Foreign citizens who intercept British government data from abroad could be liable to prosecution under reforms to the 'antiquated' official secrets regime proposed by the Law Commission. This is one of 33 recommendations in the final report of a five-year review of the effectiveness of laws against unauthorised disclosure.
As widely expected, the independent commission calls for comprehensive reform of the Official Secrets Acts 1911, 1920, 1939 and 1989, which it describes as 'outdated and no longer fit for purpose'. The new regime should focus on 'data' rather than 'secrets', the report recommends, replacing the Edwardian-era terms 'sketch, plan, model, note and secret official pass word' with 'document, information or other article'. The term 'enemy' would be replaced by 'foreign power', which would encompass terrorist organisations and 'companies controlled by a state'.
Citing the Russia Report published by parliament’s Intelligence and Security Committee in July, the commission notes that a person who is not a British national or public servant does not commit an offence if they engage in espionage against the UK while abroad. 'In the modern, interconnected world, in which many acts of espionage are committed from abroad, this definition is too restrictive.' It recommends that the offences be expanded so they can be committed regardless of nationality.
- Repealing the official Secrets Acts 1911-1939 and replacing them with a new statute.
- Removing the need to prove that a leak by a public servant caused damage. 'Instead, the offence should require proof of a sufficiently culpable mental state.'
- A statutory public interest defence should be available for anyone – including civilians and journalists – charged with an unauthorised disclosure offence under the Official Secrets Act 1989.
- Public servants and civilians should be able to report concerns of wrongdoing to an independent statutory commissioner who would be tasked with investigating those concerns effectively and efficiently.
- Parliament should consider increased maximum sentences for the most serious offences in relation to leaks. The commission does not say what the new maximum sentences should be.
Professor Penny Lewis, criminal law commissioner, said that vital laws protecting national security have not kept up with technological developments. 'Our recommendations will help to give the government the tools it needs to respond to espionage and leaks, whilst also being proportionate and protecting individuals’ human rights.'