Counter state threats legislation

The Government said the main elements of the bill would:

• Reform the Official Secrets Acts 1911, 1920, 1939 and 1989 (“the OSAs”);
• Create a ‘Foreign Influence Registration Scheme’ to help combat espionage, foreign influence, and protect research; and
• Bring together new and modernised powers to ensure the security services can tackle hostile activity.

This proposal followed an announcement of the introduction of ‘espionage legislation’, to provide the security services and law enforcement agencies with the tools they need to disrupt ‘hostile state activity’. No such legislation was introduced during the 2019-2021 parliamentary session.

Following the Queen’s Speech, the Home Office published a consultation paper on ‘Legislation to Counter State Threats (Hostile State Activity)’. The consultation ran from 13 May to 22 July 2021 and sought views on three main proposals:

• OSAs reform, including:
  • reform of the OSAs 1911-1939 to provide for a new offence of “acts preparatory to hostile activity by states”;
  • reform of the OSA 1989 to alter the definition of, and increase the maximum sentence for, existing offences relating to the disclosure of official information; and
  • Strengthening the OSAs regime by creating new offences aimed at addressing additional harms relating to hostile activity by states, including sabotage, economic espionage, and foreign interference.
• The introduction of a Foreign Influence Registration (“FIR”) scheme. This would be a government managed register of declared activities that are undertaken for or on behalf of a foreign state. It would include activities that are directly commissioned by a foreign state, such as espionage, as well as those that have been commissioned by an individual or entity that is subject to foreign state influence or control.
• The introduction of a civil orders regime that could be imposed on individuals thought to be engaged in hostile activity, if a prosecution could not be brought. It would include a range of restrictive and preventative measures aimed at mitigating the risk posed by such people.

The consultation also asked whether there are any additional measures or existing legislation which could be updated to help address the threat from this kind of activity. It provided the example of reform of the law of treason.

The proposals relating to reform of the OSAs are the Government’s response to a review by the Law Commission into the Protection of Official Data. The review made extensive recommendations for reform of the regime contained in the OSAs 1911, 1920, 1939, and 1989.

Wider proposals to introduce new powers to deal with hostile state threats were announced following the nerve agent attack in Salisbury in 2018. The Intelligence and Security Committee of Parliament recommended that the Government bring forward legislation in its 2020 report on Russia.

The Government’s Integrated Review of Security, Defence, Development and Foreign Policy, published in March 2021, announced its intention to introduce legislation to counter state threats when parliamentary time allowed.

In July 2021, the Director General of MI5, Ken McCallum, suggested that their aim over time was to build the same public awareness and resilience to state threats as had been done over the years on terrorism. He described ‘state threats legislation’ as an important step towards boosting UK resilience, stating: “To tackle modern interference, we need modern powers”.

Given the long-standing calls for reform in this area and the careful consideration of the issue by the Law Commission, the proposed legislation is likely to be well received by many. However, one issue that has caused some concern relates to the freedom of the press, and freedom of expression more generally.

In the consultation paper, the Government said that it was not inclined to accept the Law Commission’s recommendation that there should be a ‘public interest defence’ for anyone charged with making an unauthorised disclosure under the OSA 1989. It also rejected the recommendation that there should be a statutory commissioner to whom allegations of criminality or wrongdoing could be reported.

These recommendations from the Law Commission reflected concerns that the current regime may not be compatible with the right to freedom of expression, as guaranteed by Article 10 of the European Convention on Human Rights. The Government’s response states that it believes that existing offences are compatible with Article 10, and that these proposals could in fact undermine efforts to prevent damaging disclosures.

Another Government proposal, to increase the maximum sentence for secondary disclosures (where information is disclosed by members of the public) to bring them in line with the maximum available for primary disclosures (from members of the security and intelligence agencies and other public servants) has also caused concern.

An article in the Press Gazette suggested that the proposals amounted to treating journalists like spies for reporting on matters of public interest and said it had “caused alarm at a time when press freedom is seen as being under attack in the UK”.

A Times editorial described the proposals as “the greatest threat to public interest journalism in a generation” and called for the consultation to be abandoned.

The Government has not yet published the outcome of its consultation, which ended when Parliament went into recess on 22 July. Given the inclusion of the legislation in the Queen’s Speech, a bill is anticipated in the coming months.