National Security Bill
Monday 6th June 2022
(2 years, 5 months ago)
Commons ChamberRead Full debate National Security Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts
The Secretary of State for the Home Department (Priti Patel)
I beg to move, That the Bill be now read a Second time.
The hostile threat that our country faces comes in many forms, and is ever evolving. We must not only keep pace with such threats, but stay ahead of them to make our country safe, and an even harder target for those who wish to harm us. Those who mean us harm do not stand still, and neither can we.
The terrible chemical weapons attack on Salisbury by the Russian state in March 2018 is just the most obvious of the types of threat that we now face. State threats come in multiple forms. There are physical threats to people and to life, such as assassination, poisoning, forced repatriation and harassment, and there are threats to our own way of life and our values, including sabotage, espionage and interference. Those are supplemented by less physical but equally damaging threats: cyber threats, malware, fraud, extortion, and intellectual property theft. There are threats to geostrategic interests, and sadly, as we all know only too well, we face home-grown threats as well. Last year, each and every one of us in the House was shattered by the murder of our dear colleague and friend Sir David Amess.
We know that the nature of the threats we face is changing. We must protect our country from the old challenges, but also confront the new ones. We have seen in the last year alone how quickly and profoundly the world can change—in Afghanistan, for instance, and with the conflict resulting from Putin’s terrible war on Ukraine. The House has also been reminded that some countries are only too happy to interfere with our political system.
Chris Bryant
I am very grateful. I was waiting for that little phrase—I hoped it might come up. Some of us are very concerned about how state actors from other countries who wish us ill might seek to undermine the democratic process in the House, might seek to infiltrate Parliament, and might seek to gain intelligence through Members of Parliament. Would the Home Secretary be interested in an amendment that might seek to address what I think is still a lacuna—a gap—in the legislation that she is proposing by dealing specifically with MPs and how they might, perhaps inadvertently or perhaps deliberately or recklessly, be helping foreign state actors?
Priti Patel
I know from our time together in the Foreign Affairs Committee of not just the hon. Gentleman’s interest in this issue, but the significance of an issue that is growing and growing. I will say more about that later in my speech, but let me say in response to his question that we are looking into all sorts of lacunas. There are certain ways in which existing practices take place, not just in this House but across Parliament—in both Houses—and we need, collectively, to find ways of addressing that. We are naturally looking into how we can protect our political system, and I will expand on that later.
Chris Bryant
The Parliamentary Security Director is particularly concerned about, for example, the all-party parliamentary groups, which, while obviously great in many respects, are often funded by other countries, some of which do not wish us well, and sometimes that funding comes indirectly. I wonder whether we need to change our practices in the House to make sure we have tidied that up as well.
Priti Patel
The hon. Gentleman is right to refer to what we, as a House, need to do for our country to preserve our democracy and the function of our political and democratic institutions. All-party parliamentary groups are a well-trodden path when it comes to inquiries and investigations, and various Committees, including the Select Committee on which the hon. Gentleman is represented, have also touched on this issue. These are exactly the areas in which we have to raise the bar, and I believe that others around the world will look to us, particularly through this legislation. There are areas—I will deal with them later in my speech, and I know that the House will debate them later this evening—in which we know that exposure has been significant, and we have to shut that down. The risks are very high.
Diplomacy and diplomatic engagement at every stage is the proper way in which we should work with other countries and Governments. That means not letting hack and leak operations force Governments into positions or lead to the risk exposures that colleagues have touched on and that many reports and wider work have highlighted. As for the type of threats that we are exposed to, hack and leak is just one example relating to cyber; there is also the threat from trolling and organised crime, which persists in many of the domains that we are discussing.
The UK is a leader in this, with our Five Eyes and international partners. Our commitment to NATO remains steadfast and we should never, ever lose sight of that. Those institutions and organisations are also adapting to the threats and risks that we face globally.
Jim Shannon (Strangford) (DUP)
I understand that there will be a programme in Northern Ireland tomorrow night that confirms what the Secretary of State referred to—that there are economic crime gangs stretching from Russia right through Europe across to the United Kingdom. Will the Bill address the issue of organised crime gangs that stretch into Northern Ireland and are laundering money?
Priti Patel
I thank my hon. Friend for his incredibly important question. The Bill will cover aspects of hostile state activity, and he will hear the details of that as I make progress with my remarks. Much of the work on organised crime and criminality in the United Kingdom is led by the National Crime Agency, and it is heavily involved in this work as well. As well as money laundering, we have debated sanctions in recent months. Some of our financial work to follow the money is embedded in the Economic Crime (Transparency and Enforcement) Act 2022, which is part one of the legislation, and we will introduce the economic crime Bill—part two of the legislation—in which there will be much more of that work.
Money laundering is one aspect of organised gangs’ criminality. For people to have the money to launder, a whole sequence of criminality goes with that. That could involve drugs and firearms and, tragically, as we know, people smuggling. We know that the case in Purfleet, in which 39 people died tragically in the back of a lorry, emanated from organised criminality in Northern Ireland. We were able to take that case to court through the work of the police and the National Crime Agency. There is, of course, much more that we need to do collectively.
We have to ensure that we have every possible domestic lever to keep our country safe and prevent terrible acts of criminality and harm from occupying a permissive environment in which they can fester and grow. The Bill brings together vital new measures to address the evolving and ever-changing threats that we face and to protect the British public—to protect our country and our citizens—by modernising aspects of counter-espionage laws.
Mr David Davis (Haltemprice and Howden) (Con)
I do not think that anybody would question the Home Secretary’s commitment to the safety that she is trying to engender for the British public, but I draw her attention to the comments of Andy Hall QC—her adviser on counter-terrorism—who raised concerns about some of the thresholds with respect to the use of assets and money. He oversees the equivalent legislation elsewhere, so he knows well what he is talking about. Although I think that we are all going in the same direction, can we be careful in Committee and on Report to take on board what he says to make sure that we do not undermine the rights of British people while we are protecting them?
Priti Patel
My right hon. Friend is absolutely right. That is why the Bill has been constructed in a sensitive manner with our agencies and partners, based on expertise and insight. This is about how the laws will be applied to individuals in specific cases, so the sensitivities must always be considered. A case-by-case approach is rightly required when it comes to the application of our laws, as well as to law enforcement and how we pursue these matters further.
The Bill brings together many measures, but I would like the Chamber to indulge me for a minute—particularly off the back of this weekend—as I pay tribute to our world-class law enforcement and intelligence agencies. We were all touched to see the numbers of people who came to London to see Her Majesty and celebrate the platinum jubilee. Our law enforcement and intelligence agencies came together, ensuring that in every aspect of our celebrations the British public were kept safe by remarkable people, who worked tirelessly; I pay tribute to them. It is their expertise that we are trying to preserve, enhance and develop through the Bill. We want to ensure that they have all the tools and protections they need to deal with this ever-changing and evolving landscape.
Layla Moran (Oxford West and Abingdon) (LD)
May I also pay tribute to the agencies? When I saw all those people on the Mall, I thought, “My goodness, if something had gone wrong, imagine what that would have looked like.” It was an extraordinary effort, and the Secretary of State is right to pay tribute to them. It is also right that we protect them, but protections for whistleblowers in the security agencies are missing from the Bill. When the Bill has come before the House previously, there have been efforts to provide that, including through the amendment tabled by the right hon. Member for Haltemprice and Howden (Mr Davis). There was also the Office of the Whistleblower Bill in the House of Lords. What are the Secretary of State’s thoughts on protecting whistleblowers?
Priti Patel
The hon. Lady is right that the protection of whistleblowers is vital. I will be frank: we need to find the right measures and means to do that. She has highlighted the current debates and thoughts on the issue. We need to find the right balance. Whistleblowers play an integral part in these matters, and she will hear additional points on the subject later in my speech.
Stewart Hosie (Dundee East) (SNP)
I do not want to dwell too much on whistleblowers, but the Bill does not address the Official Secrets Act 1989, so there is an absence of a public interest defence and all the bits around that. What is the logic of not addressing all those aspects in the primary legislation?
Priti Patel
I will answer the right hon. Gentleman’s question very specifically. He is right about the public interest defence, on which the Law Commission has recently opined. We are not bringing forward reform of the OSA 1989, mainly because we recognise that the issue is complicated, not straightforward. If it were straightforward, we would be able to deal with it in the form of a clause. However, there are various sensitivities. For example, in situations where there may have been wrongdoing or where we think there is a public interest in disclosure, it is about finding the right balance; a public interest defence is not always the safest or most appropriate way to bring that matter forward.
We are not shy of the issue and are certainly not ignoring it, but it is important that we focus on ensuring that individuals can make disclosures safely, which means protecting them through safeguards and proper routes. That work is still under way, and we need to go through it in the right way.
Joanna Cherry (Edinburgh South West) (SNP)
I am grateful to the Secretary of State for taking a further intervention on this point. Three of our four Five Eyes partners—New Zealand, Australia and Canada—have some form of public interest defence. The example of those jurisdictions has shown that a public interest defence works and does not lead to a flood of unauthorised, damaging disclosures or an excessive risk to national security. I am quite sure that an amendment will be tabled at some point to introduce a public interest defence; the right hon. and learned Member for South Swindon (Sir Robert Buckland)—the former Lord Chancellor—is thinking about it. Will the Secretary of State give such an amendment serious consideration?
Priti Patel
Let me say for the assurance of all colleagues in the House: absolutely, we need to find the right balance. The hon. and learned Lady has touched on our Five Eyes partners, which have introduced many other aspects that I will mention later in my speech, but they are seeing unintended consequences. We want to work through much of the detail, and we will work with all colleagues in this ongoing process.
Mr Kevan Jones (North Durham) (Lab)
I am at a bit of a loss to understand why the Government have not brought forward reform of the 1989 Act, because the security services, in evidence to the Intelligence and Security Committee, has said it is unfit for purpose—I think even the Government have admitted that, and so has the Law Commission. If we do not amend or substantially change that Act, we will have a situation where someone can get life for foreign espionage under this legislation, but only two years under the Official Secrets Act 1989. Surely this is an opportunity to update all that legislation? I cannot understand why the Government are doing things in this way.
Priti Patel
The right hon. Gentleman will appreciate that, whether that is the view of the Law Commission or others, reform of the Official Secrets Act is complicated and not straightforward. I can tell colleagues that no one would be happier than I to present a reform agenda in that space, but it is not straightforward—[Interruption.] I appreciate colleagues’ gesturing on the Back Benches, but it is important that on this complex reform we continue to engage with a wide range of interests and give all due consideration to a number of concerns, because there are many, many concerns being raised.
Maria Eagle (Garston and Halewood) (Lab)
I, too, am a little mystified at why the Home Secretary is not seeking to reform all the Official Secrets Acts—the entire regime—with this once-in-a-generation piece of legislation. If she is not doing it in this Bill, can she tell the House when it will be done? Is there a timeline for reforming the Official Secrets Act 1989?
Priti Patel
Without pre-empting the work that is taking place in Government right now, I want to give that assurance. That is also based on the Law Commission’s recently published review. However, as I have already said, a wide range of work is required in terms of engaging stakeholders and looking at all aspects of the law itself. These issues take time, but the Government are working on them right now, and I can assure the House that as soon as we can, when we find the right moment, we will come back to this.
Jeremy Wright (Kenilworth and Southam) (Con)
I am extremely grateful to my right hon. Friend; I know she wants to move on from this subject and there are other things to speak about, but on the point she makes about further work on the 1989 Act, which she is right to say is complex, does she accept that there is some urgency? Juries are in effect creating their own public interest defences when they try these cases. Would it not be far better if we in Parliament were able to define those defences properly, rather than inviting juries to do so ad hoc, without direction from the judge?
Priti Patel
I do not disagree at all with my right hon. and learned Friend. I see my former colleague and former Lord Chancellor, my right hon. and learned Friend the Member for South Swindon, in his place; this is an area that we have discussed in the past because of its significance. The types of crisis we see ourselves involved in—hostile states, deprivations, you name it—are growing and growing. We must find a way to get this right. That is the work we need to do and that must be the right focus of attention, but of course the Bill is part of this Government’s legislative agenda on protecting our country and making it safe.
Colleagues will be aware that the Bill was designed in close consultation with our colleagues and counterparts and the security services. It builds on the Counter-Terrorism and Border Security Act 2019 and on the National Security and Investment Act 2021, which gives the Government powers to scrutinise and intervene in business transactions such as takeovers to protect national security. It also builds on the Police, Crime, Sentencing and Courts Act 2022, which gives the police and the courts greater powers to keep us safe and deliver justice.
We have already touched on the fight against people smugglers and the removal from our country of those who seek to do us harm. The Economic Crime (Transparency and Enforcement) Act 2022 also helps to drive dirty money out of our country. At the same time, the House will be well aware that the Online Safety Bill seeks to tackle extremists and the people who do the most appalling things and hurt children, and I have already touched on the fact that there will be further legislation on economic crime and corporate transparency.
Damian Collins (Folkestone and Hythe) (Con)
Does my right hon. Friend agree that it is important that we address the role of big social media platforms in amplifying and promoting extremist content, which they have done, as well as profiting from financial crimes? Is it not important that, while we get our own laws right in this House, there should be proper regulatory enforcement on tech companies to ensure that they are responsible for their role in promoting such content?
Priti Patel
I thank my hon. Friend, who has been leading the way through the Digital, Culture, Media and Sport Committee and all the other work that has taken place on online harms. I am grateful to him for his engagement on all of this. He is absolutely right about holding the companies to account. I think it is fair to say that each of us, every single day, becomes more and more appalled at some of the material that circulates online—harmful content and the most appalling content around children. Even when it comes to terrorist acts, platforms are too slow when it comes to pulling some of this shocking material down. Let me give two examples from recent months: the situation with a synagogue in the United States where material was still circulating and the tragedy in America that took place with the school shooting. That is exactly why we must continue to hold the platforms to account.
State threats are becoming increasingly assertive and sophisticated. That is the key to the work that we are focused on in terms of how we tackle this new sophistication. We can never be passive in the face of malign covert activity designed to interfere with our national security and also our economy and democracy. The threats we face are everywhere, and we face them every single day. Many, many plans are disrupted by our intelligence agencies and law enforcement agencies before they can be enacted. That is a sobering point, because on an annual basis we remind the public of the number of plots that have been thwarted and the level of activism that exists out there that seeks to harm our citizens and our country. It is our priority—my priority—to ensure that we stay ahead of the multiple threats we face. We all have a responsibility to our country and our public to keep them safe. That is why I know that the whole House will debate these measures in a sensible, measured way as we come together through this Bill to really focus on some of the challenges that we are exposed to and that we see day in, day out.
Bob Seely (Isle of Wight) (Con)
I thank the Secretary of State for all the work she is doing on this issue. On the foreign lobbying aspect of the Bill, I know that the Government are working through some options at the moment and have nothing concrete, which is fair enough, but what reassurance can she give the House that there will be quite a tight definition that is reasonably demanding on those people—those Chinese, Russian and Iranian fronts of covert influence operations—who we need to be tough on, rather than something a little bit weaker and maybe not fit for the purpose of the age?
Priti Patel
My hon. Friend is absolutely right. He has touched on lobbying, as just one example, but we could expand the list. We have discussed in this House other enablers and facilitators, whether it is through Parliament or other means, to get access to the state, or institutions or arms of the state. I spoke earlier about the lacunas—the areas that we have to close down, or the grey zone, across the board. My hon. Friend has spent a great deal of time on this issue through the Foreign Affairs Committee. He is very much pursuing it and we look forward to working with him on it.
Mr Kevan Jones
I am listening carefully to what the Home Secretary is saying, but why is there not in the Bill the foreign influence registration scheme that was called for by the Intelligence and Security Committee report on Russia in 2020? She said that the Government are working on it, but the United States have had this legislation since 1939 and the Australians brought in emergency legislation in 2018, so what is so difficult if one country has had it for over 70 years and the other one has brought it in more recently? Why is it not in the Bill? Is it going to be inserted later by an order of the House, which would be unfortunate as we have not had a chance to debate it today?
Priti Patel
Our intention is to bring forward foreign agent registration and it will be brought forward in the Commons; let me give that assurance. [Interruption.] The right hon. Gentleman asks what is so difficult about it. There are a number of difficulties. It is not just a case of lifting and shifting what the US and Australia have done. We have been working with our Five Eyes colleagues. There have not just been many debates but we have working with colleagues who have themselves had difficulties in some parts of enforcement. We have had very close links with our Australian counterparts in terms of workability. We want to get it right. There will be an open debate about it in Committee and everywhere else, and we look forward to working with the right hon. Gentleman on that.
Sir Robert Neill (Bromley and Chislehurst) (Con)
I welcome my right hon. Friend’s commitment because the foreign influence registration scheme is very important. May I commend to her the details of the Australian scheme, particularly the specific provision that that makes consistent with our commitment to the rule of law, which is a specific exemption for legal professional privilege? This is not a technical point. It is very important to make sure that the scheme is legally robust, nationally and internationally. The Australians make it work, so I hope that we have time to debate that issue.
Priti Patel
My hon. Friend makes an important point. These changes and measures are not straightforward. I can say to colleagues from the Floor of the House that, having had many discussions directly with our counterparts in Australia over the past 18 months, some aspects of the scheme work, but some do not. It is in our interests to make sure that we get this right. Colleagues need to come together on this. We need to work collectively—not just on the technicalities, but on the legal points. It is the legal application that will matter in terms of making a material difference.
Maria Eagle
I think I heard the right hon. Lady give us a commitment that the provisions will be introduced in time for Committee stage in the Commons, which is very welcome. We can then try to make sure that we get this right. I hope that she will confirm that I did hear her correctly and that the provisions will be introduced at the earliest stage in the Commons.
Priti Patel
That is exactly what I said.
While these considerations are important, we should also reflect on the fact that the Bill is informed by extensive public consultation. It is informed not just by the work of our counterparts in the Five Eyes and other countries, and by legislation that has been introduced by others, but by our evolving work with our law enforcement and intelligence agencies. Those agencies are at the heart of the application of this work. They will be the ones who will be leading the enforcement, putting the laws into practice and dealing with the practicalities of this work. The Bill also builds on the difficult and necessary work undertaken by my right hon. Friend the Member for Maidenhead (Mrs May), who corralled the unprecedented international response to the barbaric Salisbury attacks. This Bill is a culmination of much of the work that she set in train, and we have also been in discussion with her about this Bill as well.
We should not forget that, in response to the Salisbury outrage, the UK expelled 23 undeclared Russian intelligence officers. Twenty-eight other countries and NATO supported us, resulting in one of the largest collective expulsions ever—of more than 150 Russian intelligence officers. That led to the degrading of Russian intelligence capability for years to come, and we have more cause than ever to be grateful for that today.
The National Security Bill completely overhauls and updates our espionage laws, which date back to the second world war—in some cases, to the first world war. It also creates a whole suite of measures to enable our law enforcement and intelligence agencies to deter, detect and disrupt the full range of modern-day state threats. The Bill includes a range of new and modernised offences, alongside updated investigative powers and capabilities. Those on the frontline of our defence will be able to do even more to counter state threats. Additionally, the Bill will prevent the exploitation of the UK’s civil legal aid and civil damage systems by convicted terrorists by stopping public funds being given to those who could use them to support terror.
I now turn to specific measures in the National Security Bill. The foreign power condition provides a clear approach to determining whether offences or aggravated offences are being carried out for a foreign power, or on their behalf, or with the intention of benefiting a foreign power. Many of the offences introduced in the Bill apply only when the foreign power condition is met and it prepares us to face tomorrow’s threats as well as those that we face today.
We are comprehensively updating the laws that deter and disrupt espionage, as well as enhancing the ability of our law enforcement and intelligence services to investigate and prosecute those who spy on behalf of foreign states. We have already had cause to strengthen visa screening of Chinese academics and researchers in sensitive areas of research, and to step up engagement with our higher education and research sectors to alert them to the threats and risks of Chinese espionage. Three reformed offences in the Bill will combat the modern threat from state-linked espionage and related harmful conduct.
One of the UK’s greatest strengths is that we have absolutely world-leading research and innovation, but as we have seen too often it is the target and subject of hostile activity by foreign states. A new offence of obtaining or disclosing trade secrets will help us to respond to that threat more effectively. It will specifically target the illicit acquisition or disclosure of sensitive trade, commercial or economic information by foreign states, as the value of these is directly linked to secrecy. The offence will apply only where the foreign power condition is met and will carry a maximum penalty of 14 years in prison.
The Bill will also make it a criminal offence to aid the UK-related activities of a foreign intelligence service. This, too, will carry a maximum penalty of 14 years’ imprisonment. That means that, for the first time, it will be an offence to be an undeclared foreign spy working in the UK. We know that foreign intelligence services can have malign intentions: for example, as the US and UK set out in April 2021, Russia’s foreign intelligence service, the SVR, has been behind a series of cyber-intrusions, including the extremely serious December 2020 hack of SolarWinds, the American software company.
The Bill will reform the offence of obtaining or disclosing protected information. Where a person knows, or ought reasonably to know, that their conduct
“is prejudicial to the safety or interests of the United Kingdom, and…the foreign power condition is met”,
they could now face a life sentence.
Stewart Hosie
I am curious about the use of the word “prejudicial”, which I reread several times this morning, rather than “damaging”, which appears in other legislation. How is “prejudicial” to be defined where conduct does not actually cause damage?
Priti Patel
Definitions are important, of course, but on a case-by-case basis much of the work will link to the activity and the intelligence that is provided about the individual. All sorts of elements could come together to make that case. As I have touched on, much of this will be done on a case-by-case basis; it will be based on intelligence, on the conduct of the individual involved, on the impact they would have on our national security and on the threat they pose.
The Bill will create two offences relating to access to prohibited places—sites that are vital to our national security. One will require a person to be acting for a purpose prejudicial to the safety or interests of the UK; the other, which carries a lesser sentence, applies to unauthorised conduct. There are sensitive sites that are particularly vulnerable to threats from foreign powers. We need greater scope to respond to new tactics and particularly to technology. The Bill will give us that ability.
There is a serious threat from state-linked attacks on assets, including sites, data, and infrastructure critical to the UK’s safety or interests. The sabotage offence will likewise apply where a person knows, or ought reasonably to know, that their conduct is prejudicial to the safety or interests of the UK and where the foreign power condition is met. It, too, comes with a maximum sentence of life.
Starting on 27 February last year, at least 17 different Chinese-linked threat actors simultaneously took advantage of flaws in Microsoft Exchange. They were able to access email accounts, acquire data and deploy malware. The attacks affected more than a quarter of a million servers worldwide. Victims included the Norwegian Parliament and the European Banking Authority.
It is completely unacceptable for the integrity of our democracy to be threatened by state threats. In January, I made a statement to the House about an individual who knowingly engaged in political interference activities on behalf of the Chinese Communist party and targeted Members of Parliament for a number of years. As I said in January,
“this kind of activity has recently become more common, with states that have malign intentions operating covertly and below current criminal thresholds in an attempt to interfere with our democracy.”—[Official Report, 17 January 2022; Vol. 707, c. 23.]
The individual in question had links to the United Front Work Department, which is part of the Chinese Communist party, and had not been open about the nature of these links. Meanwhile, China has sanctioned critics of its regime, including Members of this House. That is not remotely conducive to open and honest discussion made in good faith.
Alicia Kearns (Rutland and Melton) (Con)
This part of the Bill is particularly welcome because it recognises that individuals have a duty to look at who they are giving information to, and should not act as a useful idiot and then sound surprised when they find that the information is going to a hostile state. Can my right hon. Friend please advise whether that would impact on Members of Parliament, not just on members of the public?
