National Security Act 2023

Legal Background

Measures to counter state threats (Parts 1 and 2)

Part 1 – Criminal offences

38. As set out in paragraph 16 the provisions in Part 1 of the Act replace the existing offences in the Official Secrets Acts 1911, 1920 and 1939. The relevant parts of these Acts are as follows.
39. Section 1 of the Official Secrets Act 1911 which creates three distinct offences:
    • Section 1(1)(a) – makes it an offence for a person, for any purpose prejudicial to the safety or interests of the state to approach, inspect, pass over, be in the neighbourhood of, or enter any prohibited place as that term is defined in the Act.
    • Section 1(1)(b) – makes it an offence for a person for any purpose prejudicial to the safety or interests of the state to make any sketch, plan, model or note which is calculated to be, or might be, or is intended to be directly or indirectly useful to an enemy.
    • Section 1(1)(c) – makes it an offence for a person for any purpose prejudicial to the safety or interests of the state to obtain, collect, record, publish, or communicate to any other person, any secret official code word, or pass word, or any sketch, plan, model, article, note, or other document or information which is calculated to be, or might be or is intended to be directly or indirectly useful to an enemy.
40. The maximum available penalty for these offences is 14 years and their application is limited to British citizens.
41. The offence in section 1 has been considered by the Courts on a number of occasions. The lead case is Chandler v DPP [1964] 1 AC 763. It concerned the prosecution of persons taking part in protests by the Campaign for Nuclear Disarmament that sought to disable a military airbase. In its ruling the House of Lords made three important points.
42. First, it confirmed that the offence in section 1 was not limited to spying but could encompass other activity that fell within its different limbs including behaviour that might be characterised as sabotage. Second, the Lords considered the meaning of "purpose prejudicial to the safety or interests of the state". On this point the judgment decided that the question to be considered was whether the defendants "immediate purpose" (here to prevent aircraft taking off) was prejudicial to the safety or interests of the state and that their long-term purpose or motivation (nuclear disarmament) was irrelevant. Third, the Lords considered the meaning of the term "safety or interests of the State" finding in summary that it meant the objects of state policy determined by the Crown on the advice of Ministers.
43. A number of the offences in Part 1 of the National Security Act are a modernisation of the different elements of the section 1 1911 offence. Some incorporate a concept of "prejudice to the safety or interest of the UK" using the term "UK" for clarity but reflecting on the interpretation in Chandler.
44. Further, references to the term "enemy" have been removed, and the National Security Act instead focusses predominantly on activity that is for or on behalf of, or intended to benefit, a foreign power.
45. Section 3 of the 1911 Act provides a definition of a prohibited place for the purposes of the espionage offence in section 1 of that Act. This aspect of the Act is replaced by the regime set out in paragraph 16(b).
46. Section 7 of the National Security Act provides for a number of offences that are collectively titled "harbouring spies". A number of offences in the Act address the relevant elements of this offence, including the offences of assisting a foreign intelligence service and the preparatory conduct offence.
47. Section 9 of the National Security Act provides a power of search and seizure in relation to investigations under any of the Official Secrets Acts. This provision is being repealed and replaced with modernised powers in section 24 and Schedule 2.
48. Section 7 of the Official Secrets Act 1920 provides a number of inchoate offences in respect of the principal offences under the Official Secrets Acts 1911 and 1920. These inchoate offences include attempting, inciting, aiding and abetting, or doing an act that is preparatory to, a principal offence. With the exception of the preparatory act offence, these inchoate offences are largely covered by other statutory provisions or by the common law (e.g., section 1 of the Criminal Attempts Act 1981 or the Serious Crime Act 2007 which provides for offences of assisting or encouraging other offences). In addition, certain of the offences in the Act catch elements of this conduct (e.g. the section 3 offence of assisting a foreign intelligence service). There is no need for specific provision to replace these aspects of the previous legislation.
49. The Court of Appeal considered the meaning of the term "act preparatory to the commission of an offence" in R v Bingham [1973] QB 870, finding that an individual will commit an offence under section 7 of the Official Secrets Act 1920 if he or she does an act that "opens the door to the commission of an offence" with the necessary intent. This offence under section 7 is replaced by the provisions set out in paragraph 16(g).

Part 1 – Police Powers etc

50. The police powers sections in Part 1 and related Schedules as referred to in paragraph 16(i) above are in part based on, and informed by, corresponding legislative provisions that give powers in respect of terrorism and in some cases proceeds of crime investigations. These include:
    • Arrest powers - Section 41 Terrorism Act 2000 (arrest without warrant).
    • Search and seizure powers - Schedule 5 Terrorism Act 2000 (terrorism investigations – information). The provisions in this Act replace the effect of the powers previously conferred by section 9 of the Official Secrets Act 1911, extended to a wider set of harmful activity.
    • Detention powers - Schedule 8 Terrorism Act 2000 (Detention).
    • Disclosure orders – Schedule 5A Terrorism Act 2000 & sections 357-362 Proceeds of Crime Act 2002.
    • Customer information orders – Schedule 6 Terrorism Act 2000 & sections 397-403 Proceeds of Crime Act 2002.
    • Account monitoring orders – Schedule 6A Terrorism Act 2000 & sections 370-375b Proceeds of Crime Act 2002.

