headline recommendation for reform, the report comes over as a reminder of why these things should not be rushed.

History has a clear lesson. The 1911 act was pushed through parliament in a climate of national panic. Its notorious ‘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?