Priti Patel
My hon. Friend is absolutely right. In this specific case, the point about individuals with malign intentions operating covertly and quite dishonestly, but below a criminal threshold, was exactly the challenge we were faced and confronted with earlier this year, which is why we need to bring in these changes.
Mr Steve Baker (Wycombe) (Con)
As we go about our often quite routine duties as Members of Parliament dealing with some quite bread-and-butter issues, it is easy to forget that we may sometimes be the object of attention of foreign intelligence services. Is there more that could be done to bring to the attention of Members of Parliament the realities of the threat we face as individuals?
Priti Patel
My hon. Friend is absolutely right. Other hon. Members who intervened earlier in this debate spoke about the role of Parliament and the security directorate here, with which we are working closely, as are our intelligence and law enforcement colleagues.
I am afraid that I think this is where reality bites for all of us. Look at the changing world in which we live and the threats coming our way. I think we have to have even more curiosity about some of the approaches made to us. I say this because we of course want to go about our lives as freely as possible. We love our democracy, and our democracy and our free society must continue to flourish along with free speech. Of course, free speech is not necessarily a value universally held by those who want to target us and seek to do us harm.
Priti Patel
My hon. Friend makes an important point. With this whole culture, and it is a culture, of covering up through other acts the intent of some organisations—the Chinese Communist party, for example—those seeds have already been established. That is why we have to find the right ways and the most sensitive and appropriate ways to address these practices. They have become long-established practices, and we are now only scratching the surface with the work that has been taking place in addressing them.
A new foreign interference offence will enable the disruption of illegitimate influence conducted for or on behalf of foreign states seeking to advance their interests or to harm the UK. It will come with a maximum prison sentence of 14 years. It will be an offence for foreign powers to interfere inappropriately with the UK’s democracy and civil society through covert influence, disinformation and attacks on our electoral processes.
Damian Collins
On the disinformation point, we know that the Russian state and other states have used disinformation as a weapon. Where there are proven cases of foreign intelligence networks, such as the Internet Research Agency in St Petersburg, seeking to interfere in the political process in the UK or to incite violence, would social media platforms, when informed of the existence of these networks, be required to act against them under this legislation?
Priti Patel
Importantly, this is where we need to join up both ends of the legislation. That is absolutely vital, through this Bill and the wider work on online harms, but there are changes that we certainly want the platforms to be putting in place. We have touched on the accountability of platforms already, but there is just so much more that they need to do and which is their responsibility.
My hon. Friend makes an important point about how, for example, if we look at counter-terrorism offences and platforms’ approaches to footage online, GIFCT—the Global Internet Forum to Counter Terrorism—has led the way on some significant change. That is what we need to see across the board here, and we really need them all to come together.
Mr Kevan Jones
On foreign influences, why does the Bill cover someone who “intends” to have a negative impact? Elsewhere, the Bill talks about behaviour that is “reckless” and individuals who “ought reasonably to know” that their behaviour would be damaging. Can I ask why there is this difference between the two? Surely it would strengthen this part of the Bill to have the “reckless” and the “ought reasonably to know” behaviour test.
Priti Patel
At the end of the day, we are focused on individuals who are trying to do harm to our country. I will look specifically at that—obviously, I will—but intent is also based on the information and activity that can come together around some of the individuals. Right now, we are only referring to much of this on a case-by-case basis, but as we have learned with recent examples, some of which I might come on to, we can see the intent and the harm in the sequence of activity that has taken place around individuals.
Sir John Hayes (South Holland and The Deepings) (Con)
I am extremely grateful to the Home Secretary, who I know is trying to move to a peroration. On the issue of dynamism, intentions alter and threats change. The Bill creates the scope to take action against a changing terrorist landscape, but is there sufficient flexibility in the Bill to alter its provisions in accordance with those changing intentions and changing threats?
Priti Patel
My right hon. Friend makes an important point. Of course, that is the whole purpose of legislation. As I said in the first part of my remarks, we cannot remain static; we must have the agility to respond. Since February this year, with Russia’s incursion into Ukraine, techniques and tactics have changed. Yes, we are responding to them differently, but some legislative underpinning is absolutely required, as is having the flexibility and agility to respond. Hack and leak is only one example. There are so many other examples, as he will know from his time as Security Minister and from his time on the Intelligence and Security Committee. The landscape is shifting and, frankly, it is shifting fast.
We cannot wait for terrible atrocities to happen before we intervene. The Bill criminalises people who prepare to commit acts that constitute state threat offences and other harmful activity that constitutes a serious threat to life or public safety. They will face the prospect of life behind bars. When it comes to state threats, an aggravating factor will ensure that sentences for state-linked criminality recognise the seriousness of hostile activity conducted for or on behalf of foreign states. This applies to all offences not in the Bill where the foreign power condition is met.
In July 2021, the US Department of Justice announced that a New York court had unsealed an indictment against four people resident in Iran for their involvement in a plot to kidnap an unnamed Iranian-American journalist. The indictment also detailed four other individuals under surveillance by the network, including one based in the United Kingdom. Prosecutors said that one of the conspirators was an Iranian intelligence official, while the other three were assets of Iranian intelligence. Again, that speaks to the aggravating factors and the type of activity that takes place, as well as the cross-collaboration when it comes to dealing with some of those hostile state threats.
The people who engage in such nefarious behaviour are often highly skilled at keeping their activities hidden and we should never lose sight of that. Let us be under no illusion about the scale of the threat we face. In February last year, a Belgian court sentenced an accredited Iranian diplomat based in Vienna to 20 years in prison for his role in a plot to bomb a conference in Paris hosted by Iranian dissidents. The Belgian state security service stated:
“the plan for the attack was conceived in the name of Iran and under its leadership.”
Russian dissident Alexei Navalny was poisoned by Putin’s thugs and could easily have lost his life. In response, our Government enforced asset freezes and travel bans against 13 individuals and a Russian research centre.
It is vital, when creating a suite of new offences, to ensure that the police and the security and intelligence agencies have the powers effectively to investigate the threats this Bill seeks to address. I am bringing forward search and seizure powers to replace the existing investigative tool to counter complex state threats investigations. A new power of arrest for state threats activity, a new state threats detention scheme, and longer retention periods for biometric data will give the police further powers effectively to investigate these cases.
There will be some cases where it will not be possible to bring a prosecution. As is the case with counter-terrorism law, where similar challenges arise, we need a way of protecting our country. New state threat prevention and investigation measures will allow the Home Secretary to impose targeted restrictions, such as where an individual works, lives or studies, to prevent the most serious forms of harm. This is a tool of last resort. It will be used when intelligence confirms that highly damaging threat activity is planned or being undertaken, but prosecution is not realistic. These measures will be proportionate to the threat posed by an individual, and they will be subject to rigorous checks and balances, including by the courts. The Bill improves schedule 3 powers in the Counter-Terrorism and Border Security Act 2019.
Mr Steve Baker
When my right hon. Friend and I were first elected, she will remember that terrorism prevention and investigation measures were highly controversial. Would she say something about the journey from that degree of controversy to the position today in which, until my intervention, we could move swiftly past TPIMs?
Priti Patel
I look forward to many debates with my hon. Friend on this issue. When it comes to TPIMs, there has been a considerable journey. Based on the work of our intelligence and security services—I am privileged to see, I am afraid, too much of the threats and insights, right down to the reconnaissance on certain individuals and their characteristics and the behaviours in which they participate—as I have said, this is a tool of last resort, which will be used only when intelligence confirms that highly damaging threat activity is under way. That will mean restricting the liberty of individuals if they pose a threat to the British people, to a local community and to our country.
It is important, as I have said, that these measures are proportionate to the threat posed by an individual and are subject to rigorous checks and balances, which I know my hon. Friend the Member for Wycombe (Mr Baker) will provide, and by the courts. We should never negate or ignore that, because the courts have a significant role to play.
Changes to schedule 3 powers in the Counter-Terrorism and Border Security Act 2019 will give police officers the ability to stop individuals at ports to ascertain their involvement in hostile activity by foreign states. The authorisation process enabling officers to retain confidential information is being streamlined to match the process using counter-terrorism laws. There are other measures, not currently in the Bill, on which we have touched. We will introduce a foreign influence registration scheme that requires individuals to register certain arrangements with foreign Governments, to deter and disrupt state-threat activity in the UK. It will bring our country into line with similar schemes run by allies, but we clearly need to ensure that that is workable here. The scheme will be included in a Government amendment, as I have highlighted.
A consistent message from respondents to our public consultation last year was that any scheme of this nature must strike the right balance between highlighting foreign influence in the UK and protecting those involved in legitimate activity from disproportionate compliance and regulatory matters. The scheme will follow precedents from the US and our Australian allies, requiring registration of certain arrangements with foreign Governments. It will strengthen our efforts to deter and disrupt state-threat activity through greater transparency and the scrutiny that it requires, with penalties for those who seek to obfuscate and hide such arrangements. It will increase the risk to those engaging in covert or malign activities for or on behalf of any country, including those identified by the UK intelligence community, such as Russia, China and Iran.
That includes the type of activity described by the Intelligence and Security Committee in its Russia report, where individuals with access to UK political institutions and public officials covertly exert influence at the behest of foreign intelligence services. It also includes the activity represented by the deeply concerning case of an individual engaged in political interference on behalf of the Chinese Communist party, as touched on earlier.
The scheme will make the UK more resilient to threats. Those who work covertly will face a choice between registering with the scheme, thus exposing their activity, and risking prosecution for not doing so. Both options present risk to state-threat actors. There is no intention, however, to create unnecessary barriers or to discourage those engaged in legitimate activity in the UK. Foreign Governments routinely engage in efforts to influence UK domestic and foreign policy. Where undertaken in an open, transparent way, this will continue to be welcome.
As I have mentioned already, we intend to bring the scheme forward before the Bill leaves the Commons. Following feedback received during the Home Office’s public consultation on this issue, and following Russian attempts to undermine European stability, it is right—we welcome all views and considerations on this—that we take the time to ensure that it is an effective and proportionate tool to counter state threats activity and to protect the UK’s interest.
On measures not in the Bill, I have already touched on the Official Secrets Act 1989 and the work that needs to be undertaken. To confirm, I will look at reform of the OSA, along with other work that the Government are doing to strengthen whistleblowing practices and transparency. In the context of Russia’s terrible invasion of Ukraine, it is essential that we prioritise measures that strengthen our defences against state threats, which this Bill does. Likewise, the Government have been considering reform of the treason laws, but right now we do not have plans to do so through this Bill.
The House passed the Economic Crime (Transparency and Enforcement) Bill in a day, because we recognised the severity of the situation, and we recognise that at a time of crisis, we must act collectively in the national interest. However, good legislation in such complex areas must be undertaken effectively as well as efficiently to achieve the desired outcome of bolstering our agencies and protecting our nation.
The National Security Bill restricts convicted terrorists from access to civil legal aid and will enable the courts to freeze civil damages awarded to terrorists where there is a risk those funds might be used for terrorism purposes. Where that risk is ongoing, the courts will be empowered to permanently withhold those funds. When an individual commits an act of terrorism, they are rejecting the democratic state that provides the benefit of civil legal aid, and it cannot be right that the same individual can then go on to receive civil legal aid funded by that very state. These changes will end that abuse of our legal aid system.
Sir Robert Neill
I understand the point that my right hon. Friend is trying to make on this issue, but I urge her to be careful that there is a measure of proportionality in how we approach it. In the way the clauses are currently drafted, there could be no connection at all between the matter for which legal aid is applied and the behaviour of the terrorist. It could be many years into the future. For some lower level cases of terrorism, if there be such a thing—those who have been released back into the community and whom we seek to rehabilitate—that could be counter-productive and not consistent with our commitment to access to justice. Can we look at how we work the detail of this, rather than the principle?
Priti Patel
I thank my hon. Friend for his intervention on this very point. This is an area of great interest, primarily because of the type of cases we have seen. There is no question about that. I am afraid I have been subject to too many examples of cases of this nature. I am more than happy to speak to him and others about this. We need to get the approach right, and we will. People do move forward and change in life, but that is a separate issue. As was mentioned earlier, currently we are trying to address specific lacunae.
This Bill will amend the Serious Crime Act 2007 to better protect those in the security and intelligence agencies and the Ministry of Defence when discharging vital national security functions. It will also enable more effective joined-up working with international partners to improve not only our operational agility, which my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) has already touched on, but how we can be flexible going forward to address the changing landscape of threats.
It is worth remembering that things and situations can change for the better, as well as for the worse. Some of the UK’s closest allies today are countries with whom we have fought wars in the past, and we regularly develop new tools to keep us safe. The point is that none of this happens by chance. We should all reflect that when the Berlin wall fell back in 1989, some people thought that liberal democracy had won and history as we knew it then was at an end, yet this year, as we all know, Russia launched an unprovoked war against a neighbour.
It is right that we are vigilant, and we have to be vigilant every day, all the time. We cannot think in terms of just keeping up—we have to be several steps ahead. That is why the Bill is state-agnostic, but we need to be ready to face threats from wherever they may emanate, and the threat landscape is changing.
Keeping our country safe is not exclusively a matter for Government. It is also a matter for us as legislators. It is vital to come together on these measures and, as I have said several times, the measures in the Bill were drawn up after extensive consultation. They will mean that our courageous law enforcement and intelligence agencies will have the powers they need to keep us safe. We will have the ability to bring those who mean us harm to justice and, at the same time, to evolve and respond in an agile way to those threats. I urge the whole House to send a clear message to our adversaries that we will put the safety of the British people first by getting behind the Bill. I commend it to the House.
Madam Deputy Speaker (Dame Rosie Winterton)
I call the shadow Home Secretary.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
The Labour Opposition support the Second Reading of the Bill, and we support measures to protect the United Kingdom’s national security against threats from foreign powers, from hostile states and from terrorists and extremists. Defending our national security is the most important task of any Government, as the Leader of the Opposition, my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) has made clear, in keeping our citizens safe, defending our historic freedoms and way of life, standing up for our values against those who seek to undermine us, and defending our security and prosperity as a nation from hostile countries who seek to attack our infrastructure, steal our assets or pit us each against one another to undermine our cohesion. There should be no party disagreement on that core principle. That is why we are clear that we will work with the Government on our national security and work constructively on scrutinising the Bill and getting the detail of the legislation right. Defending our national security would be at the very heart of a Labour Government, just as it was for Labour Governments past.
I pay tribute to those who work in our intelligence and security services, whose work is so often unseen. They work so hard to defend our liberty and democracy from threats from all sides and do so much to keep us safe. Our democracy will stay strong only if we can defend it from threats.
Jim Shannon
I thank the right hon. Lady for referring to those who keep us safe. Coming from Northern Ireland as I do, it is important to put on the record our thanks to the security forces, to MI5 and to all those who kept us safe over all those years, including me and my family. It is important that we recognise that in the House, and I know that she would like to be associated with that.
Yvette Cooper
The hon. Member is absolutely right. The work done by those across our intelligence and security agencies often goes unseen and unremarked on, and, as a result, it is often unappreciated, but both sides of the House are clear about the debt of gratitude that we owe to many of those who work so hard to keep us safe.
In these debates, people often end up pitting liberty and security against each other or arguing, for example, that action to defend security constrains our liberty, that historic freedoms should be abandoned in the interests of security and that, somehow, they are in conflict. The truth is that, as we all know, both liberty and security are vital in a democracy, and they depend on each other. We need to feel secure to have the freedom to get on with our daily lives, and security measures also need to take account of the importance of the very freedoms that it is their purpose to defend. Our intelligence and security agencies also depend on public trust and, rightly, need always to be located within a strong legal framework with strong oversight. Where strong powers are needed to defend our national security, they need to be matched by strong oversight, with checks and balances to ensure that powers are proportionate and necessary, and never abused.
Sir John Hayes
As ever on these matters, the right hon. Lady is making a compelling speech. Given what she has said about the apparent paradox between freedom and order, will she join me in condemning those who in breaching secrets and leaking information, claim to do so in the name of liberty but actually act in a way that is injurious to order and therefore to freedom?
Yvette Cooper
I say clearly that our national security needs to be taken seriously by everybody. It should not be lightly dismissed that without it we do not have strong freedoms and liberties. The people of Salisbury had a right to the freedom to be able to walk safely on their streets and not to find their lives put at risk by a dangerous chemical attack by members of a foreign intelligence service that ultimately took a British life; patients throughout the country have a right to know that their medical records are not being hacked or interfered with by a foreign state; and our businesses, scientists and researchers, on whom our future prosperity depends, have a right to feel safe from foreign attacks that undermine the resilience of our infrastructure or from the theft of trade secrets.
Theresa Villiers (Chipping Barnet) (Con)
Will the right hon. Lady condemn the WikiLeaks-type mass dumping of information in the public domain? It is hugely irresponsible and can put lives at risk.
Yvette Cooper
Yes, I strongly do, because some of the examples of such leaks that we have seen put agents’ lives at risk, put vital parts of our national security and intelligence infrastructure at risk and are highly irresponsible. We need safeguards to protect against that kind of damaging impact on our national security.
Joanna Cherry
Notwithstanding what the right hon. Lady just said, would she and her party support a narrowly and carefully drawn public interest defence, such as those that our Five Eyes allies New Zealand, Australia and Canada have, to protect civilians and journalists who make disclosures that are properly in the public interest?
Yvette Cooper
The hon. and learned Lady makes a really important point. In its consideration of these issues, the Law Commission made proposals on not only strengthening some of the measures in the Official Secrets Act 1989 but how to have proper safeguards to protect whistleblowers and the public interest. I recognise that there are complex issues in respect of how to draw up the legislation and shall make further points about that.
We have just spent the past four days celebrating our Queen’s historic platinum jubilee and celebrating our shared values and traditions, which are what we defend when we defend our national security. At a time when we have seen an illegal invasion of a fellow European democracy by Russia—an act that threatens and that has attacked and undermined the national security of a fellow European nation—there could be no greater reminder to us all of the need to be resilient and vigilant in the face of threats.
The threats to our national security, democratic values and way of life have inevitably evolved over the decades. The ending of the cold war in the 1990s and the major international terror attacks, particularly by Islamist extremists from al-Qaeda and then from ISIS, alongside growing domestic far-right terror threats, have meant that the national security focus—the top priority of our intelligence and security agencies—has for several decades been on terrorist threats to our way of life but, as the Government’s integrated review made clear, the threats from hostile states have not gone away and in recent years we have seen them grow and become more complex.
As the Government concluded in 2018, the attempt on the lives of Sergei Skripal and his daughter was, in the words of the former Prime Minister, the right hon. Member for Maidenhead (Mrs May),
“almost certainly…approved”
both by the GRU and
“at a senior level of the Russian state.”—[Official Report, 5 September 2018; Vol. 646, c. 168.]
We face different threats from other countries, too. MI5 recently warned publicly about the activities of an individual knowingly engaged in political interference activities on behalf of the United Front Work Department of the Chinese Communist party. The MI5 director general Ken McCallum has warned that
“the activity MI5 encounters day-by-day predominantly comes, in quite varying ways, from state or state-backed organisations in Russia, China and Iran.”
Alongside persistent hard power methods of attack, the advent of technology has also allowed soft power methods to flourish, with electoral interference, disinformation, propaganda, cyber operations and intellectual property theft used to foster instability and interfere in the strength and resilience of the state. The Home Secretary referred to the SolarWinds attack and the interference with major UK energy companies. As the Law Commission warned in its report, the Official Secrets Acts between 1911 and 1939 were enacted long before the digital age and include references to
“a sketch, plan, model, note”—
the pencil notings that are a far cry from the cyber and online data interventions that modern espionage might involve.
The words of the MI5 director general are perhaps startling, when he said:
“Today, it is not a criminal offence to be an undeclared foreign intelligence agent in the UK. Likewise, it is not currently illegal to be in a key position of influence in the UK and be secretly in the pay of a foreign state. That can’t be right. To tackle modern interference, we need modern powers.”
He is right, and we agree. That is why reforms and legislation are needed to address the new threats from hostile states. That is why many of the measures in the legislation are important, for example making it possible to take action against those who are operating in the pay of a foreign intelligence agency to do Britain harm; to make it possible to defend the trade secrets of British businesses, including taking action against those who may be paid by foreign intelligence agencies or a state to leak intellectual property or trade secrets that are then used to undermine our industry and our economy; to make it possible to have stronger action against incredibly damaging cyber attacks on our critical infrastructure; and to enable early intervention to prevent damaging attacks, not just to prosecute once the damage is done.
We have questions that we want to put, points that we want to probe and amendments that we will draft because we want to work constructively with the Government to get the legislation right. I shall make some of those points now and I look forward to further discussion with the Home Secretary and the security Minister during the passage of the Bill. The first gaping hole that we see is the promised foreign agents registration scheme that the Home Secretary has said she will bring forward. We had understood that this would be the central part and purpose of the Bill, but it is currently missing. I do recognise that drafting in those areas is complex, and we need to learn from what other countries have done, but that also makes it the more important to have proper scrutiny. I urge the Home Secretary to ensure that the scheme is not brought forward at the last minute so that we do not have time to give it proper consideration in Committee or to take evidence on it beforehand.
Mr Steve Baker
The right hon. Lady makes an important point about the foreign agents registration scheme. Will she join me in encouraging my right hon. Friend the Home Secretary to consider possibly amending the programme motion so that we can have a day in Committee of the whole House to consider it? It will be a large part of the Bill and doing it through amendments in Committee may be inappropriate.
Yvette Cooper
I would certainly be happy to have further discussions through the usual channels about the way in which the Bill needs to be scrutinised. In the early evidence stage of the scrutiny, particularly for a Bill like this, it is important for the Committee to be able to hear evidence on this issue, in order to make sure that we get it right.
Sir John Hayes
With all due regard to my hon. Friend the Member for Wycombe (Mr Baker), a much better approach would be exactly as the right hon. Lady describes—to have the proposal early in the Committee’s consideration and for the proper interface to operate between the two Front Benches. I know that she is richly experienced in these subjects, as is the Home Secretary, and I am sure that a proper dialogue could take place to deal with the matter that has been raised.
Yvette Cooper
As I have said, these debates will rightly take place through the usual channels to ensure that we have that scrutiny. I am also keen to ensure that the evidence session can take place in plenty of time.
Another issue that Members on both sides of the House have raised is the absence of reforms to the Official Secrets Act 1989, and on that point I am slightly less clear what the Government’s intention is. My understanding from what the Home Secretary has said is that she does not plan to bring forward measures in this Bill but that she is looking at the issue further. The Law Commission has raised important issues about the need to improve prosecutions in certain areas and to have public interest safeguards, both of which are immensely important, as I think the Home Secretary has recognised. Will she and the Security Minister therefore engage at an early stage in discussions on this issue with Members on both sides of the House?
Mr Kevan Jones
Like my right hon. Friend, I am not clear what the Home Secretary’s timetable is for reviewing the 1989 Act. However, if the Bill goes through as outlined, some of the penalties in it will be life imprisonment, and some in the 1989 Act will be two years. Having the two Acts working together will create a very difficult process. Surely the obvious thing to do is to get the reforms into the Bill as it goes through Parliament.
Yvette Cooper
My right hon. Friend makes an important point, and he obviously speaks with the Intelligence and Security Committee’s insight on this issue. The only other consideration I would raise is that a last-minute proposal from the Government would be a problem, because we would end up not having full scrutiny, and this is an area where it is important to get the legislation right. On the points that the Committee has made about the importance of reforms to the 1989 Act, I encourage the Security Minister and the Home Secretary to have early discussions with members of the Committee, Opposition Front Benchers and Members on both sides of the House who have concerns. We will inevitably need to debate these issues during the passage of the Bill, even if the Government want to propose future legislation on a different timetable. Having those discussions at an early stage to try to get this right would be important.
