National Security and Investment Act 2021

Part 3: Enforcement and appeals

Sections 32-36: Offences

132. The table below summarises the offences set out in Sections 32-35.

     Offence	Penalty
     Section 32: Completing, without reasonable excuse, a notifiable acquisition without approval	Criminal Penalty On summary conviction in England and Wales: imprisonment for a term not exceeding 12 months, or a fine (or both). On summary conviction in Scotland: imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum (or both). On summary conviction in Northern Ireland: imprisonment for a term not exceeding 6 months, or a fine not exceeding the statutory maximum (or both). On conviction on indictment: imprisonment for a term not exceeding 5 years, or a fine (or both). Civil Penalty The amount of the penalty is to be such amount as the Secretary of State considers appropriate, not exceeding the permitted maximum as per section 41. The penalty must be a fixed amount only.
     Section 33: Failing, without reasonable excuse, to comply with an order	Criminal Penalty On summary conviction in England and Wales: imprisonment for a term not exceeding 12 months, or a fine (or both). On summary conviction in Scotland: imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum (or both). On summary conviction in Northern Ireland: imprisonment for a term not exceeding 6 months, or a fine not exceeding the statutory maximum (or both). On conviction on indictment: imprisonment for a term not exceeding 5 years, or a fine (or both). Civil Penalty The amount of the penalty is to be such amount as the Secretary of State considers appropriate, not exceeding the permitted maximum as per section 41. The penalty may be a fixed amount, a daily rate penalty or a combination of a fixed penalty and a daily rate penalty.
     Section 34(1)(a): Failing, without reasonable excuse, to comply with an information notice or attendance notice.	Criminal Penalty On summary conviction in England and Wales: imprisonment for a term not exceeding 12 months, or a fine (or both). On summary conviction in Scotland: imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum (or both). On summary conviction in Northern Ireland: imprisonment for a term not exceeding 6 months, or a fine not exceeding the statutory maximum (or both). On conviction on indictment: imprisonment for a term not exceeding 2 years, or a fine (or both). Civil Penalty The amount of the penalty is to be such amount as the Secretary of State considers appropriate, not exceeding the permitted maximum as per section 41. The penalty may be a fixed amount, a daily rate penalty or a combination of a fixed penalty and a daily rate penalty.
     Section 34(1)(b): Intentionally or recklessly altering, suppressing or destroying any information required by an information notice, or causing or permitting its alteration, suppression or destruction.	Criminal Penalty On summary conviction in England and Wales: imprisonment for a term not exceeding 12 months, or a fine (or both). On summary conviction in Scotland: imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum (or both). On summary conviction in Northern Ireland: imprisonment for a term not exceeding 6 months, or a fine not exceeding the statutory maximum (or both). On conviction on indictment: imprisonment for a term not exceeding 2 years, or a fine (or both). Civil Penalty The amount of the penalty is to be such amount as the Secretary of State considers appropriate, not exceeding the permitted maximum as per section 41. The penalty must be a fixed amount only.
     Section 34(2): Intentionally obstructing or delaying the making of a copy of information provided in response to an information notice.	Criminal Penalty On summary conviction in England and Wales: imprisonment for a term not exceeding 12 months, or a fine (or both). On summary conviction in Scotland: imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum (or both). On summary conviction in Northern Ireland: imprisonment for a term not exceeding 6 months, or a fine not exceeding the statutory maximum (or both). On conviction on indictment: imprisonment for a term not exceeding 2 years, or a fine (or both). Civil Penalty The amount of the penalty is to be such amount as the Secretary of State considers appropriate, not exceeding the permitted maximum as per section 41. The penalty must be a fixed amount only.
     Section 34(3) and (4): Supplying information that is false or misleading in a material respect to the Secretary of State (or to another person, knowing that the information is be used for the purpose of supplying information to the Secretary of State) in connection with any of the functions of the Secretary of State under the Act, that the person knows to be false or misleading in a material respect or is reckless as to whether this is the case.	Criminal Penalty On summary conviction in England and Wales: imprisonment for a term not exceeding 12 months, or a fine (or both). On summary conviction in Scotland: imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum (or both). On summary conviction in Northern Ireland: imprisonment for a term not exceeding 6 months, or a fine not exceeding the statutory maximum (or both). On conviction on indictment: imprisonment for a term not exceeding 2 years, or a fine (or both). Civil Penalty The amount of the penalty is to be such amount as the Secretary of State considers appropriate, not exceeding the permitted maximum as per section 41. The penalty must be a fixed amount only.
     Section 35: Unauthorised use or disclosure of information. It is a defence for a person charged with an offence under Section 35 to prove that they reasonably believed that the use or disclosure was lawful, or that the information had already and lawfully been made available to the public.	Criminal Penalty On summary conviction in England and Wales: imprisonment for a term not exceeding 12 months, or a fine (or both). On summary conviction in Scotland: imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum (or both). On summary conviction in Northern Ireland: imprisonment for a term not exceeding 6 months, or a fine not exceeding the statutory maximum (or both). On conviction on indictment: imprisonment for a term not exceeding 2 years, or a fine (or both).

133. The maximum sentence of imprisonment on summary conviction will be 6 months in England and Wales until paragraph 24(2) of Schedule 22 to the Sentencing Act 2020 is brought into force.
134. Section 55(2) provides that section 19 of the Commissioners for Revenue and Customs Act 2005 (offence of wrongful disclosure) applies to the unauthorised disclosure of personal information from Her Majesty’s Revenue and Customs.

