On July 11, 2023, the UK's Foreign Influence Registration Scheme ("FIRS") became law.1 As part of the National Security Act 2023, FIRS requires registration of arrangements intended to influence UK politics at the direction of non-UK governments or political parties. FIRS also empowers the British Secretary of State to require persons working for specified foreign powers or foreign power-controlled entities to register for engaging in almost any activity.2 Though the scheme has similarities to its American cousin, the U.S. Foreign Agents Registration Act ("FARA"), FIRS offers a more tailored regime focused on foreign government influence on the UK's political system. The government is expected to flesh out many aspects of the scheme in the coming year before FIRS goes into effect (expected in 2024) – continue to watch this space for future updates.
FIRS Two-Tiered Scheme
FIRS creates two registration tiers – a political influence tier and an enhanced tier – for activities carried out at the direction of a "foreign power," which includes all non-UK heads of state, governments or local governments, government agencies or authorities, or political parties.3 Activities carried out at the direction of foreign power-controlled entities may also require registration under the enhanced tier.
Under the political influence tier, persons must register arrangements pursuant to which the person is directed to carry out, or arrange to be carried out, "political influence activities" in the UK at the direction of a foreign power ("foreign influence arrangements").4 "Political influence activities" include communications with specified public officials; general public communications that are not clearly made by or at the direction of a foreign power; and the distribution of money, goods, or services to UK persons. Critically, these activities must be carried out for the purpose of influencing elections or referendums, government decisions, members of Parliament or the devolved administrations, or proceedings of a registered political party.5 Foreign influence arrangements must be registered within 28 days of entering the arrangement. Engaging in political influence activities under an unregistered foreign influence arrangement may be subject to criminal fines and/or up to two years' imprisonment.6
The enhanced tier only applies to arrangements involving a defined set of foreign powers or foreign power-controlled entities (together, "specified persons"), but covers a (potentially) broader swathe of activities and imposes harsher penalties for violations. The enhanced tier requires registration when a person enters an arrangement with specified persons to engage in "relevant activities" in the UK (a "foreign activity arrangement"). The UK government has discretion to specify which foreign powers and foreign power-controlled entities fall within the scope of the enhanced tier, as well as which activities of a specified person are to be considered relevant activities.7 Persons must register a foreign activity arrangement within 10 days of entering into the arrangement. Failure to do so may be subject to criminal fines and/or up to five years' imprisonment.8
In public statements accompanying FIRS's announcement, the UK government has touted the flexibility of the enhanced tier as enabling greater protection of the UK's national interests.9 For example, prior statements by the UK government about the threat Russia poses to the UK's security indicates that Russia and Russian-controlled entities may become targets of the enhanced tier regime.10 There is reportedly disagreement within the UK government as to whether China should be specified under the enhanced tier.11
How FIRS Compares to FARA
Although the precise contours of FIRS are unlikely to be finalized until 2024, when the UK government is scheduled to release further details on the scheme, some critical distinctions from FARA have emerged.
- What activities are covered? FARA's scope is notoriously broad, covering not only any efforts to influence the U.S. public or government, but also counseling on how to do the same as well as distributing certain types of material. By contrast, FIRS's political influence tier only reaches a defined set of activities that relate to influencing the conduct of the UK government, political parties, or elections.
- Work for whom? FARA can be triggered by work for any non-U.S. entity, from a foreign government to a private citizen, and anyone in between.ButFIRS is limited to work for non-UK government entities and political parties. This narrower scope is at least in part the result of public pushback against earlier drafts that would have required registration for work with foreign businesses, charities, and other bodies.12
- What exemptions are available? FIRS has only a handful of exemptions,13 though the Secretary of State retains discretion to create more. And though some are analogous to those in FARA – including exemptions for legal work and diplomatic officers – FIRS has no exemption for commercial activity, which is by far the most-used FARA exemption. Notably, however, public communications "where it is reasonably clear . . . that [the communication] is made by or at the direction of the foreign power" are not registrable activities under FIRS.14
- What are the obligations of a registered arrangement? FARA's obligations don't end with registration; registrants must continue to update the government with details of their activities, as well as proactively label publicly facing communications. At least for now, FIRS does not include a similar public-facing disclosure requirement.