We are also concerned about areas of the Bill relating to the ability of foreign powers to use misinformation and disinformation online, which the hon. Member for Folkestone and Hythe (Damian Collins) mentioned. My understanding of the interaction between this Bill and the Online Safety Bill is that some cases where misinformation or disinformation is repeatedly put online by a foreign state will not be covered and that there will not be a responsibility on social media platforms to remove some of that material, but it would be helpful to have some clarification from Ministers. Obviously that is an area where most of us in the House would want further action to be taken and would want there to be more responsibility on social media companies to take action. We would therefore like to explore whether there are further amendments that we could bring forward to this Bill or the Online Safety Bill. That would be very helpful.
We are also concerned about direct attempts to interfere with our democracy and elections. The Home Secretary has rightly included in the Bill measures to tackle foreign interference in elections but, as the Government will know, offences make little odds if they cannot be detected or measures are rarely enforced. As the Home Secretary will know, we have urged the Government to remove the loophole that allows shell companies to be used to make donations to political parties and to hide foreign donations and donations linked to hostile states. She will also know that the former director general of MI5, Lord Evans, who is now the head of the Committee on Standards in Public Life, has warned about the risks from shell companies, describing the risk from
“powerful forces out there that are trying to bring undue influence, part through parliament and part through money. We made some recommendations to close some of those loopholes but government hasn’t acted on them.”
Since the atrocity that is the illegal invasion of Ukraine, the Government have had to recognise that it has been far too easy for Russian money, built up through illegal activity or state-sponsored corruption, to find its way into the London economy. Again, we have both the follow-up economic crime Bill and this Bill, but I urge the Home Secretary to ensure that the loophole on shell companies is closed and that those weaknesses in our democracy are addressed, because the loophole in itself is a threat to national security.
My hon. Friend the Member for Rhondda (Chris Bryant) raised concerns about MPs being targeted. There are also concerns about Ministers potentially being targeted. The Home Secretary will know that the shadow Security Minister has raised questions about reports that the Prime Minister, when he was Foreign Secretary, met with a former KGB agent soon after the Skripal attack. I have not heard concerns raised that that was a planned or intended meeting, but nevertheless the reports of the meeting show how easy it is for Ministers, as well as MPs, to be targeted by agents of foreign and hostile states. I urge Ministers to provide some clarity about that meeting—whether it took place, whether civil servants were present—and about what protocols should govern how meetings take place for Ministers, what kind of debrief should happen afterwards and what kind of safeguards should be in place, and whether those will be covered by this Bill or we need additional protocols for civil servants, MPs and Ministers.
There are some areas where we will want to question the drafting of the Bill, because it is very broad. For example, there is obviously a difference between someone who is meeting the foreign intelligence agencies of our closest allies—for example an academic who meets with an Australian foreign intelligence service, providing it with useful information that might help with our joint Five Eyes security arrangements and might be in all our interests—and an academic meeting with someone from the Chinese intelligence agencies and handing over intellectual property or research information that undermines British industry.
We are keen to explore in Committee how those differences will be addressed in the Bill and how, for example, it will address some of the issues around co-operation with Ireland over Northern Ireland security issues, which will clearly raise some particular and special cases. We also want to explore what might incidentally benefit a foreign Government and what deliberately benefiting a foreign Government is, and how that is addressed. We also want to address some of the questions around the public interest and national security that hon. Members have raised.
We have already raised directly with the Minister for Security and Borders a series of questions and concerns about the drafting of clause 23, to ensure that it is not too wide and cannot be used to cover individuals committing serious crimes abroad. I welcome the letter we have received from him, but we want to pursue those issues in further detail in Committee.
Perhaps one of the most important issues that the Bill could easily address but does not yet is oversight. Because agencies rightly need to operate behind a veil of secrecy, there needs to be proper oversight to safeguard both those who work within the agencies and the national interest. The Bill rightly introduces an independent reviewer to look at the state threats prevention and investigation measures, and we know that is a parallel arrangement to the independent reviewer arrangements we have for terrorism prevention and investigation measures.
The Home Secretary will know that I have argued previously that it was wrong to replace control orders and that TPIMs were too weak. They have since rightly been strengthened. They are used in only a small number of cases, but it is immensely important that there is oversight of them, and there must be proper oversight of the STPIMs as well. It would not surprise me if they were used even less frequently than TPIMs, but there must be proper safeguards.
There is a gap in the oversight framework. The terrorism independent reviewer looks both at individual TPIMs and at terrorism legislation, so he can look at all of the aspects of terrorism legislation to see where there are gaps and whether it is not working effectively. The scrutiny by David Anderson and by Jonathan Hall has been invaluable. It has been good for Government, good for the agencies, good for Parliament, good for our national security and good for our historic freedoms and having the right safeguards in place.
That scrutiny by the independent reviewer has in the past identified weaknesses in terrorism legislation. Sometimes that has been exactly the point I raised about TPIMs becoming too weak and needing to be strengthened, but the independent reviewer has also identified areas where stronger safeguards were needed, particularly on digital measures, digital infrastructure and digital safeguards. There is a really strong case for having the same kind of independent scrutiny of the operation of these new powers on espionage. The Home Secretary has rightly said that this is important legislation, but also that this is the first time we are drawing up legislation in some of these areas and that some of the legislation has not been updated for many decades, so we should have some humility on this: Parliament will not get all the details right.
Bob Seely
If I understand correctly—perhaps my right hon. Friend the Member for New Forest East (Dr Lewis) will be able to help me on this—the Ministry of Defence is covered by the Defence Committee, the Foreign Affairs Committee, the agencies and the Intelligence and Security Committee, but who covers Director Special Forces? That seems to be a bit of an oversight black hole. Where does it fit in? This does not seem to be arousing people’s attention thus far.
Yvette Cooper
The hon. Member makes an important point about other potential gaps. I would be keen to discuss with him further how that could be addressed.
There is a principle here, which is that sometimes important powers are not subject to the normal public scrutiny—inevitably, because of how they need to be used in order to keep us safe and to deal with hostile threats, be it from other foreign states or from terrorists. However, that veil of secrecy makes the need for independent scrutiny all the more important. Rightly, we have the Intelligence and Security Committee and other Committees, but also things like the investigatory powers commissioners. Specifically on the terrorism legislation, the role of the independent reviewer has been immensely valuable. I urge the Home Secretary and the Security Minister to look at widening the oversight provisions in the Bill. While there might be areas of disagreement between us, we will come to a conclusion and measures will pass through Parliament, but there will still be weaknesses in them and there will still be problems with the legislation.
Sir John Hayes
The right hon. Lady is making a good point about oversight and checks and balances. She mentioned the Investigatory Powers Act and the judicial commissioners. I was involved in taking that legislation through the House, as she knows. The independent reviewer’s scope is already sufficiently wide, is it not, to look at terrorism legislation per se? So I assume that she is talking about making sure that that scope is sufficient rather than establishing a different and parallel structure.
Yvette Cooper
There is a very strong case for having the same independent commissioner to cover espionage and terrorism. That is obviously a matter that the Home Secretary would need to consider, but clearly, especially with the STPIMs and the TPIMs, there are overlapping issues that it would make sense for the same framework and the same independent reviewer to cover. My understanding is that at the moment the independent reviewer covers only terrorism legislation and that the provisions of this Bill will not be within their scope. It would be very easy to amend the Bill—I hope it would receive cross-party support—to allow either the same independent reviewer or a parallel independent reviewer to look at espionage legislation. That would also allow for ongoing review of whatever changes we end up concluding are needed to the Official Secrets Act 1989. Again, there will be an important need for further review to make sure that we have the right measures to protect our security and support the public interest. We can cover our many other issues with the Bill in Committee. We look forward to those exchanges and to having further discussions directly with Ministers.
I am conscious that other Members with great expertise in this area want to contribute to the debate, so I will conclude simply by saying that at a time when across Europe we are all coping with the illegal invasion of Ukraine by Russia, and supporting Ukraine’s immense bravery in standing up and responding to this appalling Russian threat; at a time when we have seen hostile state activity not just from Russia but, as the director general of MI5 has said, from countries such as China and Iran; and at a time when we all know we need to stand up for our democracy, historic freedoms, liberties and democratic values, I hope that we will be able to come together to support our national security, and continue to defend our democracy and democratic values.
Madam Deputy Speaker (Dame Rosie Winterton)
I call the Chair of the Intelligence and Security Committee, Dr Julian Lewis.
Dr Julian Lewis (New Forest East) (Con)
It is certainly encouraging to hear such sombre but sensible contributions from both senior Front Benchers in agreement on the basis for the Bill.
To respond briefly to the question posed by my hon. and gallant Friend the Member for Isle of Wight (Bob Seely) on whether there is an oversight arrangement for special forces—no, there is not. If Parliament were ever to have such an arrangement, it would probably need to be on the model of the ISC, but we are not putting in a bid for that role unless anyone proposes proportionately to increase the resources on which the Committee depends to do its already quite substantial agenda of tasks.
Almost 20 years ago—in 2004, to be precise—the Intelligence and Security Committee first recommended the introduction of a new Official Secrets Act, recognising the constantly developing and evolving dangers posed to the United Kingdom by hostile state actors. That was almost a decade prior to our 2013 report, “Foreign involvement in the Critical National Infrastructure”—Cm. 8629, if Members want to look it up—which eventually led to the National Security and Investment Act 2021, so this Government undoubtedly deserve credit for tackling at least some of the unfinished business begun by the ISC.
As in the case of the National Security and Investment Act, unfortunately today’s proposals—while taking significant steps in the right direction—still fall short in significant respects. Given the complexity of the issues addressed in the Bill, rigorous parliamentary scrutiny is essential. Not every piece of major legislation can be processed by means of a Committee of the whole House, but where it is proposed to add a major new element to a Bill after Second Reading, the whole House must have an alternative opportunity adequately to debate it.
The National Security Bill was expected to encompass three principal elements. The first is to modernise the offence of espionage and provide the police, as well as the security and intelligence agencies, with appropriate new powers and capabilities. This the Bill clearly undertakes, with its substantial proposed reforms of the 1911 to 1939 Official Secrets Acts, which we broadly welcome. The second should be to reform, or to repeal and replace, the Official Secrets Act 1989, which deals with the unauthorised disclosure of sensitive information, whether by public servants or by others, such as journalists, who are not employed by the Government. There is no trace of that in the present Bill, nor any apparent intention to incorporate the topic later.
Finally, one searches in vain for the long-heralded and much-anticipated inclusion of a foreign influence registration scheme—long advocated by the ISC and others, including the Foreign Affairs Committee—requiring individuals to declare, in a Government-managed register, any activities that they undertake for or on behalf of a foreign state. That is what we are told will be introduced by means of an amendment to the Bill, presumably in Committee or on Report. I heard the Home Secretary say earlier that it would be in Committee, which is good, but it could conceivably have been introduced even later, in the Upper House. I am glad to see the Home Secretary firmly shaking her head and ruling that out. As things stand, however, we cannot even say, with the late, great Meat Loaf, that “Two Out of Three Ain’t Bad”, given that one of the three has yet to appear, and another—the urgently needed reform of the 1989 Act—is not going to happen at all.
It is odd, to put it mildly, that such an important component as the foreign influence registration scheme has not been incorporated in the Bill from the outset. The proposal to introduce it by means of a later amendment can only fuel suspicions that the Bill was published, for reasons unknown, before it had fully matured; or that the plan for the scheme had been dropped, then belatedly revived—the Home Secretary is shaking her head, which, again, is good; or that the Government are perfectly well aware of the details of the scheme that they intend to introduce, but wish to undermine or weaken parliamentary scrutiny by introducing it after the Second Reading debate is over, so that the Commons as a whole cannot decide on it before the Committee stage at the earliest.
Such suspicions could be at least partially dispelled by the Government’s agreeing that a Committee of the whole House will examine the Bill at the next stage of its journey through the Commons, and that plenty of time will be allocated for us all to examine the amendment on establishing a foreign influence registration scheme at the earliest opportunity. I will happily give way to a ministerial intervention now, offering an undertaking to that effect.
Dr Lewis
I am receiving indications that I may hear something in the summing-up speech, so I shall live in hope.
As I wish to leave scope for other members of the ISC to drill down into the detail of all three areas on which the Bill ought to be focusing, I shall confine myself to just a few comments on each. First—as we have said—we warmly welcome the repeal of the Official Secrets Acts of 1911 to 1939, with their references to century-old concepts of data targets, such as “sketches” and “plans”, which have long been superseded in the digital age. The new espionage offence created by clause 1 should enable the intelligence and security agencies more effectively to combat hostile state action in a world that has undergone a technological revolution in the modern era.
Clause 2 is a worthwhile attempt to protect valuable trade secrets, although we feel that there are issues of complexity and breadth of definition which will require simplification if this new system is to succeed. Clause 3 is strongly to be supported, both for criminalising the giving of assistance to a foreign intelligence service and for empowering the agencies and the police legitimately to unravel the hostile networks involved. Clause 12 creates a new offence of sabotage, at home or overseas: causing damage to vital UK assets or infrastructure, whether intentionally or recklessly. Clause 13 introduces an offence of foreign interference, but only for conduct that involves an intention to have a negative impact on the UK, for or on behalf of the foreign power in question. We suggest that it be broadened to cover those who behave recklessly, even if an intention to aid a foreign adversary cannot be proven.
Secondly, the failure radically to reform the Official Secrets Act 1989 leaves in place a requirement to demonstrate that actual harm has been caused by a civil servant or someone outside Government service when publishing classified information. However, the act of disclosing and specifying what harm has been done will often compound the problem and increase the damage; some prosecutions thus have to be dropped in order to prevent such further harm. Although the Law Commission has offered recommendations to cater for disclosures made genuinely in the public interest, those recommendations cannot even be considered other than in the context of the repeal, replacement or at least root-and-branch reform of the 1989 Act.
Mr Steve Baker
I absolutely support what my right hon. Friend says about the 1989 Act, section 1(1) of which states:
“A person who is or has been…a member of the security and intelligence services; or…a person notified that he is subject to the provisions of this subsection…is guilty of an offence if without lawful authority he discloses any information”.
There is no caveat about “damaging”. Is not the fundamental problem that a distinction is drawn between categories of person in how they are treated?
Dr Lewis
There is such a distinction. One could certainly argue that it is a graver offence for someone entrusted officially with secrets to breach that trust than for a journalist who thinks he has a scoop but knows that he might be harming the national interest to proceed nevertheless, recklessly or with deliberate intent to do harm. However, we are not talking about a spy rifling through a filing cabinet and taking pictures with his Minox camera; we are now in an age when a technician can download a gigabyte of information in a short period and have it published worldwide, unread even by the people who have published it. That is where there are huge gaps in the legislation, and closing them will require revisiting the 1989 Act.
The third leg is that there will be many practical issues with the contents and the proper parliamentary scrutiny of any amendment to the Bill to initiate a foreign influence registration scheme. Careful drafting will be required to catch those who are consciously and deliberately, or unreasonably and recklessly, acting on behalf of another state and its interests, without criminalising every parliamentarian who runs a bilateral international friendship group, for example. High on the agenda must be the issue of dodgy donations from questionable sources to political parties and campaigns—another good reason for the closest possible examination of the provisions that the Government eventually bring forward. Nevertheless, as has been pointed out, our Australian friends enacted their foreign influence transparency scheme as recently as 2018, while our US allies introduced their own legislation as long ago as 1938, so there is no shortage of precedents on which we can draw to get the legislation right and close at least one more gap in our national security arrangements.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
It is a pleasure to follow the right hon. Member for New Forest East (Dr Lewis), the Chair of the Intelligence and Security Committee. I am grateful to the Home Secretary for setting out the detailed context of this Bill and to the Minister for Security and Borders and his team for providing a briefing before the recess and talking through parts of the Bill and answering questions on it.
I think everybody here today agrees that we need a Bill that, as the long title to this one says, makes provision
“about threats to national security from espionage, sabotage and persons acting for foreign powers”.
Indeed, as we have already heard at some considerable length, the need to update our espionage laws is clear from the Russia report, from the Law Commission report and for a million other reasons as well. For those reasons, we will support the Bill’s receiving a Second Reading this evening. Indeed, parts of the Bill could be particularly welcome, such as steps to tackle disinformation and interference in elections; those have great potential if done correctly.
However, all that does not mean that we will give the Government a blank cheque as they take the Bill through its different stages, and we would be failing in our duties as Opposition MPs if we did. That is particularly true in a policy area such as this: there is perhaps a tendency for Government, and even Parliaments, to write blank cheques for the security and intelligence services every time they come calling with a list of new powers and capabilities that they seek.
Like everybody here, for the reasons that the Secretary of State and the shadow Secretary of State set out, I am immensely grateful for the critical work that those in the services do, day in, day out, on our behalf. They have our full respect. None the less, they are not perfect: from time to time, news stories emerge that remind us of that fact—for example, the recent BBC revelations about a particular covert human intelligence source. These agencies also have immense powers, so we should always rigorously test the need for new powers, new criminal laws and new restrictions, and we should always be on the lookout, as the shadow Home Secretary said, for ways and means that ensure that the agencies are held to account and that we get to look under the bonnet at what is going on without undermining their work or making it impossible. It is against that background that I will briefly highlight some of the issues that we will want to pursue and to test the Government on as the Bill progresses through the House.
In relation to part 1, most of the new offences seem at first sight to make sense and can be justified, though we will test whether they are a fair and proportionate response to the Russia report and the Law Commission recommendations in particular. These are complicated offences, so we will challenge the Bill to see whether the Government have gone far enough, or—more likely—whether they have gone too far. Key concepts will need close scrutiny. The foreign power condition and the foreign power threat activity definition, for example, are pivotal concepts that are also potentially very broad. The whole concept of the safety or interest of the UK could also be challenging and something of a moving feast as well.
As we have heard, clause 23 will need great scrutiny. It disapplies certain extra territorial provisions in relation to offences of encouraging or assisting crime under the Serious Crime Act 2007. The explanatory notes claim that the new paragraph that could be inserted into that Act
“ensures that those working for or on behalf of the intelligence agencies would not be liable for support they provided to activities overseas…where that support was deemed necessary for the exercise of the intelligence agencies’ functions.”
That all sounds benign, but others have made the argument that the provisions, as drafted, go way beyond what is described in those notes. For example, I hope we would all agree that, if Ministers take steps that lead to an unlawful drone killing of a family overseas, or if information is provided that leads to extraordinary rendition and torture, those Ministers should not be able to put themselves completely beyond the rule of law in those circumstances. That is exactly the type of behaviour for which we have been condemning other Governments, so if that is the impact of clause 23 there is a strong case for it to be rethought.
Stewart Hosie
On that particular point, is it not more perplexing that there is the carve-out of removing the ability to be convicted for certain overseas offences, given that the defence of acting reasonably already exists?
Stuart C. McDonald
My hon. Friend makes an important point, which we will have to look at. There are other provisions in legislation that provide protection for those involved in the work of agencies, so we do not think that the case for this new carve-out has been made at all.
Part 2 will also need close scrutiny; we turn here to state threats prevention and investigation measures. I do not think that any of us here should ever feel comfortable about curtailing people’s liberties by ministerial fiat rather than as a punishment for a proven crime. In fairness, I think the Home Secretary recognised that in her speech. We have come to accept that such “prevention and investigation measures” are a necessary part of the fight against terrorism. Our position on TPIMs has been to cut their wings, improve oversight and limit their invasiveness, rather than to do away with them altogether. It may be that we end up with STPIMs as well, but we will probe the Minister closely on the case for requiring them at all.
Ministers always promise—the Home Secretary did today—that powers will not be used inappropriately and excessively. That is welcome, but they should not have the power to do things that are inappropriate or excessive in the first place, because those who follow them into office may take a different view of what is inappropriate or excessive. Restrictions have to be in the Bill rather than in ministerial undertakings.
Part 3 is also a mixed bag. We absolutely see the need for freezing and forfeiting damages that could be utilised for terrorism. There could also be an arguable case for powers to reduce damages in certain national security proceedings, but we will examine that closely. On the other hand, there is a real question over whether courts already have sufficient powers and whether there are sufficient safeguards and processes that prevent undeserving cases from winning damages in the first place, so we will again press the Minister on that.
Much less persuasive is the case for restricting legal aid in utterly unconnected proceedings on the grounds of a past conviction for terrorism. That was raised by the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), and I am very sympathetic to that while recognising that this is one of the few “England and Wales only” provisions.
As we heard, we need to scrutinise not just what is in the Bill, but what is not—or not yet—in it, and two issues are particularly important. As has been touched on, the Minister and the Home Secretary have set out that the foreign agent registration scheme will be amended. Various complaints have been made about that not being in the Bill as we debate it today.
I return to my experience during the passage of the Nationality and Borders Act 2022—a slightly more acrimonious piece of legislation. Having really important provisions about citizenship and age tests being introduced at pretty short notice in Committee meant that we did not have the chance to ask witnesses about them or to get briefings about them from important organisations.
Something as important as the foreign agent registration scheme needs more than a couple of days before a Committee sitting if we are going to give it proper scrutiny. I am very sympathetic to the idea of allowing us some time on the Floor of the House to debate the details. In principle, the idea is very welcome and the provision is required. However, as we all have acknowledged so far, there will be very tricky lines to draw in the sand between those who should be required to register and those who do not. We must also guard against having a massive Henry VIII clause that simply leaves it to the Government to set out the scheme at a later date. That would not be acceptable either.
Also missing from the Bill—this is apparently not going to be amended by the Government—are updates to the Official Secrets Act 1989 or any concept of a public interest defence to charges under it. As we heard, that Act is almost as out of date as the other laws that we are updating through the Bill. The Law Commission was clear that a public interest defence was required to ensure that the Government were not able to abuse legislation as a
“cloak to mask serious wrongdoing”.
It suggested a statutory commissioner to investigate allegations of wrongdoing or criminality made by civil servants or members of the public where disclosures of such concerns would be an offence under that Act. We support those ideas on the type of provisions that look under the bonnet, as I referred to earlier.
Joanna Cherry
As usual, my hon. Friend is giving a considered speech and I support everything that he has said so far. Notwithstanding the Government’s reluctance to use the Bill as a vehicle to introduce a public interest defence, it is likely that a cross-party amendment would seek to do that at some point. Will he confirm that the Scottish National party—our party—would support that?
Stuart C. McDonald
Yes, absolutely. The versions of such an amendment that I have seen look very promising and we would like to give our support to that if we can.
In conclusion, we need a Bill, and we certainly support this Bill on Second Reading. However, there is a lot for us to get our teeth into, both in terms of what is in it and what is not. We look forward to engaging critically but constructively on all these issues as the Bill progresses.
Theresa Villiers (Chipping Barnet) (Con)
As a member of the Intelligence and Security Committee, I very much welcome the Bill. The first duty of any Government is to keep their citizens safe from harm, and the Bill will help us to do that by making us more resilient to the ever-changing threat posed by hostile states and their intelligence agencies.
As we have already heard from the Committee’s distinguished Chair, my right hon. Friend the Member for New Forest East (Dr Lewis), it first called for an overhaul of legislation on state secrets and espionage almost 20 years ago. For a number of years, it has highlighted the complex and evolving threats from hostile states. Its reports have highlighted almost constant cyber-attacks on UK businesses and institutions by foreign Governments and their proxies in organised crime, with Mr Putin’s Administration identified as one of the most prolific offenders. Its 2013 conclusions on Huawei highlighted serious concerns about activities from China.
We have some of the best and most capable intelligence services in the world. The Five Eyes partnership enables them to work closely with like-minded allies. They do incredible work in keeping us safe. We need to give the men and women of the intelligence community, in whom we place our trust to safeguard our country from foreign threats, the legal framework that they need to carry out their vital work.
