I spy a new clampdown

Will new laws to combat foreign espionage inhibit public interest journalism?


This article is taken from the May 2022 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

If the prime minister decides to go to the country early, the legislative programme to be announced on 10 May will be the last before the general election. Already, we are told, Boris Johnson is throwing out proposals that he does not regard as vote-winners — including further restrictions on judicial review. What legal reforms may find their way into the Queen’s Speech?

The most far-reaching must be legislation to counter state threats. These include overt or covert action by foreign governments that seeks to undermine the interests of the UK but fall short of armed conflict. We used to call this hostile state activity until the ambiguity was noticed; it meant hostile activity by any state and not, as was assumed, any activity by a hostile state.

If this legislation rings a bell then it’s because a counter-state threats bill was announced in last year’s Queen’s Speech — although it never saw the light of day. Instead, there was a consultation which closed last summer. Eight months later, we are still waiting for the government’s response.

One of the things the bill will do is create a foreign influence registration scheme. At present, it’s not an offence for foreign spies to work undercover in London unless they obtain or communicate damaging secrets. In the US, by contrast, failure to register as the representative of a foreign power has been an offence since 1938.

What if spies don’t fill in the right forms on arrival? That would become a criminal offence — and an easier one to prosecute than disclosing secrets.

But the government does not want to deter legitimate activities such as encouraging tourism and there would also have to be special arrangements to support the Good Friday agreement with Ireland. So the details may be quite tricky.

The Law Commission believes a new Official Secrets Act would enable the law to be more focused 

These proposals “are intentionally designed to be country and actor agnostic”, the government insisted last year, which I think means that the UK is not singling out specific states or their intelligence agencies. But the suggestion of registration for foreign agents came from a report about Russia by parliament’s Intelligence and Security Committee, written in the summer of 2019 but not published until July 2020. “It would clearly be valuable in countering Russian influence in the UK,” the report says.

The parliamentary committee also said that the Russians seemed to consider the UK one of their top Western intelligence targets. Russia was “seemingly fed by paranoia, believing that Western institutions such as NATO and the EU have a far more aggressive posture towards it than they do in reality”.

The other thing the bill will do is to reform the Official Secrets Acts. A replacement statute was recommended by the Law Commission in a report to the government published in 2020.

Media organisations argued that any attempt at reform would inevitably lead to further restrictions on journalists. But the commission believes that new legislation would enable parliament to focus the law more accurately — for example, the term “enemy” would be replaced by “foreign power” — and ensure that it clearly covers electronic communications that may be targeted from abroad.

The Law Commission said it could not be sure that the Official Secrets Act 1989 was compatible with the freedom of expression, as guaranteed by article 10 of the Human Rights Convention. It therefore recommended the creation of an independent statutory commissioner to whom public servants and others could lawfully report allegations of wrongdoing or criminality. 

There would be a strong presumption that public servants should make disclosures about alleged wrongdoing to the commissioner in preference to going public. But, given that it would be a last resort, the Law Commission believed a public interest defence should be available to intelligence officers, public servants and journalists alike.

In its consultation paper, the Home Office greeted that recommendation with predictable apoplexy. “The government believes that existing offences are compatible with article 10 and that these proposals could in fact undermine our efforts to prevent damaging unauthorised disclosures,” it said.

While Priti Patel at the Home Office is accused of trying to rein in public interest journalism, the justice secretary, Dominic Raab, says he wants to enhance it. In March, Raab issued a call for evidence on SLAPPs, which is meant to stand for “strategic lawsuits against public participation”. Although these look like claims for defamation or breach of privacy, their real aim is stifle public debate.

But how do you define a SLAPP? What sets it apart from reputable claims against journalists, authors and academics? And once you have identified a SLAPP, how can you thwart it? It’s fair to say the government is struggling with this.

There is every chance that SLAPPs will be mentioned in the Queen’s Speech. But I strongly suspect that the necessary legislation — either a one-off bill or Raab’s much vaunted bill of rights — may be delayed, just like the counter-state threats bill. We shall see.

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