Policy paper

Serious Crime Act amendment: National Security Bill factsheet

Updated 3 May 2024

Summary

• Clause 23 amends Schedule 4 of the Serious Crime Act 2007 (SCA). This amendment will ensure that individuals working for the UK Intelligence Community (UKIC) - the Security Service, the Secret Intelligence Service and GCHQ - and the armed forces are protected from criminal liability under the SCA when supporting activity overseas which is necessary for the proper exercise of those organisations’ functions.

What the amendment will do

• Clause 23 removes criminal liability for the offences of encouraging or assisting crime in the SCA (sections 44 - 46), but only where that activity is necessary for the proper exercise of the functions of the security and intelligence agencies or the armed forces and only in support of activity taking place overseas.

• This means that where an individual has operated in good faith, and in compliance with all proper processes, they will no longer face the risk of personal criminal liability for those actions under the offences within the SCA. Instead, that unfair burden will be removed and accountability will rightly sit at the organisational level.

• The amendment will enable UKIC and the armed forces to collaborate with our key international partners more effectively to support UK national security objectives, while providing better protection and reassurance to individuals discharging highly sensitive and vital national security functions on behalf of HMG.

What the amendment will not do

• Clause 23 does not create a blanket criminal law immunity for intelligence officers. It does not change the application of all other criminal law offences which overlap with those under the SCA, including those criminalising torture anywhere in the world. Other offences, such as soliciting murder, misconduct in public office and secondary liability offences would all continue to apply.

• Clause 23 does not provide any protection to ‘rogue officers’ who act outside the scope of their proper duties.

• There will also be no change to the UK’s international law obligations, including, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and international obligations concerning aid or assistance in the commission of an internationally wrongful act.

• The amendment does not remove potential civil liability, or other routes of legal challenge such as the ability to bring a claim for judicial review, a civil damages claim or to bring a referral to the Investigatory Powers Tribunal.

Why are the changes needed

• Applying the complex elements of the SCA offences causes significant challenges in how we collaborate with international partners. In some cases, despite being satisfied that all other domestic and international law obligations are met, essential cooperation with partners has been delayed or prevented in order to protect individual officers from liability. As a country that means we are less safe because the reciprocal access to intelligence facilitated by joint working is crucial to responding to the threats we face.

• HMG does not believe it is right or fair to expect the risk of criminal liability to sit with trusted individuals who are conducting highly sensitive and vital national security work on behalf of the UK. Particularly when those activities are done in good faith and deemed a proper function of UKIC or armed forces.

• The purpose of clause 23 is to remove the unintended effect the SCA is having on UKIC and the armed forces, not to make wholesale changes to our core legal, policy and ethical values. It will ensure that accountability for authorised activity rightly sits with HMG, rather than individual officers who are taking forward vital work to keep the country safe.

• The UK is committed to the rule of law and would never collaborate or share information with an international partner with the intention of supporting unlawful activity overseas. The SCA amendment does not change this.

Safeguards

• The UK has one of the most rigorous intelligence oversight regimes in world. There are a myriad of internal safeguards and processes in place which manage the way that UKIC and the armed forces work with and exchange information with international partners to prevent potential wrongdoing. Operational decisions are carefully recorded and made with the benefit of regular advice from specialist legal advisors to ensure compliance with domestic and international law. Intelligence officers receive mandatory training on the legal frameworks and policies which govern UKIC and armed forces’ activity. These policies include the Fulford Principles, the compliance of which is assessed by the Investigatory Powers Commissioner annually and reported to the Prime Minister.

• UKIC’s regulatory compliance is monitored by the Investigatory Powers Commissioner’s Office via regular inspections, and they are also routinely scrutinised by the Intelligence and Security Committee.