The Official Secrets Act regime urgently needs updating to reflect the modern world, as we have heard from every speaker so far. That has been also acknowledged by Ministers, and the ISC and the Law Commission have both made a convincing case for reform, so the suite of new tools contained in this Bill to modernise espionage offences is very important and I urge the House to support it. In particular, it is welcome that the Official Secrets Acts of 1911 to 1939 will be overhauled and updated for the contemporary digital era.
As other Members have said, however, it is a serious concern that only a partial reform of the Official Secrets Act regime is proposed, with the 1989 legislation left unchanged by the Bill as currently drafted. As the Government have previously acknowledged, amending that legislation is an important component of the action needed to counter hostile state activity. The 1989 Act deals with unauthorised disclosure of sensitive information so as yet the Bill has little to say about the kind of case that we have seen in the United States, involving the mass theft and publication of classified information, unless that is done deliberately to benefit a foreign power.
As we have heard, key problems of the 1989 Act include, first, that it provides for a maximum sentence of only two years, even if the disclosure is potentially of hundreds of thousands of highly classified documents and even if lives are lost as a result; and secondly, the fact that to prosecute someone under that Act requires a causative link to be proved to damage occurring directly as a result of the leak. That can be difficult, not least because such proof might require highly classified information to be revealed in open court. If this Bill is to be a comprehensive overhaul of powers to counter state-based threats to our security, amendments to the 1989 Act need to be added to it.
Another conclusion of recent ISC reports is that a foreign influence registration scheme is needed. Again, significant support for that has already been demonstrated in the debate today. Such legislation in the US and Australia makes it an offence to be an undeclared foreign intelligence officer. Done right, such laws can enable the disruption of foreign intelligence gathering at an earlier stage than is currently possible, can make it easier to prosecute spies, and can increase transparency regarding foreign influence. However, such laws are not without controversy and risk. If such legislation goes ahead, it would be important to target it appropriately and avoid the imposition of unjustified compliance burdens or stigma on people and organisations carrying out what are legitimate activities in a democratic state.
There are some complex and sensitive questions that will require careful scrutiny in this House. Whether it is the 1989 Act or an agent registration scheme, I am worried that we do not have any text before us yet.
If this Bill is to be successful in ensuring that legislation on espionage is comprehensively modernised to tackle the security threats faced in the modern age, I hope that Ministers will bring forward amendments both on the OSA and on foreign agent registration. The Home Secretary’s promise at the Dispatch Box of amendments on foreign influence by the Committee stage will be warmly welcomed, but I hope a similar pace of activity will be seen on the Official Secrets Act 1989, strengthening the Bill as a comprehensive reform of espionage legislation and putting it on a sound footing for the digital age.
Maria Eagle (Garston and Halewood) (Lab)
I am pleased to be speaking in this debate as one of the newer members of the Intelligence and Security Committee of Parliament. It is good to hear from my colleagues on the Committee, and I will try not to repeat too much of what they have said, because the Committee has of course taken a view on some of the issues covered by the Bill.
Let me begin by saying to the Home Secretary that it is unequivocally a good thing that the Government have finally brought forward a Bill to update and reform the Official Secrets Act regime, as has been made clear across the House. As many have said, the legislation relating to the Official Secrets Act regime goes back many—very many—years and is no longer fit for purpose. It is not just the Government who do not think it is fit for purpose. The Committee has said that it is not fit for purpose and the Law Commission has said that it is not fit for purpose. I have not heard anybody suggest that it is fit for purpose, so I think there is consensus across the Chamber that it needs to be replaced.
The idea of replacing the Official Secrets Act regime is to ensure that the intelligence community has the legislative powers and the tools it needs to combat the varied, complex and constantly evolving threat to the UK’s national security posed by hostile state actors. It is therefore good that the Bill as currently drafted, with its aims to modernise the offence of espionage and create a suite of more modern tools and powers for police, security and intelligence agencies to defend the UK against hostile state actors, is now before us. Although the Home Secretary has set out her intentions in legislation, she has not made it clear that she intends a comprehensive reform of the Official Secrets Act regime in total. She is reforming espionage offences, but she is not doing much at the moment about the Official Secrets Act 1989, which relates to the unauthorised disclosure of sensitive information. That is an important part of the Official Secrets Act regime, without reform of which she cannot claim that she has modernised the existing suite of powers. I agree with her—I doubt there would be much disagreement—that it is quite a difficult thing to do, but she and her predecessors have been at it for some time, helped by other parts of Parliament and by the Law Commission which have looked at the matter. Perhaps now is the time—with this Bill before us, which is meant to be a comprehensive piece of legislation—actually to make it comprehensive and come up with proper reforms.
The Law Commission has suggested a regime, and the right hon. Member for Chipping Barnet (Theresa Villiers) has set out that she certainly believes, as the Committee does more generally, that this reform ought to be part of this legislation. From what I gathered from the Home Secretary’s replies to interventions earlier—and I am glad if she is listening to what is being said—she is not proposing to bring forward reform of the Official Secrets Act 1989 in this legislation, nor has she set out a timetable within which she intends to bring it forward in another piece of legislation, which is a disappointment.
This Parliament will end in 2024, if it does not end sooner—of course, provisions about when Parliaments end have now changed, and it could end sooner than that—so the Home Secretary might be saying to the House that she does not have any plans to make the reform comprehensive in this Parliament. She has certainly not committed that she will. I think that that is a shame—it is an omission. However, in respect of the other missing element—the foreign influence registration scheme—I very much welcome the fact that the Home Secretary has been very precise and said that it will be introduced in Committee. I hope that that is at the beginning of the Committee stage, because the points that have been made by Members across the House about the importance of scrutinising such a provision are important. She will only get into trouble in the other place if she does not enable proper scrutiny in the Commons. We all want to get the foreign influence registration scheme right, and scrutiny can only help with that.
I hope that the Home Secretary introduces that swiftly, giving plenty time for proper scrutiny. The proposals that have been made for a Committee of the whole House might be a way of doing it, if she can persuade the business managers. I hear that she is very persuasive, so perhaps she can persuade them that that should be done. I do not think that she would find anyone who said that that was a bad idea. The Government have previously made a commitment that reform of the OSA 1989 would represent a key part of the Bill, so it is a bit of a mystery, difficult as it is, that it is missing. One might even say that it is a glaring omission. The Home Secretary could put it right by introducing that sooner.
Comments have been made about clause 23 and the amending of schedule 4 to the Serious Crime Act 2007, to disapply the offence of encouraging or assisting offences overseas when the activity in question is deemed necessary for the proper exercise of any function of the intelligence services or armed forces. The explanatory notes say—and I think that I heard the Home Secretary say something similar—that the provision will
“provide better protection to those discharging national security functions on behalf of Her Majesty’s Government, to enable more effective joint working and to improve operational agility”.
I think that that is what the Home Secretary said, but this appears to be a wholesale carve-out of the intelligence services and the armed forces from any liability for assisting or encouraging crime overseas in any activities undertaken abroad. It is in effect an extensive granting of impunity against liability for criminal wrongdoing abroad for those discharging national security functions. It is extraordinarily broad in scope, particularly given the defence in legislation for those discharging national security functions abroad, which protects from liability in certain circumstances.
Section 50 of the Serious Crime Act 2007 protects those who act “reasonably”, and the agencies and armed forces can use those provisions to protect their staff in appropriate circumstances where their actions are reasonable. There is a further option in some cases to protect staff from liability by obtaining a ministerial authorisation under section 7 of the Intelligence Services Act 1994.
The question—and it has not really been answered—is why has this wholesale carve-out been included? Why is it needed? What is inadequate about the current defences that has led the Government to do this? If an action does not meet a reasonableness test, I do not think it could possibly be described as necessary for the proper exercise of any function of an intelligence service or of the armed forces. Clause 23 at the moment appears to confer impunity without the need to consider whether an action is reasonable. When the Committee considered this matter, it did not think that it was justified, and the case has not been made to justify the inclusion of a blanket carve-out from liability—nor does that carve-out explain what has gone wrong with the existing reasonableness defence and the ministerial authorisation system, and why that is thought to be inadequate. We look forward to a much clearer explanation in Committee of why the Government think the provision is necessary, because in a worst-case scenario it could lead to less accountability for the agencies. At best, it seems unnecessary, given the existing safeguards.
On the legal aid provisions in part 3, I heard what was said by the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), who is not in his place at the moment. He cautioned that the Government need to be careful about the terms in which they set out such provisions. My remarks are in view of my membership of that Committee and certainly not a reflection of my membership of the ISC, because such matters are not in its remit.
Civil legal aid has always been made available based on two main criteria: the type of case, including its likelihood of success; and the financial means of the applicant. It has never been dependent on the nature of any previous conviction of the applicant in a blanket ban, and certainly not whether they had been convicted of a particular type of offence in the past. I understand why policymakers and the Government might be concerned about those who have committed terrorist offences getting civil legal aid to sue, but I hope the Government will consider whether introducing this novel way of determining eligibility for civil legal aid is the right way forward.
I notice that provisions in clause 61 and schedule 10 will enable the court to make a freezing order on all or part of any damages that such a person recovers, ensuring that they are paid into the court, and enable an extension of the period for which awarded damages can be frozen. There is also provision in schedule 10 for a forfeiture of any such damages if it looks like they may be used to further some terrorist cause. I have no problem with that, but the novel restriction proposed on eligibility is difficult because it changes the whole way in which administration of civil legal aid is carried forward for a particular class of person. We must be careful about that. One can always think of other types of offenders who perhaps do not “deserve” to get civil legal aid. My concern is that introducing such a way of looking at eligibility may have a much broader implication that is not entirely good. That is despite there being hard cases, and I understand why policymakers are concerned.
When we get to Committee, I hope that those of use fortunate enough to consider the Bill further will be able to go into all its aspects in a lot more detail. I finish as I began by welcoming the Bill’s introduction; it just needs to be more comprehensive.
Sir Jeremy Wright (Kenilworth and Southam) (Con)
It is a pleasure to follow my fellow new member of the Intelligence and Security Committee, the hon. Member for Garston and Halewood (Maria Eagle). I agree with what she said and what other members of the Committee have said. As she did, I will also try not to repeat absolutely everything that they said, although I confess that there may be some overlap.
I will speak about two things that are missing from the Bill but should be included, and two things that are in it but do not need to be. Let me begin with the things that are missing. As others have pointed out, the Bill proposes no reform of the Official Secrets Act 1989, as opposed to other Official Secrets Acts. I think that everyone who has spoken accepts that such reform is necessary, and the Government accept that it is essential. As we have heard, that Act deals with unauthorised disclosures of sensitive information and requires, for successful prosecution of offences, that it can be shown that damage has been done by the disclosure. The problem being, as my right hon. Friend the Member for New Forest East (Dr Lewis) set out, that evidence of that damage is often impossible to present without causing more damage. That makes it counterproductive to prosecute such cases at all.
That problem is not solved by the Bill, but frankly it should be. It is not addressed by the new espionage offences in the Bill, which are targeted elsewhere and largely require intent to assist foreign intelligence services or that the action in question is carried out on behalf of a foreign power. Disclosures that are made with different motives, however misguided, will remain to be dealt with under the flawed regime in the 1989 Act. That regime will have to be reformed at some point, and comprehensively. That may well best be done with the creation of broad offences of disclosure and specific public interest defences. It seems to me that the attraction of that approach is twofold. First, as I suggested to the Home Secretary when she generously took my intervention, it is a recognition of current reality. Juries are already applying their own versions of public interest defences to the case they try without the benefit of clearly defined defences in law. Secondly, creating a straightforward offence of disclosure committed where relevant defences do not apply gives the prosecution less to prove, with less risk of further damaging disclosure by the state, and allows Parliament to define public interest defences as widely or as narrowly as we think appropriate. That has to be a better and more rational approach.
We should also consider further the Law Commission’s recommendation of a commissioner who would provide those in government or the intelligence agencies who are contemplating a disclosure of material to the public with another way to raise their concerns. The existence of such a route as an alternative may well make it harder to establish a public interest defence in court. I would argue that the Government should address the deficiencies of the 1989 Act while they have the legislative opportunity to do so in the Bill.
As others have said, another thing missing from the Bill is provision for a foreign influence registration scheme. I recognise and welcome the fact that the Government have said they intend to bring such a scheme forward by amendments to the Bill, but like others I hope they will do so soon, as the disadvantage of making substantial changes in amendments is that we have less time to consider them. It will be important that we consider the details of such a scheme and any unintended consequences of it. For example, the scheme needs to capture significant or substantial interventions on behalf of foreign powers, rather than those that are insignificant or incidental, and we need to consider carefully how a list of countries to which the scheme will apply will be managed and updated in practice. Of course, we cannot do any of that until we see precisely what the Government propose.
I mention in passing that I welcome the clauses on trade secrets, although I suspect, as do others, that the definitions involved will need tightening or clarifying, and I welcome the further clauses on sabotage and foreign influence. That brings me to the things that I think the Bill could do without.
The first, as the hon. Member for Garston and Halewood pointed out in detail, is clause 23, for which at the very least the Government will need to offer further justification. It amends schedule 4 to the Serious Crime Act 2007, which contains offences of assisting or encouraging the commission of a criminal offence abroad. As the hon. Lady said, the Bill will disapply those offences if the actions were necessary for the
“proper exercise of any function”
of the security services or the armed forces. That is a sweeping exclusion from liability for criminal offences. It is not yet clear to me why that is necessary. A defence of acting reasonably is already included in the 2007 Act, and I do not immediately see what the difference is between an argument of acting reasonably and an argument of acting in the proper exercise of someone’s function, which is what clause 23 would add. As the hon. Lady mentioned, we already have the backstop protection of section 7 of the Intelligence Services Act 1994. Ministers will need to explain, as the Bill progresses, why we need further legislative provision on that point.
Finally, I come to the clauses at the end of the Bill that deal with civil damages and legal aid for those with terrorist convictions. I also make it clear that I give my own views on this, not the views of the Intelligence and Security Committee. I have far fewer concerns about the reduction or non-payment of damages in cases where those damages may be used to fund terrorism; in those cases, decisions can be taken by a court, which in essence can already decide the size of award that would be just in all the circumstances. However, I am frankly worried about the Bill’s proposals on legal aid. This House has debated in the past, sometimes fiercely, which types of legal action should be eligible for legal aid and what level of wealth or poverty should be needed to get it, but I do not think we have ever before contemplated determining someone’s eligibility for civil legal aid based on previous criminal behaviour. Prisoners serving sentences, let alone those whose sentences have been served, do not lose all their rights in our society. It is the criminal justice system that exists to reflect our collective disapproval of and sanction for criminal behaviour. The civil justice system is not set up to do so—certainly not in perpetuity thereafter.
Is there any logic in leaving convicted terrorists eligible for criminal legal aid in relation to future allegations against them, as they will rightly remain if this Bill passes, but ineligible for civil legal aid? What that means for a formerly convicted terrorist is that legal aid will be available to them if the question before the court is whether they have again infringed the rights of others in a criminal way, but not if the question is whether others have infringed their rights, perhaps seriously. I am not sure that is right or sensible.
Edward Timpson (Eddisbury) (Con)
I congratulate my right hon. and learned Friend on his recent honour, and I share some of his concerns about the widening of the eligibility around civil legal aid in these matters. Does he have any other mechanism by which he thinks this could be addressed in the Bill, to ensure that the Government’s concerns are taken into account?
Sir Jeremy Wright
As I say, I can understand the logic of the Government’s position when it comes to the restriction or even non-payment of damages in civil cases where the court believes that those damages may be used in a terrorist cause. That seems a sensible additional provision. It is more difficult where, outside a court—because of course decisions on legal aid are made not by judges, but by officials elsewhere—those judgments are to be made in the context that the Government propose. That seems to me a step too far, and another potential illogicality in the Government’s position is that there does not seem to me to be very much difference on a moral basis between terrorism offences and other serious criminal offences, such as child murder, serial rape or any number of others we might think of, to explain why only offences of terrorism would merit the removal of civil legal aid eligibility.
These measures need considerably more thought and justification. I am also not satisfied that they sit well in a Bill that contains largely necessary and sensible measures that are rightly likely, as we can see in this debate, to command significant cross-party support.
Mr Kevan Jones (North Durham) (Lab)
It is a pleasure to follow the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright), and I congratulate him on his recent inclusion in the Queen’s honours list.
This Bill has been long coming; we have been waiting for several years now. The Government have made some improvements in it, but overall it is disappointing. As my hon. Friend the Member for Garston and Halewood (Maria Eagle) said, it is not the comprehensive legislation we were promised and, as has already been mentioned, it does not include the reform of the Official Secrets Act 1989.
The right hon. Member for New Forest East (Dr Lewis), the Chair of the Intelligence and Security Committee, which I have the privilege of being a member of, said that the Committee has called for nearly the past 20 years for the reform of the 1989 Act. I am one of the two remaining members of the Committee who were on it when we considered our Russia report. We made very clear in the recommendations of the report, published in 2020, that there was an urgent need for reform of that Act, which we described as not being fit for purpose. More importantly, we took evidence from the agencies, which all said that the Act was in need of reform. We recommended that it should be reformed, and said that without any major reform the security services would continue to have their hands tied when trying to tackle the job that we give them.
It is surprising that reform of the 1989 Act has not been brought forward in this Bill, because it has not just been raised by the ISC and the security services; the Government themselves have repeatedly said that the Act needs to be changed and reformed. In a 2020 report, the Law Commission also concluded that the Act was “outdated” and in “urgent need of reform”. Like my hon. Friend the Member for Garston and Halewood, I am at a loss as to why this reform is not in the Bill.
The 1911 to 1939 Official Secrets Acts are clearly repealed through the Bill, but if we do not change the 1989 Act, the current problems will persist. As has been mentioned, the requirement to prove damage from unauthorised disclosures is in most cases a real barrier to prosecution, and in some instances leads to more sensitive information having to be produced in court. That is a deterrent; it is a weakness that explains why the Act is not being used. Also, as I mentioned in an intervention on the Home Secretary, the maximum sentence under the 1989 Act is two years. In the Bill, we are introducing life sentences. I do not know what deterrent two years would be, even with the hurdles we have to get over, so I am at a real loss as to why these reforms have not been included in the Bill.
I am not clear from what the Home Secretary said when that reform will be brought forward. We all know how tight legislative time is. I would have thought that once the Government had a large Bill such as this one, they would want to do everything at once. Could it be that there is a lack of time? No, I do not think so, because the changes being put forward have been considered over many years. We need an explanation from the Government as to why this reform is not being done.
Mr Steve Baker
The right hon. Gentleman is making some very good points. I rather imagine that the damage that could be caused by an unlawful disclosure could include people losing their lives, and that one problem is that proving that damage could lead to yet further people losing their lives. I do not wish to tempt him where he must not go, but can he give those of us without access to classified information any indication of whether my worst imaginings are in any way accurate? If they are, it seems to me that a life sentence might be appropriate.
Mr Jones
I would not want to go anywhere near what is in the hon. Gentleman’s imagination. All I can say is: yes, we are talking about information that will have an impact not only on our general security, but on the security of individual agents and others. That is why I support the Law Commission’s recommendations to introduce a public interest defence and to create an independent statutory commissioner to investigate wrongdoing or criminality where disclosure would otherwise constitute an offence under the 1989 Act.
The absence of reform means that if we pass the Bill as it is now, there will be nothing in it to guard against large, mass disclosures of sensitive information; we will still rely on the 1989 Act. Even if somebody indirectly helped foreign powers, I cannot see how we could bring them to book under this Bill. We should support the introduction of a public interest defence, because it would make it easier to bring prosecutions. I have heard some people say, “This would really give journalists and others an opportunity to throw secrets out there.” No, it would not; it would put the onus on them to argue in court that it is in the public interest that the information is disclosed. It would be welcome, as it would ensure that people thought about what they did.
Mr David Davis
Does the right hon. Gentleman agree that the Katharine Gun case is a good demonstration? The prosecution was dropped at the point of trial, probably because the Government could not predict how a jury would interpret her public interest defence rights without any codification.
Mr Jones
The right hon. Gentleman raises an interesting point. Without reform, the courts will define public interest anyway. I would sooner have this place define it than leave it to the courts or allow an ad hoc system to build up over time. I do not understand why the Bill does not take that opportunity, because it would help. Some journalists think that it would be a way of stymieing them, but I think it would clarify the position on the information that can be put in the public domain and would actually help to make that defence. I would rather have this House than a court of law setting those parameters.
The Law Commission made another recommendation that I think worthy of consideration, although we need to work out how it would work in practice:
“an independent commissioner to receive and investigate complaints of serious wrongdoing where disclosure of the matters referred to may otherwise constitute an offence under the Official Secrets Act 1989. That commissioner would also be responsible for determining appropriate disclosure of the results of that investigation.”
That would provide another valve in the pressure cooker of the system when people think that wrongdoing needs to be highlighted.
I would love to know why the Government have missed the opportunity to bring all these things forward in the Bill. I hope that as it passes we can insert some of them: that would not only strengthen the Bill, but give our security services the toolkit that they need.
The foreign influence registration scheme, which we called for in the 2020 Russia report and which is supported by the agencies, would make it unlawful to be an undeclared intelligence officer. I accept that there are issues with definition, but the consultation on the Bill described it as a key component of the new regime, yet for some reason it is not in the Bill. I hear the Home Secretary’s promises, but—call me old-fashioned—I think we should have it before us today to debate on Second Reading.
Bob Seely
The right hon. Gentleman is making a valuable point. One of the problems that we have to get to grips with is the difference between a paid-up agent—the sort of old-school spy who worked for the KGB and others—and someone who works ostensibly for the United Front and is not technically a spy, but is cultivating a malign and covert form of influence. Arguably, they are both as damaging. This is a genuine question: how does one decide which of the two is more serious? Do we equate them, in this day and age?
Mr Jones
I think transparency is the way to do it. That is why Australia’s Foreign Influence Transparency Scheme Act, which was introduced very quickly in 2018, requires anyone engaging in lobbying or any kind of communications activity for the purpose of political influence on behalf of a foreign principal to be registered. The US scheme, which has been mentioned, was introduced in 1938 and came into force in 1939. If Australia and the US have such schemes, I am sure we can have one.
Personally, I think transparency is the best way forward. The approach that I understand the Government are looking at—having a list of countries on behalf of which people working have to register—is asking for trouble and will have to be updated over time. The Australian system and the US system are far better because they are all-encompassing.
Bob Seely
I disagree slightly with what the right hon. Gentleman is saying, although he is making a very good point. I think there is a very good argument for treating Oleg Deripaska differently from the New Zealand tourism board. For one, there should be a very light level of registration, because clearly the New Zealand tourism board is unlikely to be a front for anything other than New Zealand tourism, whereas Russian oligarchs, the Huaweis of this world and the United Front may hide all sorts of nasties behind them. If the Government have the courage to name China along with Russia, North Korea and Iraq, that is potentially an attractive option, is it not?
Mr Jones
It is, but an active list that has to keep being updated is a problem. I would go broad first. If the New Zealand tourism board had to be caught by that—I am not sure we have anything to worry about from the New Zealand tourism board, apart from representing a fantastic country that is a great place for tourism—the important point is that it would be fair across the board. Again, I do not understand why that measure is not being brought forward today.
I will raise one last concern, which is about clause 23 and has been raised by the right hon. and learned Member for Kenilworth and Southam and also my hon. Friend the Member for Garston and Halewood. I see no purpose for the clause at all. I want to know from the Government what it is that is not already in legislation that they are trying to get at, or where the clause has come from, because it is certainly something I have never seen raised by the security services at the Intelligence and Security Committee. If we are to have this clause, I would also like to see some kind of oversight of it, whether that is the Investigatory Powers Commissioner or some other networks. Otherwise, the Bill is giving a large degree of latitude to individuals.
