National Security Act 2023

Policy background

9. The Act is in six parts. Parts 1 and 2 contain legislative provisions to counter state threats as well as an amendment to the Serious Crime Act 2007. Part 3 contains measures to establish an independent reviewer. Part 4 contains measures in relation to the Foreign Influence Registration Scheme. Part 5 contains measures in relation to terrorism. Part 6 provides general provisions for the Act and as such, is not covered further in this overview.

Measures to counter state threats (Parts 1 and 2)

10. In 2015, the Cabinet Office and the Ministry of Justice commissioned the Law Commission to examine the Official Secrets Acts as part of a wider review of the Protection of Official Data. The genesis of this Review was prompted by increased concern about the impact of unauthorised disclosures of official information, and the speed and scale of global communications enabled by the internet.
11. During their Review, the Law Commission consulted widely on potential legislative proposals. The Government engaged with the Law Commission during their consultation process in 2017, as did a wide number of interested parties, including media and legal organisations, academics, non-governmental organisations, and individual members of the public.
12. The Commission’s final Report was published on 1 September 2020. In preparing this Act, the Government took into account that report, in particular the aspects relating to the Official Secrets Acts 1911, 1920 and 1939.
13. In parallel to the ongoing Law Commission review, the then Prime Minister announced in 2018 that the Government would be taking a number of steps to address the threat posed to the UK by the hostile activities of foreign states. This included introducing a new power to allow police to stop those suspected of conducting hostile activity on behalf of a foreign state at the border and, in slower time, conducting a comprehensive review of the tools and powers available to counter the threat. The former was delivered through the Counter Terrorism and Border Security Act 2019 and came into force in 2020.
14. On 21 July 2020, the Intelligence and Security Committee published their Russia Report, which made several recommendations for legislation to counter state threats. This included the view that ‘the Official Secrets Act regime is not fit for purpose and the longer this goes unrectified, the longer the security and intelligence community’s hands are tied. It is essential that there is a clear commitment to bring forward new legislation to replace it’. It also recommended that there be ‘a new statutory framework to tackle espionage’.
15. From 13 May 2021 to 22 July 2021, the Government ran a public consultation on Legislation to Counter State Threats. The consultation set out the Government’s proposals and sought input to inform the final policy and legislative proposals to counter state threats with a view to ensuring the new framework was comprehensive, effective, workable, and balanced the protection of national security with the rights and values important to the British people. The Government response to this consultation was published on 12 July 2022.

Part 1 – Espionage, sabotage and persons acting for foreign powers

16. Part 1 replaces the existing offence of espionage, and other measures contained in the Official Secrets Acts 1911, 1920 and 1939 with a suite of new offences and accompanying powers. Through a ‘foreign power condition’ and definitions of a ‘foreign power’ and ‘foreign power threat activity’ the Act takes a consistent approach to determining when harmful activity is carried out for or on behalf of, or with the intention to benefit, a foreign power and applies the supporting measures accordingly. The measures:
    • Reform the espionage offences to reflect the evolving threat and the interconnected nature of the modern world. The existing legislation has a focus on espionage through more ‘traditional’ methods. Espionage is tackled by new offences in the Act that are designed to capture modern methods of spying, and provide the ability to impose penalties reflecting the serious harm that can arise;
    • Establish a standalone regime for protecting sensitive sites from espionage and other state threats, modernising the list of protected sites (referred to in the 1911 Act and this Act as "prohibited places") and creating new offences and accompanying police powers to capture harmful activity around sites that are critical to the safety or interests of the United Kingdom; 
    • Establish a new offence to protect against the theft of trade secrets. The offence targets state-linked, illicit acquisition, retention, or disclosure of "trade secrets" that protect sensitive industrial, commercial, or economic information;
    • Explicitly criminalise assisting a foreign intelligence service in carrying out activities in the UK, or overseas where such conduct is prejudicial to the UK’s safety and interests;
    • Establish a new offence of sabotage designed to capture state-linked saboteurs who act in a way that is prejudicial to the UK’s safety or interests by causing damage, including through cyber-attacks, to assets (including critical infrastructure, electronic systems, and information);
    • Establish a new offence of foreign interference where conduct is intended to have a specified negative effect and certain conditions are satisfied. The Act also increases the maximum custodial penalties for certain election-related offences that are carried out for or on behalf of, or with the intention to benefit, a foreign power;
    • Replace the existing acts preparatory offence under the Official Secrets Act 1920 with a new offence to ensure that it can effectively target harmful preparatory state threats activity. This provides a key tool which prevents threats to the UK’s national security by criminalising preparatory conduct before serious and potentially irreversible harm occurs;
    • Create a new state threats aggravating factor to ensure that where individuals commit offences other than those in this Act with a proven link to a foreign power, the state threat link is appropriately recognised; 
    • Ensure that the police have the appropriate powers needed to intervene earlier in an investigation and to enable the successful prosecution of cases; and 
    • Amend Schedule 3 to the Counter-Terrorism and Border Security Act 2019 to allow counter-terrorism police officers to retain copies of confidential business material (material acquired in the course of a trade or business that is held in confidence) without the authorisation of the Investigatory Powers Commissioner. A new Counter-Terrorism Police authorisation procedure will be set out in the Code of Practice, which will require an officer of at least the rank of superintendent to authorise access to such material. allows counter-terrorism police to progress operations and investigations into state threats activity 1 at the required pace and reflects the position in Schedule 7 to the Terrorism Act 2000 (on which the power in Schedule 3 was modelled).

Amendment to the Serious Crime Act 2007

17. Section 30 inserts an additional defence into Part 2 of the Serious Crime Act 2007 (SCA) which applies in the extra-territorial circumstances provided for in Schedule 4 of that Act. This ensures that individuals working for the Security Service, the Secret Intelligence Service, GCHQ, and individuals carrying out intelligence functions in the Armed Forces, have a specific defence against the offences of encouraging or assisting crime in sections 44 to 46 of the SCA.