Part 1 – Border Security

51. The powers under Schedule 3 to the Counter-Terrorism and Border Security Act 2019 allow an examining officer to stop, question and, when necessary, detain and search, individuals and goods travelling through the UK port and border area for the purpose of determining whether the person appears to be someone who is, or has been, engaged in hostile state activity. This includes giving Examining Officers the ability to access confidential material, which is subject to the authorisation of the Investigatory Powers Commissioner.

Part 2 – Measures to prevent and investigate foreign power threat activity

52. The provisions in Part 2 are similar to the provisions in the Terrorism Prevention and Investigation Measures Act 2011, including a new paragraph in Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (which is inserted by the Act).

Amendment to the Serious Crime Act 2007

53. Part 2, sections 44 to 46 of the Serious Crime Act 2007 contain three offences of encouraging or assisting another person to commit an offence or offences. Section 47 contains provisions for proving the offences under Part 2, including the mens rea requirements in relation to the principal offence. Section 50 contains a defence of acting reasonably. Section 52(1) and schedule 4 provide for broad territorial application of the offences.

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

54. Under section 36 of the Terrorism Act 2006 an independent reviewer for terrorism was created. The Independent Reviewers of Terrorism Legislation have scrutinised the operation of terrorism legislation and produced a number of reports since the role was established. The reviewer to be appointed under Part 3 is modelled on that provision and will perform a similar role for State Threats legislation.
55. Paragraph 62 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019 provides for the Investigatory Powers Commissioner to review the operation of the powers under that Schedule. The Act will transfer these review functions to the new independent reviewer to be appointed under Part 3.

Foreign Influence Registration Scheme (Part 4)

56. The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 makes provision in three areas:
    • It establishes a register of consultant lobbyists and a Registrar of consultant lobbyists to monitor and enforce the registration requirements.
    • It changes the legal requirements for people or organisations who campaign in relation to elections but are not standing as candidates or as a registered political party.
    • It changes the legal requirements in relation to trade unions’ obligations to keep their list of members up to date.
57. This Act was not designed to deal with the threat from state actors, nor does the Government consider it appropriate to adapt it for the Government’s purposes. Its focus is very specifically towards increasing transparency around the activities of consultant lobbyists. The Foreign Influence Registration Scheme (FIRS), however, is designed as a tool to counter state threats activity by focusing on arrangements with foreign powers. While there may be some limited overlap, the scope of FIRS is necessarily much wider, and the offences and penalties reflect the seriousness of the threat context.  
58. The Elections Act 2022 makes new provision to ensure that UK elections remain secure, fair, modern, inclusive and transparent. In the National Security Act, the requirement to register political influence activities is designed to capture and increase transparency around a wider range of conduct that has been directed by foreign powers and not limited to election periods.

Terrorism Provisions (Part 5)

59. Damages in civil claims are payable pursuant to court orders to compensate for loss. Though all the relevant circumstances must be taken into account in quantification of those damages, prevention of terrorism involves unique factors and often the utilisation of special proceedings, such as closed material procedures under the Justice and Security Act 2013 and Part 82 of the Civil Procedure Rules 1998. Sections 81 to 84 set out new specific procedures for the assessment of damages in national security proceedings against the Crown.
60. There are also a variety of powers available to seize and forfeit terrorist property such as in section 1 of, and Schedule 1 to, the Anti-terrorism, Crime and Security Act 2001. However, none of those provisions are specifically designed to address court awards of damages before they are paid to those who are at risk of using the funds for terrorist purposes. Section 85 of, and Schedule 15 to, the Act set out new powers that courts may employ to achieve this.
61. Sections 86 and 87 of the Act amend Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("the 2012 Act"), which provides for the availability of civil legal services, to create limits on the availability of those services in general cases for individuals convicted of terrorism offences and provide for associated data sharing. Part 1 of Schedule 1 to the 2012 Act describes the civil legal services that are to be available in general cases and Section 88 of the Act clarifies the existing availability of those services for Terrorism Prevention and Investigation Measures proceedings, by bringing all services under the same paragraph.
62. The Terrorism Act 2000 provides powers for the arrest and detention of any person who is reasonably suspected to be a terrorist. Section 41 of that Act covers the calculation of the period for which a person can be held in detention including when they have previously been detained under other specific powers (section 41(3)(b)) and circumstances in which a person who is detained requires medical treatment (section 41(8A) and (8B). Schedule 5 to the Terrorism Act 2000 covers a number of police powers in relation to investigations, including powers of search wholly or partly within cordoned areas, and the power of a police officer of at least the rank of superintendent, in cases of great emergency and when immediate action is necessary, to give by written order signed by him to any constable the authority which may be given by a search warrant under paragraph 1 or 11 of Schedule 5 to that Act.