National Security Act 2023

The National Security Act 2023 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] The Bill was introduced as number 7 for the 22-23 session, receiving its first reading on 11 May 2022 and royal assent on 11 July 2023.[2]

National Security Act 2023
Act of Parliament
Long titleAn 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.
Citation2023 c. 32
Introduced byPriti Patel, Home Secretary (Commons)
Lord Sharpe, Parliamentary Under-Secretary of State for the Home Department (Lords)
Dates
Royal assent11 July 2023
Other legislation
AmendsTerrorism Act 2000
Repeals/revokes
Status: Unknown
History of passage through Parliament
Text of statute as originally enacted
Revised text of statute as amended

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 Act repeals and replaces the Official Secrets Act 1911, Official Secrets Act 1920 and Official Secrets Act 1939.

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.[3] 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 3 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 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.[3]

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 3 months imprisonment.[4]

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".[5]

As originally introduced,[6] 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.[7]

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.[8] The offence carries a sentence of life imprisonment.

Foreign interference

The new offence of foreign interference offence 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".[9] 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.

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.[10]

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.[11]

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.[12]

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.[13] 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.[14]

See also

References
  1. "Collection – National Security Act 2023". GOV.UK. 12 July 2023.
  2. "News story – National Security Bill becomes law". GOV.UK. 11 July 2023.
  3. "National Security Act Factsheet". Home Office. 11 July 2023.
  4. "Prohibited places: National Security Bill 2022 factsheet". GOV.UK. 13 July 2023. Retrieved 19 August 2023.
  5. "NATIONAL SECURITY BILL EXPLANATORY NOTES (as introduced)" (PDF). parliament.uk. Retrieved 21 July 2023.
  6. "National Security Bill (as introduced)" (PDF). parliament.uk. Retrieved 21 July 2023.
  7. "National Security Bill (as amended in Public Bill Committee)" (PDF). parliament.uk. Retrieved 21 July 2023.
  8. "Sabotage: National Security Bill factsheet". GOV.UK. 13 July 2023. Retrieved 19 August 2023.
  9. "Foreign interference: National Security Bill factsheet". GOV.UK. 13 July 2023. Retrieved 19 August 2023.
  10. "Obtaining a material benefit from a foreign intelligence service: National Security Bill factsheet". GOV.UK. 13 July 2023. Retrieved 19 August 2023.
  11. "Preparatory conduct: National Security Bill factsheet". GOV.UK. 13 July 2023. Retrieved 19 August 2023.
  12. "National security bill may have 'chilling effect' on investigative journalism in UK". The Guardian. 11 January 2023.
  13. "National Security Bill Division 2". UK Parliament. Retrieved 19 August 2023.
  14. "Journalistic freedoms: National Security Bill factsheet". GOV.UK. 13 July 2023. Retrieved 19 August 2023.
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