Is the Official Secrets Act fit to counter 21st century espionage?

Britain’s most senior police officer and the former head of MI5 have called for the Official Secrets Act (OSA) to be bolstered due to the spying threat from hostile states.

The Metropolitan Police Commissioner Cressida Dick said the public should be worried about the threat from Russia, after the government and intelligence agencies were heavily criticised in the Commons Intelligence and Security Committee (ISC)’s long-awaited Russia report.

What is the Official Secrets Act?

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The Official Secrets Act is the piece of UK legislation that makes it an offence for anyone to make a “damaging disclosure of any information or document” relating to security or intelligence.

“The law is strictest for those working for the security and intelligence services, past and present,” says the BBC. “Any unauthorised disclosure - under any circumstances - is a criminal offence, but the rules are different for Crown servants (for example, civil servants, government ministers, the armed forces or police).”

A person does not have to sign the Official Secrets Act to be bound by it, instead they can simply be notified that it applies to them. “Government employees are usually informed they are subject to it in their contracts,” says The Sun, although “many are still asked to sign the act as a way of reinforcing its content”.

Is it fit for purpose?

Dick, Britain’s most senior police officer, said the OSA must be “firmed up”, and that prosecuting those who help hostile states is currently challenging because of the constraints of existing legislation, reports The Times.

While it is the intelligence agencies' job to tackle hostile spies, it falls to the Met to pursue potential espionage and spying charges. And Dick told LBC: “Absolutely that legislation could be firmed up. For example the sentences are short, some of the requirements to prove the offence are very difficult.”

Former MI5 chief Andrew Parker backed that view, telling the ISC that foreign spies were currently able to operate with impunity in the UK, because the current legislation meant only those caught stealing secrets red-handed could face justice.

Parker warned that “it is not an offence in any sense to be a covert agent of the Russian intelligence services in the UK”, adding that the Official Secrets Act has become “dusty and largely ineffective”, leaving UK spy agencies in a bind when it comes to espionage in the “economic sphere, cyber [and] things that could be more to do with influence”.

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.”

Will laws be toughened?

The government has promised to give intelligence agencies more powers after a critical report on its response to the Russian threat.

New legislation is expected to include the introduction of an official “register of foreign agents” like those used in the US and Australia. Failure to register could result in a prison sentence or deportation, if the foreign spies are sniffed out.

Inkster said that the new register is “not going to stop countries like Russia from sending covert operatives to the United Kingdom to undertake intelligence operations”, but added that “it does make it possibly more realistic to prosecute the people who are supplying them with information”.

Boris Johnson announced yesterday that new laws were coming on espionage, intellectual property theft and sanctions, insisting that “there’s no other government in the world that takes more robust steps to protect our democracy, to protect our critical national infrastructure and to protect our intellectual property from interference by Russia or by anybody else”.

The Law Commission is already reviewing the Official Secrets Act, which was branded “out of date” by the ISC. Recommendations by the Law Commission, likely to include tougher sentencing, are expected this year.