Thank you for contacting me about the National Security Bill.
The threat from hostile states is a growing, diversifying and evolving one, manifesting itself in several different forms. Our espionage laws date back to 1911 and I know my ministerial colleagues are concerned that they do not account for how threats to our national security have changed over time.
The UK’s espionage legislation is contained within the Official Secrets Act 1911, 1920 and 1939. While the Government has already strengthened our ability to deter, withstand and respond to hostile state activity, (including through Schedule 3 to the Counter Terrorism and Border Security Act 2019 which grants an examining officer at UK ports and the border area several powers when a person appears to be involved in espionage on behalf of a foreign government), more can be done to update our laws for the 21st century.
Through the new National Security Bill, the Government aims to deter, detect and disrupt state actors who seek to harm the UK. The Bill seeks to reform existing espionage legislation to tackle modern threats and bring in new offences to address state-backed sabotage, interference, the theft of trade secrets and assisting a foreign intelligence service. Crucially, it will also make it an offence to be an undeclared foreign spy working in the UK.
Since the legislation was introduced, the Government has added a new Foreign Influence Registration Scheme (FIRS), which will compel those acting for a foreign power or entity to declare any political influencing activity that they are carrying out – and criminalise those who do not. This aims to strengthen the resilience of the UK political system against covert foreign influence.
The Scheme will also enable the Government to specify foreign powers, or entities they control, if they attempt to undermine the UK, its democracy and values. This will mean individuals or companies acting at their behest will be required to register any arrangements or activities with them – and face prosecution if they do not.
Next, I will turn to the concern that the Bill will provide impunity for torture and unlawful killing abroad.
The threat from hostile states is a growing, diversifying and evolving one, manifesting itself in several different forms. Our espionage laws date back to 1911 and I know my Ministerial colleagues are concerned that they do not account for how threats to our national security have changed over time.
As you highlight, the National Security Bill seeks to amend Schedule 4 of the Serious Crime Act 2007 to disapply certain offences, but only where the activity is deemed necessary for the proper exercise of any function of an intelligence service 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 Serious Crime Act. Instead, that unfair burden will be removed. and accountability will rightly sit at the organisational level.
These measures will provide better protection to those discharging national security functions on behalf of His Majesty’s Government, to enable more effective joint working with international partners and to improve operational agility – all of which are essential to the UK Intelligence Community and MOD’s work to counter threats to UK national security.
It is important to stress that the legislation does not create a blanket criminal law immunity. It does not change the application of all other criminal law offences which overlap with those under the Serious Crime Act, 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.
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 purpose of this element of the legislation therefore is to remove the unintended effect the Serious Crime Act is having on the UK Intelligence Community and Armed Forces, not to make wholesale changes to the UK’s core legal, policy and ethical values. It will ensure that accountability for authorised activity rightly sits with HM Government, rather than individual officers who are taking forward vital work to keep the country safe.
The Government is satisfied the measures in Clauses 79 to 83 of the National Security Bill are justified, will help improve public protection and are proportionate in nature. The Clauses seek to enable the UK’s security services to apply for a reduction in civil damages in national security proceedings where a claimant has been involved in wrongdoing associated with terrorism, or a court order that would freeze or forfeit damages payable where the court is satisfied that there is a real risk of a claimant using their award to fund acts of terror. It is important to note that all applications would be subject to the independent determination of the courts on an assessment of the evidence in individual cases.
Finally, turning to the concerns raised concerning press freedom, I would like to underline that the freedom of the press is a cornerstone of our democracy, and I am committed to protecting the rights and values we all hold dear. Reports that the legislation will treat journalists like spies are incorrect; the media will continue to be free to hold Ministers to account. I simply would not support legislation that limits or erodes press freedom.
Thank you again for taking the time to contact me.
Craig Whittaker MP
November 2022