Section 36: Offences by bodies corporate etc

135. Section 36 provides that, where a body (for instance, a body corporate such as a company) commits an offence under this Act, an officer of the body will also be guilty of the offence if it is attributable to their consent or connivance, or to their neglect.
136. Subsection (5) provides that the Secretary of State may by regulations provide for the modification of this section in its application to a body corporate or unincorporated association formed or recognised under the law of a country or territory outside the United Kingdom.

Section 37: Prosecution

137. Section 37 provides for which enforcement agencies are responsible for prosecuting offences under this Act. It provides that in England and Wales prosecutions must be brought by the Director of Public Prosecutions, and in Northern Ireland, the Director of Public Prosecutions for Northern Ireland. In Scotland, the Procurator Fiscal handles all prosecutions in the public interest and there is therefore no need for the kind of provision made in this section in Scotland.

Section 38: Proceedings against partnerships etc

138. Section 38 makes provision about, and in connection with, bringing proceedings for offences under this Act against partnerships or other unincorporated associations.

Section 39: Offences: penalties

139. Section 39 sets out the available penalties on conviction for persons who commit offences under this Act. These are set out in the table after paragraph 135 above.
140. Subsection (3) provides that, in relation to offences committed before paragraph 24(2) of Schedule 22 to the Sentencing Act 2020 is brought into force, the maximum term of imprisonment which may be imposed on summary conviction in England and Wales is 6 months.

Section 40: Power to impose monetary penalties

141. Section 40 enables the Secretary of State to impose a monetary penalty on a person where they are satisfied beyond reasonable doubt that the person has committed an offence under Sections 32, 33 or 34. Subsection (6) provides that the amount of the penalty must be such amount as the Secretary of State considers appropriate, but it may not exceed the maximum penalty for the offence as set out in section 41. Subsection (7) requires the Secretary of State to have regard to various factors when determining the amount of a monetary penalty, including the seriousness of the offence and the ability of the penalised person to pay the penalty. Further information on the monetary penalties is set out in the table after paragraph 135 above.

Section 41: Permitted maximum penalties

142. Subsections (1) to (7) of section 41 set out the maximum monetary penalties that the Secretary of State may impose for different offences under the Act. They specify the maximum fixed penalty and, if applicable, the maximum daily rate penalty. In relation to the offences of completing a notifiable acquisition without approval and failing to comply with an order, there are different maximum penalties for businesses and non-businesses. In relation to businesses, the maximum penalties are, depending on the offence, either a specified amount or a percentage of the worldwide turnover of the business and of any businesses it owns or controls.
143. Pursuant to subsections (8) and (9) the Secretary of State may by regulations specify how to calculate the maximum penalty applicable in any case (for example, how to determine the turnover of a business), or amend any of the maximum penalty amounts or percentage rates specified in subsections (1) to (7).
144. Section 63 provides for the parliamentary procedure to be used for regulations under the Act. Regulations under section 41 must be laid in draft before Parliament and approved by both Houses of Parliament before they may be made.

Sections 42-47: Monetary penalties and cost recovery

145. Sections 42 and 46 require the Secretary of State to keep under review a monetary penalty and a requirement to pay costs respectively.
146. Section 43 ensures that a person may not be subject to both a monetary penalty and a criminal sanction for the same offence.
147. Sections 44 and 45 deal with monetary penalties and cost recovery respectively. They set out the procedure for recovering unpaid penalties and costs and provide for interest to be incurred on the unpaid balance.
148. Section 47 enables the Secretary of State to issue a notice requiring a person issued with a monetary penalty to also pay the Secretary of State’s costs incurred in imposing the penalty.

Section 48: Enforcement through civil proceedings

149. Section 48 provides that the duty of a person to comply with a requirement under or by virtue of an information notice, an attendance notice, an interim order or a final order is enforceable through civil proceedings by the Secretary of State for an injunction, or for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or for any other appropriate relief or remedy. This applies whether or not the person is in the UK.

Section 49: Procedure for judicial review of certain decisions

150. Section 49 provides that claims for judicial review of certain decisions under this Act must be brought within 28 days beginning with the day after the day on which the grounds to make the claim first arose, unless the court considers that exceptional circumstances apply.

Section 50: Appeals against monetary penalties

151. Section 50 enables any person on whom a monetary penalty or variation in penalty is imposed to appeal against the penalty or variation.

Section 51: Appeals against costs

152. Section 51 enables any person on whom costs are imposed, or on whom a variation in costs is imposed, to appeal against the costs or variation.

Section 52: Extra-territorial application and jurisdiction to try offences

153. Section 52(1) provides that the offences set out in Sections 32, 33, 34 and 35 may be committed by conduct that occurs inside or outside the UK irrespective of the offender’s nationality or, if a body, country of formation or recognition.
154. Subsection (2) provides that, where an offence under the Act is committed outside the UK, proceedings for the offence may be taken at any place in the UK and may be treated for all incidental purposes as having been committed at any such place.
155. Subsection (3) specifies that in the application of subsection (2) to Scotland, any such proceedings may be taken in any sheriff court district in which the person is apprehended or in custody, or in such sheriff court district as the Lord Advocate may determine.
156. Subsection (4) defines "sheriff court district" by reference to the definition in section 307(1) of the Criminal Procedure (Scotland) Act 1995.