National Security Act 2023

Last updated

National Security Act 2023
Act of Parliament
Royal Coat of Arms of the United Kingdom (Variant 1, 2022).svg
Long title An Act to make provision about threats to national security from espionage, sabotage and persons acting for foreign powers; about the extra-territorial application of Part 2 of the Serious Crime Act 2007; for the registration of certain arrangements with, and activities of, specified persons and foreign powers; about the award of damages in proceedings relating to national security and the payment of damages at risk of being used for the purposes of terrorism; about the availability of legal aid to persons connected with terrorism; to amend the Terrorism Act 2000; and for connected purposes.
Citation 2023 c. 32
Introduced by Priti Patel, Home Secretary (Commons)
The Lord Sharpe of Epsom, Parliamentary Under-Secretary of State for the Home Department (Lords)
Dates
Royal assent 11 July 2023
Commencement 20 December 2023 (in part)
Other legislation
Amends Terrorism Act 2000
Repeals/revokes
Status: Current legislation
History of passage through Parliament
Text of statute as originally enacted
Text of the National Security Act 2023 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.

The National Security Act 2023 (c. 32) is an act of the Parliament of the United Kingdom which introduced new measures intended to strengthen United Kingdom national security against espionage, interference in the political system, sabotage, and assassination. [1]

Contents

In a press release, the government stated that "The new powers will help ensure that the UK remains the hardest operating environment for malign activity undertaken by foreign actors", quoting MI5 Director General, Ken McCallum as saying "The National Security Act is a game changing update to our powers. We now have a modern set of laws to tackle today’s threats." [2]

The core measures put in place by the act came into force on 20 December 2023 and were described at the time as "the most significant reform of espionage law in a century". [3]

The act repeals and replaces the Official Secrets Act 1911, Official Secrets Act 1920 and Official Secrets Act 1939. [4]

The act

The act introduces new offences relating to espionage, prohibited places, sabotage, foreign interference, obtaining benefit from foreign intelligence services, and new powers of arrest and detention and search and seizure. [5] It also introduces a Foreign Influence Registration Scheme requiring the registration of arrangements for political influence activities in the UK directed by a foreign power.

Espionage

The act contains three offences relating to espionage: obtaining or disclosing protected information, obtaining or disclosing trade secrets, and assisting a foreign intelligence service.

The offence of obtaining or disclosing protected information replaces provisions in prior Official Secrets Acts, and increases the maximum sentence to life imprisonment from 14 years previously. The Ministry of Defence stated that former UK Armed Forces personnel training foreign militaries was an example of conduct which could involve "disclosing protected information" [6] and would therefore constitute an offence under this section.

The new offence of obtaining or disclosing trade secrets relates to the disclosure to a foreign power of a UK trade secret (defined in s.2(2)). The maximum penalty is a term of imprisonment not exceeding 14 years and/or a fine.

The new offence of assisting a foreign intelligence service is committed where a person engages in conduct which is intended to or may materially assist a foreign intelligence service in carrying out UK-related activities. This offence was created to reduce the ability of foreign intelligence agencies to carry out hostile activities against the UK, extending beyond traditional espionage activity. [5]

Prohibited places

New provisions relating to prohibited places strengthen existing legislation in this area. It includes provisions covering entering, inspecting or being in the vicinity of these places and includes use of unmanned drones, electronic hacking or other modern remote methods. Additional police powers are provided for ordering a person to cease their activity or move away from the place. Failure to comply with these police powers is an offence with a maximum penalty of three months imprisonment. [7]

An example is given of "a person taking photographs of staff members as they enter or leave a prohibited place would commit the offence if they did so with a purpose that they knew, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom". [8]

As originally introduced, [9] the Bill did not include places owned, controlled or used for the functions of the Security Service, Secret Intelligence Service or GCHQ in the set of prohibited places. These were added when the Bill was amended in the Public Bill Committee. [10]

The Secretary of State has the power to designate additional sites as prohibited places through secondary legislation. This power has been used to designate places connected to the civil nuclear industry (including ships used to carry nuclear material) as additional prohibited places. [11]

Sabotage

The act introduces a new offence of sabotage conducted for, or intended to benefit a foreign power, resulting in damage (including temporary damage) to any asset (tangible or intangible, including data and electronic systems) which is prejudicial to UK interests. It is intended to be a bespoke, modern offence to tackle state sponsored sabotage conducted against the UK. [12] The offence carries a sentence of life imprisonment.

