On November 16, 2022, the National Security Bill, which was introduced in the Parliament of the United Kingdom (U.K.) on May 11, 2022, completed all the stages in the House of Commons and is currently in the committee stage in the House of Lords. The bill seeks to update the laws to protect the national security of the U.K. and to provide law enforcement and intelligence agencies with the ability to “deter, detect and disrupt the full range of modern-day state threats.”
If enacted as written, the bill would introduce a “full suite of new measures to tackle the full range of modern-day state threats, from sabotage and spying to foreign interference and economic espionage.” It would repeal and replace the Official Secrets Acts of 1911, 1920, 1939, and 1989, which were described in the Intelligence and Security Committee of Parliament’s report on Russia as being “outdated and no longer fit for purpose” due to advancements in technology that have changed both the methods and targets of espionage. The Integrated Review of Security, Defence, Development and Foreign Policy in 2021 determined that
adversaries and competitors are already acting in a more integrated way – fusing military and civilian technology and increasingly blurring the boundaries between war and peace, prosperity and security, trade and development, and domestic and foreign policy. It also recognises the fact that the distinction between economic and national security is increasingly redundant.
The bill aims to counter these threats and includes three offenses designed to disrupt and prevent espionage and “protect the UK and its interests from the illicit acquisition of trade secrets conducted by foreign states.” The offenses are:
- Obtaining or disclosing protected information for the benefit of a foreign power where the person knows, or should reasonably know, their conduct would prejudice the U.K.’s safety or interests.
- Obtaining or disclosing trade secrets for, on behalf of, or with the intention to benefit a foreign power without authorization.
- Assisting a foreign intelligence service to conduct activities in the U.K., or activities outside the U.K. that would prejudice the safety or interests of the U.K.
The bill provides for the further offenses of:
- Interfering with the U.K.’s democratic and civil society through disinformation or attacks on the electoral process.
- Sabotaging, or attempting to sabotage, the U.K.’s critical national infrastructure, including through a ransomware attack.
- Obtaining, accepting, agreeing to accept, or retaining a material benefit from a foreign intelligence service.
Offenses relating to prohibited places in the U.K., which are “sensitive sites that are likely to be the target of state threats or activity or other types of threats that do not have a state link,” would be extended. The government has stated that accessing these places is typically a precursor to sabotage, and the offense would include actions that do not require physically entering a prohibited place, such as using a drone or electronically accessing such a place.
The bill would introduce offenses for preparatory acts for a number of offenses. These offenses are described as “new tools of last resort to manage those who pose a threat but have not met the threshold for prosecution” and would enable the police and security services to disrupt actions before severe damage is done. The bill would also enhance the police powers of arrest, detention, search and seizure, and investigative powers with regard to finance and property.
The bill would introduce State Threat Prevention and Investigation Measures, which are targeted restrictions that could be used where intelligence confirms that activity that would cause a highly damaging threat is being undertaken or planned, but that prosecution of the suspect is not realistic. The aim of the measures is to prevent the suspects’ further involvement in the activity that poses a threat to the state.
An amendment to the bill was introduced in October 2022 to provide for a Foreign Influence Registration Scheme that would require anyone acting for a foreign power or entity and conducting political influencing activity to enter their details on a public register. Failing to register would be a criminal offense.
Judges would be able to consider any activities that involved the defendant acting for, on behalf of, or for the benefit of, a foreign power as an aggravating factor when sentencing defendants convicted for other crimes, which would allow the judge to impose a harsher sentence. The bill would introduce additional measures to tackle the threat posed by terrorism, such as by withholding any civil legal aid or the forfeiture of any civil damages if there is a real risk the money would be used for the purposes of terrorism.
The bill would amend the Serious Crime Act 2007 to protect individuals working for the U.K.’s intelligence services from criminal liability if their actions are “necessary for the proper exercise of those organisations’ functions.”
The bill follows the recommendations of the Law Commission to replace and update the offenses contained in the Official Secrets Acts 1911–1939 and modernize the language. The aim of the bill is to update the laws to reflect the changing nature of national security. The government notes that the bill should be viewed alongside the Economic Crime (Transparency and Enforcement) Act 2022, the National Security and Investment Act 2021, and the Online Safety Bill, which is also progressing through Parliament.
Clare Feikert-Ahalt, Law Library of Congress
March 8, 2023
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