The new National Security Bill is a response to the fact that the current legislation surrounding combatting espionage and foreign influence dates from the Official Secrets Acts of 1911, 1920 and 1989 and do not reflect the ability to deal with current threats, as they exist. We have looked at the proposed new legislation (it is currently not yet law, but likely to become so in 2023). It has reached its final stage and is about to pass to the House of Lords.
Overall, the National Security Act (as it will become known) is designed to counter foreign influence on the UK. By bringing in such requirements as the Foreign Influence Registration Scheme (FIRS), this will mean in real terms that foreign powers who might have previously used covers and proxies and in turn registered entities, will now need to register political influence activities in the UK. The Home Secretary will be able to direct such registration. What it doesn’t do though is seek to limit the ‘official’ actions of foreign powers such as those working in and through Embassies and diplomatic missions conducting routine diplomatic influence.
However, there are some new powers the Act will bring in that might influence the activities of organisations that are providing capacity and capability-building projects outside of the UK and for foreign governments. Those performing such activities under the auspices of the Conflict, Stability and Security (CSSF) Fund are highly unlikely to be affected in so far as they are likely to be deemed to be working directly for the UK government.
Those organisations that are performing capacity and capability-building projects under direct contract from a foreign government would need to reassess their activities. The reason for this is due to proposed powers that would make it an offence to obtain or disclose protected information and trade secrets.
The impact assessment doesn’t directly deal with protected information, but the wording of the offence is proposed as:
- For or on behalf of, or with the intention to benefit, a foreign power.
- Where the person knows, or ought reasonably to know, the purpose of their conduct would prejudice the safety or interests of the UK.
- “Protected information” is information where, for the purposes of protecting the safety or interests of the UK, access to it is restricted or it is reasonable to expect that access to it is restricted (for example a sensitive document in a government building). It is not limited to classified material and is dependent on whether restrictions on access are needed to protect the safety or interests of the UK.
- Can be committed in the UK or abroad, and by any individual, whatever their nationality.
- Maximum penalty of life imprisonment.
- Prosecution requires the consent of the Attorney General, or Advocate General in the case of Northern Ireland.
There has to be some context around interpreting this offence. The government has published its rationale in respect of trade secrets (here on page 7/22). In particular, it states:
Obtaining or disclosing trade secrets offence: By gaining unauthorised access to information that loses value if confidentiality is breached, a foreign state may either gain an advantage for itself or reduce an advantage held by someone else. Existing legislation in this area is often not applicable (ideas or items with future value are not covered by the Theft Act 1968 (TA 1968)) and only attracts civil sanction. The aim of expanding espionage to include an offence of obtaining or disclosing trade secrets is to provide an effective tool to tackle this type of state threat, which can have significant consequences both in damage to the UK itself and as the UK as a leader of innovation.
The proposed wording of the offence in respect of trade secrets is here. Again, it is important to put some context in place. This offence is designed around protecting UK commercial trade secrets, not trade secrets as in ‘trade craft’ that perhaps might be associated with the various UK intelligence agencies.
Notwithstanding the above if, as a company, you are providing training in certain tradecraft learnt during service with the UK government, this could be considered protected information. You should ensure you consider whether such tradecraft has ever been described or classified as secret, or in some way protected. Just because someone has published it online, will not mean you have a defence to the criminal offence proposed.
The same is true for assisting a foreign intelligence service. Clearly, it is aimed at those who effectively ‘work for the other side’. The government’s view is:
Assisting a Foreign Intelligence Service (FIS): It is not currently an offence in the UK to assist a FIS. A new offence of supporting a foreign intelligence service would ensure that the UK represents a harder operating environment for those who wish to do the UK harm.
By way of further context, the proposed offence requires that the offence can only be committed ‘…wholly outside the UK where the person undertaking the activity is a UK person or acts for, or is employed by, the Crown, such as someone working at UK embassy overseas.’
The official publications around the new Act do provide the following example:
Differences between obtaining and disclosing “protected information” and “trade secrets”
- The offence of obtaining or disclosing protected information criminalises espionage activity in relation to the government’s sensitive information (including information such as defence information or the work of our intelligence agencies). An offence can only be committed where the person is acting for, on behalf of, or with the intent to benefit a foreign power and knows, or ought reasonably to know, that their acts would prejudice the safety or interests of the UK.
- The offence of obtaining or disclosing trade secrets criminalises espionage in relation to information that has existing or potential commercial, economic, or industrial value, such as a new technology developed in the UK. In contrast to the first offence, this does not require a person to know they are prejudicing the safety or interests of the UK, although in many cases that condition may be met. Instead, the person’s conduct must be unauthorised. This offence reflects the inherent wrongness of states seeking to acquire our trade secrets and recognises the wider harm to the UK and our industries that flows from such activity.
It is not likely the government will be seeking to catch commercial companies out (nor journalists as suggested in some places) with this legislation, but it would not be wise to ignore the reality of the proposed legislation, particularly in respect of protected information.
