The National Security and Investment Bill and the Defence & Security Sector

In November 2020 the UK Government published new proposals designed to restrict foreign investment in the UK and to potentially block securities listings on UK public markets, in each case on grounds of national security. As part of a public consultation which is now closed, the UK Government proposed that 17 key sectors will be subject to the mandatory notification regime. These sectors will capture a wide range of entities within, and adjacent to, the Defence & Security sector.

Foreign investment controls 

On 11 November 2020, the National Security and Investment Bill (the "NSI Bill") was introduced to the UK Parliament. The NSI Bill is separate from the existing UK merger control regime and would give the Government power to scrutinise foreign investments in the UK that involve the acquisition of control over certain types of entities and assets, on the grounds of national security.

The proposed changes envisaged by the NSI Bill apply to investors from any country and primarily to investments and acquisitions in critical sectors of the UK economy. There is also some element of extra-territorial effect for entities and assets with links to the UK.

The proposals include:

  • mandatory notifications in certain sectors. A Government consultation on which sectors to include within these new powers ran until 6 January 2021. These proposed mandatory sectors include Defence, Military and Dual-Use Technologies, Advanced Materials, Advanced Robotics and Quantum Technologies (see further detail below on each of these). Transactions subject to the mandatory notification regime will be legally void if not notified and approved (unless retrospectively validated); and
  • voluntary notifications by businesses in other sectors, where the transaction does not involve a listed sector but may still have a national security element. Transactions which are subject to the voluntary regime and are not notified may still be 'called in' for review by the Government where it reasonably suspects a risk to national security as a result of the transaction.

The new regime is intended to be retrospective in effect. Therefore, whilst the NSI Bill remains subject to Parliamentary debate and amendment before it becomes part of law, the Government (via the Secretary of State for Business, Energy and Industrial Strategy (the "Secretary of State")) will be able to retrospectively ‘call in' transactions for review where such transactions took place after the introduction of the NSI Bill (i.e. after 11th November 2020). As such, businesses in and investors into the UK should be mindful of the important reforms planned under the new regime.

Listing securities on UK public markets 

A proposal to introduce a precautionary power to prevent securities listings on UK public markets on national security grounds was also announced by the Economic Secretary to the Treasury on 11 November 2020, as part of the Government’s 2019 Economic Crime Plan. The Government plans to consult on this new power in early 2021.

Foreign Investment Controls 

1. Background and current position

The Government's existing powers to scrutinise transactions on the grounds of public interest and national security are set out in the Enterprise Act 2002 (the "EA 2002"). Under powers in the EA 2002, the Secretary of State can give a public interest intervention notice to the Competition and Markets Authority ("CMA") under narrowly defined public interest considerations (including "interests of national security" under section 58(1)). The EA 2002 was amended in 2018 and again in 2020 to provide for lower merger thresholds – in terms of UK turnover and combined share of supply – for certain sectors, including military and dual-use products, computer processing units, quantum technology, artificial intelligence, cryptographic authentication and defined types of advanced materials.

Following a lengthy review of the protections afforded by the EA 2002, including a National Security and Investment White Paper in 2018 (the "White Paper"), the Government has concluded that the powers contained in the EA 2002 are no longer sufficient to address the risks to national security faced by the UK. Together with the NSI Bill, the Government published its Response to the White Paper in November 2020, outlining proposed reforms to the current legislation to bring the UK regime in line with other jurisdictions and allow the Government further powers to intervene in transactions on the grounds of national security.

There are three broad areas of reform under the NSI Bill:

  1. Scope: Broadening the range of investments that fall under the scope of the regime, including the inclusion of asset acquisitions.  
  2. Thresholds: Removing the special arrangements for sensitive sectors (including thresholds on an enterprise's UK turnover and share of supply of products) from the merger control regime under the EA 2002.

  3. Process: Reforming the process, including the introduction of a mandatory notification system and the separation of the national security screening regime from involvement of the CMA, so that security concerns are addressed entirely under the new regime.

2. Overview of proposed changes

Mandatory and voluntary notification system for a range of investments

Under the NSI Bill, it is proposed that there will be a system of mandatory notification for transactions in certain specified sectors. The Government has outlined 17 key sectors in which it expects that some transactions will be affected by the requirement for mandatory notification: civil nuclear; communications; data infrastructure; defence; energy; transport; artificial intelligence; autonomous robotics; computing hardware; cryptographic authentication; advanced materials; quantum technologies; engineering biology; critical suppliers to government; critical suppliers to the emergency services; military or dual-use technologies; and satellite and space technologies. The Government undertook an eight-week Consultation on these mandatory notification sectors, which ended on 6 January 2021 (the "Consultation"). Following a review of the feedback received during the Consultation, on 2 March 2021 the Government published revised definitions of the 17 key sectors affected by the NSI Bill – we comment on the defence and security sector definitions below. It is hoped that these definitions will provide greater clarity to enable parties to self-assess whether they need to make a mandatory notification under the new regime.

