Policy paper

Power of search and seizure: National Security Bill factsheet

Updated 12 February 2024

Summary/key points

• Robust investigative tools are required to enable the police to counter the threats posed to the UK and its interests by state actors who operate using highly sophisticated means, often have access to significant resources and are skilled in tradecraft.
• The existing power of search under the Official Secrets Act 1911 is being repealed and replaced in the National Security Bill.
• The search powers within the National Security Bill will include non-compliance offences, for example, it will be an offence to knowingly provide false or misleading information to a constable or to obstruct urgent searches. These offences mirror offences found within counter-terrorism legislation and include modern safeguards.

Background

The existing provisions

• Section 9 of the Official Secrets Act 1911 provides the police with the power to apply for a warrant to search premises where there are reasonable grounds to suspect an offence under that Act has been or is about to be committed.
• This power is a highly valuable investigative tool in countering state threats which is not replicated in other general search powers.

Reasons for reform

• General search and seizure and production order powers such as those provided under the Police and Criminal Evidence Act 1984 (PACE) are comparably more restrictive by not allowing the police to act pre-emptively when there is intelligence to indicate that an offence is about to be committed. As such, reliance on powers under the Police and Criminal Evidence Act 1984 (PACE) alone would inhibit the ability of the police to disrupt and investigate state threats.
• It is vital, in creating a suite of new offences, that the police and other agencies have the powers to effectively investigate the harms this Bill is seeking to address. Using this reformed power, the police can act on a reasonable suspicion that a relevant act has been, or is about to be, committed.
• This threshold is key for the offences in the Bill, which cover unique and complex threats to the UK and activity which has the potential to cause significant harm. State threats bring significant challenge to law enforcement agencies owing to capable and well-resourced adversaries, who have access to significant financial means and who are skilled in tradecraft.
• It is essential to re-legislate for this power to ensure that it can apply to new and reformed offences in the Bill, including sabotage, foreign interference and obtaining or disclosing protected information.
• Reform also ensures that the powers are aligned with modern legislative standards and procedural safeguards.

Key facts

• The existing search power under the Official Secrets Act 1911 (OSA 1911) was used 7 times between 2017 and 2022 in England and Wales.
• These new provisions include safeguards that provide independent judicial scrutiny of the handling of confidential material.

Key quotes

• In November 2014, the Ministry of Justice (MoJ) published their review on Powers of Entry. The review was undertaken with a view to removing any unnecessary powers and to improve safeguards attached to existing powers. On the provisions under section 9 of the OSA 1911, MoJ concluded:

“We consider these specific provisions are an essential tool in the protection of national security and the gathering of evidence of offences under this Act is not currently provided for in other more general powers, such as section 8 PACE.” [Paragraph 55]

• The Law Commission (LC) in their Protection of Official Data Consultation Paper reference and concur with the conclusions made by the MoJ in their 2014 review (referenced above). On the OSA 1911 search power, the LC stated:

“We agree that the powers contained in the Police and Criminal Evidence Act may not necessarily grant the police the powers they need to take sufficiently swift action to safeguard information that relates to national security.” [paragraph 2.67]

When are the powers available?

• Police may apply to use the powers where they reasonably suspect that a relevant act has been, or is about to be, committed.
• The police must also have reasonable grounds to suspect that the material being sought will likely be evidence that the relevant act has been, or is about to be, committed.
• A relevant act is an act which constitutes one or more of the following:
  • obtaining or disclosing protected information
  • obtaining trade secrets
  • assisting a foreign intelligence service
  • entering a prohibited place with a purpose prejudicial to the UK’s safety or interests
  • sabotage
  • preparatory conduct
  • foreign interference
  • cases where state threats activity creates a serious threat to life or public safety

How does the power work – search and seizure warrants?

• A warrant authorising a police officer to enter premises and search for and seize evidence can be sought where the above conditions are met.
• An all-premises warrant can be sought where it is not reasonably practicable to specify all the premises occupied or controlled by the specified person which might need to be searched and where all other conditions for a warrant are satisfied.
• A warrant for the police to search for and seize confidential material can only be granted if a production order is not complied with or where it is not practicable, or would be prejudicial to the investigation, to seek a production order in the first instance.
• A warrant seeking to obtain confidential material can only be granted if there are reasonable grounds to believe the material is likely to be of substantial value and obtaining the material is in the public interest.
• It is explicitly provided for that a warrant cannot authorise the seizure of legally privileged material.
• A judge can order a person to provide an explanation of seized material.

How does the power work – production orders?

• A production order requires that a named person provide a constable access to material that they consider likely to be evidence of a relevant act.
• A production order can relate to material in a person’s possession or due to come into their possession.
• These production orders are only available in cases where the police are seeking to obtain confidential material.
• It is explicitly set out that a production order cannot be used to require the disclosure of legally privileged material.
• A production order can only be granted where there are reasonable grounds to believe the material is likely to be of substantial value to the investigations and obtaining the material is in the public interest.
• A judge may order a person to provide an explanation for material obtained under a production order.

What is confidential material?

• Confidential journalistic material.
• Certain personal records, human tissue or tissue fluid held in confidence.
• Material acquired in the course of a trade etc. that is held in confidence.
• Legally privileged material – this material cannot be seized under these provisions.

What is the urgent cases power?

• In a case of great emergency and where immediate action is necessary in the interests of the state, a Superintendent can use the urgent cases power to authorise the search and seizure of material.
• The Secretary of State must be notified of any use of the urgent process.
• In cases where confidential journalistic material is seized under this power, a warrant must be sought for its retention.
• In refusing a warrant, a judge may direct that the confidential journalistic material be returned or destroyed.

Case study (hypothetical)

A person (X) resigns from his position at a UK defence contractor and material relating to defence technology X was working on is found to be missing shortly after X’s employment ends. An investigation commences after a former colleague indicated that X was disgruntled about their treatment by the company and the MoD and had bragged previously about their access to Top Secret material and its value to foreign powers.

The police reasonably suspect that X has, or is about to, commit a relevant act. The immediate priority is to search X’s address to secure evidence of classified material that X may still have in their possession and would be evidence that an offence has been committed. A search warrant could not be obtained under PACE in this case given this requires reasonable belief that an offence has already been committed, rather than reasonable suspicion that an offence has been, or is about to be, committed.