National Security Legislation: Revamped for a new age?

Revamped for a new age?

I. Background

For decades the Official Secrets Act 1911 (“OSA”) and its subsequent iterations of 1920, 1923,1939 and 1989 have been the centrepiece of the UK’s legal apparatus for combatting the harmful activities of hostile foreign states. The replacement of this aged legislative regime with the introduction of the National Security Act 2023 (“NSA”) marks a recognition that new and enhanced measures were needed to target the more sophisticated and complex nature of state threat activities in a modern world.

The Law Commission’s examination of the OSAs concluded that a wholesale update of those statutes was needed. The urgency for this change, coming in the wake of the 2018 attempted assassination of Russian defector Sergei Skripal, was articulated in the 2020 Report on “Russia” of the Intelligence and Security Committee of Parliament, which concluded “it is very clear that the Official Secrets Act regime is not fit for purpose and the longer this goes unrectified, the longer the Intelligence Community’s hands are tied.”[1]

The NSA now directs renewed legal focus upon the key theme of “state threats”. This has developed in tandem with a hybridised approach to national security and terrorism – as much of the Act is informed by the experiences of counter-terrorism laws and policing since the early 2000s.

Steps towards hardening UK defences to ‘state threat’ activity began with the powers (to stop, question and detain) introduced by s.22 and sch. 3 of the Counter-Terrorism and Border Security Act 2019, which were modelled on the port stop powers under Schedule 7 to the Terrorism Act 2000, and now find further expression in expansive “state threat prevention and investigation measures” (“STPIMs”), which are modelled on its terrorist-related predecessors (“TPIMs”) to address hostile state actors who cannot be prosecuted in the criminal courts. The STPIMs in Part 2 of the NSA are impressively wide-ranging and include measures such as control over residency, international travel, movements generally, exclusions, use of financial services and instruments, use of electronic devices, monitoring and reporting.  

Alongside these powers, Part 1 of the NSA introduces a suite of new offences regulating espionage, sabotage and activities undertaken at the behest of, or for the benefit of, foreign powers. While prosecutions under the OSA were “rare - fewer than one a year”, it is readily foreseeable that the deliberately broad casting of these provisions will drive an uptick in “state threat” prosecutions in the coming years. Indeed, the first few months of the NSA’s infancy have already seen significant prosecutions for, inter alia, arson-related activities of persons acting in concert with the mercenary terrorist organisation, the Wagner Group, for the benefit of Russia[2], and allegations against individuals allegedly carrying out information gathering, surveillance and acts of deception likely to materially assist the Hong Kong intelligence service.[3]

II. New offences under the NSA regime

Espionage

Part 1 of the Act sets out familiar espionage-style offences akin to those of the OSA regime:

Section (1) obtaining or disclosing protected information prejudicial to the safety or interests of the UK

Section (2) obtaining or disclosing trade secrets

Section (3) assisting a foreign intelligence service (“FIS”)

Section 1 essentially reproduces the spying offence formerly contained within s.1 OSA 1911. However, against advice from the Joint Committee on Human Rights, the term “safety or interests of the UK” has been left undefined by the legislation.[4] In keeping with the reasoning in Chandler, the objects of state policy are to be left to be determined by the Crown on the advice of ministers, to ensure that it can evolve with the changing national interests.[5] Section 2 builds upon the OSA and broadens the scope of ‘information’ that may be considered “sensitive” to account now for UK intellectual property interests.

Section 3 may prove to be the most polemical provision. It displays the hallmarks of a ‘catch-all’ offence designed to sweep up a broad array of conduct not otherwise covered by Sections 1 and 2. This section does not require information to have been successfully obtained or passed to a FIS, but merely that an accused intended to engage in conduct “likely to materially assist” a FIS. The potential scope of the offence is evident from the limited constraints, (save perhaps for Attorney General consent to prosecute), it would appear to place on investigators and prosecutors, given that they are not even compelled to identify the particular FIS said to be assisted.

Sabotage & Preparatory Conduct

Alongside the more classic spying offences of the public’s imagination, the NSA also now caters for new offences of state-linked sabotage (section 12) and Preparatory Conduct (section 18), both of which attract life sentences. The section 12 offence (which is committed if a person engages in conduct that they know, or ought to know, is detrimental to the safety or interests of the UK, re­sulting in damage) is geared towards the protection of important UK assets, and (once again) is a widely drawn provision such that relevant ‘conduct’ may even encompass omissions and statements made. The legislation’s Explanatory Notes give by way of example of sabotage by omission, a contractor working for a nuclear energy company failing to implement compulsory safety protocols which result in loss of electrical power.

Section 18 – Preparatory Conduct

Despite its novelty, the new “Preparatory Conduct” offence (Section 18) will look familiar to terrorism practitioners with its strong echoes of the spirit and form of the “Preparation of terrorist acts” offence (s.5 Terrorism Act 2006), and similarly aims to criminalise conduct which would otherwise fall short of a criminal attempt, so that the activities of hostile states may be disrupted at the earliest opportunity and before serious and potentially irremediable harms occur.

