Introduction
The National Security Act, which received Royal Assent on 11 July 2023, is a response to the threat of hostile activity from states targeting the UK’s democracy, economy and values. The threat is ever evolving, and we need to stay one step ahead. The Act allows us to keep pace with the changing threat and will keep our country safe by making the UK an even harder target for those states who seek to conduct hostile acts against the UK.
The threats are diverse are persistent, the form they take is varied and includes espionage, foreign interference in our political system, sabotage, disinformation, cyber operations, and even assassinations and poisonings. These actions often take place in the shadows, but the harm is very real.
The Act will provide our world class law enforcement and intelligence agencies with new and updated tools to deter, detect and disrupt modern threats. The Act also introduces a new Foreign Influence Registration scheme, which will bring greater transparency by requiring registration of foreign influence in our political system and registration of a broader set of influence activities from specified foreign powers.
New espionage offences
- Espionage is now addressed by 3 offences in the Act: obtaining or disclosing protected information; obtaining or disclosing trade secrets; and assisting a foreign intelligence service. The Act repeals the Official Secrets Acts 1911, 1920 and 1939, which contain the existing provisions.
- An offence of assisting a foreign intelligence service reduces the ability of such agencies to carry out a range of hostile activities against the UK, extending beyond traditional espionage activity.
Prohibited Places
- The provisions introduce a suite of tools and measures to protect sensitive sites that are particularly vulnerable to threats from foreign powers, providing greater scope to respond to new tactics and technology, and deterring those who would violate the security of places vital to the safety or interests of the UK.
Sabotage
- The offence of sabotage captures activity conducted for, on behalf of, or for the benefit of a foreign power, resulting in damage to property, sites and data affecting the UK’s interests, and national security. This can be done through, but is not limited to, the use of cyber actions and physical damage.
Foreign interference
- The principal aim of the foreign interference offences is 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.
Obtaining a material benefit from a foreign intelligence service
- These offences target activity where a person: obtains, accepts or agrees to accept, or retains a material benefit that originally comes from a Foreign Intelligence Service in circumstances where there is no legitimate basis for that benefit.
Preparatory conduct
- The Act criminalises preparatory conduct that acts as a precursor to state threats offences and other harmful acts.
State threats aggravating factor
- An aggravating factor will ensure that sentences for state linked criminality recognise the seriousness of hostile activity conducted for or on behalf of foreign states. This applies to offences not in the Act where the foreign power condition is met.
Financial and property investigation powers
- The Act introduces 3 powers to support investigations into foreign power threat activity, focussing on information about finances and other property: disclosure orders, account monitoring orders, customer information orders.
Powers of arrest and detention
- The Act contains specific powers and measures to provide the police with the necessary tools to investigate and respond to state threats activity. This includes the ability to arrest people at an earlier stage in an investigation and detain them for longer given the complexity of investigations.
Powers of search and seizure
- The search powers within the Act ensure that the policy can move quickly to search and seizure material at an earlier stage in the investigation – reflecting the high harm of state threats activity.
Serious Crime Act (SCA) amendment
- The SCA amendment will ensure that individuals working for UKIC and the armed forces are protected from criminal liability under the SCA when supporting activity overseas which is necessary for the proper exercise of UKIC’s functions or the Armed Forces functions relating to intelligence. The Government took on board the concerns of the Intelligence Security Committee through passage, changing the Serious Crime Act 2007 amendment from non-application of the offences to a defence.
STPIMs
- State Threats Prevention and Investigation Measures (STPIMs) will provide a suite of restrictive measures which can be used, where necessary and proportionate, to prevent an individual’s further involvement in state threats activity where prosecution and other disruptive actions are not possible.
Independent Reviewer
- The Act provides for an Independent Reviewer of Parts One and Two of the legislation.
- The reviewer will be required to carry out an annual review of the offences and powers in these parts, which the Home Secretary will be required to lay before Parliament.
FIRS
- The Foreign Influence Registration Scheme (FIRS) is a two-tier scheme which increases transparency of foreign power influence in UK politics and provides greater assurance around the activities of certain foreign powers or entities that are a risk to UK safety or interests. As a result, the UK will be better informed about the nature, scale and extent of foreign influence in UK.
- The political influence tier will require the registration of arrangements to carry out political influence activities in the UK at the direction of a foreign power. The enhanced tier of FIRS gives the Secretary of State the power to require registration of a broader range of activities for specified foreign powers or foreign power-controlled entities where this is necessary to protect the safety of interests of the UK.
- The scheme contains offences for those who fail to comply with registration requirements, or who act pursuant to unregistered or falsely registered arrangements.
Terrorism Measures - Damages
- The Act will require courts to consider reducing or withholding damages in national security cases brought against the Crown where the case relates to the claimant’s involvement in terrorism.
- The Act will enable courts to grant Damages Freezing Orders where the claimant is considered to pose a real risk of using their award to fund terrorism. These orders last for two years and are extendable by another two years.
- The Act will enable courts to grant Damages Forfeiture Orders when a Freezing Order expires, and the claimant is assessed as continuing to pose a risk of using the funds to support acts of terror.
Legal Aid
- The Act introduces a restriction on access to civil legal aid for convicted terrorists, which narrows the range of circumstances in which individuals convicted of specified terrorism offences can receive civil legal aid services.
Terrorism Act (TACT) 2000
- The Act makes a number of changes to the TACT 2000 to either strengthen existing or introduce new safeguards, or implement recommendations made by the Independent Reviewer of Terrorism Legislation.
Intelligence and Security Committee Memorandum of Understanding
- The Act creates a duty on the Prime Minister and the Intelligence and Security Committee to consider if any amendments to the Memorandum of Understanding between the Prime Minister and the Committee, as outlined in section 2 of the Justice and Security Act 2013, are required as a result of the changes arising out of the National Security Act. The review must commence within six months of provisions coming into force.