State Threats Prevention and investigation measures (Part 2)

18. Part 2 provides for a new regime of state threats prevention and investigation measures (ST-PIMs) that may be imposed by the Secretary of State on individuals believed to be involved in state threat activity. Notwithstanding the range of offences and accompanying measures in Part 1, there will remain cases that cannot be prosecuted or otherwise disrupted. The Government anticipates such measures will be used sparingly and as a measure of last resort to mitigate the immediate threat an individual poses while they continue to be investigated. The proposed ST-PIMs framework largely replicates that contained in the Terrorism Prevention and Investigation Measures Act 2011.
19. Part 2 also provides for civil legal aid to be made available for ST-PIMs.

Review of the Operation of State Threats Legislation (Part 3)

20. Part 3 requires the appointment of an independent reviewer of state threats legislation. The independent reviewer is required to carry out an annual review of the use of offences and powers in Part 1, the Prevention and Investigation Measures in Part 2 and the operation of Schedule 3 to the Counter-Terrorism and Border Security Act 2019. Annual reviews must in particular consider the use of the detention powers under Part 1 of the Act. The Secretary of State must lay reports by the independent reviewer before Parliament.

Foreign Influence Registration Scheme (Part 4)

21. Part 4 introduces measures relating to the Foreign Influence Registration Scheme. The scheme delivers a key recommendation of the Intelligence and Security Committee’s 2020 Russia Report. Similar schemes have been implemented in the U.S. (the Foreign Agent Registration Act 1938) and Australia (the Foreign Influence Transparency Scheme Act 2018).
22. The Foreign Influence Registration Scheme has been created to strengthen the resilience of the UK political system against covert foreign influence and provide greater assurance around the activities of specified foreign powers or entities.
23. Governments around the world, including the UK, seek to advance their interests through the lobbying and influencing of other states. We continue to welcome open and transparent engagement from foreign governments and entities, and the scheme will not prevent this. It will play a critical role in encouraging transparency, while simultaneously deterring foreign powers that wish to pursue their aims covertly.
24. The scheme’s requirements apply to any person, regardless of nationality, and will be enforced through a range of offences and penalties, as well as powers to request information. The scheme requires the registration of ‘political influence activities’ where they are to be carried out within the UK at the direction of any foreign power. Certain registered information will be made available to the public via a scheme website, similar to the schemes of our Australian and U.S. partners.
25. The scheme also contains a power to specify a foreign power, part of a foreign power, or an entity subject to foreign power control, where the Secretary of State considers it necessary to protect the safety or interests of the UK. It requires a person acting within the UK at the direction of a specified foreign power or entity subject to foreign power control to register with the scheme. It requires a specified entity to register activities they intend to carry out within the UK with the scheme. There is also a power which may be used to make modifications to the types of activities requiring registration under this tier. Use of these powers is subject to Parliamentary approval.
26. The scheme does not require registration from, or otherwise provides explicit exemption for, individuals to whom privileges and immunities apply in international law as provided by, for example, the Vienna Convention on Diplomatic and Consular Relations; legal services, as well as information subject to legal professional privilege; domestic and foreign news publishers (political influence tier only), including confidential journalistic material and sources; and arrangements which the UK is party to.
27. The scheme has also been designed to uphold the letter and spirit of the Belfast (Good Friday) Agreement. To that end, any arrangement with Ireland is exempt from registration.

Terrorism Provisions (Part 5)

Damages – Quantum

28. Part 5 introduces measures to require a court, in proceedings relating to national security where the Crown makes an application, to consider whether it is appropriate to reduce an award of damages to reflect relevant wrongdoing of the claimant of a terrorist nature.
29. Although courts already have discretion under their inherent jurisdiction and in statute to ensure awards are just in all the circumstances, it is necessary to have a proper procedure so that all matters relevant in the context of terrorism are properly taken into account.
30. In appropriate cases, the Crown will make an application to the court. The court will consider whether the claimant’s wrongdoing arising from their involvement in terrorism is relevant to the conduct of the Crown complained of and the factual matrix the terrorist element engendered and determine whether the appropriate outcome is for damages to be reduced or withheld altogether.
31. The reform is not being pursued in relation to human rights claims, brought under Section 8 of the Human Rights Act 1998, as separate consideration is being given to the award of damages under that legislation as part of proposed wider human rights reforms which have been the subject of consultation. 2

Damages - Freezing and Forfeiture Orders

32. At present, when a claimant associated with terrorism makes a claim, including against UK intelligence agencies, departments or ministers, there is no mechanism within the proceedings to prevent payment of the sum of damages they are considered entitled to in compensation, irrespective of any assessment of the risk that that sum will be used to fund or support acts of terror.
33. Part 5 introduces measures to reduce the risk of court damages paid out in compensation being used to fund terrorist activities. The powers of a court will arise where it is established, on a balance of probabilities, that there is a real risk that the funds would be used to support terrorism.
34. These provisions introduce a new freezing order which may be made for an initial period of 2 years and renewed once for a further period of 2 years.
35. If, after a renewal of the freezing order, the court concludes that the risk continues, the court will have the discretion to permanently withhold the damages by making a forfeiture order.

Legal Aid

36. Part 5 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. To be able to enforce the restriction on civil legal aid, the Act also provides the lawful basis for the sharing and processing of criminal conviction data for the purposes of making decisions on legal aid funding.

Amendments to the Terrorism Act 2000

37. The Act makes a number of changes to the Terrorism Act 2000 to either strengthen existing or introduce new safeguards, or implement recommendations made by the Independent Reviewer of Terrorism Legislation.