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Not so 007: Bolstering Britain’s security laws

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Warwick Uni undergrad George Maxwell casts a critical eye over the proposed changes to the Official Secrets Act

Spectre’s opening scene in the shadows of Mexico City’s Festival of the Dead exhibited all of the best things about Bond movies. Stunts: check. Exotic dancing and glamour: check. Mysterious love interest: check. Yet the last of these may soon be a thing of the past… For ultra-realistic spy movies based in the UK, anyway.

Would Spectre have been so thrilling if we had learned how 007 checked in at the embassy only a few hours after landing, compelled by government decree? Probably not.

The hope is that tightened domestic security laws introduced by a new Espionage Bill, will allow the government to prosecute hostile actors operating on British soil more easily. But will it work?

What’s going on here?

The British government has vowed to modernise spying laws, through a review of the Official Secrets Act, the introduction of an “Espionage Bill” and even a tightening of laws on foreign investment visas. This comes in the wake of the publication of a parliamentary report on the ‘Russia threat’ which accused the government of “badly underestimating” the Kremlin’s influence on the UK. In response, the government doubled-down on their refusal to review Russian interference.

The issue is, however, in the words of BBC political editor, Laura Kuennesberg, “if you do not seek, you do not find”. And the government appear to be intent on not seeking.

All that being said, it seems pretty unimpressive from the country which inspired the Bond universe.

Give me some details

Putin’s Russia is propounding a hawkish foreign policy, with a willingness to pursue its objectives without fear of threatening international peace. In the wake of the poisoning of the Skripals two years ago and the assault on international institutions by state-sponsored hacking groups, such as Cozy and Fancy Bear (spot the creativity), and even concerns surrounding Chinese influence exerted through Huawei hardware, Western governments have scrambled to react.

In response to these threats, the British government commissioned two reports (found here and here) on Russian interference. The first of these was published on 21 July.

What did the report say?

It scrutinised British security laws, criticised the government’s handling of the threat posed by Russia and proposed legislative changes. Furthermore, it accused the government of actively avoiding confrontation of Russian interference in British affairs. It described the UK as being the biggest target after the United States and NATO.

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In addition to this, it said that British security agencies have concentrated too hard on the threat of Islamist terrorism, failing to protect the integrity of democratic structures by overlooking the threat posed by potentially hostile states, like Russia.

What is the Official Secrets Act?

It is the legislation in Britain which provides the main legal protections against spying and the unauthorised disclosure of official and sensitive information. It has not been updated since 1989 and was one of the main focuses of the report in question.

The current Official Secrets Act includes powers to prosecute anyone who shares classified information, including someone who intercepts it. Yet is incapable of dealing with newer tactics of influence such as big data manipulation and cyber-espionage.

Prosecution under the Official Secrets Act is rare (fewer than one a year). The rarity of prosecution is one of the reasons behind the reforms being proposed.

What changes are being suggested?

A review of the Official Secrets Act and the introduction of a new “Espionage Act”. The consequences of this would be twofold. It would sharpen the teeth of security agencies hoping to deal with threats posed by spying operations and would compel foreign agents operating on British soil to register with the government. Failure to do so would result in prosecution. This would allow for the prosecution of double agents too.

The Act is likely to be based on the American Foreign Agent Registration Act 1938. This would force individuals, working with foreign governments to register with British authorities or face extradition, preventing them from concealing their links to an overseas power and covertly lobbying for the interests of a hostile state.

Why are these changes necessary?

British security and cyber-security laws are said to be woefully outdated. An ex-head of MI5 described the Official Secrets Act as “dusty and largely ineffective” arguing that “it is not an offense in any sense to be a covert agent” in the UK “unless you acquire damaging secrets and give them to your masters”.

This was echoed by Nigel Inkster, former director of MI6 who said under current laws unless authorities catch “somebody red-handed taking delivery of papers marked ‘Secret’, it is really difficult to prosecute anybody for espionage” in the UK.

For example, in relation to cybercrime, as it stands, MI5 and its cousin security agencies are severely constrained by what they can investigate without being explicitly tasked by ministers. Updated legislation could allow intelligence services to be more pro-active in seeking out threats posed by hostile states, without explicit instruction by government ministers.

Legislation in the UK is said to be inadequate. Specifically, it is incapable of tackling modern threats, such as cyber warfare, as is imperative security agencies act quickly and without constraint.

What are the criticisms of these reforms?

Some argue this may constrain the freedom of the press. This is rooted in the fact that the Committee behind the report argue that the definition of “espionage” should be broadened.

Critics say a broadened definition could criminalise journalists who publish leaks and constrain whistleblowers from exposing malpractices. Defence of prior disclosure or publication would also be removed — making the re-publication of information already in the public domain an offence.

So, what’s going to happen?

At this stage, things are still uncertain. This report has created shockwaves, in part due to its blunt accusations of a sitting government about its willingness to overlook credible threats. It is worrying, too, that representatives of the British press remain not-consulted on questions of press freedom.

Yet one thing is for certain, British security agencies are no longer the bastion of spy agencies, both real and fictional, that they once were. Unfortunately, therefore, Bond’s real-life counterparts are not risking jail just yet and M is turning in her grave (in the Daniel Craig universe anyway).

George Maxwell is an aspiring solicitor and philosophy, politics and economics student, in his final year, at the University of Warwick.

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Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

16 Comments

Bond

It’s rather like being sent out to bat only to realise the captain has sold the entire country to the Russians

Q

Shaken you’re not stirred.

