The curious section 3 of the new National Security Act

Last week I was asked to write a piece on the arrests of three individuals in respect of Chinese espionage. One of the individuals was noteworthy, partly because they are married to a member of parliament. It was quite a news event and the New Statesman wanted someone to explain the relevant law.

As is my general approach, I did not mention the individuals or comment on the potential merits of any legal aspect of the case. The individuals are presumed to be innocent until proven guilty, and the recent history of espionage arrests indicate that there is a fair chance the cases go no further. The job of the responsible legal commentator in such circumstances is only to set out the applicable law.

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I assumed this would be straightforward: an exposition of section 1 of the new National Security Act 2023, which more-or-less replaced the old (and infamous) section 1 of the Official Secrets Act 1911.

But when I looked at the Metropolitan Police press release (always look at original documents when you can, rather than relying on reportage) I noticed something curious.

The arrests were not under section 1 of the new Act.

The arrests were instead under section 3 of the new Act.

With emphasis added:

“Three people arrested under National Security Act

“Three people have been arrested as part of a Counter Terrorism Policing investigation into suspected National Security Act offences.

“The men [A-C] were arrested on Wednesday, 4 March on suspicion of assisting a foreign intelligence service, contrary to section 3 of the National Security Act, 2023. The country to which the investigation relates is China.”

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Section 3 of the new Act is in respect of “Assisting a foreign intelligence service” as opposed to section 1 which is in respect of “Obtaining or disclosing protected information”.

It is a fascinating provision, which you should read in full. In essence it provides for two similarly worded but significantly different offences.

First section 3(1):

“(1) A person commits an offence if the person—

“(a) engages in conduct of any kind, and

“(b) intends that conduct to materially assist a foreign intelligence service in carrying out UK-related activities.”

And then section 3(2) (emphasis added):

“(2) A person commits an offence if the person—

“(a) engages in conduct that is likely to materially assist a foreign intelligence service in carrying out UK-related activities, and

“(b) knows, or having regard to other matters known to them ought reasonably to know, that their conduct is likely to materially assist a foreign intelligence service in carrying out UK-related activities.”

Section 3(3) then provides (emphasis added):

“Conduct that may be likely to materially assist a foreign intelligence service includes providing, or providing access to, information, goods, services or financial benefits (whether directly or indirectly).”

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The section 3(1) offence is an “intention” offence.

If you look carefully, however, you will notice something which is not there. The person does not actually need to communicate anything to the foreign intelligence service. The person merely has to engage in “conduct of any kind” – even if not communicated.

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The section 3(2) offence is not an “intention” offence.

Here, the person does not even need to intend to assist foreign intelligence service. Indeed, the foreign intelligence service may not even be aware of it.

The conduct only needs to be “likely” to assist, regardless of intention.

They do not even need to know they are doing it, but “ought reasonably to know”.

And again there does not need to be any communication with the foreign intelligence service – the foreign intelligence service may not even be aware of it.

On the face of it, the section 3(2) offence would cover a hobbyist following foreign affairs or even a journalist, “indirectly” providing access to information on (say) their website or reportage, even if they do not intend to assist a foreign intelligence agency, but in the opinion of the courts “ought” to have known that it would assist a foreign intelligence agency.

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There are some statutory defences to the section 3(2) offence, listed at section 3(7), but these are strictly limited in scope.

Perhaps there are provisions elsewhere in this complex legislation which mitigate the potential effect of this provision – and if so I will update this page.

Perhaps the the courts will anxiously scrutinise any application of the section 3(2) offence when it impacts upon freedom of expression and the right to share and impart information on matters of topical and public interest.

(Ho ho.)

Perhaps there is nothing to worry about.

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But.

Section 3(2) is a broad and vague provision.

One can see why the government and the security services want a broad “conduct” approach which would capture any imaginative ploy used by the culpable.

But in doing this there is a risk – as elsewhere with terrorism and national security legislation – that the prosecutorial convenience of the government and the security services is at the expense of clarity and free expression rights.

It will be interesting to see how this section 3(2) offence is used in practice.

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This post is also cross posted at The Empty City substack, which is run in parallel with this blog.

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