Policy paper

Obtaining a material benefit from a foreign intelligence service: National Security Bill factsheet

Updated 12 February 2024

Key points

• Alongside the updated espionage offences in Clauses 1-3, the National Security Bill will also introduce new offences relating to obtaining material benefits from a Foreign Intelligence Service (FIS).

• These offences will target activity where a person: obtains, accepts or agrees to accept, or retains a material benefit that originally comes from a FIS in circumstances where there is no legitimate basis for that benefit.

• It will allow for prosecutions where a FIS is providing a person with financial or other material benefits, but where it is not always possible to prove a link between the benefit provided and what it is the person has done – or is expected to do – in return, therefore making it difficult to prove that the person is providing material assistance (which would be an offence under Clause 3 of Assisting a Foreign Intelligence Service).

Background

• Foreign Intelligence Services recruit and run networks of agents to further their interests and cause harm to the UK’s national security. To do this, they must recruit, fund and support people to act as agents and to work against the UK’s interests. This often involves the FIS providing a person with material, mostly financial, benefits.

• These offences will enable law enforcement and the intelligence services to tackle the harm caused by Foreign Intelligence Services in the UK, by tackling how they fund and support their networks.

• These offences will target activity whereby a person has obtained, accepted or agreed to accept, or retained a material benefit, including a financial benefit, directly or indirectly from a FIS. This does not include benefits that are provided as reasonable consideration for the provision of goods or services where the provision of those goods or services is not illegal (this is called an “excluded benefit”).

• These offences will also allow action to be taken before significant harm has occurred, as financial or other material benefits are often the first stage in a FIS developing a relationship with a potential agent.

• There may be evidence of a relationship between a person and a FIS, where the person is being paid by the FIS in some way, and it is suspected that harmful activity is ongoing, but it is not known or yet known what the exact terms of the relationship are, making it difficult to establish whether the person is providing material assistance to the FIS. Given the sophisticated tradecraft deployed by Foreign Intelligence Services, it can often be challenging to prove the purpose of those payments

Case study

A hypothetical case study would be an individual working in a sensitive government role, who is approached by a member of a FIS who is posing as an embassy official and who is showing an interest in their work. The ‘embassy official’ offers a ‘gift’ of several thousand pounds in return for information on an aspect of the individual’s work.

Given the nature of the individual’s role, they will know, or reasonably ought to know that what they are being offered is a material benefit from a FIS; whilst they do not provide information on their work and so do not provide any material assistance, they do however agree to accept the ‘gift’ with an intention of providing material assistance at a later date.

Further details of the offence

• The offences criminalise activity whereby a person obtains, accepts or agrees to accept, or retains a material benefit, including a financial benefit, directly or indirectly from a FIS, where they know or ought reasonably to know that it is or would be from a FIS.

• The provisions do this by creating 2 offences:

  • in subsection (1), an offence where a person obtains or accepts a material benefit for themselves or another person, or retains such a benefit

  • in subsection (2) an offence where a person agrees to accept material benefit for themselves or another person (but no benefit is actually provided)

• Material benefits may include financial benefits, anything which has the potential to result in a financial benefit, and information.

• Excluded from this are material benefits that are received in reasonable consideration for the lawful provision of goods or services – the provision describes benefits of this kind as an “excluded benefit”.

• A benefit may be provided by a foreign intelligence service directly or indirectly (for example, it may be provided indirectly through one or more companies).

• A benefit may be provided by a foreign intelligence service to one person for the benefit of another, for example where a FIS makes a payment to a person whose role is to then pass on that money to another from whom the FIS plans to obtain material assistance at some later point. In this scenario it will be an offence to obtain or accept the provision of such a benefit to another person.

• The offences both apply to conduct that takes place outside the UK, but for conduct that takes place wholly outside the UK there must be a UK connection:

  • the material benefit is, was, or is to be provided in or from the UK

  • the person is a UK person or a person acting for or on behalf of, holds office under, or is employed by the Crown

What are the safeguards?

• As well as having an exception for excluded benefits, the offence also includes several defences.

• Where a person retains a benefit contrary to subsection (1), the person has a defence where they had a reasonable excuse for doing so.

• For both of the offences, a person has a defence:

  • if they can show that their conduct was in compliance with a legal obligation under the law of the UK

  • if they have functions of a public nature under the law of the UK and can show that their conduct was for the purposes of those functions

  • if they can show that their conduct was in accordance with an agreement or arrangement to which the UK – or any person acting for or on behalf of, or holding office under the Crown – was a party

• For these defences, the burden on the person is an evidential one – if sufficient evidence is adduced to raise it as an issue then it will be for the prosecution to prove the contrary to the criminal standard (that is, beyond reasonable doubt).

What are the penalties?

• For subsection (1), a maximum of 14 years imprisonment and / or an unlimited fine.

• For subsection (2), a maximum of 10 years imprisonment and / or an unlimited fine.