Our August 2023 blog "National Security Act 2023" outlined the new “foreign interference” offences, which came into force on 20 December 2023. Meanwhile the Government has also been consulting on draft guidance on the Foreign Influence Registration Scheme (FIRS) which will be introduced under other provisions in the National Security Act 2023, expected to come into force in 2024.
The FIRS scheme requires the registration of certain arrangements involving a “foreign power” which might facilitate foreign power influence over UK affairs. The register will be open to public inspection, subject to limited exceptions. The scheme includes a number of criminal offences, including for failing to register arrangements and/or for carrying out such arrangements if they have not been registered. The scheme requirements apply both to individuals and organisations. There's no fee for registering an arrangement.
The draft FIRS guidance covers both the “political influence tier” and the more stringent “enhanced tier” of the FIRS regime.
The political influence tier
The political influence tier is intended to increase the transparency concerning foreign power influence in UK political affairs. When in force, it'll require the registration of non-exempt foreign influence arrangements (FIAs).
Unless an exemption applies, FIAs must be registered if they involve:
- An agreement or arrangement between an individual or entity and a foreign power
- Pursuant to the FIA the foreign power directs the other party to carry out specified “political influence activities” (PIAs) in the UK
- The purpose(s) of the PIA must include one of the specified political influence purposes
The definition of “foreign power” includes a range of entities, including agencies or authorities of foreign governments, governing political parties, parts of foreign governments and those responsible for administering an area within a foreign country or territory. The draft guidance also states that “If an arrangement is formed with an employee or member of one of the above (when acting in this capacity), it is treated as an arrangement with a foreign power”.
The draft guidance sets out the Government’s view of what might amount to a “direction”, including through requests and when funding or ownership might amount to a direction by a foreign power.
A political influence activity includes:
- Making any communication to a range of public officials, civil servants and special advisers, members of the House of Lords, elected politicians (including in the devolved administrations), including certain mayors and election candidates, as well as various individuals connected with UK registered political parties. Employees/staff of some of these categories are also within the regime. The regime also applies to high-ranking members of the armed services and police (including police and crime commissioners). The Secretary of State may also specify in regulations that the regime applies to certain other persons who exercise public functions
- Making a public communication, except where it is reasonably clear from the communication that it is made by or at the direction of the foreign power
- Distributing money, goods or services to individuals or entities in the UK
A “public communication” includes publishing or disseminating information, a document or other article. It also includes producing information, a document or other article for publication or dissemination.
The political influence activity must be carried out for the purpose of (or purposes including) influencing:
- A UK election or referendum
- Ministerial/departmental decisions (both at UK level and in the devolved administrations)
- The proceedings of a UK registered political party
- A Member of either House of Parliament, or the equivalents in the devolved administrations
Arrangements with the Republic of Ireland are exempt from the requirement to register. A number of general categories are also potentially exempt from registration including for foreign powers, diplomatic family members, lawyers carrying out legal activities, news publishers, and those acting pursuant to an arrangement to which the UK is a party. The Government may exempt other categories in regulations.
The guidance gives a number of examples of political influence activities at the direction of a foreign power, including through correspondence, social events and media articles. It also works through a number of example scenarios where registration is, and is not, required.
If the arrangement also meets the requirements under the enhanced tier, then only enhanced tier registration is required. The guidance also confirms that the FIRS regime is in addition to any obligations under the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014.
The enhanced tier applies to Foreign Activity Arrangements (FAAs). Unless an exemption applies, FAAs must be registered if they involve:
- A formal or informal arrangement with a specified foreign power or entity
- Pursuant to the FAA the foreign power/entity directs the other party to carry out, or arrange to carry out, “relevant activities” in the UK
Entities (other than foreign powers) which are specified persons are also required to register before carrying out “relevant activities” in the UK. It's also an offence for their staff/office-holders to carry out relevant activities if these are not registered. The details of which foreign powers and entities will be “specified persons” are yet to be confirmed.
The enhanced tier will encompass a very broad range of activities directed by specified foreign powers or specified entities which the Government considers may pose a risk to UK safety and interests. The draft guidance states “[those] who register fully and accurately should not be regarded as a national security risk, but as supporting the aims of the scheme. Registration of an arrangement or activity does not necessarily mean that it is illegitimate or undesirable”.