We should remember that this has been a hard-fought issue. The shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), raised the important point—let us be honest, it has happened over a period of time—that the Investigatory Powers Commissioner has been excellent in improving the oversight and robustness of the regulation around our security services, which are so important, and the confidence that people can have in that.
With that, I welcome that we have a Bill, but is it a Bill that will do what it says on the tin? I am not sure it will. It will need a lot of changing in Committee.
Sir Robert Buckland (South Swindon) (Con)
It is a pleasure to speak after the right hon. Member for North Durham (Mr Jones), who in admirable brevity covered the gamut of the Bill. The House will be relieved to know that my speech on Second Reading will be even more concise than that. First, I welcome and support the thrust of this Bill, and I echo the comments made by my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) and congratulate him warmly on his knighthood.
I want to develop a further point about what we do not see in this Bill. I know that is warming to a theme we have already heard from a number of contributors to this debate, but it is, I am afraid, one that we cannot get away from. This was an opportunity not just to recast the pre-war legislation from 1911 right through to the late ’30s, but for us to do something to a Bill that, when it became law in 1989, was addressing a world that was already vanishing. That Act came right at the end of the cold war, as the Berlin wall tumbled, and already it was somewhat behind its time. That has become even more apparent with the rise of the internet, the complete transmogrification of how disclosures can now be made and the myriad scenarios that now exist in regard to the unauthorised disclosure of classified material.
It is a matter of regret that the Government have not chosen to pursue reform of the Official Secrets Act 1989 in this Bill. I get the point that this is difficult, and the Home Secretary rightly made that point on a number of occasions in response to Members’ interventions at the beginning of the debate, but frankly, it is the job of this House to do difficult. We are here to do difficult. That is what our voters send us to do, and it is right on Second Reading to talk about what opportunities have potentially been missed.
I know that the scope of this Bill has been carefully crafted by the draftspeople. Knowing them as I do, I respect their work and they will have had—certainly in this case—clear instructions from policymakers. That might mean that I cannot table any amendment that I would seek to table, but I will continue to explore the matter, because it is too important an issue to leave for another occasion. The issue that I wish to deal with is the question of what to do with disclosures that are made in the public interest and in circumstances that clearly support the public interest.
Let me set out what I regard as a two-limbed test for any such defence to apply. Of course, this is not just an idea of mine; it is a carefully crafted set of proposals from the Law Commission that was published back in 2020, when I was still in the Government. I read the recommendations at the time and reread them in preparation for this debate. It is interesting to note that at the beginning of its chapter on the public interest defence, the Law Commission’s provisional conclusion before the publication of its final report was that there should not be a public interest defence but, as a result of the consultation it carried out, it changed its mind and came to the clear view that there was a clear case—a mandate, if you like—for the introduction of such a mechanism.
Currently, we have no mechanism that allows us as legislators or, indeed, us as a country to strike a reasonable balance between the importance of secrecy and the importance of accountability, while ensuring that those such as Julian Assange who dump data in a way that has no regard for the safety of operatives and other affected people are still subject to criminal sanction. In other words, this is not an attempt to try to open the door to create a free-for-all; it is an attempt to allow people to act carefully and in good conscience in a way that clearly serves the public interest.
Currently, in effect we delegate our responsibility as legislators to individual juries. As you know, Madam Deputy Speaker, I have spoken many times of my great belief in the jury system. I have probably addressed more juries than most Members in my work as a criminal barrister, both prosecuting and defending. I have huge faith in the jury system—it is a cornerstone of our liberty, and I mean that with every fibre of my being—but it is just plain wrong, in a society such as ours, for us, dealing as we do with the complexities of modern life, in effect to wash our hands of the process and leave it to individual juries. However carefully directed juries might be and however careful are the arguments put forward by counsel or advocates, it seems to me to be an abrogation of our responsibility.
To those who say that this idea is unprecedented, I say that that just is not the case. Plenty of examples of public interest defences exist in law. Indeed, the Law Commission set out a number of them—for example, section 40 of the Health and Safety at Work etc. Act 1974, and the well-known Criminal Justice Act 1988, which deals with a person who has an item with a blade or a point in a public place. There are legal defences that place the onus in law on the defendant to prove that they were acting lawfully, so we are not asking for something revolutionary. We are not suggesting something that is wholly out of place; this idea is well known to the criminal law and can equally apply to disclosures made by public servants, journalists and people acting in the public interest. It is important to remember that we should not focus on the occupation, profession or rank of the individual—it is not about journalists; it is about material that might have that public interest value. We have to be really precise in our terminology.
Mary Robinson (Cheadle) (Con)
My right hon. and learned Friend is making some excellent points—all of which I agree with so far—particularly about the ability for people to come forward and state that they have seen wrongdoing. So often, we rely on people who are inside an organisation, or others, to point out that something is going wrong. I totally agree that we should have a public interest defence. My right hon. and learned Friend will know that the Public Interest Disclosure Act 1998 provides such a defence; should that not be extended to a lot of other areas rather than apply just to those in employment?
Sir Robert Buckland
I am grateful to my hon. Friend, who speaks with conviction and passion on this issue. She recently introduced a 10-minute rule Bill on whistleblowing and works very hard on that issue on behalf of many people who have been prejudiced as a result of the current position. She is right to indirectly advert to other legislation. The Public Interest Disclosure Act 1998 again sets out a very reasonable precedent for this House to adopt.
In the place of an arbitrary, case-by-case, unpredictable situation that depends on myriad different facts, we can create a structured defence that sets out very clearly the circumstances in which the public interest can be defined and assessed by a tribunal of fact, including the way in which the disclosure was made, the subject matter of the disclosure, the gravity of the conduct exposed, and the harm caused. All those factors can help to determine what is the public interest. Looking at the manner of the disclosure, we have concepts such as good faith, whether the extent of disclosure was no more than reasonably necessary, whether the individual believes that the material—the documentation—is substantially true, and whether there was a question of personal gain. All these factors can be prayed in aid, and indeed brought into law, to exclude those who equate data dumping with serving the public interest. I do not believe that any Member of this House would condone such reckless and dangerous behaviour.
The hon. and learned Member for Edinburgh South West (Joanna Cherry), who is not in her place, has been right, in her interventions, to remind us that this type of defence is not unique to the Five Eyes. Indeed, Canada, New Zealand and Australia already have a similar type of provision in their domestic law, so this would not be a question of creating prejudice or disadvantage to the United Kingdom in its important role as a member of the Five Eyes.
I have the advantage of having served in Government as a Secretary of State who, among other things, was responsible for warrantry; I can say in all candour that there is probably no more serious task for a Secretary of State to undertake than to assess the evidence before them when deciding whether to issue what can often be quite intrusive orders that have the effect of seriously infringing the normal civil liberties that we, as public citizens, all enjoy. But we do it because we know that there is a wider public interest to be served in making sure that the intelligence services, the police and other agencies that are entitled to make these applications are able to keep us safe. That is something that all of us who have held high office believe in, as do all Members of this House.
Therefore, it is with an element of regret that I say to my hon. Friend—my good friend—the Security Minister, who I know will steward this Bill through with his usual care and concern, that we have missed an opportunity here. If it is not to be in this Bill, then the introduction of a public interest defence must come sooner or later if we are to avoid the randomness of decisions made by jurors who are not legislators and to whom we have, in effect, delegated our authority in a way that does not do this issue any real justice whatsoever.
Stewart Hosie (Dundee East) (SNP)
Before I start properly and give a general welcome to the Bill, I want to make one observation about how loosely some of it appears to be drafted; I will use clause 5, entitled “Unauthorised entry etc to a prohibited place”, to make the point. The clause involves a stand-alone offence and does not even need the foreign power condition to be met. It states:
“A person commits an offence if…the person…accesses”
or “enters…a prohibited place” and
“that conduct is unauthorised, and…the person knows, or ought reasonably to know, that their conduct is unauthorised.”If I go for a walk on the beach in Monifieth in my constituency, I can walk straight along it and into a military firing range. If the red flag is not flying, I am authorised. If, however, I have got a mile in and someone puts the flag up, has my attendance become unauthorised?
The clause goes on to say:
“A person’s conduct is unauthorised if the person…does not have consent to engage in the conduct from a person”
who is entitled to give it. If there was no sentry in the guard box when I approached and the flag was down and there was therefore no one to ask, would I have a defence?
I do not raise that point to engage in some silly whataboutery, but to make a rather serious point: either some of these clauses are so widely written that they will catch people they were never intended to catch, or they are so complex that any lawyer worth their salt will be able to find loopholes in order to get off the hook people whom these clauses should catch. I am sure that looking into that will be a job for the right hon. and hon. Members on the Bill Committee.
The right hon. Member for North Durham (Mr Jones) mentioned the ISC’s Russia report. I am fortunate to be the second Member who was involved in writing it, and it contained a number of important observations regarding the current state of UK national security legislation. The then Home Secretary told the Committee that, in relation to difficulties countering Russian hostile state activity,
“we don’t have all the powers”.
The Committee was told that it was not illegal to be a foreign agent in the UK. We were told by the director general of MI5 that we needed a new espionage Act because the powers in the OSA had become “dusty” and “ineffective”. As we have heard, the report made the case for a foreign agent or a foreign influence registration scheme, because we were also told:
“today it is not an offence in any sense to be a covert agent of the Russian Intelligence Services in the UK…unless you acquire damaging secrets and give them to your masters.”
I therefore welcome the Bill, which does address some of the issues that were raised, but before we get to some of the specifics of what is in it, there are the two omissions. The first is that there is no reform of the 1989 OSA, even though, as the Chair of the ISC has said, the Committee first called for that around 20 years ago. That means that the Bill is limited to dealing with the threat posed by hostile state actors and will not enhance defences against damaging unauthorised disclosure of sensitive information, even if that has the unintended consequence of assisting a foreign intelligence service. That would continue to fall under the 1989 OSA, which even the Home Secretary has admitted is not fit for purpose.
On an associated point, the Bill does not include a public interest defence—something suggested by the Law Commission—or the creation of the independent statutory commissioner to investigate allegations of serious wrongdoing where public disclosure would otherwise constitute an offence under the 1989 Act. The role of the commissioner may well end up being as important as, or potentially more important than, the public interest defence itself.
The second omission is the absence of the foreign influence registration scheme, which was a key ISC recommendation in the Russia report. Such a provision would make it an offence to be an undeclared foreign intelligence officer in the UK, would increase the transparency of foreign influence and would provide the legislative framework to prosecute, making the UK a more difficult and less permissive environment in which to operate. I share the opinion of all those who said that when the Government bring it forward, we should debate it on the Floor of the House—it is that important. I do not say that so that I can make another speech on the same subject, but because we need to get it absolutely right. If the definitions are wrong, and the authorities cannot prove the foreign power condition, we risk prosecutions falling by the wayside when, in any other circumstance, they would be completed.
I turn to a number of specific measures in the Bill. First, on the proposed new regime of state threats prevention and investigation measures, the ISC supports those in principle. Like TPIMs, they might be an important tool to disrupt an individual engaged in hostile state activity where a prosecution cannot be secured. But there are concerns: due to the fiendishly complex criminal offences in the Bill, the STPIMs could be used routinely, rather than as an exception or last resort, and therefore undermine some of the new measures in the Bill.
Clause 23 and the proposed amendment to the Serious Crime Act 2015, which were raised by my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) and the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright), effectively disapply the offences of encouraging or assisting offences overseas when the activity is deemed necessary for the proper exercise of any function of an intelligence service or armed forces. Given that there is already the defence of acting reasonably, that carve-out is simply not justified.
To speak personally—not on behalf of the ISC—I refer back to my previous point about there being no inclusion of a public interest defence for releasing unauthorised information. Not having that defence, while at the same time disapplying from the intelligence services a number of offences where an alternative defence already exists, might make the Bill appear to some people to be inconsistent, a little lopsided and perhaps weighted too much towards the state. There is broad consensus in the Chamber to carry the people with us and not do things that are unnecessarily provocative and that, frankly, would not make for such a good Bill anyway.
I turn to the European convention on human rights memorandum prepared by the Home Office and the Ministry of Justice for the Bill. On this, I am speaking personally. Paragraph 10 says:
“The purpose of the prohibited places offences is to provide protection to sites, particularly defence establishments…these offences do not seek to interfere with freedom of assembly and, as a general principle, in particular do not seek to restrict legitimate protest.”
I very much welcome that, but the next paragraph says:
“Protest activity at a prohibited place could potentially constitute a prohibited places offence. For example, a protest that sought to blockade a military airbase. However, the Government considers that any interference with Article 11 (freedom of assembly) would be justified in the interests of national security, territorial integrity or public safety, or for the prevention of disorder or crime. The clause 4 offence requires that the protesters know, or reasonably ought to know, that their protest activity is for a purpose that is prejudicial to the SOIOTUK”—
safety or interests of the UK —
“so being rationally connected to those public interests.”
If the Government genuinely believe that any interference with article 11 on freedom of assembly would be justified in the interests of national security, territorial integrity or public safety, they will have a job to do to explain why that does not seek to restrict legitimate public protest. One can easily envisage how legislation like that could be directed at the Faslane peace camp or, historically, the Greenham Common peace camp. Not everyone will agree with those causes—they may not be everybody’s cup of tea—but we need to be extremely careful not to produce such an overbearing, overweening piece of legislation that it can be used not against enemies who are seeking to disrupt our national life, but against people who are, whether we agree with them or not, protesting legitimately.
Bob Seely
The right hon. Gentleman is making a very important and valuable point. The Greenham Common people, for instance, absolutely had the right to protest. However, it is also worth making the point that the Soviets were indirectly funding quite a number of naive fellow-traveller organisations. At some point, under this law, an illegality could be committed because the people doing the overt influencing, the covert paying for these front organisations, would be committing a criminal act, if not the, perhaps, naive or hopeful people who were on the frontline and unaware of how they were being funded. So it is quite complex.
Stewart Hosie
It is complex, and I am glad that the hon. Gentleman has raised that point, because all the discussion that we had earlier about foreign agent or foreign influence registration was precisely about capturing the crime of seeking to influence. We should not be seeking to criminalise legitimate protest. I do not think that that should be a contentious thing to say.
Those issues aside, we are at least seeing some progress in the modernisation of what was a very creaky and outdated system, but—as I am sure the Minister has gathered from all that has been said today—it is clearly work in progress. Let me repeat that the Government will have a bit of explaining to do if they are to convince the House that if this complex Bill becomes law, some of it will actually be enforceable.
Mr David Davis (Haltemprice and Howden) (Con)
Let me start by saying that, unusually, I agreed with every word that was said by the right hon. Member for Dundee East (Stewart Hosie). He will have to get over that in his own time! Indeed, I can make broadly the same comment about nearly all the Back-Bench speeches that have been made so far. There has been considerable consensus on both sides of the House.
There is no doubt that the Bill is needed, and it is probably overdue. However, like all national security legislation, it is written from the point of view of the enforcers. The enforcement agencies’ lawyers will have done most of the drafting, so it is no surprise that it leans towards the state, and no surprise that parts of it are drafted in vague terms. I can best exemplify that by referring to one of my own mistakes.
Clause 23 allows Ministers effectively to authorise criminal acts. I was one of the Ministers who took through the Intelligence Services Act 1994, which created the Intelligence and Security Committee. It also created a number of rights. Section 7, which was known as the “007 clause”, conferred the right, in effect, to commit crimes on behalf of the state.
I went to see the then head of MI6, and I said to him, “Why do you need this? You do not even kill people any more.” His response was “That’s because you do not ask us to, Minister.” I resisted the temptation to pursue what I assume was a joke. Nevertheless, the presumption at the time was that the legislation would be used for bugging, burglary and blackmail and little else, as those are the three crimes typically used by the agencies. In practice, within a decade or so it was being used to excuse rendition, and subsequently, of course, torture and all the things that followed from that. I am not sure what the limits of its actions are today, but that demonstrates clearly to me that we have to be very precise indeed about what the House is authorising Ministers to do within the limits of the law.
What is more, this carve-out—which, as I have said, could be used for purposes that we are not considering today—could end up being extremely damaging to us. After all, we criticise nations from Russia to Turkey for the things that are done there, including the assassinations of journalists, presumably authorised by Ministers within those Governments under their legal systems, and here we are creating the equivalent within our own legal system. It is not too hard to see how that could be turned against us in propaganda terms.
This is not the first time that we have done that in recent years. Just a couple of years ago, with the Overseas Operations (Service Personnel and Veterans) Bill, we had a proposal that would have exonerated British soldiers who had committed crimes abroad, including murder and torture and war crimes. I proposed an amendment to the Bill, which did not get very far until Lord Robertson, the ex-head of NATO, and six Chiefs of the Defence Staff signed up to it in the Lords whereupon the Government had to pay attention. The ICC said that if we did this, it would prosecute. That is the other thing that we need to bear in mind with this—we are not necessarily the last port of call in judging what can and cannot be prosecuted.
My view on clause 23 is that we should be very careful about defining exactly what it is that we are attempting to permit. We should not leave any doubt whatever, or we will find that it will both fail and do us harm, let alone the moral breach that we will be committing.
My second issue relates to the matter raised by the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, whose statements are more authoritative than those of anyone else because the Bill is effectively modelled on legislation that he reviews. He says that it is unclear why we need an additional regime for the forfeiture and freezing of assets intended for use in terrorism, when such a regime already exists in law. His concern about it is that the new regime would use a lower threshold, requiring only a “real risk” that the funds would be used in terrorism, rather than that they were “intended to be used” for those purposes, He says that that “goes further than necessary”. Nobody in this country knows better where the appropriate line should be drawn than him, and we should be very careful to pay attention to what he says.
Jonathan Hall also questioned, as did my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright), the need for “symbolic” restrictions on access to legal aid based on something other than reducing the risk of terrorism. It would run the risk of the farcical situation where someone convicted of terrorism-related offences perhaps 20 years ago would be unable to rely on civil legal aid in seeking an injunction against a domestic abuser. I am quite sure in my mind that that is not what the Minister or the Government intend, but we should make it very plain that that is not the case, and amend it accordingly.
I agree with everything said by virtually everybody who spoke on the need for an update of the Official Secrets Act 1989. I am not remotely surprised that the Government are hesitant about that; there is a huge dammed up resistance to changes because they have to get it right first time.
Bob Seely
I am talking about the oversight of the DSF—Director Special Forces. Arguably, at the moment, it does not fall within the remit of the Ministry of Defence. It does not fall within the remit of the Foreign Affairs Committee and it does not fall within the remit of the Intelligence and Security Committee. Does my right hon. Friend think that it needs oversight, and how would he provide oversight of that rarified world that exists between the agencies and traditional defence?
Mr Davis
My hon. Friend is tempting me into an area in which I will lose all my friends, as he well knows. My off-the-cuff response—and it is just an off-the-cuff response—is that it is an appropriate area for oversight by the ISC, not by the Defence Committee, simply because of the confidentiality and classification elements that apply.
Let me return to the question of the Official Secrets Act 1989. I agree with everything that has been said so far. I agree that we should look very closely at the Law Commission proposals, because we need certainty. What we have at the moment is an interpretation of the law by juries—whether it is the Ponting case, the Katharine Gun case, where we did not even get to the point because the Government ran away from the case on the first day of trial, or the Derek Pasquill case. In each case, we had an interpretation of the law on a commonsensical basis by juries. Thank heavens for that, frankly, because they have more sense, many times, than the Government have in these areas, but we need predictability on both sides. We need officials to know that if something is done that they think is against the public interest, they can be reasonably confident that the provision will be carried out. That, if it operates properly, will improve the public service. On the other side, the Government should also have a right to know what is coming in that area.
I will make one or two other small points. On the foreign power conditions in the Bill, Reprieve, Privacy International, Transparency International and other excellent organisations that do very good work have received some funding from other nations’ Governments. It does not seem to be the intention that the Bill would have them fall foul of this law, but that might be the effect, so we have to be very clear about how that works. Perfectly legitimate organisations could be left committing an offence, under this area of the Bill, if they use leaked information—which may not even be classified—to challenge Government policy. That requires a closer look.
Craig Mackinlay (South Thanet) (Con)
My right hon. Friend is covering clauses 24 onwards, on the meaning of foreign power and influence thereon. There have been instances involving Members of the House during the past few turbulent years, when we had negotiations during the European Union; I did not agree with where they were going with their negotiations with the other side, outside Government channels, but I still believed that they had the right to do so. I am a little concerned that the Bill might capture that type of behaviour. Has he considered that? I would be interested to know Front Benchers’ thoughts on that as well.
Mr Davis
My hon. Friend makes a point about something from which I have scars. I had to go and negotiate while I was being undermined by Opposition Members. I agree, of course, that that is their right and power. Indeed, it is no great secret that I recommended the current Leader of the Opposition, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), for a Privy Counsellorship so that he could be properly briefed—not so that he could undermine me, but so that he could do his job properly. Obviously, democracy has rough edges and we must respect that in the Bill, as we do elsewhere.
My last point relates to the foreign influence registration scheme, which my right hon. and learned Friend the Member for Kenilworth and Southam spoke about. At present, that is not in the Bill. The Government have assured us that it will be introduced at a later stage. I hope that it is introduced early enough for proper and adequate scrutiny. This will not be easy to get right, partly because of the comments that my hon. Friend the Member for South Thanet (Craig Mackinlay) made. It is clearly a very different issue if someone is working on behalf of China, and we should not paint them with the same brush as those who are working for—my notes say “reliable allies like France”, but I should say “allies like France”. The simple truth is that we have to get this absolutely right.
I welcome the Bill, which, overall, is overdue. However, I make this point to the Front-Bench team: I hope that the Government will allow plenty of time—I will not say “sufficient time”—for the consideration of those elements. The Government have not brought some things to the House because they are not ready yet. That means that they have to respect the House by giving the Bill a large amount of time on Report, so that we can debate carefully every single issue that I raised.
Jim Shannon (Strangford) (DUP)
Thank you for allowing me to speak on the Bill, Mr Deputy Speaker. I very much welcome the Bill as a necessary update to our national security. As others have said, we have focused this weekend on the Queen’s jubilee, and among the most glaring changes that Her Majesty has seen over her lifetime of service are the technological advancements. With those has come a need for many of our laws to be updated to reflect changes in society. I thank all right hon. and hon. Members for their contributions, and particularly the Chair of the Intelligence and Security Committee, the right hon. Member for New Forest East (Dr Lewis); I wish him well in his role and thank him for his wisdom as he takes that forward.
I very much welcome the fact that the Bill will apply to all the United Kingdom of Great Britain and Northern Ireland, as well as its aims; it is necessary and timely. The repeal of OSA 1911 and OSA 1939 and their replacement with new legislation to remove the requirement to show that an unauthorised disclosure causes damage in order to bring a prosecution for disclosure offences under OSA 1989 is absolutely necessary, as we understand that information espionage can take time to make it into dangerous hands, so we must have power to take action before that.
The Secretary of State referred to the fact that consideration had been given to reforming the Treason Act, and that it had been decided not to follow that path. How much I wish that Treason Act reform was part of this Bill, so that all those involved in a 33-year terrorist campaign in Northern Ireland, trying to overthrow a Government, would be subject to that measure, which would be retrospective. Those IRA people would be scurrying into the holes that they came out of to try to get away from that Act. That is not in the Bill, but I hope that at some time the Secretary of State will introduce it—I certainly look forward to that.