Of course, many of these differences only apply to arrangements in the political influence tier. The coverage of the enhanced tier appears to be at least as comprehensive as FARA.
What Comes Next?
The FIRS regime is not expected to become operational until 2024, after the UK government publishes detailed guidance and establishes a scheme management unit within the Home Office to manage enforcement.15 Nevertheless, it may be prudent to begin tracking potential touchpoints with the scheme now to understand exposure once the scheme goes into effect. Moreover, FIRS is not the only foreign influence law on the horizon. Both Canada and the EU are considering similar regimes. And the U.S. Department of Justice is expected to publish proposed changes to FARA's implementing regulations before the end of the year.16
Christie M. Lawrence, a summer associate in Morrison Foerster's D.C. office, contributed to this alert.
Footnotes
1. National Security Bill becomes law, Gov.UK (July 11, 2023).
2. Policy Paper: Foreign Influence Registration Scheme Factsheet, Gov.UK (updated July 13, 2023).
3. National Security Act 2023, Part 4 – Foreign Activities and Foreign Influence Registration Scheme. The National Security Act defines foreign power to include: "A head of state, [a] foreign government or parts of the government, or person exercising such functions, [a] local government organization, [a]n agency or authority of a foreign government, part of government or local government, [a] political party which is a governing political party of a foreign government (except a party which is both a governing political party of the Republic of Ireland and a registered political party in the UK)." Policy Paper: State link: National Security Bill factsheet, Gov.UK (updated July 13, 2023).
4. National Security Act 2023, Part 4 – Foreign Activities and Foreign Influence Registration Scheme, § 69.
5. National Security Act 2023, Part 4 – Foreign Activities and Foreign Influence Registration Scheme, § 70.
6. National Security Act 2023, Part 4 – Foreign Activities and Foreign Influence Registration Scheme, §§ 69, 71, 80.
7. National Security Act 2023, Part 4 – Foreign Activities and Foreign Influence Registration Scheme, § 66.
8. National Security Act 2023, Part 4 – Foreign Activities and Foreign Influence Registration Scheme, §§ 65, 67, 80.
9. Policy Paper: Foreign Influence Registration Scheme Factsheet, Gov.UK (updated July 13, 2023).
10. See, e.g., "Russia remains the most acute threat to the UK's security, though we have seen interference from China including to communities here in the UK, and Iran has made concerted efforts to kill or kidnap British or UK-based individuals." National Security Bill becomes law, Gov.UK (July 11, 2023).
12. Cristina Gallardo, UK Narrows Scope of Political Influence Register Following Criticism, Politico (Feb. 23, 2023). For amendments limiting scope, e.g., from "foreign principal" to "foreign power," see, e.g., HL Bill 88(j) Amendments for Report.
13. National Security Act 2023.
14. National Security Act 2023, Part 4 – Foreign Activities and Foreign Influence Registration Scheme, § 70.
15. Policy Paper: Foreign Influence Registration Scheme Factsheet, Gov.UK (updated July 13, 2023).
16. Enhancing Foreign Influence Transparency: Exploring Measures to Strengthen Canada's Approach, Public Safety Canada (Mar. 10, 2023). President Ursula von der Leyen announced plans to target foreign influence and interference through an upcoming Defence of Democracy package. 2022 State of the Union Address by President von der Leyen (Sept. 14, 2022). For details about DOJ's expected FARA reforms and noticed of proposed rulemaking, see Andy Wright, David Rybicki, and Rachel Wofford, Foreign Agents Registration Act Reform: On the 2022 Agenda?, Just Security (Feb. 7, 2022); Justice Department Solicits Public Comments on Possible Regulatory Modifications to Foreign Agents Registration Act, U.S. Department of Justice (Dec. 8, 2021).
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.
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