Foreign interference

The new offence of foreign interference aims to "create a more challenging operating environment for, and to deter and disrupt the activities of, foreign states who seek to undermine UK interests, our institutions, political system, or our rights, and ultimately prejudice our national security". Three conditions which must all be met in order for the prosecution to be successful are: [13]

  1. the accused person's conduct must be towards a certain goal;
  2. the conduct must be in some way illegitimate, for example coercive behaviour;
  3. the conduct must meet the "foreign power condition".

Activities "carried out for, or on behalf of, or intended to benefit, a foreign power" fall under this rubric. Foreign interference "is intended to sow discord, manipulate public discourse, discredit the political system, bias the development of policy, and undermine the safety or interests of the UK." There are also provisions targeting foreign interference in elections by increasing penalties for existing electoral offences when foreign interference is involved. The foreign interference offence carries a maximum sentence of 14 years. [13]

Obtaining a material benefit from a foreign intelligence service

Two new offences relating to obtaining material benefits from a foreign intelligence service are introduced in section 17. The first is where a person obtains, accepts or retains a material benefit, and they knew, or ought reasonably to know, that this benefit was provided by or on behalf of a foreign intelligence service. The second offence is where a person agrees to accept (but does not receive) these material benefits. Where material benefits are obtained, the maximum sentence is 14 years, when they are merely accepted it is 10 years.

The purpose of this section is to allow prosecutions where a foreign intelligence service is providing a person with financial or other benefits, but where it is not possible to prove a link between the benefit provided and what the person has done – or is expected to do – in return, therefore making it difficult to prove that the person has committed an espionage offence. [14]

Preparatory conduct

This is an offence which is committed when an individual engages in conduct in preparation for the commission of offences certain under other sections of the Act – including the offences covering protected information, trade secrets, prohibited places or sabotage – plus other conduct intended to benefit a foreign state which involve serious violence, endangerment of life or serious risk to the public. Preparatory acts include where another person will commit the act itself.

A Home Office policy paper describes a military contractor with security clearance researching foreign diplomats in London, with the intention of sharing sensitive information in exchange for money, as a hypothetical example of a preparatory conduct offence. [15]

Provisions

Section 27 (Arrest without warrant)

Section 27 of the Act provides the police with the power to arrest and detain (without a warrant) any person suspected to be involved in foreign power threat activity for up to 48 hours initially. [16] This initial period can be extended by a court to a maximum of 14 days detention. In exceptional circumstances the maximum detention period can be extended to 28 days using emergency legislation.

A person detained under this section has a right to have a named person informed of their detention and to consult a solicitor. In specified circumstances (related to interference of an investigation) the exercise of these rights can be delayed. Biometric data collected during detention under this section can be retained for a maximum of 5 years in total, regardless of if a person is charged or acquitted. [17]

Prevention and investigation measures

Section 39

Section 39 provides the Secretary of State with the power to issue a notice putting in place restrictive measures to prevent a person's involvement in foreign power threat activity. These measures are described as "State Threats Prevention and Investigation Measures (STPIMs)" and their framework largely replicates the existing Terrorism Prevention and Investigation Measures (TPIMs). [18]

Section 56

Section 56 provides for an offence which is committed when an individual subject to a STPIM contravenes (without reasonable excuse) any measure specified in the notice. The maximum sentence for this offence is 5 years imprisonment. For breeching a measure preventing travel outside the United Kingdom a sentence of 10 years imprisonment can be imposed and the grounds of reasonable excuse are excluded.

Section 57

This section makes provision for powers of entry, search, seizure and retention in relation to individuals subject to a STPIM. The powers allow for entry and search of an individual's premises and the individual themselves at the time of serving the STPIM notice. They also provide for further searches relating to suspicion of absconding, for compliance purposes and for public safety purposes.

In addition, a power to retain items allows for items found to be tested, retained and used as evidence. With the exception of searches for compliance purposes, no warrant is required.