I further welcome the increase in the maximum sentence for unauthorised disclosures to reflect the fact that they can cause far more serious damage than when the offence was first introduced—there are not necessarily distinctions in severity between espionage and the most dangerous disclosures. I further welcome the territorial extent of the unauthorised disclosure offences. I am by no means whatsoever a technical whizz—a text message is as far as it goes—but I am well aware that I am in the minority. The world is at the fingertips of almost everybody, but that does not mean that it should be at the fingertips of those who wish to use their skills for evil. As a nation, we must have the legislative ability to deal with those who seek to steal information and use it against us. This is about protecting our citizens and those who live in the United Kingdom of Great Britain and Northern Ireland.
I am also pleased with the foreign interference offences, which will ensure that our approach and legal powers are clear, and will demonstrate our desire and ability to deal appropriately with foreign interference as necessary. The powers to arrest and detain may raise some red flags on due process, but I believe they should be used in very specific cases, as outlined. Paragraph 10 of schedule 2, for instance, permits a police officer of at least the rank of superintendent to give any constable authority, but to give that authority the officer must have
“reasonable grounds for believing that the case is one of great emergency and that immediate action is necessary.”
Where such authority is given, the Secretary of State must be notified
“as soon as is reasonably practicable”.
In the end, this is good news and the right way to go. This seems right and proper to me, and we must ensure that the police are given the power to act when needed—not simply at will—so I welcome this part of the Government’s Bill, as introduced by the Government.
I have listened carefully to the contributions to the debate, certainly all of those which were backed with thought, experience and the questions that need to be asked. Perhaps they show that some changes need to be made to the Bill. I have listened carefully to the comments made by Members across the Chamber who have taken on board the fact that the principle of the Bill is what is called for in this modern age. At this stage, I am happy to lend my support—and the support of my party—to the Government to ensure that we update and upgrade our legislation to deal with changing times. With that, I very much look forward to seeing the Bill become law, and wish Ministers and all those who will participate in Committee all the best as they move forward to try to find a way to guarantee the safety of all those who live in the great United Kingdom of Great Britain and Northern Ireland.
Bob Seely (Isle of Wight) (Con)
I will not take up too much of the House’s time, but I am delighted to see the Minister in the Chamber. I hope to make some suggestions and give some opinions on some things to do with the Bill.
It strikes me that there seems to be a debate about whether we go deep or go broad. That is a very important part of the debate. For me, anything that does not capture a considerable amount of information about Confucius Institutes, about the universities, and about what law firms, lobbyists and former civil servants are doing in relation to oligarchs, Huawei and Chinese and Russian interests, will not be of service to this country. I will focus very much on the foreign lobbying aspect, because it is something that I have written about and discussed with the Minister.
First, we know that we need to improve lobbying laws substantially, and the endless, tedious and avoidable scandals over that should give us pause for thought. Secondly, we know there is a specific problem with foreign lobbying, and thirdly, in this era of blurred and confused lines between espionage, covert influence and lobbying, to ensure the health of our democracy we need a stronger and more transparent system. Arguably the Soviets always played that game from the 1930s onwards, when they started using friendship groups, and they really geared things up in the 1950s and 1960s through peace societies, churches and different types of organisations. The KGB worked through front organisations, much as the Chinese communists now work, sadly, through the United Front.
We are really playing catch-up on this. Our closest ally, the United States, has had the Foreign Agents Registration Act since 1938. Why? Because it identified, rightly, that it had a problem with covert Nazi influence trying to corrupt and influence its politics in the run-up to world war two. I am very glad the US had that law, because things might have been different if it had not. In 2018, the Australians introduced the Foreign Influence Transparency Scheme Act, largely in response to covert Chinese influence—the Australians were careful not to pin it to one country, but there is no doubt why it is there—and I congratulate Prime Minister Malcolm Turnbull on it.
In the US alone we know, because foreign actors have to declare this stuff, that foreign agents spent more than $2 billion between 2016 and 2020 to influence foreign policy making. The only reason we find out about some of the worst aspects of what happens here is that the big US papers such as The New York Times and The Washington Post report on influence operations happening here if there is a US angle. We know about Oleg Deripaska’s major operation to try to get part of En+ off sanctions and various Members of Parliament—unnamed, obviously—who were helping, but we only know about that because of the Foreign Agents Registration Act.
For me, it is a source of shame that we have to find out about what is happening in our democracy, in the nooks and crannies and dark corners of influence peddling, because of another nation’s laws. We need a good FARA, our own foreign lobbying law—a FOLO or a FARA, whatever people want to call it.
What else do I want to say? It seems to me—
Sir John Hayes
If I may be helpful while my hon. Friend is finding his notes, he makes a compelling case—a case that was made prior to this Bill by the Government and by those who recommended this legislation: the ISC, the Law Commission and others. The issue is how we construct this, how it is included in legislation and in the Government’s proposals, and at what stage we will know more about that. That was rehearsed earlier in the debate, but it is important that we have real scrutiny of that process.
Bob Seely
I am delighted that my right hon. Friend interrupted me just as I was fiddling around with my paperwork. There are two critical points that I will come to very shortly, looking at five potential options for the foreign lobbying and foreign influence element of the Bill, and at whether we go for a light touch, a moderate touch or a deep touch.
We know the situation with the Russians has changed dramatically, although it may change back in future years, but China is now, if anything, a more important case than Russia, because we know that the Chinese Communist party uses state, non-state and quasi-state actors in the same way that Putin’s Kremlin did. The one thing I see immediately on looking at the Bill—maybe the Minister can guide me here—is a lot of references to state actors. Is Huawei a state actor? We have had Ministers claim in this House that Huawei is “a private company”. In a communist, one-party state, a major company that is a front for Chinese technology is not a private company.
What are the Government going to do about the Oleg Deripaskas and the Abramoviches of this world? I know the world has moved on somewhat, but in theory, what are they going to do about rich players who are beholden to dictators in different countries? What are we going to do about the Saudis? They do an awful lot of influencing and influence operations in this country and a great deal of lobbying. They are our allies, but that is not a democracy. To what extent do countries such as Saudi Arabia need to be more transparent about the business they do here?
Both the Kremlin and the Chinese Communist party raise issues not only about politicians—who, for me, are not the most important aspect, and I am not just saying that because I am in Parliament—but about law firms, which are critically important. This is about the power of the finance houses and former civil servants who have expert experience of policy making. It is about the special advisers who work closely with senior Ministers and know how a Secretary of State’s mind operates and how they think.
Those things are, in many ways, frankly more valuable than how a Back-Bench MP or a member of an all-party parliamentary group is going to vote. We need a foreign influence element to the Bill, and my strong recommendation to the Minister is that we need something that is flexible and captures the idea that influence nowadays is not just peddled through people in this House. In many ways, many of the most important peddlers of influence are not Members of Parliament, but people in the civil service, or ex-civil servants, ex-military or ex-politicians—people in that sort of world.
If we are to have a foreign lobbying element, what should we look at? I recommend that we create laws to compel individuals and entities who lobby in the UK for hostile states and their proxies to record that on a national register. The Government accept that. The problem is that previous laws have limited lobbying to “consultant lobbyists”, which is not adequate to the task. We know that hostile states make use of non-lobbyist individuals and entities—those backed by or linked with a state, active in the spheres of academia, economics, culture and the media. Registrable lobbyists should be anyone who influences Government decisions or national policy, and that will therefore include PR consultants, research firms, reputation managers, law firms when they offer additional services, and banks. Law firms in particular have been at the corrosive heart of some of the most corrupting elements of how individual oligarchs have tended to use and manipulate power in the west.
I would also create laws to force foreign Governments to disclose when they spend money on political activity in the UK; that ban foreign Governments or their proxies from providing political, financial and other support during election periods; and that compel foreign Governments and their proxies to label and disclose material and campaigns undertaken in the UK, especially those online. I would make those laws enforceable by criminal penalty. The Government are approaching some of those positions, which is great, but it is the breadth that is important.
On the next element, there are three options. One is a weak regime that treats everyone the same, so the Saudis the same as a Russian oligarch, or Huawei, or the New Zealand tourist board—sorry to bring up that example again. Or the Government could say that they will have a two-tier system with a very light registration for the New Zealand tourist board or the Norwegian salmon producers association, but a much higher degree of form filling and detail giving for Chinese, Iranian and Russian organisations and the potential influencing that they are doing, especially with the United Front. Or do we just have a very deep set of requests for everybody, which would probably result in a lot of unnecessary form-filling? The Goldilocks solution for me is level two, with a light layer of registration for all organisations that are working on behalf of foreign states or their entities, but a much deeper level for named countries, individuals or institutions, including Confucius Institutes.
We should also have a level that understands the importance of making sure that we know what is going on in our universities. When we have PhD students here from China whose sole purpose is to steal as much intellectual property as possible, that is not a good thing. We should at least acknowledge that that is going on.
Sir John Hayes
On that very point, my hon. Friend might want to turn his attention to the Confucius Institutes that are active in several of our universities and may be doing precisely what he says. I will say no more than that, but I regard them—as I hope he does—with a considerable degree of suspicion.
Bob Seely
As ever, my right hon. Friend stays one step ahead of me. We know that the socialist paradise of Sweden has banned the Confucius Institutes, which is a potentially attractive route forward. As several hon. Members have said, transparency is critical.
Just to finish the point about a two-tier system, while we need a light regulatory touch for most foreign entities in this country, the critical element is when would the Government have listed China, for example, for a much deeper level of requirement about proxies and registering interests—state interests and Huawei interests as well? Would they have done it in 2012, before the visit of President Xi? Probably not. Would they have done it in 2016? Would they be under pressure not to use these laws? We need a Government willing to use these laws and willing not to have an entirely laissez-faire system—a Government who understand that, in this day and age, defending our institutions, our democracy and people in this country from covert malign influence is absolutely critical, and that we need to take an approach that is deep in some areas but also broad and that captures all those involved.
Craig Mackinlay
I see that my hon. Friend is about to finish, and I have just got in in time. I understand his desire for both breadth and depth, and he has very clearly identified various actors that would fall within the definition that he desires. However, there are big financial institutions that will at times be guns for hire for countries or institutions abroad, and for such a period their work may be contrary to what this country might like. I think that would be too broad, so what would his interpretation of that be? I am thinking of the big financial institution that perhaps assisted Greece into the euro at the time. It was perhaps a policy that was not great for the UK, but we would not say that it was normally a hostile institution.
Bob Seely
No, my hon. Friend is absolutely right, and that is where the element of judgment comes in. By the way, I thank him for interrupting me. I look forward to the day when colleagues will spot my perorations; we have not quite got to that yet. That is where the judgment of Ministers comes in handy, and I shall leave it at that.
Liam Byrne (Birmingham, Hodge Hill) (Lab)
I apologise to the Home Secretary, who is not in her place, for missing the first 11 minutes of her opening speech.
As I think the Minister will have spotted, there is wide consensus across the House about many of the provisions in this Bill that is matched only by a level of frustration that the Bill has been an awful long time coming. We have been debating the risks of hybrid warfare, from Russia and from others, in this Chamber for at least four or five years. Therefore, having waited so long and having debated so much, I think we are within our rights to have expected a rather more substantial package from the Government.
In the spirit of consensus, which I see is running large in the House today, I hope that we will be able to add substantially to the provisions in the Bill. I do not want to criticise sins of commission today, but I do want to criticise three sins of omissions: in particular, the lack of security in defence for data; the lack of security for our democracy; and the lack of security for those defenders of freedom and those people such as brave journalists who are prepared to name and, where necessary, shame foreign influencers who are at large in our country.
Let me start with data, because it is impossible to talk about espionage in this day and age without talking about information and intelligence, and therefore about data and the channels that move that data between our country and foreign players—the companies that are on the cutting edge of the technology revolution. I am afraid I think there is a very real risk that this Bill will be out of date by the time our sovereign inks her signature on the parchment.
What is well understood by the Americans and the Chinese, and I have to say by our intelligence services, is that artificial intelligence—not simply intelligence, but artificial intelligence—will be the key to the future of warfare and conflict between states. That is why both China and the United States are seeking to be the world leaders in artificial intelligence by 2030. It is also why the head of MI6 warned last year about the risk of countries around the world falling into data traps, because there is very real alarm that the huge datasets necessary to train the algorithms that power artificial intelligence are being exfiltrated from around the world. These are the datasets that train the algorithms that will be absolutely critical in co-ordinating drone swarms, running global surveillance systems, and creating mass information—through the mountains of contents that it is possible to create with artificial intelligence—to fire at the west a fire hose of falsehood to confuse us or, still worse, to divide us.
Sir John Hayes
The right hon. Gentleman is making a compelling point, because there are two implications of what he is describing: the problem of scale and the problem of methodology. The scale of what he is describing will be hard for any single nation to cope with. On methodology, it is hard to conduct covert operations as we have historically against that backdrop.
Liam Byrne
The right hon. Member puts his finger on precisely the lesson that we should draw from allies such as the United States. Today, the United States has a battery of eight types of controls and measures that are regulating and controlling the export of—or, frankly, efforts to steal—technology and data to countries such as China.
The Bill says that it will be an offence to engage in
“conduct…that it is reasonably possible may…assist a foreign intelligence service”.
I am afraid that negligence must be part of that conduct. Our American allies now have: provisions for delisting Chinese firms, which they have applied to companies such as Sina Weibo; an investment prohibition list that has now hit 59 Chinese firms; a ban on share trading; export bans and restrictions that have added scores of Chinese entities to the unverified list, which therefore have tougher rules on receiving shipments from US exporters; an export ban; provisions for revocation of trading licences; data controls, which first President Trump and then President Biden ordered; and, of course, targeted sanctions. My question for the Minister is: where is the similar framework for the United Kingdom? We are now in grave jeopardy of a control gap emerging between the United Kingdom and our closest ally.
When I tabled parliamentary questions on those eight different measures to the Government asking where our similar framework was, I got a lot of waffle from the Under-Secretary of State for Business, Energy and Industrial Strategy, the hon. Member for Sutton and Cheam (Paul Scully). I then asked the Government what controls are in place on nine of the 1,100 key companies now controlled in some way, shape or form in the United States: those such as Huawei, ZTE, Hikvision, Hytera and Alibaba through to China Unicom—I will not go through them all. Despite our adding China to the UK arms embargo list earlier this year, the only one company that the Minister could name that is subject to UK controls was Huawei.
I am afraid that we are now at risk of a control gap, and we are still behaving as if we believe in free movement of weapons-grade intelligence. That is presumably why individuals such as Clive Woodley, funded by the UK university system and the Ministry of Defence, are still wandering around organising conferences on weapons in China. Given the poor job that the National Security Council did on co-ordinating complex operations such as the evacuation from Afghanistan, I am seriously concerned that the Government lack the capacity to co-ordinate the Treasury, the Department for Digital, Culture, Media and Sport, the Department for International Trade, the Department for Business, Energy and Industrial Strategy and the intelligence agencies in controlling what needs to be controlled. I would like to see a duty on Ministers to report to the House on companies of concern, particularly those operating from countries where we have arms embargoes, with clear measures to control them.
Bob Seely
The right hon. Member is, as ever, coming up with some interesting ideas. Are those ideas for this Bill, or would they have been better in the National Security and Investment Act 2021 or potentially be better in the upcoming economic crime Bill II? They may fit more naturally into other laws.
Liam Byrne
I leave that to the judgment of the House in the debates that we have, but we must make the framework coherent, because, frankly, it is not coherent today.
My second point is about the defence of our democracy. The Chair of the Intelligence and Security Committee, the right hon. Member for New Forest East (Dr Lewis), was absolutely right to flag the fact that we have needed a defence of the integrity of our democracy at the core of our strategy for a long time. I called for it back in 2018, but right now, neither the Electoral Commission, nor the Advertising Standards Authority nor Ofcom has the power to regulate adverts placed on social media. People can therefore get away with ads on social media that could never be placed on television. Facebook, as all of us know, is like a wild west. There are also no constraints on what parties can spend in between elections, which allows people to surge investments in politics between elections, and there is no control to stop unlimited donations to political parties from abroad if they are laundered through the bank account of a British citizen.
Bob Seely
Is the right hon. Gentleman aware of the GRU and the Internet Research Agency placing adverts on Facebook and other social media sites for pro-gun and anti-gun rallies, and for anti-Muslim and pro-Muslim rallies, taking place in the same towns on the same day in the United States, designed specifically to incite violence and bloodshed?
Liam Byrne
Perhaps no one in this House has done more than the hon. Gentleman to expose the hybrid warfare and divide-and-rule tactics of Russia, but we are wide open to them, not least because a person can give unlimited amounts of money to political parties if they are laundered through the bank account of a UK citizen. Call it, if you will, the Sheleg manoeuvre.
Ehud Sheleg, no doubt an honourable man, has given £3.3 million to the Conservative party, yet The New York Times revealed that a suspicious activity report from Barclays flagged that £2.5 million moved to Mr Sheleg from his father-in-law in Russia wound up in a UK account that then shifted £450,000 to the Conservative party. The New York Times reported that Barclays flagged the SAR with this statement:
“We are able to trace a clear line back from this donation to its ultimate source… Kopytov”—
the father-in-law—
“can be stated with considerable certainty to have been the true source of the donation.”
Along with a number of other hon. and right hon. Members, I flagged this to the National Crime Agency. A day or two later—the NCA did not spend an awful lot of time looking at this—a letter came back from Steve Rodhouse, its director of operations, which stated:
“As you will be aware, provided a donation comes from a permissible source, and was the decision of the donor themselves, it is permitted under PPERA. This remains the case even if the donor’s funds derived from a gift from an overseas individual.”
That is utter nonsense. It is completely ridiculous. No doubt Mr Sheleg is an honourable man, but the Sheleg manoeuvre could be exploited by all kinds of bad actors.
Finally, we in this House have defended a number of extremely brave journalists and former colleagues, such as Catherine Belton, Tom Burgis, Arabella Pike and Charlotte Leslie, who have all risked everything to raise a red flag about bad actors and threats of foreign influence, yet their thanks have been to be hounded in court by oligarchs who seek to rack up hundreds of thousands of pounds in legal bills to deter such people from telling the truth. If we are to defend whistleblowers, and I am pleased to see that provision in the Bill, surely this is the moment for the House to unite in refining, if not legislating for, a defence for people who make arguments that need such a defence.
We are in new times, and the return of great power competition is upon us. We need new defences, and this Bill is a chance to make good some of those defences now.
Mr Deputy Speaker (Mr Nigel Evans)
On his birthday, last but not least, Steve Baker.
Mr Steve Baker (Wycombe) (Con)
Thank you very much, Mr Deputy Speaker. It is a wonderful birthday present to rise to support the Government on this important and interesting legislation, which I am grateful to have had the opportunity to study and read around. In fact, it has been interesting to discover just how much one can learn about the work of the security and intelligence services.
Before going any further, it is worth taking this opportunity to say that, as a Member of this House and, indeed, as a former member of the armed forces, I have always believed our default position should be to stand with the police, the armed forces and the defence and intelligence services, which seek to secure our freedoms, to keep us safe and to work in the public interest.
When thinking of where I might find words to praise them, I went back to the 2016 report from the Intelligence Services Commissioner, the right hon. Sir Mark Waller. It was his final report before the institution was superseded, and he said in the executive summary, on page 5:
“I would like to record that the United Kingdom is extremely fortunate with its intelligence agencies. They combine an extremely high level of operational competence with a collaborative approach and a respect for the law which makes them trusted and respected internationally.
The UK Intelligence Community’s attitude to ethics in general, and legal compliance specifically, is impressive and reassuring. While there is some legal debate about certain powers, I have never seen any evidence that the agencies institutionally would knowingly break the law… In terms of my inspections, I have found that the substantial compliance teams in each organisation and the relevant departments of state think deeply about the application of executive power and the intrusion into the privacy of its citizens. Everyone I inspect approaches the process in an open manner. Indeed, rather than hiding problems, they are often proactive in raising the most difficult issues with me.”
I was very reassured to read those words from the former Intelligence Services Commissioner, who was responsible in Government for supervising the intelligence services. Indeed, I think all of Government could learn from that culture of compliance.
The point that I am trying to make is this. In this Bill, once again we are handing very significant powers to agents of the state that they will then use with some degree of discretion; I will come to specific examples later. That is why it is vital that from the top to the bottom, the entirety of Government is led with a spirit of compliance with the law—a compliance culture. The document—admittedly, a 2016 report—goes on to talk about some of the risks inherent in the security and intelligence services, and some of the safeguards that are in place. It is all very reassuring. Indeed, the later Investigatory Powers Commissioner’s most recent report also includes a number of important points about safeguards.
Let me turn to some specific points. We have already had a pretty good canter around clause 23, but as my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) said, it is worth pointing out that it is a widely drawn clause. We all have to be sensible and mature in recognising that our work overseas through the Secret Intelligence Service is bound to seek to procure just some of those things in the explanatory notes that we are making criminal offences in the UK. We have to be realistic that when we are furthering our own interests—sometimes against hostile powers—we need to give people this waiver in relation to seeking to procure offences overseas.
Of course, the security services must be able to encourage and assist offences overseas, particularly when it is deemed necessary, but deemed necessary by whom? The particular point I want to make about clause 23 that has not been made is that when one goes through the commissioner’s various reports, one can see there is a fairly widespread use of so-called section 7 thematic warrants, within which SIS in particular can operate with a fairly wide degree of discretion and with internal controls on what is done. That means that a person like me, who is always instinctively wary of powers given to the state, must trust that institutions not open to all of us to scrutinise have processes in place; and, as I have said, we can be reassured that they do have very robust and important processes, and a great culture of compliance with the law.
But what would happen if, God forbid, one day this country was led by somebody at the very top who did not have a strict culture of compliance with the law? I think I have made it clear how I voted tonight. And what if, after a period, that culture of non-compliance in No. 10 Downing Street were to permeate throughout the whole apparatus of the state? What if the machinery of government was changed so that supervision of the intelligence and security services was moved within No. 10—just for example, since that is proposed; or has it happened? It is certainly on the cards.
I am extremely wary of a clause drawn this widely in the context of thematic warrants. I should also say, with great respect to SIS, that there is within the commissioners’ documents—the most recent and the 2016 document—evidence of, shall we say, sparse record-keeping, which has not always served the institution well, particularly in relation to rendition, to which I will come. I therefore hope that my right hon. Friend the Security Minister will not mind my saying that there are extremely good reasons for drawing clause 23 a bit tighter, including defending the integrity of the institutions, and our brave men and women within them who defend us. There seems to be a general consensus that that should be done, so I hope that he will look carefully at clause 23.
The next point I wanted to make was about the 1989 Act, but we have cantered around that, so I refer to my earlier remarks; the issue of damage needs to be dealt with.
Let me turn to STPIMs. As I said to my right hon. Friend the Home Secretary, I remember when TPIMs were very controversial in this place. I think the principle involved in TPIMs and STPIMs is now water under the bridge: the point has been conceded and we have all moved on. I do not like fuzzy justice—to me, the idea of restraining somebody’s liberties without a conviction undermines the rule of law as it is generally understood—but okay, we have plenty of safeguards, so now the devil is in the detail. It will require minds more learned than mine to propose amendments to STPIMs to ensure adequate safeguards.
The reason why I am so interested in the Bill relates to the general assault on liberty that we saw after 9/11. As a former member of the armed forces, I thought that there were certain ultimate values that we were willing to fight and die to defend, and that we were compromising those values by giving the state the power to restrict liberty without a conviction—that is one of the reasons I came here. Well, I have to admit that I have lost that argument. It is water under the bridge, but it is a pretty important argument to have lost, so as part of reversing that assault on liberty post 9/11, I look to the Government and learned minds outside to ensure adequate safeguards in relation to STPIMs.
Bob Seely
I understand that my hon. Friend is talking about STPIMs, but more generally, does he see the Bill as beneficial to liberty overall? I do, because by doing something about covert and malign lobbying, we will increase transparency and integrity in our decision-making apparatus in this country. Does he share that opinion?
