National Security Act 2023

The National Security Act 2023 (c. 32) is an act of the Parliament of the United Kingdom which introduced new measures intended to strengthen United Kingdom national security against espionage, interference in the political system, sabotage, and assassination.

In a press release, the government stated that "The new powers will help ensure that the UK remains the hardest operating environment for malign activity undertaken by foreign actors", quoting MI5 Director General, Ken McCallum as saying "The National Security Act is a game changing update to our powers. We now have a modern set of laws to tackle today’s threats."

The core measures put in place by the act came into force on 20 December 2023 and were described at the time as "the most significant reform of espionage law in a century".

The act repeals and replaces the Official Secrets Act 1911, Official Secrets Act 1920 and Official Secrets Act 1939.

The act
The act introduces new offences relating to espionage, prohibited places, sabotage, foreign interference, obtaining benefit from foreign intelligence services, and new powers of arrest and detention and search and seizure. It also introduces a Foreign Influence Registration Scheme requiring the registration of arrangements for political influence activities in the UK directed by a foreign power.

Espionage
The act contains three offences relating to espionage: obtaining or disclosing protected information, obtaining or disclosing trade secrets, and assisting a foreign intelligence service.

The offence of obtaining or disclosing protected information replaces provisions in prior Official Secrets Acts, and increases the maximum sentence to life imprisonment from 14 years previously. The Ministry of Defence stated that former UK Armed Forces personnel training foreign militaries was an example of conduct which could involve "disclosing protected information" and would therefore constitute an offence under this section.

The new offence of obtaining or disclosing trade secrets relates to the disclosure to a foreign power of a UK trade secret (defined in s.2(2)). The maximum penalty is a term of imprisonment not exceeding 14 years and/or a fine.

The new offence of assisting a foreign intelligence service is committed where a person engages in conduct which is intended to or may materially assist a foreign intelligence service in carrying out UK-related activities. This offence was created to reduce the ability of foreign intelligence agencies to carry out hostile activities against the UK, extending beyond traditional espionage activity.

Prohibited places
New provisions relating to prohibited places strengthen existing legislation in this area. It includes provisions covering entering, inspecting or being in the vicinity of these places and includes use of unmanned drones, electronic hacking or other modern remote methods. Additional police powers are provided for ordering a person to cease their activity or move away from the place. Failure to comply with these police powers is an offence with a maximum penalty of three months imprisonment.

An example is given of "a person taking photographs of staff members as they enter or leave a prohibited place would commit the offence if they did so with a purpose that they knew, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom".

As originally introduced, the Bill did not include places owned, controlled or used for the functions of the Security Service, Secret Intelligence Service or GCHQ in the set of prohibited places. These were added when the Bill was amended in the Public Bill Committee.

The Secretary of State has the power to designate additional sites as prohibited places through secondary legislation. This power has been used to designate places connected to the civil nuclear industry (including ships used to carry nuclear material) as additional prohibited places.

Sabotage
The act introduces a new offence of sabotage conducted for, or intended to benefit a foreign power, resulting in damage (including temporary damage) to any asset (tangible or intangible, including data and electronic systems) which is prejudicial to UK interests. It is intended to be a bespoke, modern offence to tackle state sponsored sabotage conducted against the UK. The offence carries a sentence of life imprisonment.

Foreign interference
The new offence of foreign interference aims 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". Three conditions which must all be met in order for the prosecution to be successful are: Activities "carried out for, or on behalf of, or intended to benefit, a foreign power" fall under this rubric. Foreign interference "is intended to sow discord, manipulate public discourse, discredit the political system, bias the development of policy, and undermine the safety or interests of the UK." There are also provisions targeting foreign interference in elections by increasing penalties for existing electoral offences when foreign interference is involved. The foreign interference offence carries a maximum sentence of 14 years.
 * 1) the accused person's conduct must be towards a certain goal;
 * 2) the conduct must be in some way illegitimate, for example coercive behaviour;
 * 3) the conduct must meet the "foreign power condition".

