Current project status
The current status of this project is: Analysis of responses.
List of project stages:
- Analysis of responses
- Initiation: Could include discussing scope and terms of reference with lead Government Department
- Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
- Consultation: Likely to include consultation events and paper, making provisional proposals for comment
- Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
- Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations
A review of the Official Secrets Acts to make sure Britain is safe in the 21st century. We are currently analysing responses to our consultation.
Certain categories of official information are protected from unauthorised disclosure by the criminal law. This includes information relating to security and intelligence, defence, and international relations. Unauthorised disclosure of these types of information might harm national security or other important state interests.
The Official Secrets Act 1989 is the main statute protecting these categories of official information. In addition, there are a number of miscellaneous unauthorised disclosure offences on the statue book.
The Official Secrets Act 1911 still provides the principal legal protection in the United Kingdom against espionage, despite the fact it was enacted in the run up to the First World War.
Since its implementation over 100 years ago this legislation has been subject to very little independent scrutiny.
In 2015 the Cabinet Office, on behalf of the government, asked the Law Commission to review the effectiveness of the laws that protect Government information from unauthorised disclosure.
The Law Commission published a consultation paper on 2 February 2017 which suggests ways to improve the law around the protection of official information.
The open public consultation on the protection of official data ran until 3 May 2017.
We made a number of provisional proposals as to how the legislation could be improved that we believe will enhance the protection that is currently afforded to official information.
Provisional proposals include:
- The Official Secrets Acts 1911, 1920 and 1939 to be replaced with a modernised Espionage Act.
- That the Official Secrets Act 1989 be replaced to ensure it keeps pace with changes in how information is stored.
- New measures to ensure sites are protected if necessary to safeguard national security.
- Simplifying and modernising the language to remove anachronistic terms like “code words” and “enemy” and replacing them with “information” – language that will future proof the legislation.
- That foreign nationals who target British assets abroad, for example by committing espionage within an embassy, should also be subject to UK law.
- That current Crown servants should be allowed “to seek authority” to disclose confidential information. There is currently no statutory mechanism.
- That a member of the security and intelligence agencies ought to be able to bring concerns to the attention of the independent Investigatory Powers Commissioner, who would have the power to investigate.
- An offence is only committed if the defendant “knew or had reasonable grounds to believe his or her conduct was capable of benefitting a foreign power and intended or was reckless as to whether his or her conduct would prejudice the safety or interests of the state”. Currently someone can commit an offence under the Official Secrets Act 1911 even if he or she thought their conduct was in the interests of the UK.
We are now analysing responses and will report back our final recommendations in 2019.
Area of law
Professor David Ormerod QC