The UK’s Proposed Clampdown on Foreign Lobbying

On March 1 and 7, 2023, the National Security Bill (the “Bill”) will enter the Report stage of the House of Lords, during which members of the House of Lords will be given a further opportunity to examine and make amendments to the Bill. The Bill was first introduced by the Home Secretary on May 11, 2022 and, since its introduction, has undergone various readings, stages and amendments in both the House of Commons and the House of Lords. The Bill is expected to return to the House of Commons for approval, and subsequent Royal Assent, towards the end of 2023.

As the 202-page Bill is currently drafted, if passed, it will, among other things:

1. reform existing espionage laws and include new offences to tackle state-backed sabotage and foreign interference (Part 1 of the Bill);
2. enhance police powers to support the investigation of state threats (Part 2 of the Bill);
3. create a registration scheme requiring the registration of certain arrangements with foreign governments (Part 3 of the Bill); and
4. restrict the ability of convicted terrorists to receive civil legal aid and prevent their exploitation of civil damage systems (Part 4 of the Bill).

The third of the above proposals – the creation of a registration scheme – aims to introduce something similar to a US-style foreign lobbying register, and will require those carrying out certain arrangements on behalf of a foreign power to register with the UK Secretary of State.

Foreign Influence Registration Scheme

Introduction

According to the UK government’s Policy Paper entitled “Foreign Influence Registration Scheme (FIRS): National Security Bill factsheet” (the “Policy Paper”), the aim of Foreign Influence Registration Scheme (“FIRS”):

“…is to deter foreign power use of covert arrangements, activities and proxies. It does this by requiring greater transparency around certain activities that foreign powers direct, as well as where those activities are directed or carried out by entities established overseas or subject to foreign power control.”[1]

In essence, FIRS will mandate that foreign organizations (excluding foreign governments) that carry out political influencing activities on behalf of a foreign state register their interactions with UK policy and decision makers. The definitions used in Part 3 of the Bill are broad including, for example, defining “political influence activity” as including communications with senior decision makers such as UK ministers (and ministers of the devolved administrations), election candidates, MPs and senior civil servants, but also communications to the public “where it is not already clear that the communications are being directed by a foreign principal, and disbursement of money, goods or services to UK persons.”  

Exemptions to the registration requirements are likely to be minimal, although lawyers have been excluded in relation to defined legal activities. Moreover, the Policy Paper states that the following will be not be required to register:

1. individuals acting for a foreign power in their official capacity as employees;
2. individuals to whom privileges and immunities apply in international law;
3. family members who are part of the household of members of diplomatic and consular staff;
4. those providing essential services to a diplomatic mission or consulate e.g., catering or building services;
5. domestic and international news publishers; and
6. arrangements to which the UK is a party.

Registration of foreign influence arrangements and political influence activities carried out by foreign principals (the primary tier)

The registration scheme currently envisaged by the Bill will require, among other things, the registration of:

• a “foreign influence arrangement”: namely an arrangement to carry out “political influence activities” within the UK at the direction of a “foreign principal” (section 68(1) of the Bill). The requirement to register with the Secretary of State will lie with the person making the arrangement with the foreign principal, and must be done “before the end of the period of 10 days beginning with the day on which [the person making the arrangement] makes the arrangement” (section 68(2) of the Bill); and

• “political influence activity”: namely where the activity is being carried out by the foreign principal itself (on whom the obligation to register falls). 

A foreign principal is defined as a foreign power, or a foreign body corporate, or association established outside of the UK. The Policy Paper states that “we would not expect other governments to register with the scheme in respect of influencing activity that they themselves are undertaking.” Accordingly, other governments are excluded from the requirement to register “political influence activity” (but not a “foreign influence arrangement”).

According to the Policy Paper, “political influence activity” that will require registration will include:

“…making communications to senior decision makers such as UK ministers (and ministers of the devolved administrations), election candidates, MPs and senior civil servants. It also includes communications to the public where it is not already clear that the communications are being directed by a foreign principal, and disbursement of money, goods or services to UK persons. To be registerable, this activity has to be for the purpose of influencing UK public life for example elections, decisions of the government or the proceedings of either House of Parliament.”

The Bill envisages a number of new offenses, including failure to register a foreign influence arrangement within 10 days of making the arrangement, carrying out political influence activity where the overarching arrangement is not registered and the person knows that the activity is being directed by a foreign principal, and carrying out political influence activity where the person knows that information provided in connection with the arrangement is false, inaccurate or misleading. The penalty for a foreign influence offense is a maximum of two years imprisonment, a fine, or both.

Registration of foreign activity arrangements and activities carried out by a specified person (enhanced tier)

In addition to the “primary tier,” the Bill also tables a power, subject to Parliamentary approval, for the UK Secretary of State specifically to designate – or specify – a foreign power, part of a foreign power or an entity subject to foreign power control where it is considered necessary for the safety and interests of the UK. To date, there have been no designations but it is thought that this “enhanced tier” will allow the UK government to impose more robust requirements on hostile nations who are suspected of attempting to carry out malign influence.

The scheme will require the registration of:

• arrangements to carry out any activity within the UK at the direction of a specified power or entity. Again, the requirement to register with the Secretary of State will be on the person making the arrangement with the specified foreign power, part of a foreign power or an entity subject to foreign power control; and

• activity carried out by specified foreign power-controlled entities. The specified entity will be responsible for registering with the scheme. Again, specified foreign governments will not be required to register with the scheme.

The Bill introduces a number of foreign activity offenses, with the penalties for a foreign activity offence being a maximum of five years imprisonment, a fine or both.

Criticisms of FIRS

FIRS was introduced (and, in principle at least, initially welcomed) as an attempt – similar to schemes in other foreign nations including the United States – to protect British politics from hostile and malign foreign influence. 

Previous iterations of the Bill have, however, faced a lot of opposition including:

1. FIRS fails to differentiate between hostile powers (such as China, Iran and Russia) and those countries with whom Britain has a friendly relationship (such as the EU and United States). Despite a number of requests that the government provide a “whitelist” of countries whose businesses would not have to register, the Bill has not yet been amended to include such a list;

• the definitions used in the Bill are broad (see above) and could have unintended consequences, including a chilling effect on legitimate lobbying activity;

• the registration obligations will place an unnecessary level of bureaucracy on non-UK businesses proposing to invest in the UK or overseas charitable organizations aiming to operate in the UK. In response, amendments tabled by the House of Lords on February 23, 2023 include that foreign businesses, charities, and other bodies acting in their own interests and who are not acting at the direction of a foreign state should be exempt from the requirement to register;

• FIRS fails to deal with domestic lobbyists. This is of particular concern in circumstances where the UK’s current lobbying laws are thought to be inadequate; and

• it has not (yet) been made clear what information will need to be provided in order to register with FIRS. The UK government has, however, said that the Secretary of State will make “clear, simple and proportionate” regulations – subject to parliamentary approval – detailing what information will be required, and that it is likely to include “who they are in an arrangement with, what activity they have been directed to undertake and when the arrangement was made.”

Conclusion

Whilst FIRS’ stated aim was laudable – to deal with valid concerns about emerging threats from a handful of malign states – as it is currently envisaged, FIRS raises a number of potential difficulties for a wide range of businesses operating in the international arena. We must now wait to see whether any further amendments will be made by the House of Lords.

[1] https://www.gov.uk/government/publications/national-security-bill-factsheets/foreign-influence-registration-scheme-firs-national-security-bill-factsheet#:~:text=The%20Foreign%20Influence%20Registration%20Scheme,covert%20arrangements%2C%20activities%20and%20proxies.