Policy paper

Journalistic freedoms: National Security Bill factsheet

Updated 12 February 2024

Aims of the bill and the Law Commission’s recommendations

What will the National Security Bill do?

• The National Security Bill will replace existing espionage laws (Official Secrets Acts 1911, 1920 and 1939 (OSAs 1911-1939) which were primarily designed to counter the threat from spies during and in response to the First World War.
• Part 1 of the bill contains the core state threats offences and measures. These are designed to make the UK an even harder place for states to conduct hostile activity in, increase the cost to them of doing so and tackle all aspects of the threat, which has evolved since the last time the UK substantively legislated on it.
• The bill does not target leaks or whistleblowing activity and it does not replace the Official Secrets Act 1989 (OSA 1989) – a distinct piece of legislation which deals with unauthorised disclosures by those within government of specific categories of national security information, as well as onward disclosure and failing to safeguard the information. It is not focused at hostile activity from foreign states.

What did the Law Commission (LC) recommend? Why hasn’t the government accepted their recommendation for a public interest defence?

• Following their analysis of the existing provisions, the LC’s Protection of Official Data report recommended that “a new statute – containing modern language and updated provisions – should replace the Official Secrets Acts 1911-1939”.
• The LC also recommended several reforms of the OSA 1989, including a recommendation for a public interest defence (PID), in the context of full reform of that Act.
• Given the government is not reforming the OSA 1989 as part of this bill and given the LC’s recommendation was made in the context of a wider package of amendments, the government will not be adding a PID into that Act via this bill.
• The LC did not recommend a PID for any of the reformed offences from OSAs 1911-1939. During their oral evidence to the committee for this bill in the other place, the LC were clear that, in their view, the requirements of the offences take them outside of the realm of leaks and into the realm of espionage.

Why is the government not reforming the Official Secrets Act 1989 through this bill?

• The OSA 1989 is an essential part of our ability to protect national security and sensitive information. But the views and concerns raised by stakeholders in response to our public consultation for this bill highlighted the complexity of that Act and the wide variety of interests that need proper time for consideration before pursuing any reform.
• Given its complexity, we were concerned that reform of OSA 1989 would distract from the government’s package of measures in this bill to counter state threats and delay us from providing law enforcement and the intelligence agencies with the tools that they need now to directly tackle these threats. This is a view that was shared by several of the witnesses at the oral evidence session to the Commons Public Bill Committee. In particular, the Law Commission noted that they did not envisage that any one statute would implement all their recommendations, even were the government minded to accept them all.

Safeguards in the bill for journalists and whistleblowers

What changes has the government made to the bill to ensure that legitimate journalistic activity is out of scope?

‘Knows, or ought reasonably to know’

• The government considers that knowledge is an appropriate threshold in this requirement as it appears across the bill. However, we believe it is also right to include constructive knowledge in these provisions, which is achieved by ‘ought reasonably to know’.
• The government understands concerns that the test could be interpreted as imputed knowledge, thereby catching those who engaged in specified conduct unwittingly, those who did not know but are being told that they should have known.
• The government has responded by clarifying this phrase, at every occurrence throughout the bill (including in the foreign power condition), to ‘knows, or having regard to other matters known to them ought reasonably to know’. This puts it beyond doubt that individuals would not be caught if they acted unwittingly or where they did not have information from which it could be concluded that they should have known
• These amendments therefore clarify that the prosecution must look at what matters were known to the individual at the time in determining whether that individual ought reasonably to have known.

Clause 3 – Assisting a foreign intelligence service

• Clause 3 criminalises providing material assistance to a foreign intelligence service. The government has heard concerns from the media sector and parliamentarians around the scope of the offences
• As such, the government has tabled several amendments to the clause to replace ‘reasonably possibly may’ with ‘likely to’, thereby clarifying the intention and scope of the relevant offence.
• Taken together, the drafting changes to ‘ought reasonably to know’ in clause 3(2)(b) and ‘reasonably possibly may’ should provide reassurance that the offence is appropriately drafted so as not to capture legitimate activity, including from journalists.

Foreign power threat activity

• The government has listened to concerns around clause 33(1)(c), that unrelated support or assistance to the harmful conduct covered by ‘foreign power threat activity’ in clause 33(3) risked being caught under 33(1)(c). This is not the intention and as such the government has amended the clause to put it beyond any doubt that the support or assistance must be specifically in relation to acts or threats under clause 33(1)(a), rather than support or assistance to unrelated activity.

