Public Law for Everyone

Dan Jarvis, the Security Minister, tells the House of Commons that the China espionage case collapsed thanks to a single official’s decisions that were made without input or oversight by Ministers or the National Security Adviser. If so, then Ministers are guilty of presiding over a wholly inadequate decision-making system — a failure for which they alone bear responsibility.

The Security Minister, Dan Jarvis, has made a statement to the House of Commons regarding the collapse of the prosecution of two individuals who had been accused of espionage contrary to section 1(1)(c) of the Official Secrets Act 1911. The core of Jarvis’s argument is that responsibility for this matter lies with a single official, the Deputy National Security Adviser:

[O]n the question of what Ministers knew about the Government’s interactions with the CPS, Ministers were aware that evidence was being provided by the deputy National Security Adviser to the CPS as it built a case for prosecution, as was first agreed under the previous Government. Ministers and special advisers did not take decisions about that evidence and they were not cited in the contents. The deputy National Security Adviser was given full freedom to provide evidence without interference, as was the case before the general election.

In this post, I argue that the Security Minister’s statement, and his subsequent answers to MPs’ questions, fails to address four key issues, and I go on to consider a range of possible explanations — in the ongoing absence of a clear explanation from the government — for what might actually have happened. I conclude that the government’s attempts to pin the blame on an official cannot withstand constitutional scrutiny, not least because the Minister’s own account of how this episode unfolded implies a wholly inappropriate mechanism for making crucial national security-related decisions — a deficiency for which only Ministers themselves can be responsible. In appearing to hang an official out to dry, the Security Minister in fact powerfully demonstrated that it is ultimately Ministers who are at fault.

Background

Among other things, criminal liability under section 1(1)(c) of the 1911 Act requires a court to be satisfied that the information in question ‘is calculated to be or might be or is intended to be directly or indirectly useful to an enemy’. The term ‘enemy’, which had previously been understood to include countries with which the UK was or potentially could be at war, was defined by the Court of Appeal in the Roussev case in more expansive terms, so that it is now understood to include (and always to have included) countries that constitute a threat to the UK’s national security. The crucial question, therefore, is whether China was a threat to national security in 2021–23, when the alleged espionage occurred.

In a previous post, I pointed out that the Prime Minister’s assertion to reporters that the prosecution could not go ahead because the previous government had not regarded China as a threat to national security (and therefore not as an ‘enemy’ for the purpose of the 1911 Act) in 2021–23 was flawed in three respects:

• First, there are publications and statements in the public domain (referred to in my previous post on this topic) indicating that the previous government did consider China to be a threat to national security at the relevant time.
• Second, the Prime Minister appeared to suggest that the current government was bound by the previous government’s view as to whether China was a national security threat at the relevant time. But there is nothing in 1911 Act or in relevant case law that justifies such a view.
• Third, the Prime Minister appeared to suggest that everything turned on whether China had been ‘designated’ as an enemy or national security threat by the previous government at the relevant time. However, the 1911 Act recognises no such concept of designation, criminal liability turning simply on whether the court is in receipt of evidence to the effect that the country in question was a threat to national security at the relevant time.

Thus, following the Prime Minister’s remarks last week, and other Ministers’ comments in interviews since then, it has remained unclear why the case collapsed and what role, if any, the government played in its collapse. Does the Security Minister’s statement or his answers to the many questions that MPs put to him during the subsequent debate cast light on these matters?

New legislation: A red herring

The Minister placed great emphasis on the fact that the 1911 Act has now been replaced by the National Security Act 2023, describing the Official Secrets Act 1911 as ‘antiquated legislation’ that had left the CPS ‘hamstrung’. Matters would have been different, the Minister suggested, if the new National Security Act had been in force when the alleged offences were committed. The problem with this analysis, however, is that it entirely fails to explain why the Director of Public Prosecutions has publicly stated that he is ‘satisfied that the decision to charge this case in April 2024 was correct’. This can only be taken to mean that the CPS, when it decided to charge the individuals concerned, believed that the evidence needed to secure a conviction already existed. This cannot be reconciled with the notion that the CPS was ‘hamstrung’ by ‘antiquated legislation’. The fact that the Official Secrets Act 1911 has been replaced by the National Security Act 2023 is therefore a red herring.

