Questions to the Law Commission about the Espionage Act consultation

Letter to the Law Commissioner prior to meeting to discuss the proposed Espionage Act

Professor David Ormerod

Law Commissioner for Criminal Law and Evidence

The Law Commission

Dear Professor Ormerod,

We look forward to meeting you and your staff on Wednesday April 13 as part of your consultation on proposals for the protection of official data. 

So as fully to understand the evidential basis on which the Commission has developed its proposals, and thereby to respond as accurately as possible, we would be most grateful to have your early response to a number of important questions.

We would be happy to have the information by letter or email in advance, or for the information to be available at our meeting. We will then be able to feed it back to our members and advisers to assist in responding.

  1. Which specific cases and/or investigations since 1911 do the Law Commission believe show that the use of the term “enemy” and/or the phrase "purpose prejudicial to the safety or interests of the state" in Section 1 of the Official Secrets Act 1911 has or may have inhibited the ability to prosecute those who commit espionage?
  2. To the knowledge of the Law Commission, has a British court ever rejected a prosecution in which a non-state (terrorist) organisation was argued to be an enemy? If so, in which cases?
  3. Why does the Law Commission consultation paper omit any reference to the Edward Snowden revelations of 2013, and to the proposed or possible use in that case of civil or criminal law sanctions against British or overseas media organisations? Was the Commission asked or advised to exclude the Snowden case from its considerations?
  4. In proposing a new extra-territorial offence of espionage committed abroad by persons who are neither British subjects nor citizens, does the Commission have a definition of the meaning of the proposed legal test of “sufficient link” [to the UK] [Paragraph 2.175]? The report points towards the 2015 updates of the Computer Misuse Act for similarities, but these are unclear.
  5. When recommending new “language that will ensure the offences are future proofed” as opposed to existing “archaic” terms, the Commission propose that a recommended new espionage offence use the “generic term” “information” [Provisional Recommendation 2]. Section 1 (1) (c) and Section 1 (2) of the 1911 Act each refer to “any ... information” as an element of espionage offences. If the Commission's view is that this point is therefore not otiose, why has a change which is not in fact a change put forward as a reason for new legislation now being required?
  6. In relation to the proposed extended “territorial ambit” of the proposed new espionage offence:
    1. Did the Commission consult any other state, or international organisation about these proposals? If so why were their views not reported?
    2. Did the Commission conduct any research into the possible future use of extradition powers or treaties to bring foreign persons residing abroad, including journalists, to trial in the United Kingdom for the proposed espionage offences? If not, how does the Commission recommend that the proposed new offences be made enforceable internationally?
    3. Did the Commission make any approach to foreign governments (in particular the United States) so as to ascertain from these government if they would agree to their citizens being extradited to the UK for trial?
  7. Why did you, when writing for the Daily Telegraph, and the Law Commission (in the Protection of Official Data Overview document) imply that modern “data centres” were currently unprotected because they did not “store munitions of war” or similar? Were you and the Commission aware that data centres are included in statutory lists of prohibited places, and also in “protected site” orders made under the Serious Organised Crime and Police Act 2005. 

    [For example GCHQ's data centre at Harp Hill, Cheltenham, designated by Home Office Circular 018/2007: publications/trespass-on-protected-sites-sections-128-131-of-the-serious-organised-crime-and-police-act-2005 ]
  8. Why does the consultation paper never mention the internet in relation to official information? The word only appears once in the consultation, in relation to the loss of computer disks with personal information by HMRC, a data protection matter.
  9. Is the Law Commission aware from its research for the consultation of any case in any jurisdiction in which an internal commissioner review mechanism of the type proposed in the consultation paper has been shown to be effective in redressing misconduct, crime, corruption, or other misconduct by a government or government organisation? If so, please provide a list.
  10. What evidence led you to your published view that the year 2017 affords a “once in a century opportunity” to reform British secrecy laws? Given that four Official Secrets Acts were passed, and five reviews conducted between 1911 and 2000, on what specific basis or bases do you and/or the Commission claim that no other review will be needed for 80 years, were your proposals now to be adopted as law?

I should out of courtesy mention that there are other points and omissions we wish to raise in responding, but those listed above appear to be the most critical. We can develop the other points when we meet, or subsequently.

If you would prefer to have more time before we meet to respond fully, please let us know.

Yrs etc


Jim Killock

Executive Director, Open Rights Group