Sch. 7 para. 12

Individuals subject to an STPIM can be required by the Secretary of State to participate in polygraph sessions and information gained from these sessions can be shared with the intelligence services. [19]

Criticism

There were concerns about the impact of the bill on investigative journalism. Guy Black, deputy chair of Telegraph newspapers, told the House of Lords that he was concerned the draft legislation could “potentially criminalise” reporters and whistleblowers. [20]

An amendment in the Lords to address journalistic concerns by adding "a defence to show that the person engaged in the conduct in question was acting with a view to publication of material by a recognised news publisher" was defeated by a majority of 130 votes. [21] The Government responded to concerns by modifying the wording of certain offences, including amendments to replace 'reasonably possibly may' with 'likely to', with the intention of clarifying the scope of offences. [22]

The act has been criticised in Chinese media outlets, which claimed that it was comparable to or stricter than the Hong Kong national security law. Radio Free Asia stated these claims as misleading for lacking wider context. [23]

Progress through Parliament

The bill was introduced as number 7 for the 2022-23 session, receiving its first reading on 11 May 2022 and royal assent on 11 July 2023. [2]

Commencement

Sections 95 to 102 came into force on royal assent (11 July 2023). Sections 1 to 64 and sections 92 to 94, and schedules 1 to 12, 17 and 18 came into force on 20 December 2023, except that the repeal of section 9(1) of the Official Secrets Act 1911 does not apply to offences committed before that date. [24]

See also

Related Research Articles

Espionage, spying, or intelligence gathering is the act of obtaining secret or confidential information (intelligence). A person who commits espionage is called an espionage agent or spy. Any individual or spy ring, in the service of a government, company, criminal organization, or independent operation, can commit espionage. The practice is clandestine, as it is by definition unwelcome. In some circumstances, it may be a legal tool of law enforcement and in others, it may be illegal and punishable by law.

<span class="mw-page-title-main">Treason</span> Crime of betraying ones country

Treason is the crime of attacking a state authority to which one owes allegiance. This typically includes acts such as participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplomats, or its secret services for a hostile and foreign power, or attempting to kill its head of state. A person who commits treason is known in law as a traitor.

The Australian Security Intelligence Organisation is the domestic intelligence and national security agency of the Commonwealth of Australia, responsible for the protection of the country and its citizens from espionage, sabotage, acts of foreign interference, politically motivated violence, terrorism and attacks on the national defence system. ASIO is a primary entity of the Australian Intelligence Community.

<span class="mw-page-title-main">MI5</span> British domestic intelligence agency

MI5, officially the Security Service, is the United Kingdom's domestic counter-intelligence and security agency and is part of its intelligence machinery alongside the Secret Intelligence Service (MI6), Government Communications Headquarters (GCHQ), and Defence Intelligence (DI). MI5 is directed by the Joint Intelligence Committee (JIC), and the service is bound by the Security Service Act 1989. The service is directed to protect British parliamentary democracy and economic interests and to counter terrorism and espionage within the United Kingdom (UK).

<span class="mw-page-title-main">Official Secrets Act</span> UK legislation

An Official Secrets Act (OSA) is legislation that provides for the protection of state secrets and official information, mainly related to national security. However, in its unrevised form, it can include all information held by government bodies.

<span class="mw-page-title-main">Foreign Intelligence Surveillance Act</span> 1978 United States federal law

The Foreign Intelligence Surveillance Act of 1978 is a United States federal law that establishes procedures for the surveillance and collection of foreign intelligence on domestic soil.

<span class="mw-page-title-main">Computer Misuse Act 1990</span> United Kingdom legislation

The Computer Misuse Act 1990 is an act of the Parliament of the United Kingdom, introduced partly in response to the decision in R v Gold & Schifreen (1988) 1 AC 1063. Critics of the bill complained that it was introduced hastily, was poorly thought out, and that intention was often difficult to prove, with the bill inadequately differentiating "joyriding" hackers like Gold and Schifreen from serious computer criminals. The Act has nonetheless become a model from which several other countries, including Canada and the Republic of Ireland, have drawn inspiration when subsequently drafting their own information security laws, as it is seen "as a robust and flexible piece of legislation in terms of dealing with cybercrime". Several amendments have been passed to keep the Act up to date.

Misprision of treason is an offence found in many common law jurisdictions around the world, having been inherited from English law. It is committed by someone who knows a treason is being or is about to be committed but does not report it to a proper authority.

<span class="mw-page-title-main">Intelligence Services Act 1994</span> United Kingdom legislation

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<span class="mw-page-title-main">Devolved, reserved and excepted matters</span> UK public policy areas

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<span class="mw-page-title-main">Public Order Act 1986</span> United Kingdom legislation

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<span class="mw-page-title-main">Official Secrets Act 1911</span> United Kingdom legislation

The Official Secrets Act 1911 was an Act of the Parliament of the United Kingdom. It replaced the Official Secrets Act 1889.