Oversight

• The government has expanded the commitment to oversight of the legislation to cover part 1 of the bill as well as part 2. This will ensure transparency and accountability on the way that these measures are used and guard against any misapplication or overreach in the use of the powers.

Foreign power condition

• The foreign power condition is a concept used throughout the bill. However, meeting the foreign power condition is not an indication of wrongdoing. It only becomes relevant when the other elements of the offences or other bill provisions to which it applies are met.

• The government understands that journalists and those conducting civil society activity can be acting wholly legitimately when receiving funding from a foreign power or working in collaboration with them.
• The government amended the bll in the House of Commons to put beyond doubt that there needs to be a clear link between the harmful activity and any assistance or funding from a foreign power for the condition to the met.
• As such, the government does not believe there is a risk to those who engage in legitimate acts, such as journalism, or forms of civil society activity.

What safeguards are there in the core espionage offences in the bill?

Clause 1 (obtaining or disclosing protected information)

• For the clause 1 offence of obtaining or disclosing protected information, the activity has to be for a purpose that a person knows, or having regard to other matters known to them ought reasonably to know, is prejudicial to the safety or interests of the UK.
• It is right that we are able to prosecute disclosures of protected information where it is clear that a person intended to harm the UK and was working for or on behalf of, or with the intention to benefit a foreign power. Legitimate journalism or whistleblowing would not meet the requirements of this offence.

Clause 2 (obtaining or disclosing trade secrets)

• The Clause 2 offence of obtaining or disclosing trade secrets is designed to tackle the illicit disclosure and acquisition of sensitive commercial information amounting to a trade secret for, on behalf of, or for the benefit of a foreign power.
• For the offence to be committed, the activity has to be unauthorised, and the person has to know, or having regard to other matters known to them ought reasonably to know, that their conduct is unauthorised. Someone who disclosed information in the course of using lawful and appropriate whistleblowing routes would not be conducting unauthorised activity.

Clause 3 (Assisting a foreign intelligence service)

• The offence can be committed in one of two ways: either by conduct that a person intends will materially assist a foreign intelligence service, or by conduct that is likely to materially assist a foreign intelligence service and where the person knows – or having regard to other matters known to them ought reasonably to know – that that is the case.

• The material assistance must be for carrying out UK-related activities. The expression “UK-related activities” means activities taking place either inside the UK, or those taking place outside the UK which are prejudicial to the safety or interests of the UK. The government does not consider legitimate activities would meet the requirement of material assistance linked to UK activities. we do not consider legitimate activities would meet the requirement of material assistance linked to UK activities.

• In addition, there are defences laid out in clause 3(7). It is a defence to show that the person engaged in the conduct in question—

(a) in compliance with a legal obligation under the law of the United 10 Kingdom which is not a legal obligation under private law,

(b) in the case of a person having functions of a public nature under the law of the United Kingdom, for the purposes of those functions, or

(c) in accordance with an agreement or arrangement to which—

(i) the United Kingdom was a party, or

(ii) any person acting for or on behalf of, or holding office under, the Crown was (in that capacity) a party.

• At report stage, the government is tabling two amendments to the defences in Clause 3(7) to introduce a narrow legal defence and to clarify the scope of (7) in respect of legitimate training delivered to, for example, Five Eyes partners by third parties.

Clauses 4 and 5 (prohibited places)

• Clauses 4 and 5 criminalise harmful activity in and around prohibited places. It is right that we are able to prosecute specified activity around the UK’s most sensitive sites where it is clear that such activity could be detrimental to the UK.
• Activity must either be undertaken with a purpose prejudicial to the safety or interests of the UK, or is unauthorised where the individual knows, or having regard to other matters known to them ought reasonably to know that that is the case.
• This means that journalists conducting activity on or near these sites – for example a journalist taking photos from outside a prohibited place – where they do not have a purpose prejudicial to the safety or interests of the UK and there is nothing to suggest taking photographs is not permitted, such as signage or other distinguishing marker, would not commit an offence.
• Furthermore, the government has committed to working with the police to ensure that there is clear guidance in place to ensure that the powers in relation to prohibited places are policed appropriately.

Why is the government not excluding journalists or civil society groups from the foreign power condition?

