Policy paper

State link: National Security Bill factsheet

Updated 12 February 2024

Summary/key points

• Existing espionage laws create a link to foreign countries by virtue of the information being useful to an ‘enemy’.
• The Bill replaces this approach by creating a modern centralised ‘foreign power’ definition which is then applied consistently to the offences and other measures in the Bill via the ‘foreign power condition’.
• Supporting tools and powers are available in relation to a defined category of ‘foreign power threat activity’.
• The change from ‘enemy’ to ‘foreign power’ should be considered alongside changes to the structure of the espionage offences which ensure the move away from ‘enemy’ does not create overly broad offences that capture activity that is not a state threat.

Background

• In its review the Law Commission recommended that the term ‘enemy’ be replaced with ‘foreign power’ to ensure it is fit for the modern age.
• The binary concept of countries being either an enemy or not is not reflective of the modern connected world and places unnecessary focus on the state in question rather than the harmful activity.
• In considering this issue the Government has considered how the creation of a new definition of foreign power could work for the range of tools and powers contained in the Bill.

Foreign power

• The bill creates a central definition of foreign power which covers:
  • A head of state
  • A foreign government or parts of the government, or person exercising such functions
  • A local government organisation
  • An agency or authority of a foreign government, part of government or local government
  • A political party which is a governing political party of a foreign government (except a party which is both a governing political party of the Republic of Ireland and a registered political party in the UK).
• For the purpose of the definition a foreign country or territory is any country or territory outside the UK, Channel Islands, Isle of Man and the British Overseas Territories.

Foreign power condition

• The foreign power condition ensures that there is a single consistent approach to determining whether activity is considered to be state linked.
• For the purposes of the majority of the offences in Part 1 of the Bill or aggravated offences, an act is considered state linked where it is being carried out by, for or on behalf of, or with the intention to benefit a foreign power.

Foreign power threat activity

• The definition of foreign power threat activity establishes the scope for a range of supporting measures in the Bill.
• Foreign power threat activity is activity done for the commission, preparation or instigation of, or conduct which facilitates or supports or assists:
  • Acts which constitute one or more of the following offences – obtaining or disclosing protected information or trade secrets, assisting a foreign intelligence service, entering a prohibited place for a purpose prejudicial to the safety or interests of the UK, sabotage or foreign interference; or
  • Acts or threats involving serious violence against another person, which endanger the life of another person or create a serious risk to the health and safety of the public where the foreign power condition is met.

Key quotes

In any new statute to replace the Official Secrets Act 1911, the concept of “enemy” in section 1 should be replaced with that of “foreign power”. Law Commission, Protection of Official Data Report, September 2020.

What measures does the foreign power condition apply to?

• The foreign power condition is used in the following measures
  • Obtaining or disclosing protected information
  • Obtaining or disclosing trade secrets
  • Sabotage
  • Foreign Interference
  • State threats aggravating factor

Which powers rely on the foreign power threat activity definition?

• The foreign power threat activity definition is used to set the scope of:
  • Arrest without a warrant
  • State Threats Prevention and Investigation Measures
• The search and seizure powers are available in relation to a similar range of acts and threats covered by the foreign power threat activity definition.

How does the foreign power condition work?

• The foreign power condition can be met in two scenarios:
  • Activity carried out for or on behalf of a foreign power – this includes a wide range of different types of relationship with the foreign state including activity at their request, direction, with their assistance and with their agreement
  • Activity carried out with the intention to benefit a foreign power – this includes cases where a person’s primary motivation is, for example, financial but a person also intends, or acts in virtually certain knowledge, that the foreign power will benefit.

Indirect links and applicability to companies

• The foreign power condition applies to direct relationships with the state and indirect relationships.
• This includes cases where a person is acting through a company, or chain of companies, under the ownership, control or direction of a foreign power.
• In considering such ownership a person may have regard to the principles of significant control (Companies Act 2006) and a registerable beneficial owner (Economic Crime (Transparency and Enforcement) Act 2022.
• These establish a person as being in control of a company if, among other things, they hold a specified shareholding or voting right or otherwise exert significant influence or control over the company’s activities.

Application to a course of conduct

• The foreign power condition covers specific activities as well as activities carried out during a wider course of conduct.
• This may include a case where a person has committed a specific activity which was an offence under the Bill – for example an act of sabotage – having received general tasking from a foreign power to carry out activities on their behalf.
• In such a case it would be sufficient to demonstrate that the individual was operating under general tasking rather than showing an explicit arrangement in relation to the specific conduct.

Case studies

• Daniel Houghton is a dual British-Dutch national who worked for the Government between September 2007 and May 2009. In early 2010, he contacted the Dutch intelligence service attempting to sell electronic information which he had covertly copied during his employment. This information, at a classification of Secret and Top Secret, contained identifying details of intelligence staff members and details of sensitive intelligence collection capabilities.
• Dutch intelligence officers tipped off UK authorities and Houghton was arrested in March 2010 in the act of handing over information to individuals he believed were Dutch intelligence officers, in exchange for £900,000. Because the offence under the Official Secrets Act 1911 requires the act to be useful to an enemy, and because Houghton was seeking to benefit an allied intelligence service that had not engaged in harmful activity and had instead co-operated with UK authorities, he was not prosecuted under that Act.
• The foreign power condition would enable action to be taken where a person is acting for or on behalf of a foreign power, for example under some form of arrangement, as well as in cases such as this where the person intended to benefit a foreign power.