Four key issues the Minister failed to clarify

In his statement and his subsequent answers to questions, the Security Minister, as I understand him, failed to provide satisfactory clarification on four key issues:

• First, like the Prime Minister in his remarks last week, the Security Minister proceeded on the basis that the previous government did not consider China to be a national security threat. However, as noted above, there is ample information in the public domain that contradicts that view.
• Second, like the Prime Minister, the Security Minister proceeded on the basis that it was not open to the current government to provide evidence to the CPS contradicting the previous government’s view — or, more accurately, what the current government appears to think the previous government’s view was — as to the threat posed by China. In other words, the Security Minister appears wrongly to have assumed that it was not open to the current government to form its own view as to whether China was a national security threat in 2021–23 and then to provide a witness statement to that effect to the CPS.
• Third, the Security Minister referred to the Court of Appeal’s judgment in the Roussev case as something that materially changed following the initial CPS charging decision, but he failed to acknowledge that that judgment makes it easier, not harder, to establish criminal liability. That is so because it advances a broader definition of ‘enemy’ such that it now includes countries that present a national security risk irrespective of whether the UK is or might in the future be at war with that country.
• Fourth, the Minister’s statement proceeded on the assumption that the government serves as gatekeeper to the scope of criminal liability under the 1911 Act by determining whether a state is an enemy. But that is not the case. There is no requirement in law that means the CPS can prosecute or that a court can convict only if the government provides an official view to the effect that the relevant country was a national security risk at the relevant time. It would, for instance, have been open to the CPS to put before the court evidence in the public domain regarding the national security threat posed by China in 2021–23. Indeed, in Roussev, the Court of Appeal appeared to contemplate precisely such a possibility when it said that whether a country constitutes a national security threat ‘may well involve issues of fact and degree which the jury would be well-placed to assess, on evidence’.

While failing to clarify the above points, each of which is crucial to the government’s position, the Security Minister was at pains to say that it was the Deputy National Security Adviser who was responsible for providing the CPS with a witness statement, and that that official had been entirely at liberty to provide such evidence as they considered appropriate, free from interference by Ministers or the National Security Adviser. The number of occasions on which the Minister referred to the Deputy National Security Adviser was striking, and conveyed the clear impression that Ministers consider responsibility for all relevant decisions about what information to provide to the CPS in cases such as this to lie with that official alone.

What went wrong?

So what went wrong? Based on the Security Minister’s statement and his answers to MPs’ questions, a number of possibilities arise. In what follows (which is no doubt not exhaustive), I refer to ‘the government’ rather than to the official to whom the Security Minister repeatedly referred for reasons that I explain below. And I should emphasise that I am not asserting than any of the following things actually happened; rather, they are offered as potential explanations in the sense that they seem to me to be explanations that can be reconciled with the Security Minister’s statement.

• Explanation 1 — government wrong on the facts: The government told the CPS that China was not a threat to national security in 2021–23. If this is what happened, it implies that the current government took an eccentric and very limited view of the information in the public domain about the previous government’s assessment of the threat posed by China at the relevant time.
• Explanation 2 — government wrong about the law: The government, having (arguably incorrectly) concluded that the previous government did not consider China to be a national security threat, compounded that by proceeding on the basis that it was bound by that view. For the reasons explained above, if that was the current government’s view, it was a view based on a misunderstanding of the law.
• Explanation 3 — CPS wrong about the evidence: The CPS, when it charged the individuals concerned, erroneously thought it had the necessary evidence but then realised it did not. However, this view is difficult to reconcile with the DPP’s statement that the decision to charge in April 2024 was correct, since that implies that, at that time, the CPS was confident it had sufficient evidence.
• Explanation 4 — CPS wrong about the law: The CPS understood the Roussev judgment to mean that the evidential bar had been raised, in which case, at least as I read that judgment, the CPS misunderstood it, since it expands the definition of ‘enemy’, making it easier, not more difficult, to establish criminal liability.

Does this mean Ministers are blameless?