Mr Baker
My hon. Friend makes his point extremely well, but I hope he will not mind if I say that I do not want to be diverted to that subject, not least because I want to foreshorten my speech a little.
My other point about STPIMs relates to the introduction of polygraphs, which is an area that I have not had the chance to research as much as I might have liked. Can my right hon. Friend the Minister let us know whether this is the first time that we have legislated for their use or whether a new principle is being introduced into our law? Polygraphs are not perfectly reliable. I have read the explanatory notes, but I wonder whether their introduction is an innovation.
I am really concerned about the development of certain trends in the rule of law, as evidenced in arguments that I have made. As a result of the Online Safety Bill, we now have the concept that some speech is legal but harmful, which seems to me a fuzzy concept of what is and is not allowed in law. That is not where I want our country to be, but I accept that I am not a learned mind in this place—I am only a humble aerospace and software engineer, and an MSc in computer science does not always cover such difficult matters of fuzzy logic.
The main issue that I want to address is about extraordinary rendition. Schedule 3, “Detention under section 21”, in part 1, “Treatment of persons detained under section 21”, under the cross-heading “Place of detention”, states:
“(1) The Secretary of State may designate places at which persons may be detained under section 21.
(2) In this Schedule a reference to a police station includes a reference to any place which the Secretary of State has designated under sub-paragraph (1) as a place where a person may be detained under section 21.”
Putting it in plain English, the Secretary of State may make provision to detain people other than at police stations, and constables must take those people to those places. Colloquially, when we were looking at extraordinary rendition, those places were known as secret prisons. I would very much like to know from the Minister why we need to nominate other places to detain people. Will they be detained to the same standard as in a police station? I would very much expect so. What are these places? I am aware of some of them, but where are they, and for what reason can people not be detained at a police station?
That point brings me on to extraordinary rendition. Look at what happened to us after 9/11—the wars we waged, the principles of civilisation and freedom that had kept us free and given us something to be proud of and to fight for, and which we undermined. “The Principles relating to the detention and interviewing of detainees overseas and the passing and receipt of intelligence relating to detainees”—a Government document that is freely available—makes it absolutely clear that the
“UK Government does not participate in, solicit, encourage or condone unlawful killing, the use of torture or cruel, inhuman or degrading treatment (‘CIDT’), or extraordinary rendition. In no circumstance will UK personnel ever take action amounting to torture, unlawful killing, extraordinary rendition, or CIDT. The UK takes suggested incidents of this kind very seriously: these allegations against UK personnel are investigated and complaints in this context are brought to the attention of authorities in other countries”.
Having bumped into some relevant officials, I am extremely satisfied that we take this very seriously.
Going back to the earlier commissioner’s report that I read out, I am absolutely not casting aspersions on our brave and honourable staff, every one of whom, on the few occasions I have met them, I have been incredibly impressed by. I believe that they are seeking to uphold the very highest standards. That is why I put it to my right hon. Friend the Minister that this Bill would be a great moment to put these principles on a statutory footing. In that way, in future, when there is another panic over terrorism and security under another Government who are perhaps not as strongly principled as this one—perhaps with not quite the same culture at the top of adherence to and compliance with the law—we can all be reassured that we will not allow ourselves to come on to conduct that I will touch on in a moment.
Mr Kevan Jones
Since the issue of rendition, we have had the consolidated guidance and now we have the principles where the warrants are overseen by the Investigatory Powers Commissioner. Having reviewed the principles in terms of the ISC, it is clear that they are quite robust not only in the safeguards they give but in training people throughout the organisation to ensure that they adhere to them.
Mr Baker
I have read enough of the various documents to know that the right hon. Gentleman is absolutely right, and I am glad to agree with him.
I do not want to open up too many old wounds, but I have read the excellent book, “Account Rendered”, by the now Lord Tyrie, which includes some purportedly declassified top secret documents on how the CIA conducted their interrogation techniques. I very much hope that Ministers responsible have read those documents, because I found it quite nauseating. I am ex-forces. If you are ex-forces, then at some time in your life you are actually committed to killing our enemies, but even so I found it nauseating to see just how degrading authorised American interrogation techniques could be. The list of what they would do includes the attention grasp, or grasp by collars; walling, or slamming people against a false flexible wall; the wall standing stress position; the facial hold; facial slap stress positions; waterboarding—I think we can pretty clearly be disgusted by that—and cramped confinement, including putting insects in a box with a person who you know has a phobia. Imagine combining all these things using nudity, control of diet and restraint, putting them all in sequence deliberately for prolonged periods. That is what the declassified documents in “Account Rendered” give an account of.
I completely agree with the right hon. Member for North Durham (Mr Jones) that these principles are absolutely robust, and I am 100% certain in my own mind that our brave officials—men and women good and true, noble and decent—would never want, in any sense, however distant, to be complicit in extraordinary rendition for the purpose of degrading treatment. I am absolutely clear about that. But our job in this House is not to simply trust the great and good people that we have today; it is to put in place a law that makes sure that in future everyone can understand that we do not do these things, not least because showing that we are on the right side of the argument will help us to recruit agents overseas.
I am dead serious about this. It is no reflection on my very high estimation of the people who serve us and keep us safe; it is about worries about the future when there is another panic about another terrorist attack. I say to my right hon. Friend the Minister: if public-spirited lawyers draw up clauses that can put these excellent, robust principles on a statutory footing, I will certainly seek to maximise support for it, because in future we must make sure that no Government of any colour can ever discredit our great people by raising even the slightest suspicion that we might have been even distantly complicit in cruel, inhumane and degrading treatment of prisoners.
Holly Lynch (Halifax) (Lab)
It is a pleasure to follow the detailed and powerful contribution by the hon. Member for Wycombe (Mr Baker). It is an honour to close this debate for the Opposition. While all debates in this Chamber carry weight, no legislation can be more serious than that which concerns our national security.
Before moving to the substance of the debate, which has been exceptionally well informed and well managed, I want to pay tribute to our security services and police forces who worked so hard to make sure that the platinum jubilee could be celebrated safely, as it should be, this weekend. I have never been prouder to be part of our great nation than when seeing and taking part in the celebrations this weekend. From street parties across our communities, the lighting of beacons and the celebration of the emergency services at the magnificent Piece Hall in my constituency to the world-class performances and execution of the Platinum Party at the Palace and the royal pageant, it has been a people-powered celebration to mark 70 years of Her Majesty the Queen’s loyal service to the country. She has provided a masterclass to all of us in public service.
Yet behind those celebrations was a policing and security operation like no other in recent history. I was grateful to the Metropolitan Police’s gold commander, Deputy Assistant Commissioner Barbara Gray, for briefing on those efforts last week. I pay tribute to those on duty this weekend on the frontline of keeping us all safe. The police and security services work around the clock, ever-vigilant to the constantly evolving threats that we face as a country, whether in times of national celebration or on any other day of the week. We are truly grateful for their service, their bravery and their sacrifice.
As outlined by my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), the shadow Home Secretary, in her opening contribution, we welcome the National Security Bill, which builds on the recommendations of the Intelligence and Security Committee and the Law Commission and delivers long-overdue updates to our current legislation. As threats and technologies have evolved and been exposed, so too have the gaps in the legislative defences necessary to keep our country safe from hostile state threats.
As my right hon. Friend outlined, however, the Bill still poses a series of serious questions as we seek to work through the detail. There are measures that we expected to form part of the Bill that are missing, as well as genuine questions about the oversight of the powers within it and the appropriate scrutiny of how and when those powers are used.
The measures proposed in the Bill have been a long time coming; the Chair of the Intelligence and Security Committee outlined just how long some of the measures in the Bill have been called for. The Home Secretary raised the appalling 2018 Salisbury poisonings and the need to update our laws to provide the legislative cover necessary in the face of the contemporary threats we face as a nation. While Russia’s illegal and despicable invasion of Ukraine has certainly focused minds, it would be wrong to say that the provisions in the Official Secrets Act became outdated overnight.
In his annual threat update, MI5’s director general Ken McCallum stated:
“The Official Secrets Act 1911…remains a cornerstone of our espionage legislation…in 1910, just six months into MI5’s existence, founding Director General Vernon Kell included in his first progress report a plea for strengthening the Official Secrets Act, as it was proving hard to prosecute espionage cases. Kell’s push led to the Official Secrets Act 1911…it is now—obviously—hugely out of date.”
Our security services need to have confidence in the legislation that underpins their vital work. They need a justice system that is ready and able to respond to those they identify and expose as acting on behalf of hostile states and to the tradecraft of their intelligence operatives.
I assure the Government of our commitment to engage constructively as we work to fortify the Bill, so it successfully ensures that the UK’s law enforcement and intelligence community has the modern tools, powers and protections that it needs to keep us all safe. In turn, however, we expect to be heard in the same spirit when we raise genuine concerns and issues. I suspect that it will not come as a surprise to the Minister when I say that perhaps the most glaring omission from the Bill is the absence of a foreign agents register. As hon. Members have already said, particularly those who have served on the Intelligence and Security Committee, not least my right hon. Friend the Member for North Durham (Mr Jones), it was promised by the Government in 2019 and repeated formally in the 2021 integrated review. Britain is lagging behind its allies and Five Eyes partners Canada, America and Australia, who all have variations of such schemes in place.
As recent events have unfortunately shown, a register is urgently required to ensure that individuals in this House, and leaders and decision makers across the country, know whether the lobbyists, PR firms or other professionals they encounter are acting in good faith to further genuine business interests or causes, or are instead acting on behalf of hostile states. I was particularly interested in the contribution of the hon. Member for Isle of Wight (Bob Seely) and some of his detailed proposals on that. As the notion of elite capture increasingly becomes a form of creeping corruption that all MPs and decision makers have a responsibility to steel themselves against, the legislation before us fails to deliver the transparency and clarity that a register would bring in assisting lawmakers and others in high office to protect themselves from becoming soft targets for those acting on behalf of foreign states.
I am grateful to the Minister and his officials for their time last week. Further to the words of the Home Secretary in her opening remarks, it is our understanding that the Government intend to introduce a foreign agents register in the form of a Government amendment to the Bill later in its passage through Parliament. I stress, as others have, just how vital it is that both Houses have the opportunity to scrutinise any such scheme. I therefore urge the Government to grant both the House and such a substantial addition to the Bill the respect they deserve and to bring forward plans for the foreign agents register before the Commons Committee stage, so that we can all do our due diligence in considering the proposals effectively before we get into the somewhat relentless intensity of line-by-line scrutiny of the rest of the Bill. Almost everyone who contributed to the debate made that point.
In addition to the absence of a foreign agents register and reform of the 1989 Act, we are surprised that the Bill does not go further to tackle head-on the online misinformation and disinformation that is being peddled by countries that seek to undermine us—a point also made by the hon. Member for Folkestone and Hythe (Damian Collins). It has been well documented that for many years now the Russian state has regularly pushed disinformation on social media, as part of its strategy to sow division and stoke tensions in the west. Information on one so-called Russian troll factory was reported in 2017, when journalists identified 118 accounts or groups on Facebook, Instagram and Twitter that were linked to the troll factory. The so-called trolls had contacted around 100 real US-based activists to offer financial help to pay for transport or printing costs to support their protests and action relating primarily to, as we have heard, race relations, Texan independence and gun rights.
Rather than support one side of a particular issue or debate, the troll factories typically encourage and offer financial assistance to groups from opposite ends of the political spectrum to amplify divisions. Disinformation has also been a facet of the Russian invasion of Ukraine. A special cybersecurity report from Microsoft found that in the run-up to the invasion Russian actors used disinformation on social media in an attempt to destabilise the Ukrainian Government and Ukrainian society. Just this weekend, The Times reported on how Kremlin trolls are stirring up anti-Ukrainian refugee sentiment online in Bulgaria, and they are no doubt attempting to do the same elsewhere.
Although there are clauses in the Bill that could offer some relevant new powers in very general terms, we are surprised that neither the Online Safety Bill nor this Bill present measures that are aimed at exposing the aggressive online activity I have described, addressing its scale, disrupting it and stopping it at source. We hope that, during the Bill’s passage, we can work together to enhance such measures. Given the evidence base and societal impact, a failure to do so would be a regrettable and massive missed opportunity.
Because of the Bill’s nature, it inherently gives new statutory powers to the police, security services and the Home Secretary. Labour recognises the requirement for the new powers in principle; nevertheless, it is important that within a mechanism that grants such powers there are appropriate safeguards and accountability. We firmly believe that the legislation would benefit from much more clarity on the face of the Bill about the appropriate scrutiny and oversight from either a relevant commissioner or independent reviewer.
As the Minister knows, we have engaged with him and his officials on our serious concerns about the drafting of clause 23, and I am grateful for the note he shared today with me and my right hon. Friend the shadow Home Secretary in response to those concerns. My hon. Friend the Member for Garston and Halewood (Maria Eagle) gave a typically detailed rebuttal of why clause 23, as currently drafted, is necessary, given the existing legislation. I hope the Minister will respond to her and to so many others when he sums up.
In addition to the introduction of a foreign agents register, we believe more needs to be done to protect the Government and their officials from becoming the potential targets of hostile states actors—much in the same spirit as the issues raised by my hon. Friend the Member for Rhondda (Chris Bryant). I am afraid there are outstanding questions about the conduct of the Prime Minister—if he still is the Prime Minister; he certainly was when I got to my feet—when he served as the Foreign Secretary, and I have written to the Minister about them.
I have asked questions at this Dispatch Box and tabled written parliamentary questions, simply asking whether the Prime Minister met the former KGB officer Alexander Lebedev in April 2018. The House deserves to know what happened, because if the then Foreign Secretary did not understand how inappropriate such a meeting would be—without officials and without close protection officers—at the height of the Salisbury poisoning, we need legislation that is unequivocal in its clarity. We will therefore table amendments to the Bill to address any such lapses in judgment, which stand to have consequences for our national security, while we await answers from the Government as to exactly what did happen in April 2018.
Once again, we in the Labour party are unwavering in our commitment to keeping the country safe. We will work with the Government to support these measures where they are right and overdue, and we expect to be heard and to be able to work together where opportunities for enhanced protections and greater oversight are necessary, appropriate and responsible. We look forward to Committee stage.
The Minister for Security and Borders (Damian Hinds)
National security is the first and foremost responsibility of any Government, and for that reason I warmly welcome the thorough, insightful and eloquent fashion in which colleagues on both sides of the House have made their contributions this evening. I join the Home Secretary, Opposition Front Benchers and colleagues from right across the House in putting on the record at the start of my remarks my admiration for our security services and for law enforcement, particularly at the end of this most marvellous jubilee celebration.
The threat of hostile activity from foreign states is persistent, but it is not consistent. As a result of technological change and the greater interconnectivity of the world, among other factors, that threat manifests in ways more diverse and often more sophisticated than ever. We must therefore equip our world-class law enforcement and intelligence agencies with modern tools and powers commensurate to that challenge, and this Bill enables us to do exactly that. This is not just about the here and now. The Bill is designed to be future-proof, so that we can harden our resilience against these threats today and for years to come. We have a responsibility to ensure that our systems and laws are agile, effective and robust, and that is what this legislation is about.
The bulk of the Bill is about countering state threats, and a critical aspect of parts 1 and 2 is the link between the activity covered and the foreign state. That is vital in ensuring that the provisions in the Bill are appropriately constrained to state threats and do not capture legitimate activity or non-state criminality, as has been mentioned a number of times during the debate. The foreign power condition could be met in two scenarios: first, where an activity is carried out that a person knows, or ought reasonably to know, is for or on behalf of a foreign power, and that includes a wide range of different types of relationship, including activity at the request or direction of a foreign state; and secondly, where an activity is carried out with the intention to benefit a foreign power, and that includes cases where a person’s primary motivation may be, for example, financial, but where there can be virtually certain knowledge that a foreign power will benefit.
Three new offences in the Bill will combat the modern threat from state-linked espionage and related harmful conduct. Those are a new protection of trade secrets offence, which might otherwise be known as economic espionage; a new assisting a foreign intelligence service offence; and an offence of obtaining, or disclosure of, protected information where it is for, or on behalf of, a foreign power and where the individual ought reasonably to have known that their conduct was prejudicial to the safety and interests of the United Kingdom.
Let me turn to the points made by colleagues in the debate. I will try to get through as many of them as possible, but I will concentrate particularly on the themes that came up a number of times. Let me start with something that is not in the Bill—I will have to beg your indulgence, Mr Deputy Speaker—although I would say that it is in scope for the debate because it came up so many times, and that is the Official Secrets Act 1989. Colleagues will have heard the Home Secretary say earlier that we continue to look at the 1989 Act, acknowledging the difficult aspects therein. We wanted to prioritise and press ahead with the wider package of measures before us to tackle state threats and to be able to do so now.
I also want to talk specifically about the public interest defence, which was raised eloquently by my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland) and others, but before I do I just want to clarify how all these different things fit together. We talk about whether we are or are not reforming the Official Secrets Act, but of course there are four Official Secrets Acts, and we are reforming the Official Secrets Acts of 1911, 1920 and 1939—we are not, in this Bill, reforming the Official Secrets Act 1989. The Law Commission’s recommendations on a public interest defence came in the context of discussing overall reform of the Official Secrets Act 1989, and they have to be seen in that context.
It is important to note that using the term “public interest defence” does not of itself mean that, on balance, something is in the public interest. I suggest to the House that the existence of any public interest defence would without doubt lead to more unauthorised disclosures. It is impossible for an individual at that moment to have the full picture of what harm could come from their disclosure. That point can be exploited by people who have malicious intent.
Several hon. Members rose—
Damian Hinds
My word, what choice! I will give way to my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland).
Sir Robert Buckland
I am extremely grateful to my right hon. Friend. He is right to caution against the danger here, but a carefully calibrated reverse burden defence deals with the mischiefs that he rightly outlines. None of us wants to see Julian Assange and his type carry sway here; we just think that we need to do something before it is done to us. That is the point.
Damian Hinds
I hear what my right hon. and learned Friend says, and I fully acknowledge not only his legal expertise overall, but specifically how much thought he has put into this subject and how he has written upon it.
Stewart Hosie
Will the Minister accept then—this point was made in the debate—that having the independent statutory commissioner receive information, so avoiding it being put into the public domain, is as important a part of the package as the public interest defence itself?
Damian Hinds
I give way to my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes).
Sir John Hayes
I am grateful to the Minister. I hear what the right hon. Member for Dundee East (Stewart Hosie) says. It is a compelling case, although I do not agree with it. The Official Secrets Act 1989 deals with the unauthorised disclosure of sensitive information by civil servants; giving information to journalists; a WikiLeaks-type disclosure dressed up as being by a guardian of liberty or some such other nonsense. This Bill does not deal with that unless those people are working directly for a foreign power. They might not be working directly for a foreign power, but they might be aiding a foreign power or acting indirectly for such a foreign power, and surely that needs to be included in the Bill.
Damian Hinds
I will come back to my right hon. Friend’s point in a moment. To the point that the right hon. Member for Dundee East (Stewart Hosie) made, our position is that a public interest defence is just not the safest and best way for people to make disclosures, for some of the reasons I gave a moment ago.
Damian Hinds
If my right hon. and learned Friend will forgive me, I will not.
The existence of a public interest defence could mean that damage from the original disclosure could be compounded by further disclosures that had to be made to argue against and defeat that use of the public interest defence. That could itself then in turn be misused and mean that in some circumstances, even where there were egregious breaches of the law, in effect they could not be prosecuted. That is why, to respond to the point made by the right hon. Member for Dundee East, it is important that we look at the safe and proper channels and methods for making disclosures, where that is important, and there are times when it is. We are looking carefully at that.
To come back to my right hon. Friend the Member for South Holland and The Deepings—this is an important point in general—the defences in part 1 of the Bill provide law enforcement with several options for prosecuting disclosures where the person is acting for or on behalf of a foreign power or where the disclosure would materially assist a foreign intelligence service. That can include bulk disclosures. To be clear, with this Bill, the maximum sentence for an indiscriminate disclosure—a bulk data dump—will be higher than it is today if that act is done for a foreign power or the disclosure would materially assist a foreign intelligence service, even if not procured by that foreign intelligence service itself.
Damian Hinds
Prosecuting authorities have to make judgments. The Bill is specifically about national security, but within that it is about countering state threats. It gives us a whole new set of tools and weapons to add to our arsenal, and, notwithstanding the right hon. Gentleman’s body language, I think that that is much to be welcomed.
My hon. Friend the Member for Wycombe (Mr Baker) asked a specific question about police stations. Because of the new arrest power in the Bill that can last up to 14 days, the Secretary of State may be required to designate specialist sites to meet the operational need, but I want to reassure my hon. Friend that this has nothing to do with extraordinary rendition. The provision mirrors those in the Police and Criminal Evidence Act 1984 and the Terrorism Acts to ensure that appropriate facilities are available. However, it is not possible to designate such a place outside the United Kingdom. The Government are clear about the fact that torture, mistreatment and arbitrary detention are contrary to human rights law.
Mr Steve Baker
Will my right hon. Friend give way? I did ask another question on this point.
Mr Baker
I am grateful to my right hon. Friend. The other question was, where are these sites, and why are they necessary? What is the standard of the places in which people are being detained? I could name some forts and other secure places owned by the Army. Is that what we are talking about, and if so, why?
Damian Hinds
I do not think that this is an appropriate forum in which to discuss the detail of such measures, but I hope I can reassure my hon. Friend on that particular point. As I have said, this is to allow for cases in which such capacity is required owing to operational need, and it cannot be outside the United Kingdom.
A number of Members on both sides of the House have referred to the so-called STPIMs. These are a tool of last resort to prevent, restrict and disrupt an individual’s involvement in state threats activity. In the most serious cases, that could include restricting where an individual can reside, whom they can associate with, and where they can work and study. An STPIM will be used when intelligence exists to confirm that highly damaging threat activity is planned or being undertaken but prosecution is not realistic. As my hon. Friend said, with such measures it is extremely important to have the appropriate safeguards.
I want to reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) that STPIMs will not be imposed through ministerial decision making alone. There will be a process through the courts. A decision by the Secretary of State to impose an STPIM, once they are satisfied that the five conditions set out have been met, will be referred to a judge, and the court’s permission will be sought before an order can be made. The court is specifically tasked with checking that the ministerial decision is not flawed.
My right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) and others spoke about civil legal aid for terrorists. Through the Bill, we will take action to restrict access to civil legal aid in England and Wales for individuals convicted of terrorism or terrorism-connected offences since 2001. However, I can assure my right hon. and learned Friend, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), the hon. Member for Garston and Halewood (Maria Eagle) and others who have spoken about this that the restriction of access of civil legal aid applies only to offences involving a sentence of more than two years. In any event, all individuals subject to the restriction can apply for exceptional case funding, and applications will be assessed according to the legislative framework of whether an individual’s human rights may be breached without legal aid. The type of terrorism offence that had been committed would not have bearing on the exceptional case funding decision.
I need to spend a couple of minutes going through the amendments to the Serious Crime Act 2007, an important subject that a number of colleagues have brought up, including my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and my hon. Friend the Member for Wycombe. The context, of course, is that our intelligence and security services and armed forces do and must work in close partnership with international partners to maximise UK capabilities and their ability to protect national security on our behalf. A key part of that is sharing intelligence and data to support joint objectives.
However, it is possible that such intelligence, when shared in good faith and in accordance with all domestic and international law, could still be capable of contributing, even in a very small or indirect way that was not intended at the time it was shared, to an international partner’s engaging in activity that the UK would not support. The Serious Crime Act 2007 creates an offence where an act is done that is
“capable of encouraging or assisting…an offence”.