The Government has specifically stated that the sector definitions published following the Consultation remain in draft form so that proposals made during the remaining passage of the NSI Bill can be taken into consideration. The final sector definitions will be set out in regulations following the NSI Bill receiving Royal Assent.

The Defence and Military or Dual-use Technologies Sectors

Defence

The Consultation’s proposed definition of a ‘Defence’ entity is an entity that is involved in the research, development, design, production, creation or application of goods or services which are used or provided for defence or national security purposes ("Defence Scope"), and:

a. is a government contractor, or any sub-contractor in a chain of sub-contractors which begins with the government contractor who provides goods or services; or

b. has been notified by or on behalf of the Secretary of State of information, documents or other articles of a classified nature which the entity or an employee of his may hold or receive relating to the activities within the Defence Scope.

This proposed definition reflects a focus on the defence supply chain, and according to the Consultation, is designed to include entities from all tiers, including sub-contractors and those in the chain of sub-contractors, where the goods or service that they research, develop, design, produce, create or apply are provided or used for defence or national security purposes. It also covers supply chains for any government department, so would include, for example, the Home Office as well as Ministry of Defence.

The Consultation paper explains that the Government expects that most suppliers who are providing goods and services for defence and national security purposes will already be aware of the nature of their contractual arrangements. The Ministry of Defence has a standing contractual requirement (by way of a DEFCON 566) for providers to notify the Ministry of Defence of any change of control of the Contractor (including any Sub-contractors), and sometimes goes even further and has rights to prevent the change in control where it would be contrary to the defence, national security or national interest of the UK. However, we note that these requirements will only apply if the parties agree to incorporate them into their contract and therefore do not apply automatically. The statutory mandatory notification requirement goes a lot further than the contractual provisions, as it will apply automatically as a matter of law and there are hefty sanctions for non-compliance (see below).

Military or Dual-use Technologies

Under the Consultation's proposed definition, an entity would fall into this sector if its activities consist of, or include:

a. developing or producing restricted goods; or

“Restricted Goods” and “Restricted Technology” are goods and technology, including software or information, other than information in the public domain, the export or transfer of which is controlled by virtue of their being specified in the relevant export control legislation.

"Relevant export control legislation" means:

a. Schedules 2 and 3 to the Export Control Order 2008; 
b. the Schedule to the Export of Radioactive Sources (Control) Order 2006; and
c. Annex I to Council Regulation (EC) No. 428/2009

Additional key sectors which may capture entities adjacent to the Defence & Security sector include:

  • Advanced Materials – The definition of Advanced Materials is lengthy. The Consultation paper reasons that since advanced materials technologies may offer performance advantage to defence capabilities, it is necessary to control appropriately their proliferation to prevent their transfer to competitor states and to secure UK defence sector access to on-shore, strategically important advanced materials technologies. The Consultation notes that due to the vast range of advanced materials and their applications, the definition is complex and that users will need to consider where advanced materials are covered within other parts of the NSI Bill, such as the Defence, and Military and Dual Use sections. The Consultation also notes that the government intends to capture all materials that are considered likely to give rise to national security concerns, including those which are contained in the relevant legislation set out in the UK Strategic Export Control List ("SECL"), and those that could post a national security risk but are not included in SECL.
  • Advanced Robotics – An entity will fall within this scope if they develop or produce advanced robotics, or components specifically designed to aid with these activities. "Advanced Robotics" has been defined as a machine that is capable of, inter alia, carrying out multifunctional physical actions, or positioning or orientating materials, and possesses the characteristic of autonomy. Autonomy is one of the core features of advanced robotics of relevance to national security. The Consultation states that developments in advanced robotics, and in particular, capabilities such as being able to act with some degree of autonomy and to work independently and safely alongside humans, have the potential to unlock important defence and security applications, and similarly have the potential to present national security risks if acquired by hostile actors.
  • Quantum Technologies – As a result of the feedback received during the Consultation, only entities that "carry on activities that consist of developing or producing quantum technology" fall within the definition of this sector; entities that use quantum technologies to supply a service have been explicitly excluded from this definition. The Consultation states that the advancing understanding and control of what are known as ‘quantum effects’ (for example superposition and entanglement) will lead to a new wave of advances in areas such as sensing, data transmission and encryption, timing and computing that will have significant defence and national security applications.