Although the s.18 NSA offence is somewhat narrower in scope than its predecessor (s.7 OSA 1920) on the basis that it requires “intention”, not a broader “recklessness”, s.18(2) NSA, nevertheless, does extend its application to allow for the prosecution of individuals whose specific intentions are not entirely clear, or not yet fully crystallised.

This expansive approach to the framing of s.18 is further evident in the fact that “preparation” is not merely confined to actions more obviously linked to espionage (such as those contained in sections 1, 2, 4 and 12), but also includes the following acts (s.18(4)), provided that the ‘foreign power condition’ is also met: “(1) actions involving serious violence against a person in the UK; (2) actions that endanger the life of a person in the UK; (3) actions creating a serious risk to the health or safety of the public, or a section of the public, in the UK.”

These wider conduct features are perhaps the clearest examples of the departure beyond the historical confines of the OSA regime to deal with the contemporary threat from hostile state activity, and would now cover incidents such as the Salisbury poisoning, where Dawn Sturgess, a member of the public became an unintended victim. It is conceivable that prosecuting authorities may look in future to deploy either the NSA or counter-terrorism provisions, or even both in tandem, to tackle a single threat.

The “Foreign Power Condition” (“FPC”)

Central to establishing liability for a number of the new NSA offences is fulfilment of the foreign power condition (“FPC”, (s.31 NSA)), which provides the link between the various forms of conduct described in Part 1 of the Act and a foreign state. In answer to the Law Commission’s criticisms, this condition marks a break-away from references in s.1 OSA 1911 to an “enemy”, acknowledging that present-day espionage can be conducted by “foreign powers” whether they are “enemy” states, or not.[6]  The FPC is an element of the offences under both s.12 and s.18, but not required in s.3.

Section 31 states that the FPC is met in relation to a person’s conduct if:

“1) (a) the conduct in question, or a course of conduct of which it forms part, is carried out for or on behalf of a foreign power, and

(b) the person knows, or having regard to other matters known to them ought reasonably to know, that to be the case.

2) The conduct in question, or a course of conduct of which it forms part, is in particular to be treated as carried out for or on behalf of a foreign power if— (a) it is instigated by a foreign power, (b) it is under the direction or control of a foreign power, (c) it is carried out with financial or other assistance provided by a foreign power for that purpose, or (d) it is carried out in collaboration with, or with the agreement of, a foreign power.”

The FPC condition is satisfied in situations where the relationship between the conduct and the foreign power is indirect, provided that the person knows or ought reasonably to know that they are carrying it out for or on behalf of a foreign power.[7] Moreover, the FPC is even met if the person intends it to benefit a foreign power, without being commissioned to do so, or indeed where the person has no relationship whatsoever with a foreign power.[8] This allows the Act to ensnare “self-starters” who undertake this conduct for financial gain, or ideological sympathy or simply out of a desire to harm the UK, or any other motivation.[9] The burden upon prosecutors is eased yet further as prosecutors are not required to identify, (let alone prove the identity of), a particular foreign power involved (s.31(6)).

This amorphous manner in which the FPC is crafted has provoked various concerns. While the OSA would have captured the more obvious “enemy” threats, the NSA can essentially treat any state as an effectively hostile actor. Perhaps unsurprisingly, the Joint Committee on Human Rights viewed the effect of this definition as potentially stigmatising for certain communities,[10] and may render particular individuals more susceptible to this categorisation than others.

Statutory Aggravating Factor

Despite the NSA’s expansion of offences and associated powers available to prosecutors, the government still considered that certain cases would remain difficult to prosecute, owing to the covert nature of the activities involved and the challenge of presenting admissible evidence to prove all elements of an offence.[11] To accommodate this category of cases, section 19 NSA now inserts s.69A into the Sentencing Act 2020, mandating that ‘ordinary’ criminal offences are now to be aggravated, where the FPC is met, to reflect a ‘state threat’ element. There is, as yet, no guidance as to the practical effect of s.69A. Aside from the public acknowledgment of a ‘state threat’ element, s.69A would appear to be little more than a statement of the obvious: that the seriousness of ‘ordinary’ offences committed, where the FPC is met, will necessarily be aggravated. 

III. Conclusion

The government’s rationale behind the sprawling reach of the NSA is that it now properly accounts for the evolving nature of national security threats in the modern age, in a way that the OSA regime previously did not. To the extent that the “Intelligence Community’s hands [were] tied” prior to the enactment of the NSA, such complaint would appear to now ring more hollow in light of the range of tools available to investigators and prosecutors through the hybridisation of counter-terrorism and national security powers and measures. The consequence of this evolution is that the courts will now likely begin to entertain ever-increasing numbers of national security related cases, with the attendant complexities that often arise from such sensitive investigations and prosecutions.