110. Given the difficulties inherent in seeking to counter Russian Hostile State Activity, it is essential that the Intelligence Community have the legislative powers and tools they need. However, the Home Secretary was quite clear that "we don't have all the powers yet".[1]
111. The current legislation enabling action against foreign spies is acknowledged to be weak. In particular, the Official Secrets Acts are out of date – crucially, it is not illegal to be a foreign agent in this country.[2] The Director-General of MI5 told us that:
… there are things that compellingly we must investigate, everybody would expect us to address, where there isn't actually an obvious criminal offence because of the changing shape of the threat and that for me is fundamentally where this doesn't make sense.[3]
112. In 2017, the Law Commission ran a consultation which considered options for updating the Official Secrets Acts and replacing them with a new 'Espionage Act'. The outcome of the consultation is still awaited. In the meantime, the Prime Minister, in March 2018, asked the Home Secretary to "consider whether there is a need for new counter-espionage powers to clamp down on the full spectrum of hostile activities of foreign agents in our country".[4]
113. In evidence to us, the Home Secretary accepted that the Official Secrets Acts were "completely out of date".[5] The Director-General of MI5 echoed this, saying:
The purpose of [a potential new Espionage Act] is to be able to tighten up on the powers that have become, you know, dusty and largely ineffective since the days of the Official Secrets Act, half of which was drafted for First World War days and was about sketches of naval dockyards, etc., and then there was a 1989 … addition to it, but we are left with something which makes it very hard these days to deal with some of the situations we are talking about today in the realm of the economic sphere, cyber, things that could be, you know, more to do with influence.[6]
114. One specific issue that a new Espionage Act might address is individuals acting on behalf of a foreign power and seeking to obfuscate this link. The US, in 1938, introduced the US Foreign Agents Registration Act (FARA), which requires anyone other than accredited diplomats – including both US and non-US citizens – who represents the interests of foreign powers in a "political or quasi-political capacity" to register with the Department of Justice, disclosing their relationship with the foreign government and information about related activities and finances. Additionally, US legislation requires agents, other than diplomats, performing non-political activities under the control of foreign governments or foreign officials, to notify the Attorney General (registration under FARA serves as the
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