National Security Bill introduced to Parliament
- The National Security Bill was introduced on 11th May, going through its Second Reading in Parliament on 6th June.
- The Bill follows a consultation carried out by the Government in 2021 for the purposes of creating a law to:
‘modernise existing counter espionage laws to reflect the modern threat and modern legislative standards
create new offences, tools and powers to detect, deter and disrupt hostile activity in and targeted at the UK
improve our ability to protect official data and ensure the associated offences reflect the greater ease at which significant harm can be done’
- The provisions in the Bill include a swathe of offences and powers directed at activity that is conducted at the behest, or on behalf, of ‘foreign powers’ that the British government has deemed hostile, including:- State Threats Prevention and Investigation Measures (STPIMs): modelled on counter-terror Terrorism Prevention and Investigation Measures (TPIMs) – which allow for severe restrictions and control over an individual’s movement, place of residence, travel and use of electronic devices, without any criminal conviction. (Schedule 4)
– Espionage offences: Creating a number of offences previously consolidated under ‘Espionage’, including ‘Obtaining or disclosing protected information’, ‘Obtaining or disclosing trade secrets’ and ‘Assisting a foreign intelligence service’, with maximum sentences ranging from 14 years to life imprisonment (sections 1-3)
– Prohibited place offence: Criminalising entry into a designated ‘prohibited place’; areas which are used for UK defence purposes; extracting any metals, oil or minerals for use for UK defence purposes; or for the purposes of the defence of a foreign country or territory (ss. 4-6)
– Sabotage: Criminalising damage to ‘assets’ including electronic systems and information, to the benefit of foreign powers, including through recklessness. Up to life imprisonment (s.12)
– Foreign Interference: Criminalising ‘Foreign interference’ with legal process, political processes, public functions or conduct which is prejudicial to the safety or interests of the UK with up to 14 years imprisonment (ss. 13-14)
– Preparatory offences: Creating a category of preparatory offences, criminalising preparation for the sabotage, prohibited place and espionage offences listed above (s.15)
– Arrest without warrant: Enabling arrest without warrant for up to 48 hours for anyone a constable ‘reasonably suspects is, or has been, involved in foreign power threat activity’ (s.21)
– Immunity for overseas crimes: Granting immunity from prosecution for assisting crimes overseas when carried out for the ‘proper exercise of any function’ of British security services or the army (s.23)
– Court Duty for considering national security considerations: Placing a duty on the courts to consider the reduction of civil damage payments to wronged individuals where national security considerations are invoked (s.58)
– Freezing civil damages: Allowing for the freezing and permanent withholding of civil damage payments to wronged individuals where ‘there is a real risk that those damages will be used for the purposes of terrorism’ (s.61)
– Denying civil legal aid following terror convictions: Denying individuals convicted of terror offenses the right to civil legal aid indefinitely (s.62)
- According to Priti Patel, an amendment to the Bill introducing a ‘Foreign Influence Registration scheme’ will be proposed in due course.
- Many provisions in the Bill subvert legal proceedings, criminalise behaviour well outside the realm of intentionality, or lend themselves to deeply politicised bad faith accusations – drawing from some of the worst excesses of counter-terror legislation.For example, some of the offences listed above can be prosecutable where an individual ‘ought to know’ that their conduct is prejudicial to the interests of the UK, where they commit an act through recklessness, cause ‘spiritual damage’ or commit an offence through neglect.Provisions in the Bill also enable the courts to bar the public from proceedings ‘If it is necessary in the interests of national security’ (s.31)
- The Bill is the latest in what we can expect to be a litany of laws targeting ‘hostile activity’ from foreign states (or ‘malign actors’) – a concept first introduced in the Counter-Terrorism and Border Security Bill 2019 – as the War on Terror-framework of counter-terrorism makes way for the targeting of hostile/foreign state activity, in the present era of great power rivalry.Though no state is named in the Bill – allowing for flexibility in the designation of states as ‘hostile’ – Priti Patel named Russia, China and Iran during the Parliamentary debate on the Bill’s Second Reading.
- The proposals in the Bill are breathtakingly broad and draconian, and in many cases mirror and expand on the most egregious examples of counter-terror laws, such as the aforementioned TPIMs/STPIMs.Similar to how the Terrorism Act 2000 has served as the legislative backbone of the post-2001 counter-terror apparatus, the National Security Bill will likely be augmented and expanded through new anti-espionage and surveillance powers in the coming years.
Since the onset of the Russia-Ukraine war in February we have seen how a widespread suspension of critical faculties has enabled a swift crackdown on supposedly Russian-backed media sources, with the active or tacit support of the public and civil society.
The present Bill will feed off and entrench this cultural context of paranoia, censorship and national fervour which will be regularly renewed with allegations of foreign state meddling.
Accusations in the media alleging leading members of the RMT Union as being ‘Putinists’ in the run up to their June strikes also indicate the manner in which allegations of foreign allegiances will be deployed to delegitimise and repress political activity.
Investigation into abusive, far-right undercover MI5 asset published following attempted block by Attorney General
- In May the BBC published an in-depth report of an unnamed Covert Human Intelligence Source (CHIS; an undercover asset) for MI5 who had fled the country after having violently abused and threatened to murder his partner, and after accumulating extensive ‘far-right extremist’ material.
- The publication of the story had been delayed after an injunction was sought, unsuccessfully, in the High Court by Attorney General Suella Braverman, on grounds that it would damage national security and constitute a breach of confidence if any details on the CHIS’ identity were published.He was ultimately not named in the BBC report, other than specifying that he was a foreign national and that after fleeing the UK he had begun working for a foreign intelligence agency.
- Following the publication of the report, the partner of the asset launched a legal case against MI5, on the basis that they had breached her human rights on account of the protections and impunity they had afforded the asset.
- The use of CHISs by security services has been under scrutiny in recent years, first with the revelation that children were being deployed as CHIS assets into gangs to gather intelligence, and then with the passage of the Covert Human Intelligence Sources (Criminal Conduct) Act which permitted CHISs to engage in criminal activity with impunity, up to and including murder.The fact that the CHIS in question was able to continue his intelligence career after fleeing Britain raises concerns both about the way that British security services are incorporating dangerous elements into their ranks, and providing them with skills and contacts that they can transfer into employment or illicit activity.