• The foreign power condition is a concept used throughout the bill. However, meeting the foreign power condition is not an indication of wrongdoing. It only becomes relevant when the other elements of the offences or other bill provisions to which it applies are met.
• Excluding these groups from the foreign power condition would mean that where a state threats actor posing as a journalist has engaged in harmful activity amounting to an offence under the bill, they would not be liable even if we could show that they were receiving specific funding in relation to that activity from a foreign power. This would produce an unwelcome effect, whereby those seeking to cause harm to the UK could pose as journalists or members of civil society groups or operate through proxies in order to make it more difficult to be prosecuted.

How is a member of the public (including a journalist) supposed to know whether their conduct is prejudicial to the safety or interests of the UK? Who will decide what those interests are?

• Conduct with a purpose prejudicial to the safety or interests of the UK must be conduct that could cause harm to the UK’s national interests.
• The House of Lords considered the term safety or interests of the State in the context of a prosecution under the Official Secrets Act 1911, concluding in summary that it meant the objects of state policy determined by the Crown on the advice of Ministers. We expect this interpretation to carry forward to the new legislation.
• The Law Commission noted their support of the government’s decision to retain this term.
• The experience of the government and the governments of allied states is that espionage is frequently targeted at and can result in significant damage to all sorts of national interests. Any attempt to narrow or define the interests of the UK risks creating a test that is quickly out-dated as the UK’s interests naturally and properly evolve.

Why is there not a public interest defence (PID) to protect journalists and whistleblowers in the National Security Bill?

• The offences in the National Security Bill target harmful activity by states, not leaks, whistleblowing activity or public interest journalism. This is a sentiment echoed by the Law Commission in oral evidence to the Public Bill Committee who were clear that in their view the requirements of the offences take them outside of the realm of leaks and into the realm of espionage.
• The offence requirements are designed to prevent this bill capturing legitimate activities and negate the need, or utility, of a PID. For example, to commit an offence of disclosing protected information, the conduct must be done for or on behalf of, or with the intention to benefit a foreign power and with a purpose that the person does or should know is prejudicial to the safety or interests to the UK. A genuine whistleblower acting legitimately would not meet this bar.
• Including a PID in any of the offences in part one of the bill strongly implies that acts of espionage could be in the public interest. Clearly acts of espionage against the UK can never be in the public interest.
• A PID could be exploited by sophisticated state actors, for example through use of cover for their activities or by claiming that their actions are in the public interest. The evidence required to disprove such a claim may be highly sensitive, thereby preventing prosecutions of genuinely harmful activity.

How should a journalist know whether information is ‘protected’ information under clause 1?

• Protected information is defined under clause 1(2) as any information, document or other article where – for the purpose of protecting the UK’s safety or interests – access to it is restricted or it is reasonable to expect that access would be restricted.

• The government considers that it will be clear where information is restricted, such as through classification markings or password protected information in a government building. The government also considers it will be clear where information is not formally restricted, but it would reasonably be expected that information be restricted. For example, this would cover the theft of the identity documents of an intelligence officer from within their place of work because the context of the theft would mean it would be reasonable for the person to expect that information to be protected. Another example might be where a pile of papers that were not marked as classified were stolen from inside a government building. There is a reasonable expectation that, given where they were being held, access was restricted.
• Crucially, an individual only commits a clause 1 offence if they obtain or disclose protected information with a purpose prejudicial to the safety or interests of the UK and where the foreign power condition is met.

What safeguards are there for confidential journalistic material using the search and seizure powers in schedule 2?

• The reformed powers providing for the search and seizure of confidential material include four common and clear conditions, all of which must be met, for a warrant to be granted by a judge.
• As with the existing section 9 search power in the Official Secrets Act 1911, there must be reasonable grounds for suspecting that a relevant act has been, or is about to be, committed and that there’s reasonable suspicion that material in a person’s possession will evidence this.
• Recognising the importance this government places on press freedoms, there are specific safeguards that govern the handling of confidential journalistic material. In an exceptional case where such material is seized during a search that has been authorised under the urgent procedure (Paragraph 12), a warrant must be sought from a judge for its continued retention, and – in instances where a warrant is refused – a judge may direct that the confidential journalistic material be returned or destroyed. This reflects recent caselaw and ensures that the provisions provide appropriate protection for journalists.