Proposed Registration Requirements For UK Foreign Influence Activities - Terrorism, Homeland Security & Defence

The UK government has proposed new registration requirements for foreign influence activities in the UK as part of its attempts to strengthen the resilience of the UK's political system and democratic institutions against covert foreign influence. Such requirements will become a feature of the Foreign Influence Registration Scheme ("FIRS"), which was introduced in Parliament via amendments to the National Security Bill (the "Bill") on 18 October 2022. Although the Bill has yet to become law, if it receives Parliament's approval and royal assent, it will significantly change the UK's espionage laws and will bring the UK in line with jurisdictions such as Australia and the United States, which already have foreign influence registration schemes.

I. The Foreign Influence Registration Scheme

The Bill provides for a two-tiered FIRS. The primary tier focuses on arrangements with foreign principals (for example, a foreign power or a non-UK entity) in which the foreign principal directs a person to carry out or arrange "political influence activities" in the UK. Political influence activities are defined as: (i) communications made to certain specified public officials; (ii) public communications, other than those clearly made at the direction of the foreign principal; and (iii) the distribution of money, goods, or services to UK persons, where such activities are carried out for the purpose of influencing the conduct of UK elections or referendums, government decisions, the members or proceedings of either house of Parliament or the devolved administrations, and/or the proceedings of a UK political party. Such arrangements are termed "Foreign Influence Arrangements" and must be registered with the Secretary of State. Foreign entities will also be required to register their own planned political influence activities before carrying them out.

The enhanced tier of the FIRS will empower the UK Home Secretary to specify foreign powers or foreign power-controlled entities (each being a "Specified Person") for the purposes of the FIRS, as necessary to protect the safety or interests of the UK. A person who makes an arrangement with a Specified Person to carry out activities in the UK, either directly or through another person (a "Foreign Activity Arrangement"), must register that arrangement with the Secretary of State. Specified Persons will also be required to register their own planned activities in the UK before carrying them out.

Both Foreign Influence Arrangements and Foreign Activity Arrangements must be registered within 10 days of the making of the arrangement. The register will be publicly available on a government website. Although the required contents of registrations will be clarified in subsequent regulations, the UK government has indicated that registrations will likely need to include the identity of the foreign principal, a description of the relevant activities, and when the arrangement was made. A person would violate the legislation by failing to register an arrangement within the 10 days of entering into such an arrangement, carrying out political influence activities pursuant to an unregistered arrangement, or providing false or misleading information in connection with an arrangement. Offences in connection with the primary tier/Foreign Influence Arrangements are punishable by up to two years' imprisonment, a fine, or both, while offences in connection with the enhanced tier/Foreign Activity Arrangements are punishable by up to five years' imprisonment, a fine, or both.

The Bill provides for certain exceptions to the FIRS registration requirements, including for persons who work for a foreign power in their official capacity, hold diplomatic immunity, and/or provide legal services (among others). The Bill also gives the UK government powers to combat foreign corrupt financial influence, including powers to identify and monitor suspects' bank accounts and to compel persons to provide information, produce documents, and/or answer questions in relation to a foreign power threat investigation.

II. A More Robust, But Narrower Foreign Influence Scheme

Compared to similar schemes in the United States and Australia, FIRS targets a narrower range of conduct, but it grants the UK government greater powers to investigate and identify potential violations. Moreover, unlike the United States' Foreign Agents Registration Act ("FARA"), the Bill has no apparent exemption for commercial activity, which may make compliance more difficult for UK entities who work with or on behalf of foreign government-affiliated commercial enterprises.

First, the Bill seems to have a narrower focus than comparable statutes like FARA, only focusing on influence on activity within the UK or by the UK government. The primary tier of the Bill would only require registration for specific activities aimed at influencing UK elections or referendums, UK government or devolved administration decisions, the members of or proceedings within the houses of Parliament or devolved equivalents, or UK political parties. Activities that are purely advancing a foreign interest's own priorities, without a specific hook to UK activity or policy, may thus fall outside the Bill's scope. Although the enhanced tier is not limited to certain types of activities like the primary tier is, its scope is nonetheless reduced by the requirement for a Specified Person to be involved in the Foreign Activity Arrangement.

Second, the Bill provides a more robust investigative toolkit to identify foreign influence than that which is available to the United States Department of Justice ("DOJ"). The UK government can, in certain circumstances, compel information, documents, and testimony in the course of an investigation, as well as monitor financial information. In contrast, the DOJ's primary non-criminal investigative tool to identify FARA violations are letters of inquiry, which are voluntary.

Finally, the Bill notably does not have an exemption for commercial activities, which is a core feature of both FARA and the Australian scheme. Despite the narrower aperture of the Bill, some commercial activity beyond the scheme's purpose may technically require registration.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.