Again, the guidance contains further information on what the Government considers would amount to a “direction”.
By default, “relevant activities” include all activities in the UK, including but not limited to commercial activities, research activities and providing goods and services. It's possible that the Government may exclude certain activities from the scope of the enhanced regime in respect of certain specified persons; details will be set out in regulations.
A number of categories are exempt from the requirement to register under the enhanced regime. Broadly these include foreign powers, diplomatic family members, those providing essential services to a diplomatic mission or consulate, lawyers carrying out legal activities and those acting pursuant to an arrangement to which the UK is a party. The Government may exempt other categories in regulations.
The draft guidance again sets out a number of examples of arrangements and activities requiring, and not requiring, registration under the enhanced regime.
Where registration is required under the enhanced tier, it is not also required under the political influence tier.
However, the draft guidance confirms that the requirements of the FIRS scheme are separate and distinct to any applicable requirements under the National Security & Investment Act 2021 and the Academic Technology Approval Scheme.
Registration and enforcement (both tiers)
The registration periods are different under each tier:
|Political influence tier
|Time for registering an existing arrangement
|Within 3 months of FIRS coming into force
|No express provision – transitional arrangements will presumably be clarified in regulations specifying relevant countries/entities
|Time for registering a new arrangement
|Within 28 days of making arrangement
|Within 10 days of making arrangement
|Time for updating register following a material change
|Within 14 days of material change
|Within 14 days of material change
The draft guidance sets out the information that must be supplied and what will be published on the public register. Limited exceptions to publication are set out for reasons of national security, individual safety and where publication would involve disclosing commercially sensitive information. The person claiming an exception must submit supporting evidence. FIAs that already exist must be registered within three months of the FIRS provisions being brought into force (the date for this is yet to be confirmed).
The registration must be updated within 14 days when there is a “material change” to a registered arrangement. The draft guidance gives examples of circumstances the Government considers to be a material change.
The FIRS scheme management unit will also have power to issue notices requiring individuals and entities to supply additional information in various scenarios, including in relation to registrations and where it is believed they are carrying out activities which are required to be registered.
The regime is backed up by a number of criminal offences, punishable by up to two years’ imprisonment (political influence tier) or five years imprisonment (enhanced tier) and/or an unlimited fine (both tiers).
The offences include both failing to register a registrable arrangement and carrying out political influence arrangement activities (or “relevant activities” under the enhanced tier) without the required registration. Failing to update a registration in either tier within 14 days of a material change is also an offence. Managers, officers and similar persons may commit offences where an offence has been committed by a corporate entity with their consent or connivance, or due to their neglect. The “carrying out” offences are also potentially wide enough to apply to employees, sub-contractors or similar entities. Where an individual or entity lacks relevant knowledge, they may avoid committing an offence in certain circumstances.
The draft guidance confirms that the Government intends sector-specific guidance to be published ahead of the FIRS scheme going live, including for the higher education and research sector. This guidance is to be developed through consultation panels.
Potential next steps
Organisations and individuals will need to consider what potentially registrable arrangements they might currently have and be prepared to register these when the new regime becomes effective. They should also consider whether any applications should be made for information to be withheld from the public register, and what evidence in support might be required.
The approach should be further developed once the final versions of the draft Government guidance and any sector-specific guidance have been finalised. Organisations will also need to take into account any further exemptions that the Government might make in regulations; no announcements have been made about this at present.
Organisations that might have to register arrangements will also need to consider developing policies and procedures to ensure that new potential registrable arrangements go through appropriate procedures and approvals. This might be incorporated into existing risk management and due diligence procedures. Aside from assessing whether an arrangement should be entered, it will be necessary to ensure registrations happen and are updated if there is a material change. Appropriate leadership, training and awareness raising will also be required.
Given the “carrying out” offences, the draft guidance also recommends that employees or subcontractors tasked with carrying out an activity pursuant to a registrable arrangement should check with their employer or contracting party whether the arrangement has been registered, and that a check should be made of the public register. A person who took all reasonable steps to determine whether an arrangement was registered, and reasonably believed it to be registered may have a defence to the “carrying out” offence.