It has been my experience over the years that many of the domestic and international issues which impact society in the UK at any given time play out within the higher education and research sector. In many respects higher education institutions are microcosms of wider society.
I recall, by way of a significant event in world history, being at a HE conference when news came in of the 9/11 terrorist attack in 2001. Following that terrible act, counter-terrorism legislation in the UK has been updated and strengthened. Various bodies, including HE institutions in England and Wales, have taken on new duties under that legislation, including the Prevent statutory duty which requires relevant higher education bodies, when exercising their functions, to have due regard to the need to prevent people from being drawn into terrorism. As the statutory Prevent duty guidance for higher education makes clear, institutions ‘must be vigilant and aware of the risks’.
In March 2021 the UK Government published its Integrated Review of Security, Defence, Development and Foreign Policy. The Government’s principal goal set out in that document is to counter ‘state threats’ at home and overseas.
In the Government’s legislative programme, as set out in the Queen’s Speech in May this year, a new National Security Bill was announced. The broad aim of this Bill, which entered the House of Commons in June, is to tackle hostile state activity by modernising the powers available to the security services.
According to the House of Commons briefing document on the Bill, the threats in the consultation document on the Bill were classified into broad areas: physical threats to people; physical threats to things; espionage; interference by foreign powers; and, threats to geostrategic interests such as to the rules-based international order.
The Bill includes a framework in Parts 1 and 2 for new criminal offences and a new measure (a State Threats Prevention and Investigation Measure) modelled on the framework for counter-terrorism.
The proposed offences are wide-ranging. ‘Espionage’, for example, includes offences for obtaining or disclosing protected information, obtaining or disclosing trade secrets and assisting a foreign intelligence service. An offence of ‘foreign interference’ is included in the Bill. This is where a person engages in conduct intending that the conduct should have a specified effect, including, for example, interfering with the exercise by a particular person of a right under the European Convention on Human Rights, or the exercise of any person of their public functions. The ‘foreign power condition’ must be met, namely that the conduct in question is carried out on behalf of a foreign power and the person knows, or ought reasonably to know, that to be the case.
Additional conditions must also be met – the conduct must either be an offence, involve coercion or involve making a misrepresentation (for example as to the person’s identity or purpose, or presenting information which amounts to a misrepresentation even if some or all of the information is true).
The Government has included a substantive amendment to the Bill since it was originally introduced to the House of Commons. This is for the establishment of a ‘Foreign Influence Registration Scheme’ which is now set out in Part 3 of the Bill. Certain activities must be registered with the Secretary of State, failing which the person will be at risk of criminal prosecution.
It is beyond the scope of this summary to provide comprehensive information about the range of offences and measures in the National Security Bill. The Joint Committee on Human Rights (JCHR) expressed some concerns that “the draft legislation risks unnecessary interference with human rights by over-extending powers relating to espionage offences and criminalising behaviour that does not pose a threat to national security.” Specific concerns about the impact on freedom of expression, freedom of association and the right to protest were highlighted. The Government issued a revised memorandum of compatibility with the European Convention on Human Rights when the Bill moved from the House of Commons to the House of Lords.
In addition to this draft legislation, higher education institutions also need to be aware of the National Security and Investment Act 2021 which gives the Government the power to review and prohibit certain commercial transactions.
Higher Education institutions may wish to review their own frameworks for managing security risks, noting the guidance from Universities UK which recommends that Governing Bodies receive an annual report on security risks.
