LEGISLATION
- It is clear from our Inquiry that China presents a rather different challenge for the Government, one that it is still struggling to get to grips with and which it may not yet have the right tools to tackle. One of the tools that can be developed and used quickly is legislation. We have already covered the National Security and Investment (NSI) Act 2021 and the Telecommunications (Security) Act 2021 in this Report, and we will need to see what difference both pieces of legislation make; however, at the time of writing we had yet to see legislation introduced specifically to tackle Hostile State Activity (HSA).[1]
The need for new legislation on Hostile State Activity
- . The Official Secrets Acts[2] are the only pieces of UK legislation that specifically address HSA.[3] However, the Agencies have previously explained that the Acts are inadequate in countering HSA, since it is not an offence to be a covert agent of a foreign power. The previous Committee concluded in its Russia Report:
it is very clear that the Official Secrets Act regime is not fit for purpose... It is essential that there is a clear commitment to bring forward new legislation to replace it... that can be used by MIS to defend the UK against agents of a foreign power.[4]
- In evidence to this Inquiry, the Intelligence Community told the Committee that legislative change is even more necessary in relation to China. MI5 told us that "a Foreign Agent Registration [Act]-type power, which the Australians and Americans enjoy... [would] have proportionately more effect against ... Chinese activity".[5] A key issue of concern is the theft of non-classified information, which can be difficult to grip because a significant amount of the activity does not currently constitute a serious criminal offence in the UK.
- One example of such a case is from ***, when a suspect was arrested for ***. The material ***. Given the difficulties of prosecuting espionage activities under current legislation ***.[6]
- In the December 2019 Queen's Speech, the Government confirmed plans to introduce a new Espionage Act to provide a legislative framework to deal with HSA.[7] Consideration
- ↑ The National Security Bill was introduced in Parliament on 11 May 2022, after the Committee had finished taking evidence for this Inquiry. However, we note that the Bill, as introduced, does not include reform of the Official Secrets Act 1989 or introduce a Foreign Agent Registration Scheme (although the latter was later proposed via a government amendment at Committee stage of the Bill).
- ↑ 1911, 1920 and 1939.
- ↑ Other than the 'ports stop' power introduced in the Counter-Terrorism and Border Security Act 2019. 'Queen's Speech December 2019: back ground briefing notes' (HMG, December 2019) states that the Counter-Terrorism and Border Security Act 2019, which received Royal Assent in February 2019, confers the power to stop, question, search or detain any person entering the UK (it is not necessary for there to be a suspicion of engagement in hostile activity in order to do so). These provisions were closely modelled on the 'Schedule 7 port stop' power provided for in the Terrorism Act 2000.
- ↑ Russia, HC 632, 21 July 2020.
- ↑ Oral evidence—MI5, *** July 2019.
- ↑ Oral evidence—MI5, *** December 2020.
- ↑ 'Queen's Speech December 2019: background briefing notes', HMG, December 2019.
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