(A version of this article first appeared in the London Times)
Britain should rethink its draconian and sweeping rules on registering foreign contacts
Spying, you may be surprised to learn, is mostly not illegal in Britain. That is about to change. The new National Security Bill makes it a crime to prepare, assist and conduct foreign espionage operations against this country, here and abroad. The authorities will also gain new powers to disrupt, investigate and prevent other activity, such as sabotage, cyber-attacks, interference in elections, and intimidation of individuals.
Modernising our antique espionage and treason laws is commendable and belated. As the first witness to the Intelligence and Security Committee’s Russia inquiry in 2018, I outlined our repeated, dangerous failures to counter Kremlin’s influence operations in this country. I was furious when Boris Johnson tried to suppress the resulting report, and then to nobble the committee.
Others do this better. Finland, a tightly-knit and threat-aware country, is the star in countering these threats. Australia in 2018 introduced a law aimed at curbing foreign (in reality – Chinese) interference. The United States has the Foreign Agents Registration Act (FARA), passed in 1938 to foil Nazi interference. That needs updating too: the FARA website still lists the long-gone German Democratic Republic and Yugoslavia.
But our new law is too sweeping. It creates, for example, a new class of “protected” but non-secret material that might help our foes. The government rejected the Law Commission’s recommendation to make a public-interest exemption for journalists who reveal such information, offering instead to beef up whistle-blower protections.
Worse, ill-drafted clauses in the new law require all foreign organisations, and those representing them, to register their dealings with decision-makers (lawmakers, elected officials, senior civil servants, and the like). Any money, goods or services from such foreign sources must be registered too. Failure to declare such dealings will become a criminal offence, with substantial jail terms for those deemed to have wilfully concealed their ties. Ministers will have powers, seemingly unchecked, to demand information relating to these interactions. There are no exclusions for friendly states, except Ireland, which on long-standing grounds is not treated as fully foreign in British law. Still stricter requirements will apply to contacts with states deemed to be a national security threat.
As the implications of this sink in, worries are mounting. One problem is over-reporting. More haystacks do not necessarily mean more needles. Our anti-moneylaundering efforts produce so many “Suspicious Activity Reports” — 3,000 daily — that police and other agencies are swamped. The same result is likely with dutifully submitted reports of boringly innocent contacts with foreigners. Real spies will presumably continue to operate in secret.
Another worry is confidentiality. Potential investors, for example, routinely talk to decision-makers about possible projects. They like to do so privately in order not to alert competitors to their plans. A requirement that foreigners list these meetings on a public register, especially one loosely linked to espionage, will be daunting. TheCityUK, which lobbies for our financial and legal industries, says the new rules will dent Britain’s attractiveness to outside investment.
Herbert Smith Freehills, a law firm, argues that routine and beneficial exchanges of information with foreign contacts on medical, scientific, security and human rights issues will also be at risk. An anti-slavery campaign funded by foreign state donors, for example, would be required to register if it wanted to come to this country and brief MPs.
Given how fervently our pinstriped professional-services providers have represented the interests of the ultra-rich (and sometimes ultra-dodgy), some scepticism about their complaints may be merited. Similar cynicism could attach to the protestations of academic administrators, who fear that their fundraising may fall foul of the new rules. Our universities’ open door to Chinese cash, and the resulting impact on academic freedom, is an under-reported scandal.
Yet the chorus of criticism also includes national-security heavyweights. David Anderson, a former independent reviewer of terrorism legislation, now a crossbench peer, describes the registration scheme as “unfair and inappropriate”. With his also-ennobled and similarly hawkish predecessor, Alex Carlile, he is tabling an amendment to the report stage of the bill, which starts in the House of Lords today [Monday]. The two peers’ suggestion is to narrow the registration requirement to only those countries explicitly named a national security threat. Other foreign governments’ activity would be better dealt with in reforms to the Lobbying Act.
This would require the government to drop the principle that national-security legislation is “actor-agnostic”, meaning that it does not distinguish in principle between potential threats from, say, the Canadian Grain Commission and Russia’s Gazprom. A convenient diplomatic fiction, it allows us to treat countries like China as trade and investment partners, while keeping security worries in the background. Under the new law, bureaucracy and suspicion will burden contacts with unbothersome countries, meaning we all pay the price. Better, says Daniel Ward, an Australian expert, to “call a spade a spade”.
Our enemies do exploit our trusting ways, the free exchange of ideas and information, and our openness to serendipitous contacts. But the law allows too much government interference in these vital features of a free society. Ministers are gaining huge discretionary powers, subject to little appeal or scrutiny. To be told that those with nothing to hide have nothing to fear is scant comfort. An ominous comparator is Russia’s “Foreign Agents” law, used to cow critics with any contacts with the outside world. If we counter Putin’s threats by Putinising our own system, we are losing, not winning.