The National Security Bill 2022-23 was introduced in the House of Commons on 11 May 2022. It had second reading on 6 June. It was considered by a Public Bill Committee over 14 sittings between July and October and is scheduled to have have its remaining stages on 16 November.
The Bill would replace existing counter-espionage laws with a comprehensive framework for countering hostile state activity analogous to the counter-terrorism framework established since 2000. It would also limit the availability of civil legal aid and damages to those connected with terrorist activity.
Law Commission review of the Official Secrets Act
In 2015 the Cabinet Office asked the Law Commission to review the effectiveness of the laws that protect Government information from unauthorised disclosure.
The review was prompted by concern that the laws that protect the country from spying and leaks, contained in the four OSAs, 1911-1939 and 1989, are outdated and no longer fit for purpose. The Law Commission noted in particular that technological developments have changed the nature of espionage and leaks, and the potential impact.
The main recommendations of the review into the Protection of Official Data were:
- To update the “archaic” language of the OSAs, including replacing the word “enemy” with “foreign power”, to include terrorist organisations and companies controlled by a state;
- Removing the requirement that leaks by public servants cause damage in order to constitute a criminal offence;
- Expanding the territorial ambit of the espionage offences so that they can be committed irrespective of nationality where there is a significant link between the behaviour and the interests of the UK;
- That there should be a statutory public interest defence available to anyone, including civilians and journalists, charged with an unauthorised disclosure offence under the OSA 1989;
- The establishment of a new independent statutory commissioner to whom whistle blowers could report concerns;
- Consideration should be given to increasing the maximum sentences for the most serious leaks.
Government consultation: counter-state threats legislation
A Home Office consultation (PDF) on the proposed legislation set out the Government’s response to the Law Commission’s recommendations. It stated its intention to:
- Repeal the OSAs 1911-39 and replace them with new legislation, which would update the terminology, including the use of the word “enemy”, and the definition of espionage offences; and, broaden the territorial application of the espionage offences;
- Remove the requirement to show that an unauthorised disclosure caused damage in order to bring a prosecution for disclosure offences under the OSA 1989;
- Increase the maximum sentence for unauthorised disclosures to reflect the fact that they are now capable of causing far more serious damage than when the offence was first introduced, meaning that there is not necessarily a distinction in severity between espionage and the most serious disclosures;
- Extend the territorial extent of the unauthorised disclosure offences in the OSA 1989.
It also committed to give further consideration to several other Law Commission recommendations when developing the legislation.
The Government noted the recommendations in relation to the creation of a public interest defence and a statutory commissioner and stated that they would be considered in further detail. This included reflecting on the Law Commission’s suggestions that the current scheme may be incompatible with Article 10 of the European Convention on Human Rights, which protects freedom of expression. It indicated on the basis of initial considerations, that the Government’s view is that the current scheme is compatible with Article 10 and that the proposals could “undermine our efforts to prevent damaging unauthorised disclosures” contrary to the public interest. The efficacy of existing whistleblowing mechanisms and safeguards would be reviewed when considering options for reform of the OSA 1989, the Government said.
Measures to counter state threats: Parts 1 and 2 of the Bill
Parts 1 and 2 of the Bill and the associated schedules would create an extensive framework for countering state threats modelled on the counter-terrorism framework established under the Terrorism Act 2000 (“TACT”) and numerous subsequent pieces of counter-terrorism legislation.
The measures include:
- New offences relating to espionage, sabotage and entering prohibited places;
- Foreign interference offences;
- Preparatory conduct relating to state threat activity;
- Powers to take state threat activity into account as an aggravating factor in sentencing;
- Powers to arrest and detain without a warrant;
- Powers to impose civil prevention and investigation measures on individuals suspected of involvement in such activity where prosecution is not possible;
- The creation of an independent reviewer to report on the use of the powers
Damages and legal aid for those connected with terrorism: Part 3 of the Bill
Part 3 of the Bill concerns individuals involved in terrorist activity. It would introduce measures to:
- Require courts to consider reducing damages in cases brought against the Crown by individuals connected with terrorist activity;
- Provide for a regime to freeze and forfeit damages where there is a real risk they may be used for terrorist purposes;
- Restrict the availability of civil legal aid to individuals with a conviction for a terrorist offence.
Other relevant information
The Government has published overarching documents on the Bill, including a European Convention on Human Rights memorandum (“ECHR memo”) and impact assessments.
The Bill pages also contain links to the explanatory notes, and delegated powers memorandum.
The Bill would extend to the whole of the UK. The explanatory notes provide further detail on devolution matters.