The Russia report into Kremlin influence, published by the Intelligence and Security Committee in July, called for new legislation to ‘tackle espionage, the illicit financial dealings of the Russian elite and the “enablers” who support this activity’. It branded the Official Secrets Act regime out of date and ‘not fit for purpose’.
This week, the Law Commission published a report, Protection of official data, setting out a series of reforms to the laws of espionage and unauthorised disclosure, including changing the law so that British citizens as well as foreign nationals can commit an espionage offence against the UK from abroad. Instead, prosecutors would look for a ‘significant link’ between the individual’s behaviour and the interests of the UK, for example, where the conduct relates to data held on foreign servers but owned or controlled by the UK government.
Another recommendation is to update the archaic language of the Official Secrets Acts, for example, replacing ‘enemy’ with ‘foreign power’, which would include terrorist organisations and companies controlled by a state.
On leaks, the report suggests Parliament consider increasing maximum sentences for serious unauthorised disclosures. It suggests removing the current requirement to prove the leak caused damage, instead requiring proof of a culpable mental state. Under the Commission’s proposals, public servants and civilians would be able to report concerns to an independent statutory commissioner who would investigate.
The Commission recommends that a statutory public interest defence be available for everyone, including civilians and journalists, charged with an unauthorised disclosure offence under the Official Secrets Act 1989.
While the Official Secrets Acts 1911, 1920, 1939 and 1989 have helped protect the UK, advancements in technology and communications in the past 20 years have changed the nature of espionage and leaks, the Commission states. For example, hostile states can conduct cyber-attacks on the UK through multiple servers across multiple countries. Also, the potential impact of spying and leaks has increased―a single disclosure can contain terabytes of data.
The Russia report into Kremlin influence, published by the Intelligence and Security Committee in July, called for new legislation to ‘tackle espionage, the illicit financial dealings of the Russian elite and the “enablers” who support this activity’. It branded the Official Secrets Act regime out of date and ‘not fit for purpose’.
However, the Law Commission does not make recommendations about requiring foreign agents to register, an issue highlighted by the Russia report.
Professor Penney Lewis, Criminal Law Commissioner, said: ‘In the last 20 years, the world has moved on but these vital laws protecting our national security have not kept up. They are in urgent need of reform.’
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