    The mandatory regime will also be supplemented by a voluntary notification system, designed to encourage businesses to submit a notification of a 'trigger event' where the transaction does not involve a specified sector but may still have a national security element. Parties are encouraged to review the Statement of policy intent (the "Statement") to help in assessing transactions that may raise national security concerns.

Trigger events 

The NSI Bill defines a number of 'trigger events', namely:

  • where a person acquires (or increases an existing shareholding to) more than 25%, 50% or 75% of the shares or voting rights in an entity (and can therefore 'control' the entity by blocking or passing certain types of corporate resolution under UK law);

  • for entities other than companies, the acquisition of voting rights that enable or prevent the passage of any class of resolution governing the affairs of the qualifying entity;

  • where a person acquires material influence over a qualifying entity's policy without necessarily having the number of votes or shares to reflect this. This is to be interpreted in a manner consistent with the existing merger control rules in the EA 2002, and material influence is therefore likely to be presumed where a person acquires (or increases an existing shareholding to) more than 25% of the shares or voting rights in an entity and could include, depending on the circumstances, acquiring (or increasing an existing shareholding to) more than 15% of the shares or voting rights in an entity; and

  • where a person gains certain rights, interest or control of a qualifying asset, including land, tangible moveable property and intellectual property (being any idea, information, or technique with industrial, commercial or other economic value). This would include where the right or interest gives the person (i) the right to use the asset, (ii) the right to use the asset to a greater extent, or (iii) the ability to direct or control how the asset is used (or direct and control it to a greater extent).

Where a sector is subject to the mandatory notification requirements, the acquiror will need to notify the Government of the first two trigger events listed above (i.e. shares and voting rights) and receive clearance before the relevant transaction can take place. The third and fourth trigger events (i.e. material influence and rights, and interest/control over assets) do not give rise to mandatory notification, but voluntary notification will still be possible and may be advisable in some cases. Whilst not included as a ‘trigger event’ under section 5(1) of the NSI Bill, the Government will also require mandatory notification for an acquisition of 15% or more of the votes or shares in an entity (that falls within the mandatory sectors).

‘Call-in’ power

The Secretary of State will also have the power to 'call in' transactions and undertake a national security assessment where it reasonably suspects that there is – or could be – a risk to national security as a result of the transaction. The Secretary of State must have regard to the Statement when exercising the call-in power, and will consider:

  • the target risk - the nature of the target and whether it is in an area of the economy where risks are more likely to arise; 
  • the trigger event risk - the type and level of control being acquired and how this could be used in practice; and 
  • the acquirer risk - the extent to which the acquirer raises national security concerns.

The call-in powers of the Secretary of State may extend to (i) entities formed and recognised outside the UK (where such entities carry on activities or supply goods or services to persons in the UK), and (ii) assets located outside the UK (where such assets are used in connection with activities taking place in the UK or for the supply of goods or services to persons in the UK). Further extra-territorial powers will apply to transactions which are required to be mandatorily notified.

Where a trigger event is subject to the mandatory notification regime but has not been notified, the Secretary of State can call in the transaction for review at any time.

Where a trigger event is not subject to the mandatory notification regime (and was not voluntarily notified), the Secretary of State can call in the transaction up to six months after it became aware of it (e.g. following coverage of the transaction in a national publication), provided that this is done within five years of the trigger event occurring.

The assessment process 

The NSI Bill will separate national security assessments from the merger control analysis of the CMA. The Secretary of State will be the key decision-maker for all decisions under the new regime, with a new Investment Security Unit established to provide a single point of contact for businesses wishing to notify the Government of transactions.

When assessing transactions, the Government has noted that it will take a targeted, proportionate approach. The NSI Bill provides that the Secretary of State can only call in a transaction where it reasonably suspects that there is – or could be – a risk to national security as a result of the transaction, and the Government will not be able to use these powers to intervene in business transactions for broader economic reasons.

The regime will apply to investors from any country, with the Secretary of State considering who controls entities, their track record and history, and their other investments in the sector.

Once the national security assessment has been concluded, the relevant parties will be informed of all decisions. Broadly speaking, there will be three potential outcomes of an assessment:

  • approval of the transaction;
  • approval of the transaction subject to conditions (to prevent or mitigate any risks to the national security of the UK); or 
  • prohibition of the transaction. 