Obtaining a material benefit from a foreign intelligence service
Two new offences relating to obtaining material benefits from a foreign intelligence service are introduced in section 17. The first is where a person obtains, accepts or retains a material benefit, and they knew, or ought reasonably to know, that this benefit was provided by or on behalf of a foreign intelligence service. The second offence is where a person agrees to accept (but does not receive) these material benefits. Where material benefits are obtained, the maximum sentence is 14 years, when they are merely accepted it is 10 years.

The purpose of this section is to allow prosecutions where a foreign intelligence service is providing a person with financial or other benefits, but where it is not possible to prove a link between the benefit provided and what the person has done – or is expected to do – in return, therefore making it difficult to prove that the person has committed an espionage offence.

Preparatory conduct
This is an offence which is committed when an individual engages in conduct in preparation for the commission of offences certain under other sections of the Act – including the offences covering protected information, trade secrets, prohibited places or sabotage – plus other conduct intended to benefit a foreign state which involve serious violence, endangerment of life or serious risk to the public. Preparatory acts include where another person will commit the act itself.

A Home Office policy paper describes a military contractor with security clearance researching foreign diplomats in London, with the intention of sharing sensitive information in exchange for money, as a hypothetical example of a preparatory conduct offence.

Section 27 (Arrest without warrant)
Section 27 of the Act provides the police with the power to arrest and detain (without a warrant) any person suspected to be involved in foreign power threat activity for up to 48 hours initially. This initial period can be extended by a court to a maximum of 14 days detention. In exceptional circumstances the maximum detention period can be extended to 28 days using emergency legislation.

A person detained under this section has a right to have a named person informed of their detention and to consult a solicitor. In specified circumstances (related to interference of an investigation) the exercise of these rights can be delayed. Biometric data collected during detention under this section can be retained for a maximum of 5 years in total, regardless of if a person is charged or acquitted.

Section 39
Section 39 provides the Secretary of State with the power to issue a notice putting in place restrictive measures to prevent a person's involvement in foreign power threat activity. These measures are described as "State Threats Prevention and Investigation Measures (STPIMs)" and their framework largely replicates the existing Terrorism Prevention and Investigation Measures (TPIMs).

Section 56
Section 56 provides for an offence which is committed when an individual subject to a STPIM contravenes (without reasonable excuse) any measure specified in the notice. The maximum sentence for this offence is 5 years imprisonment. For breeching a measure preventing travel outside the United Kingdom a sentence of 10 years imprisonment can be imposed and the grounds of reasonable excuse are excluded.

Section 57
This section makes provision for powers of entry, search, seizure and retention in relation to individuals subject to a STPIM. The powers allow for entry and search of an individual's premises and the individual themselves at the time of serving the STPIM notice. They also provide for further searches relating to suspicion of absconding, for compliance purposes and for public safety purposes.

In addition, a power to retain items allows for items found to be tested, retained and used as evidence. With the exception of searches for compliance purposes, no warrant is required.

Sch. 7 para. 12
Individuals subject to an STPIM can be required by the Secretary of State to participate in polygraph sessions and information gained from these sessions can be shared with the intelligence services.

Criticism
There were concerns about the impact of the bill on investigative journalism. Guy Black, deputy chair of Telegraph newspapers, told the House of Lords that he was concerned the draft legislation could “potentially criminalise” reporters and whistleblowers.

An amendment in the Lords to address journalistic concerns by adding "a defence to show that the person engaged in the conduct in question was acting with a view to publication of material by a recognised news publisher" was defeated by a majority of 130 votes. The Government responded to concerns by modifying the wording of certain offences, including amendments to replace 'reasonably possibly may' with 'likely to', with the intention of clarifying the scope of offences.

The act has been criticised in Chinese media outlets, which claimed that it was comparable to or stricter than the Hong Kong national security law. Radio Free Asia stated these claims as misleading for lacking wider context.

Progress through Parliament
The bill was introduced as number 7 for the 2022-23 session, receiving its first reading on 11 May 2022 and royal assent on 11 July 2023.

Commencement
Sections 95 to 102 came into force on royal assent (11 July 2023). Sections 1 to 64 and sections 92 to 94, and schedules 1 to 12, 17 and 18 came into force on 20 December 2023, except that the repeal of section 9(1) of the Official Secrets Act 1911 does not apply to offences committed before that date.