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The National Security Act 2023 is a threat to National Security - so why aren't people calling it out?

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The National Security Act 2023 was rushed through Parliament under the unelected Prime Minister Rishi Sunak and took full effect in December 2023, during the ongoing genocide in Gaza. Framed as essential for protecting the UK’s national security, its vague and far-reaching provisions have raised alarm among legal experts and human rights groups. The Act threatens to criminalise British citizens for activities that may be entirely innocent, while paradoxically granting legal immunity to those in power, even when this undermines the UK’s national security. You can find the full Act here.

Silencing Dissent: A Threat to Whistleblowers and Journalists

One of the most controversial aspects of the Act is its impact on journalists and whistleblowers, who seek to expose government wrongdoing. It criminalises a wide range of activities under broad offences such as section 1, “obtaining or disclosing protected information.”

This section specifies that a person commits an offence if they “obtain, copy, record, or retain protected information” that they “ought reasonably to know” is “prejudicial to the safety or interests of the United Kingdom.” This broad, subjective wording effectively lowers the normal criminal threshold for guilt. In practice, this means an individual does not need to be aware that their actions constituted anything potentially unlawful; if a court thinks they should have known, they can be found guilty.

The definition of ‘protected information’ exacerbates the problem by extending beyond explicitly "restricted" material to include anything that "it is reasonable to expect" "would be restricted in any way." This broad interpretation means protected information could encompass virtually anything, even if it has never been formally classified as restricted, as long as a court deems it likely it could have been. Such an expansive and ambiguous definition makes the offence excessively broad, and makes it almost impossible to predict what might fall within its scope.

Likewise, the section provides no definition of what constitutes "prejudicial to the safety or interests of the United Kingdom," leaving this determination entirely at the discretion of the government. This deliberate vagueness paves the way for arbitrary enforcement, enabling the state to target investigative journalism under the guise of national security.

It is alarming that, for many offences under the Act, the two essential elements required in criminal law to prove an offence—actus reus (the act) and mens rea (the intent)—are not necessary. Under the Act, no actual crime needs to have been committed, nor does there need to be any demonstrated intent to commit a crime, for someone to be found guilty. Individuals can be convicted in the absence of both the act and the intent.

In fact, the government itself acknowledges that provisions in the Act criminalise people who may be completely innocent. Its own factsheet on section 17, which criminalises "obtaining a material benefit from a foreign intelligence service," admits that the Act allows prosecutions when it is ‘difficult to prove’ that the person is actually providing any material assistance to a foreign intelligence service at all, or when the person is unaware that the ‘material benefit’ they received came from one.

Is this broad wording of the Act intentional by design? In recent months, we are seing that the concept of ‘national security’ has increasingly been used as a tool to suppress dissent and criminalise journalists who expose war crimes in Palestine—arguably crimes in which the UK government appear to be deeply complicit. This is further evidenced by the fact that the Act includes no public interest defence. As a result, even if a journalist uncovers and publishes information that serves the UK’s best interests—such as exposing ministerial corruption or breaches of national security—they could still face imprisonment. The absence of this fundamental safeguard undermines the vital role of journalism in holding power to account, turning investigative reporting into a criminal offence.

Section 3: Criminalising Accountability - A Licence for Repression

However, the most repressive section in the Act is Section 3. It makes it an offence for any person to "engage in conduct of any kind" that is "likely to materially assist a foreign intelligence service." The definition of a ‘foreign intelligence service’ is also worryingly broad—it doesn’t just cover official employees, but "any person whose functions include carrying out intelligence activities for or on behalf of a foreign power." This means that almost anyone could be considered to be working for a foreign intelligence service, based on the most tenuous of connections.

The breadth of this section is staggering. Intelligence activities are defined so loosely that they can include something as simple as gathering publicly available information. The wording is so vague that an unpaid intern at a consulate, whose role involves includes checking global news headlines each morning, could be deemed to be working for a foreign intelligence service.

Incredibly, for this offence, ‘it is not necessary to identify a particular foreign intelligence service.’ This means prosecutions can occur even when no material benefit has been identified, nor has any foreign state been shown to have benefited from any alleged material assistance. The Act bypasses a fundamental component of criminal law—the requirement to establish a clear and specific threat. Instead, it paves the way for convictions based entirely on hypothetical scenarios.

What’s more, someone charged under this offence doesn’t even need the mens rea, or intent, to commit the crime. As long as a judge believes that the defendant "ought reasonably to know" their actions could hypothetically assist a hypothetical foreign intelligence service, that subjective test is enough to secure a conviction.

The Prime Minister’s Legal Immunity: Enabling Treason

Remarkably, while Section 3 criminalises individuals who attempt to expose wrongdoing, it simultaneously provides an extraordinary loophole for the Prime Minister and other Crown officials, allowing them to take actions that could undermine UK national security. Subsection (7)(d)(ii) grants a complete defence for any conduct undertaken by someone holding office under the Crown, as long as it’s part of an "agreement or arrangement".

This provision, in practice, grants the Prime Minister a legal right to act in ways that prioritise foreign interests over the security of the UK. Incredibly, this means the Prime Minister could enter into agreements with foreign states—even those hostile to the UK—that could actively undermine national security, all without fear of prosecution or legal consequences.

The defence is a glaring contradiction: while ordinary Britons can face criminal charges for potentially assisting foreign powers, the Prime Minister is shielded from accountability for doing the same.

A Dangerous Double Standard

This inconsistency in treatment between the Prime Minister and ordinary citizens has chilling implications. If a journalist or whistleblower uncovers evidence that the Prime Minister is acting in the interests of a foreign state and attempts to expose it, they could be criminalised under Section 3. Even if the information is clearly in the public interest and vital for protecting UK national security, it could still be deemed an offence. This is because any negative news about the Prime Minister could be construed as ‘likely to materially assist’ a foreign state—whether friendly or hostile—simply by revealing this information in an article. A journalist who publishes such evidence could be said to ‘ought reasonably to know’ this, leaving them exposed to prosecution.

Since the Act does not require the foreign state to be identified, nor does it need to show any actual material benefit to a foreign intelligence service, simply revealing the information could be enough to secure imprisonment. The absence of a public interest defence strips away all legal protection for those acting in good faith to safeguard the UK’s sovereignty.

In effect, if the Prime Minister is found to be undermining the UK’s interests in favour of a foreign power—acting as a foreign asset—it is the journalist who exposes this betrayal who risks imprisonment.

A Threat to National Security, Not a Protection

The National Security Act 2023 marks a profound and dangerous shift in the UK’s legal framework, paving the way for severe and dangerous abuses of power. Rather than safeguarding the nation’s interests, it creates a system that enables these abuses and punishes those who challenge them. The Act does not protect the UK’s national security; it actively undermines it. By granting sweeping legal immunity to the Prime Minister and other Crown officials—allowing them to act as foreign assets without any fear of accountability—it criminalises those who dare to expose these actions and creates a culture of secrecy, repression, and unchecked authority. The Act dismantles the vital democratic principles of transparency and accountability, eroding the UK’s sovereignty in the process.

Far from protecting the nation, the National Security Act actively jeopardises it, giving those at the highest levels of government the power to prioritise foreign interests over the UK’s own, while silencing those who attempt to hold them accountable.