US 3PQE

This is well written piece.

Anonymous

I assume this is ironic

CharlieS

In the spirit of keeping this comment constructive, as a starting point you might want to Google—inter alia—the Official Secrets Act 1989, which evidently does not relate to espionage. Perhaps have a look at the OSAs 1911, 1920, and 1939 instead. You might also want to have a look at the major public consultation in 2017.

George Maxwell

@Charlie I’m afraid you are wrong on this one. And I mention the 2017 consultation (linked) in the article.

Chris

He is actually not wrong. Espionage: 1911, 1920, 1939. Unauthorised disclosures: 1989. Espionage and unauthorised disclosures are not the same thing. They have very different AR and MR. The new espionage act would replace the first ones, not the 1989. And the 2017 consultation that he mentioned consulted extensively on press freedom.

George Maxwell

@Chris, thank you for your comment.

Perhaps I should have clarified: he is wrong in that firstly I did mention the 2017 report (again, read the article- it is linked directly), but I am focusing on the most recent parliamentary report by the ISC.

Secondly I never distinguish between Espionage Acts (i.e. 1911,20,39 and 89), but refer to the fact that the Official Secrets Act legislation will be subject to review and has not been touched since 1989. The ISC report branded the Official Secrets Act as “out of date”. At no point in the article do I distinguish between the various editions of the act as it is the act as a whole which is going to be subject to review. I would really advise you to read the parliamentary report (again quoted and directly linked in the article).

To quote an article from The Week:

“Nigel Inkster, former director of operations and intelligence for MI5’s international sister agency SIS (MI6), agreed that the OSA made it very difficult to prosecute an individual for spying unless they were caught explicitly stealing secrets.

Speaking to the BBC, Inkster said: “The 1911 Act – modified in 1989 – leaves the security services and police in a situation where, unless they can catch someone red-handed taking delivery of papers marked secret, it is really difficult to prosecute anybody for espionage.” ”

https://www.theweek.co.uk/107600/is-the-official-secrets-act-fit-to-counter-21st-century-espionage

Matteo

Doesn’t press freedom have more to do with leaks (1989 Act) rather than espionage (all the other official secrets acts but not, ironically, the 1989 Act)? There are quite a few legal errors in this.

George Maxwell

@Matteo, I would ask that you firstly name the specific legal errors. Secondly re-read the article as nowhere in the article do I distinguish between the four acts, but simply describe a review of the legislation which has not been touched since 1989 (which is correct). The Four Acts provide the main legal protections against espionage in Britain. Leaking of sensitive information, as I am sure you know, is a form of espionage, so is part of the current legislation protecting Britain against acts of espionage and more specifically, forms a level of protection against ‘double agents’.

Eloise

Like this!!!

Anonymous

Hi George!
I really enjoyed reading your piece, very many congratulations. I’ve decided to remain anonymous so that what follows isn’t taken as an act of oneupmanship between writers (I’ve contributed to the Legal Cheek blog for several years now).

Having read your engaging article, I was unhappily surprised to read how defensively you received criticism in these comments. Courtesy and deference are expected and important in law. That holds true in academia, in court, when liaising with clients and, to be frank, whenever one engages with others’ ideas.

For that reason, it was genuinely jarring to see you open a reply by responding “I’m afraid you are wrong on this one”. I reacted similarly when you invited another commentator to “firstly list the specific legal errors” they felt were present.

I’m offering this feedback with all warm wishes. You are clearly a talented writer and appear to be a very promising lawyer. To flourish, however, I suspect that you would do well to adopt the norms of the profession, and receive opposition with grace (even if others don’t always return the same good manners).

I honestly look forward to reading more of your work. Good luck!

US 3PQE

I agree with this. Absolutely fine to respond, defend your work and clarify points of contention, but effort should be taken to ensure this is not done in a confrontational manner.

In practice, lawyers who provide level headed comments are better respected by colleagues and “opposing” counsel, which almost invariably leads to a better personal and collective experience and better outcomes.

Enough experience to know what it's like when someone criticises your work

I don’t want to dogpile; but I do think the other commentrars have raid a legitimate point.

It is a good article; but you asked for feedback (through LC) and you received it.

Now even if you don’t agree with the criticism I think you still owe it to people who gave up their time to read your article and comment some common courtesy.

Rather than over defensive hostility perhaps something like “Thank you for bringing that to my attention. I had thought I’d covered that, but perhaps I could have gone into more detail had space permitted.” You’ve rejected the criticism and justified it; but in a relatively polite way.

Now, why is this important?

Because in a legal career you will have lots of people commenting on your work.

If a judge fails to grasp a point in your submissions then saying “You’re wrong!” isn’t going to assist your case; even if he is.

Same with clients. Sometimes you’ll have to go over a point in an advice until you’re blue in the face; but you can never let on that you’re wondering how someone so obtuse got to be CEO of a major company. You just smile; accept the criticism; and learn for next time.

Your job is to communicate in whatever way it takes for your audience to understand you; not insist on your own way of expression and if people can’t follow then that’s their tough luck.

Not wishing to be harsh here; the feedback from all the commentators here about tone is as equally valuable as that on the content of the article.

George Maxwell

Thanks for your reply @Enough experience and to the other commentators for making this point in such a considered way.

I agree with you and will be more careful with my wording when responding to feedback next time. I definitely should have phrased my replies in a more cordial manner.

I am glad that you enjoyed the article and thank you for your kind words.

Anonymous

Impressive stuff, George

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