<span class="mw-page-title-main">Official Secrets Act 1989</span> United Kingdom intelligence law

The Official Secrets Act 1989 is an Act of the Parliament of the United Kingdom that repeals and replaces section 2 of the Official Secrets Act 1911, thereby removing the public interest defence created by that section.

<span class="mw-page-title-main">Official Secrets Act 1920</span> United Kingdom legislation

The Official Secrets Act 1920 was an Act of the Parliament of the United Kingdom.

<span class="mw-page-title-main">Official Secrets Act 1939</span> United Kingdom legislation

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<span class="mw-page-title-main">Investigatory Powers Act 2016</span> United Kingdom legislation

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References

  1. ↑ "Collection – National Security Act 2023". GOV.UK . 12 July 2023.
  2. 1 2 "News story – National Security Bill becomes law". GOV.UK . 11 July 2023.
  3. ↑ "New national security laws come into force". GOV.UK . 20 December 2023. Retrieved 30 December 2023.
  4. ↑ Scott, Paul F. (2024). "'State threats', security, and democracy: the National Security Act 2023". Legal Studies. 44 (2): 260–276. doi:10.1017/lst.2023.39. ISSN   0261-3875.
  5. 1 2 "National Security Act Factsheet". Home Office . 11 July 2023.
  6. ↑ "Former Armed Forces personnel training foreign militaries could be prosecuted under National Security Act". GOV.UK . 17 September 2023. Retrieved 30 December 2023.
  7. ↑ "Prohibited places: National Security Bill 2022 factsheet". GOV.UK . 13 July 2023. Retrieved 19 August 2023.
  8. ↑ "NATIONAL SECURITY BILL EXPLANATORY NOTES (as introduced)" (PDF). parliament.uk. Retrieved 21 July 2023.
  9. ↑ "National Security Bill (as introduced)" (PDF). parliament.uk. Retrieved 21 July 2023.
  10. ↑ "National Security Bill (as amended in Public Bill Committee)" (PDF). parliament.uk. Retrieved 21 July 2023.
  11. ↑ "National Security (Prohibited Places) (Civil Nuclear) Regulations 2023", legislation.gov.uk , The National Archives, SI 2023/1114, retrieved 30 December 2023
  12. ↑ "Sabotage: National Security Bill factsheet". GOV.UK . 13 July 2023. Retrieved 19 August 2023.
  13. 1 2 "Foreign interference: National Security Bill factsheet". GOV.UK . 13 July 2023. Retrieved 19 August 2023.
  14. ↑ "Obtaining a material benefit from a foreign intelligence service: National Security Bill factsheet". GOV.UK . 13 July 2023. Retrieved 19 August 2023.
  15. ↑ "Preparatory conduct: National Security Bill factsheet". GOV.UK . 13 July 2023. Retrieved 19 August 2023.
  16. ↑ "National Security Act 2023: Section 27", legislation.gov.uk , The National Archives, 2023 c. 32 (s. 27), retrieved 30 December 2023
  17. ↑ "Powers of arrest and detention: National Security Bill factsheet". GOV.UK . 13 July 2023. Retrieved 30 December 2023.
  18. ↑ "State threats prevention and investigation measures (STPIMs): National Security Bill factsheet". GOV.UK . 13 July 2023. Retrieved 30 December 2023.
  19. ↑ "National Security Act 2023 (Prevention and Investigation Measures) (Polygraph) Regulations 2023", legislation.gov.uk , The National Archives, SI 2023/1249, retrieved 30 December 2023
  20. ↑ "National security bill may have 'chilling effect' on investigative journalism in UK". The Guardian . 11 January 2023.
  21. ↑ "National Security Bill Division 2". UK Parliament. Retrieved 19 August 2023.
  22. ↑ "Journalistic freedoms: National Security Bill factsheet". GOV.UK . 13 July 2023. Retrieved 19 August 2023.
  23. ↑ "Is the UK's new security act comparable with Hong Kong's security law?". Asia Fact Check Lab. Radio Free Asia. 14 September 2023. Retrieved 30 December 2023.
  24. ↑ "National Security Act 2023 (Commencement No. 1 and Saving Provision) Regulations 2023", legislation.gov.uk , The National Archives, SI 2023/1272, retrieved 30 December 2023
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