It is striking that none of the above options, which are potential ways of making sense of the Security Minister’s statement, involve Ministers being at fault. But can that be right? That, I think, depends on which, if any, of the potential explanations above is correct. If it really is the case that the CPS got things wrong, then Ministerial finger-pointing is easier, given that the CPS rightly operates independently of Ministers. But explanation 3, as noted above, cannot be reconciled with the DPP’s firm view about the sufficiency of evidence in April 2024, while explanation 4 implies that highly experienced CPS prosecutors seriously misunderstood the Roussev judgment, which seems unlikely.

What if explanation 1 or explanation 2 was correct? Can Ministers simply take the position that the buck stops with the Deputy National Security Adviser? Here, we move from the realm of law into the thickets of constitutional convention and, in particular, the doctrine of ministerial responsibility or accountability. The Cabinet Manual explains that: ‘Civil servants are accountable to ministers, who in turn are accountable to Parliament.’ This does not, however, mean that it is sufficient for Ministers to go to Parliament and tell it when a civil servant has made a mistake (if in fact that is what happened). As well as accounting for what their officials have done, Ministers remain ultimately responsible. And while it does not follow from that that a Minister must resign, or otherwise take the blame, every time an official makes an error, Ministers are certainly responsible if they preside over decision-making arrangements that are flawed or otherwise inadequate.

If we take the Security Minister’s statement at face value, an individual official, apparently without oversight from the National Security Adviser let alone Ministers or the Prime Minister, was given a free hand to determine what the previous government’s position on China was and to determine that that position could not be departed from by the present government. The Minister was at pains to emphasise the scope of the Deputy National Security’s discretion in this regard: Ministers were merely ‘aware that evidence was being provided’ to the CPS by the Deputy National Security adviser, who was given ‘full freedom to provide evidence without interference’. Presumably, the Security Minister was keen to advance this narrative in order to put to bed claims that the National Security Adviser and/or Ministers had interfered. But the argument is a double-edged sword, for it suggests an extraordinary failure of internal accountability within government if a single official was permitted unilaterally to make decisions leading to the collapse of a highly sensitive trial with significant national security implications. As Steven Swinford, the political editor of The Times, has put it:

on the government’s own account a hugely sensitive spy trial, one that has huge ramifications for MPs and Parliament more broadly, collapsed on the basis of the evidence of one senior official without any input from the national security adviser or ministers.

If that is the decision-making framework within which the relevant decisions were made, then that is undoubtedly something for which Ministers are responsible.*

We can, then, add a fifth possible explanation to the four set out above: that Ministers presided over decision-making arrangements concerning highly consequential national security-related matters that afforded individual officials a wholly inappropriate degree of unilateral discretion, and that Ministers failed to put in place a framework for ensuring that such decisions were appropriately stress-tested before being finalised. Like the first four possible explanations outlined earlier in this post, I do not claim that the fifth explanation necessarily describes what actually happened — but it is arguably the most likely.

The overwhelming message conveyed by the Security Minister was that this is matter for which Ministers bear no responsibility because it was handled wholly at official level. But that will not wash. Whatever uncertainties there might be about the nuances of the constitutional doctrine of ministerial responsibility, if Ministers are responsible for anything, they must be responsible for ensuring that the way in which national security-related decisions are made is fit for purpose. If, then, it turns out that this is a story of official failure, it is also necessarily, and more importantly, a story of ministerial failure.

This post, originally published on 13 October 2025, was lightly updated on 14 October, including in order to insert references to and quotations from the printed version of the debate as it appears in Hansard.

* Since publishing this post, a correspondent has pointed out that the Deputy National Security Adviser, like any other official providing a witness statement, is personally responsible for the evidence they provide and that would be improper for others, including Ministers, to direct the witness to give evidence they did not believe to be true. This raises the question whether my point about the Deputy National Security Adviser’s apparently having been afforded an inappropriate degree of unilateral discretion is wide of the mark (because absolute discretion was required as to the content of their own witness statement). I do not, however, think that that follows because it conflates two matters. If, as Ministers have consistently asserted, the key question relates to the government’s position on China, any official giving evidence on that matter must be able to represent that position. From this, it follows any witness statement in this context must reflect a government position that ought to be the product of a suitable decision-making process. Arguing, as I have, that it is inappropriate for the decision-making process as to the government’s position to take the form (as the Security Minister implied it did) of a bubble consisting of a single official is not, in my view, in tension with the fact that the content of the witness statement per se, in which the government’s view is represented, is a matter for the witness alone.