Timeframe for assessments

Following receipt of a notification, the Secretary of State will have up to 30 working days to decide whether to call in a transaction and subject the transaction to further scrutiny on the grounds of national security.

Where the Government decides to investigate a transaction, it will have up to 30 working days in which to undertake a detailed national security assessment. This period can be extended by a further 45 working days where the Secretary of State reasonably considers that a trigger event has taken place or that the additional period is required to assess the trigger event further.

Businesses and investors can continue to progress the transaction during the assessment period (unless otherwise ordered by the Government), but a notifiable transaction must not be completed until clearance is given to the appropriate parties. If clearance is not sought for a transaction subject to the mandatory notification regime, it will be legally void.

Sanctions

The proposed legislation creates a number of sanctions, both civil and criminal. Non-compliance with statutory obligations under the NSI Bill may result in fines of up to five per cent of worldwide turnover or £10 million – whichever is the greater – and imprisonment of up to five years. These sanctions have extra-territorial effect. Further, where the transaction was subject to the mandatory notification regime, but clearance was not sought, the transaction will be legally void (unless retrospectively validated by the Secretary of State).

Transitional provisions 

Whilst the Government will not be able to actively scrutinise transactions before the new regime comes into force, the Secretary of State will be able to retrospectively call in transactions that occur after the introduction of the NSI Bill to Parliament (i.e. those occurring on or after 12 November 2020).

3. Commentary

The Government has highlighted that it wishes the UK to remain "a global champion of free trade and an attractive place to invest", and emphasised that it will remain targeted and proportionate in its approach under the new regime so that most transactions will be cleared without any intervention. This appears to be in line with the UK Government's commitment to foreign investment – in the same week as publishing the NSI Bill, the Government announced the creation of an Office for Investment (OFI), designed to attract high value investment opportunities in infrastructure, clean technologies and research and development.

Whilst the introduction of the new regime will perhaps mark an end to the UK's lighter touch approach to foreign investment screening, it will bring the UK into line with other jurisdictions. The NSI Bill is largely consistent with current international legislation, including the EU Foreign Investment Screening Regulation, under which jurisdictions are strengthening controls over foreign investment in certain areas of political concern. A number of countries have long-standing investment screening regimes of this nature, including Australia (under the Foreign Acquisitions and Takeover Act 1975), Canada (under the Investment Canada Act 1985, as amended in 2009), and the USA (where the Committee of Foreign Investment in the United States (CFUIS) has been in place since 1975). Further countries such as Japan are also in the process of legislating for the creation of such a regime.

Given the wide-ranging powers under the new regime, the Government will have increased powers to intervene in, and review, corporate transactions in the UK or with a UK nexus. If the figures outlined in the Government's Impact Assessment (which estimates 1,000 to 1,830 notifications per year, and 70 to 95 national security assessments) are accurate, this would mark a significant increase from actions brought under the existing regime – reports show that there have been just 12 public interest interventions on the grounds of national security since 2002. The new regime will also impact a wide range of investors, with the NSI Bill applying to investors from any country.

As such, we anticipate that foreign investment rules (both in the UK and internationally) will be an increasingly important consideration for international investors and will need to be considered at an early stage of the deal process. In terms of immediate implications for investors, we again note that the Secretary of State will be able to retrospectively call in transactions for review where such transactions occurred after the introduction of the NSI Bill, and as such, encourage investors and businesses to be mindful of the new regime even before it is passed into law.

The NSI Bill brings a new level of uncertainty and potentially delay to transactions involving or related to the Defence & Security sector, especially given the broad potential application of the key mandatory sector definitions currently proposed. Although some clarity has been provided by the UK Government in its response to the Consultation, uncertainty around whether the mandatory notification regime applies may result in unnecessary and/or precautionary filings once the notification system is open, and create additional complexity in due diligence exercises involved in certain transactions. Ultimately the objective has to be to create a predictable and efficient process that strengthens national security while also maintaining an attractive investment environment in the UK.

Listing securities on UK public markets 

The new proposal to introduce a precautionary power to prevent securities listings on UK public markets on national security grounds formed part of the Government’s 2019 Economic Crime Plan. The proposal follows recommendations from the Treasury Select Committee, which reviewed the existing legislative framework, including the UK’s post-Brexit sanctions powers under the Sanctions and Anti-Money Laundering Act 2018.

The proposed power is intended to maintain London’s reputation for clean and transparent markets and as a world-class listing destination.

The Treasury will publish a full consultation on the new power, which it expects to launch in early 2021.

 

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