That means that in this scenario there is a risk of individuals facing criminal liability, even when they have operated in good faith and in accordance with the guidance and proper authorisation.
Put simply, the Government believe it is not fair to expect the liability for that unforeseen eventuality to sit with an individual officer of our intelligence services or member of the armed forces who is acting with wholly legitimate intentions. Instead, the liability should sit with the UK intelligence community and the military at an institutional level, where they are subject to executive, judicial and parliamentary oversight. The amendment at clause 23 therefore removes that liability for individuals, but specifically only where the activity is necessary for the proper exercise of the functions of the security and intelligence services or the armed forces. It does not remove liability at an institutional level for any activity.
Sir Jeremy Wright
As my right hon. Friend knows, I think there is no dispute across the House that some protection should be available for individuals in those circumstances. The question we have been asking is how different what clause 23 provides for is from what already exists in law. Clause 23 will ask for consideration to be given of whether there has been a proper exercise of a function. That must logically, therefore, relate to the behaviour of an individual, must it not?
Damian Hinds
My right hon. and learned Friend anticipates my next point to some extent. In instances where an individual has operated in good faith in compliance with domestic and international law and all proper process, they would then not face the risk of liability under the 2007 Act for something they could not have foreseen. In effect, we are adding greater certainty and specificity to an existing defence—the reasonable defence contained within that Act—by detailing scenarios where the offence will not apply, whereas the current defence is untested and imprecise.
The amendment means that, where an individual is working properly on behalf of our intelligence and security services and armed forces with an international partner to protect national security, they do not personally risk criminal liability if their work is later found to have been capable of contributing to unlawful activity in a way they would not have intended. That risk should remain with the Government, the services and the armed forces at corporate level, and that is what this amendment seeks to ensure.
A number of colleagues have raised the question of disinformation. They are correct that information operations are now a firm feature in the set of devices available to hostile states. There is direct disinformation, where talking points are put out on those states, on foreign affairs or on our domestic politics and society, but there is also the terrible technique of indirect disinformation, which is not necessarily intended to make anybody believe a particular line or narrative, but is simply aimed at causing division and discord in our country, to undermine our democracy and the cohesion of our society.
This Bill deals with people who carry out disinformation for a foreign state, but I want to be clear that legislation on the material itself belongs in the Online Safety Bill. We are looking at how to amend that Bill to account for disinformation material where that disinformation amounts to foreign interference, so that it can be treated as illegal material.
Liam Byrne
I am grateful to the Minister for giving way, and appreciate the way in which he is stepping through these points. Is an offence created by the provider of a social media platform if it enables someone to spread harmful messages? Does it count as a proxy, in effect?
Damian Hinds
The right hon. Gentleman tempts me to open up a very wide debate, somewhat outside the scope of Second Reading. He is absolutely right to identify the significance of disinformation and wider information operations as undertaken by foreign states and the obvious role of social media in that. The American election of 2016 remains the textbook example—there are plenty of others around the world. What I have set out is the way in which the Bill deals with people doing that on behalf of foreign states. As for platforms’ responsibility for what they do with the material and the steps that they must take—he will know about the principles in the Online Safety Bill not only to remove material but to minimise its presence in the first place—that is rightly subject matter for the Online Safety Bill.
Finally, on the foreign influence registration scheme—this has been raised by many colleagues across the House, including my right hon. Friend the Member for New Forest East (Dr Lewis), my hon. Friend the Member for Isle of Wight (Bob Seely), the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) and others—as the Home Secretary indicated when opening the debate, we are committed to introducing a foreign influence registration scheme through a Government amendment. It is important that we take time to ensure that such a scheme is effective and proportionate in the way in which it counters state-threat activity and protects UK interests. That was a clear message in the public consultation, and we continue to review requirements in the light of Russian attempts to undermine western and European state stability.
If I may say so, my hon. Friend the Member for Isle of Wight illustrated rather well the great complexities of trying to deal with this subject. I absolutely commit to communicating with the Opposition parties and the Intelligence and Security Committee as we introduce this measure. We want to do it as soon as possible, and we absolutely recognise the importance of scrutiny in both Houses. However, I want to make it clear that we cannot commit to doing that for the beginning of the Committee stage; but we want to do it as soon as possible thereafter.
Dr Julian Lewis
The Minister will recall that when I asked for a commitment from the Home Secretary about a Committee of the whole House, she indicated that he might be able to give that commitment when responding to the debate. Will it be a Committee of the whole House?
Damian Hinds
I hear the request from my right hon. Friend. That is a question partly for the business managers and the usual channels, who have heard the request and have to balance it against all the other things that they need to balance for the operation of the House. Overall, I can assure him that I have heard colleagues—him and others—on the importance of having time for scrutiny.
Dr Lewis
We have nearly half an hour. I do not know why this Minister is making such a fuss about the urgency to conclude a debate that is scheduled to run until 10 o’clock if necessary.
For some very unclear reason, the Government decided to introduce what should be a major plank of the legislation not at the beginning, so that we could include a proper debate on Second Reading, but through an amendment, when the process was under way. All we want to know is that the whole House can debate properly something that we have not yet seen, so there must be a Committee of the whole House, otherwise we will have only the meagre opportunity offered by Report. He should not be blasé in dismissing that suggestion.
Damian Hinds
I do not think that I have been blasé in the slightest. I have spent my winding-up remarks trying to cover as fully as I can the various themes—[Interruption.] I have taken quite a few interventions, including, I think, from the right hon. Member for North Durham (Mr Jones), which was important. The decision about the timetabling of debates on the Floor of the House is not mine fully to make. In terms of this debate, I am not trying to rush things at all. Normally, Ministers would take the same amount of time, broadly speaking, as Opposition Front Benchers, and I am simply trying to follow those conventions.
Dr Lewis
One last time: the Minister has taken a lot of interventions about the matters that are in the Bill, but there is a whole tranche that is not in the Bill that will be introduced in an amendment, and he has only briefly touched on that. That is inevitable, because it is not in the Bill. When that tranches comes into the Bill, the whole House should have an opportunity properly to debate it.
Damian Hinds
I am grateful to my right hon. Friend. As I have said, I have heard those points, as, I am sure, have the business managers.
In closing, I want to repeat my earlier thanks to everybody for their insightful and eloquent contributions to this debate. I thank the Opposition and the Scottish National party for the spirit and the attitude with which they have taken part in this debate. I look forward to further debate and scrutiny from them and from colleagues across the House as we go through Committee. These are issues of the very greatest importance for our country and for the Government. The stakes are high. It is about protecting our security and our prosperity. It is about preserving our democracy and our way of life. It is about keeping our citizens safe. This Bill will enable us to achieve those most critical of aims and I commend it to the House.
Question put and agreed to.
Bill accordingly read a Second time.
National Security Bill (Programme)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the National Security Bill:
Committal
(1) The Bill shall be committed to a Public Bill Committee.
Proceedings in Public Bill Committee
(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Tuesday 13 September 2022.
(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
Proceedings on Consideration and Third Reading
(4) Proceedings on Consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.
(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and Third Reading.
Other proceedings
(7) Any other proceedings on the Bill may be programmed.—(Scott Mann.)
Question agreed to.
National Security Bill (Money)
Queen’s recommendation signified.
Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),
That, for the purposes of any Act resulting from the National Security Bill, it is expedient to authorise:
(1) the payment out of money provided by Parliament of:
(a) any expenditure incurred under or by virtue of the Act by a Minister of the Crown; and
(b) any increase attributable to the Act in the sums payable under any other Act out of money so provided; and
(2) the payment of sums into the Consolidated Fund.—(Scott Mann.)
Question agreed to.
National Security Bill (First sitting)
Thursday 7th July 2022
(2 years, 4 months ago)
Public Bill CommitteesRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 7 July 2022 - (7 Jul 2022)
The Chair
Before we begin, I have a couple of preliminary announcements. Hansard colleagues would be grateful if hon. Members emailed their speaking notes to hansardnotes@parliament.uk. Please will you all switch your electronic devices to silent mode? I can see that you have not got teas and coffees, so that is good. Date Time Witness Thursday 7 July Until no later than 12.00 noon Jonathan Hall QC, Independent Reviewer of Terrorism Legislation Thursday 7 July Until no later than 12.40 pm Sir Alex Younger, former Chief of the Secret Intelligence Service; Professor Sir David Omand, King’s College London Thursday 7 July Until no later than 1.00 pm Paddy McGuinness, former Deputy National Security Adviser Thursday 7 July Until no later than 2.40 pm Demos; Henry Jackson Society Thursday 7 July Until no later than 3.00 pm Electoral Commission Thursday 7 July Until no later than 3.20 pm Professor Ciaran Martin, Blavatnik School of Government, University of Oxford Thursday 7 July Until no later than 4.00 pm The Law Commission; the Law Society Thursday 7 July Until no later than 4.20 pm Reset Thursday 7 July Until no later than 4.40 pm Reprieve
We will consider the programme motion on the amendment paper, followed by a motion to enable the reporting of written evidence for publication, and then a motion to allow us to deliberate in private about our questions before the oral evidence session. In view of the time available, I hope that we can deal with those matters formally, without debate. The programme motion was discussed on Tuesday by the Programming Sub-Committee for this Bill.
Ordered,
That—
1. the Committee shall (in addition to its first meeting at 11.30 am on Thursday 7 July) meet—
(a) at 2.00 pm on Thursday 7 July;
(b) at 9.25 am and 2.00 pm on Tuesday 12 July;
(c) at 11.30 am and 2.00 pm on Thursday 14 July;
(d) at 9.25 am and 2.00 pm on Tuesday 19 July;
(e) at 9.25 am and 2.00 pm on Tuesday 6 September;
(f) at 11.30 am and 2.00 pm on Thursday 8 September;
(g) at 9.25 am and 2.00 pm on Tuesday 13 September;
2. the Committee shall hear oral evidence in accordance with the following Table;
3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 14; Schedule 1; Clauses 15 to 20; Schedule 2; Clause 21; Schedule 3; Clauses 22 to 32; Schedule 4; Clauses 33 to 36; Schedule 5; Clauses 37 to 44; Schedule 6; Clauses 45 to 47; Schedule 7; Clauses 48 to 51; Schedule 8; Clause 52; Schedule 9; Clauses 53 to 61; Schedule 10; Clauses 62 to 65; Schedule 11; Clauses 66 to 73; new Clauses; new Schedules; remaining proceedings on the Bill;
4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 13 September.—(Scott Mann.)
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Scott Mann.)
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Scott Mann.)
The Chair
Copies of the written evidence that the Committee receives will be made available in the Committee Room and circulated to Members by email. We will now go into private session to discuss lines of questioning.
The Chair
We are now sitting in public again and the proceedings are being broadcast. Before we start hearing from witnesses, do any Members want to make any declarations of interest in connection with the Bill? I take it that there are no declarations of interest.
Examination of Witness
Jonathan Hall QC gave evidence.
The Chair
We will now hear oral evidence from Jonathan Hall QC, independent reviewer of terrorism legislation. Before calling the first Member to ask questions, I should like to remind all Members that questions should be limited to matters within the scope of the Bill, and that we must stick to the timings in the programme motion that the Committee has agreed. For this panel we have until 12 noon. Could you please introduce yourself for the record?
Jonathan Hall: My name is Jonathan Hall and I am the independent reviewer of terrorism legislation, a position that I have held since 2019.
Scott Mann (North Cornwall) (Con)
Q
Do you agree that utilising the tools made available in the Bill will enhance our ability to deal with the current threats, and give us the flexibility to respond to the changing threat landscape?
Jonathan Hall: Yes, the measures in part 1 and part 2—I will talk about part 3 at some later stage—contain tools that are necessary. I am not a state threats specialist—I am terrorism specialist—but I have had a chance to interrogate officials, and it is clear that there are determined and well-resourced adversaries who will not be put off by a knock on the door to say, “We know what you are up to.” The agencies and the police need measures to prosecute and PIMs—prevention and investigation measures—which are special measures.
Scott Mann
Q
Jonathan Hall: There are two things. First, the official who chairs the review group meetings, which are to decide whether to submit to the Secretary of State that a measure ought to be imposed, or the group which reviews whether they remain necessary and proportionate, needs to be really strong. This is what I have witnessed, I am glad to say, with terrorism prevention and investigation measures. That official has to be able to really hold the agencies in particular to account, and really test and probe what they are saying, both about the intelligence that is being given to the review group and about whether the measures remain appropriate. The first message from the TPIMs is that you need to have a strong chair of the TPIM review group, or the equivalent, the PIMs review group.
The second thing is that one of the experiences from TPIMs is that it is really difficult with connectedness. People who are under those measures can become very isolated, and I think that officials have struggled with whether to allow those people to have smartphones or access to the internet. These days it is very difficult to function as a normal member of society unless you have access to those. One of the lessons that will be learned from TPIMs is how to try to square the circle to ensure that people cannot do bad communications but while also allowing them to function normally in the world with access to normal communications technology.
Scott Mann
Q
Jonathan Hall: First, it is being able to go to the room where it happens—the meetings where these decisions are taken. When I review TPIMs, I have a completely free hand. I am able to interrogate officials and able to see whatever I want. That is really important. I am not just looking at judgments in courts, or just reading documents; I am actually there able to interrogate, test and challenge. That is what I do. Also, I think it is important that Parliament and the public have a sense of what is going on. Regrettably, because legal aid has not been made available in all cases for TPIMs, there are now fewer court cases, so general information about how this important but serious power is being exercised is relatively cut off. The independent reviewer can provide a lot of transparency about how it is operating.
Holly Lynch (Halifax) (Lab)
Q
Jonathan Hall: It has been tentatively mentioned. Obviously, because the legislation has not been passed, I have not been formally asked whether I would do it, but it has been tentatively asked. My answer is that I think it actually is quite a good fit for the reviewer’s job, and I think it probably is right that the person who does the independent review of terrorism legislation should also do the state threats legislation. The reason is that this new legislation is really modelled on terrorism legislation. In crude terms, the concept of the foreign power condition sits in place of the purposes or acts of terrorism, and then there is the same framework in terms of very strong arrest power, detention up to 14 days, strong powers of cordons and search and investigations, and, of course, the PIMs. There are so many learning points between the two regimes that it does make sense.
Holly Lynch
Q
Jonathan Hall: Having thought about this, I do. I do not think that decisions on prosecution are going to be made other than in really strong and good cases. Where I think one needs particular care is with all the strong powers that come before prosecution, for example with arrest and detention, as well as the PIMs, which are based not on beyond reasonable doubt but on the balance of probabilities.
We have to acknowledge that we live in quite a polarised world at the moment and that citizens of individual countries, such as Russia and China, and those who associate with them, are bound to fall under suspicion. There is a parallel here, in the sense that people used to argue—I think wrongly, but they did argue —that counter-terrorism laws in England and Wales were anti-Muslim, and I think having a reviewer is one way of offering reassurance that that is not the case.
Holly Lynch
Q
Jonathan Hall: I expect that they will be effective because the agencies and the Home Secretary will only think about imposing one when they think it is going to work. There are many more subjects of interest who have terrorist intents than are currently on TPIMs, and I expect that the same will be true in relation to people who are foreign threats. There will be many more people who are identified as foreign threats who will actually go under PIMs. At the moment I think only two people are under TPIMs, so it is very few. I would have thought that the agencies and the Home Secretary will think very carefully before imposing them.
Holly Lynch
Q
Jonathan Hall: What I have been told is that polygraphs have not been used for TPIMs, as far as I am aware, but they have been used for released terrorist offenders and some disclosures have been made. Everyone always thought that the real utility of polygraphs and the clear reason for their use is the disclosures that people make when undergoing the process. I gather that some admissions have been made that have been valuable and have led to a recall. I do not have a huge amount of data, but they seem to have had some success in the context of terrorism offences.
Damian Hinds (East Hampshire) (Con)
Q
Jonathan Hall: I cannot remember the total number of TPIMs. I think it is around 30, but I may be misremembering and that may also include—
Damian Hinds
That is over a number of years, of course.
Jonathan Hall: Yes. The maximum I remember in any year is up to six; at the moment it is down to about two. The authorities ran quite a successful campaign, using TPIMs against members or former members of al-Muhajiroun. Those have tended to drop off, and we are now looking at a very small clutch—I think it is only two now.
Damian Hinds
Q
Jonathan Hall: First of all, where there is good intelligence that an individual is up to no good but it is impossible to prosecute them. There may be secret sources of intelligence—information coming from allies or from electronic means that could not be disclosed—that mean that the agencies know perfectly well that someone is a real risk. Having had the opportunity to read the intelligence, I know that there certainly are cases where people are very dangerous and are engaging in attack planning but could not be prosecuted. These measures allow a huge amount of control.
One of the key measures for the really serious people is moving them from their home location. They find it much harder to operate if they are outside their home location: they do not have the people around that they know, and they find it a more hostile operating environment. There will also be some people whose threat really comes from the propagation of terrorist propaganda, so the measure might be directed towards their use of electronic devices and the internet.
Damian Hinds
Q
Jonathan Hall: Up to a point. I have expressed my disappointment that because legal aid is not now available as of right for all TPIM subjects, there is a cohort of TPIM subjects who are not getting court reviews. In the absence of the court having the opportunity to test the proportionality, it is particularly important that the Home Office official who chairs the TPIM review group’s meetings is really testing, and I also feel that I have to play that sort of role myself. I have certainly seen cases in which it has been debatable whether the measures have been too strong, particularly in relation to electronic devices, and whether enough attention is being given to allowing people to live a useful life without presenting a threat to the wider public.
The Chair
I am going to move on to our next question now, from shadow Minister Jess Phillips.
Jess Phillips (Birmingham, Yardley) (Lab)
Q
Jonathan Hall: I have one thing to say about part 1, but we will come back to it. Part 3 is different from parts 1 and 2, because I believe that part 3 is not there to meet an operational need. Generally speaking, I think the reason why the public support terrorism legislation is that they believe that laws are being passed to improve their security—obviously, today is the anniversary of 7/7. Here, the changes are intended to be entirely symbolic. The first thing to do is to recognise that it is quite unusual in the context of terrorism legislation to enact a measure that is really symbolic, and therefore it needs to be justified with care.
My concern about the legal aid, beyond the symbolism aspect, is that the class of individuals who are going to be affected by this is very wide indeed. The justification for removing legal aid from convicted terrorists is that they have broken their links with society. Of course, we all understand that in the context of an Islamic State would-be suicide bomber or someone of that nature, but the same effect will be felt by children who are arrested for document offences—in other words, having a copy of “The Anarchist Cookbook” on their computer.
As you know, there are now many children who have been arrested and prosecuted for terrorism offences. It also catches people who do not get custodial sentences at all, so the cohort of people captured is very wide indeed, and I do not myself understand why the decision has been taken to include not just the most egregious examples of terrorism-convicted people, but also people who may never have gone to prison and may have very quickly—one hopes—gone back into normal life. That is my general point about aid. I have expressed further points about how it is possible that this measure could be counterproductive. Should I pause there?
Jess Phillips
Q
Jonathan Hall: I do not think so, because legal aid is termed individually. In the example you are giving, the woman in question would not be a terrorist convict, so she would be able to apply for legal aid.
Jess Phillips
Q
Jonathan Hall: Then, yes. A woman who has previously been convicted of a terrorism offence would be forced to resort to what is known as exceptional case funding. As I think the Justice Committee has reported, it is very difficult to get solicitors to even apply for exceptional case funding and there are great difficulties in getting hold of it urgently. I suspect it will be said that, for the worst cases of domestic violence, it would be granted. I do not know if that is the case.
The Chair
I am going to have to move on to the next questioner. I would appreciate it if colleagues could be succinct with their questions. I will allow a couple if you are succinct—otherwise it is just one question.
Ben Everitt (Milton Keynes North) (Con)
Q
Jonathan Hall: I think what you mean is, am I comfortable with the fact that legislation has now been passed that is dealing with state threats, when previously the focus had been on terrorism? If that is what you are saying, then I think I am comfortable, because I accept and recognise that we live in a contested and uncertain world. Focusing on state threats is now a very sound necessity.
Ben Everitt
Q
Jonathan Hall: I think the two regimes—the terrorism regime and the state-threats regime—should be sufficient. There are obviously people operating in the grey zone at the moment who might be able to say, “We fall outside the remit of terrorism legislation,” for example, the Wagner Group. If they are acting on the battlefield in support of Russia, we would have difficulty seeing them as terrorists. I think this legislation probably fills some gaps.
Stewart Hosie (Dundee East) (SNP)
Q
Jonathan Hall: I do not think so, if the regime operates as it is intended to, because the Bill replicates the obligation for the Secretary of State to consider whether it is possible to prosecute in the first place. I do not think in practice that they will become a measure of first resort, just because they are so resource-intensive and complicated. I suppose it is possible that, unlike some of the terrorist TPIM subjects who are individuals without a huge amount of access to resources, some of the individuals who may be under an SPIM could be backed by a huge amount of resources, which means that there will be perhaps more significant litigation than there has been with TPIMs; I do not know.
The point is that you are dealing with people at a lower level than beyond reasonable doubt. Intelligence is fragmentary and it is possible to make a mistake. It is always important to bear that in mind, with a degree of modesty and humility, when these really strong measures are being imposed.
Stewart Hosie
Q
Jonathan Hall: My view is that it is the same thing.
Holly Lynch
Q
Jonathan Hall: I am slightly uncertain and concerned about the scope of clause 3(2), the foreign intelligence services offence. On the face of it, an offence could be committed inadvertently, and it does appear to cover quite a lot of lawful conduct. The example that I have been debating with officials is the example of someone who sells miniature cameras, which is undoubtedly conduct of a kind that could assist a foreign intelligence service. My concern with clause 3(2) is that it does not seem to have a sufficient mental element, either that the individual who commits the offence is deliberately acting prejudicially to the UK interest, or knows or ought to suspect that there is some foreign intelligence service involvement, so I have a concern about that particular clause.
Sally-Ann Hart (Hastings and Rye) (Con)
Q
Jonathan Hall: Not all terrorists are cold, calculating, ruthless killers who will go and commit terrorist acts whatever their circumstances. They may exist, but there are also quite chaotic terrorist-risk offenders. I have certainly come across cases where the terrorist risk from the individual—the chance of their stabbing someone, for example—goes up if they are not taking their medication or if they are homeless.
My concern about the legal aid is that it will make it harder, for example, for a terrorist offender, maybe 10 years after they have been released and who is facing eviction, to get legal aid. That means that you might have less good decisions made and a sense of injustice or grievance on behalf of the terrorist offender, who will perhaps say to themselves, “Why can’t I get legal aid when everyone else in my situation can?” My real concern is people becoming homeless or falling into debt when they might otherwise be able to get legal assistance.
The Chair
I am afraid that brings us to the end of the time allocated to the Committee to ask questions. On behalf of the Committee, I thank Mr Jonathan Hall QC for giving evidence in this session.
The Chair
Q
Sir Alex Younger: Hello, my name is Alex Younger and I was chief of SIS from 2014 to 2020.
Professor Sir David Omand: I am David Omand. I am currently at the King’s College London war studies department as a professor. My previous career in the civil service involved being director of GCHQ, permanent secretary of the Home Office and UK security and intelligence co-ordinator.
Scott Mann
Q
Sir Alex Younger: Yes. That is a huge question. To keep it brief, though, I think the predominant fact that developed during my career was the erosion of boundaries. When I started, the difference between peace and war, domestic and international, covert and overt, and virtual and real was reasonably clear, and we were organised along those boundaries. The threats that eventuated most powerfully were the ones that recognised that those boundaries had eroded and crossed them. What I would call grey threats eventuated and often presented us with real challenges, particularly when actors or states felt themselves at war with us and we did not feel ourselves at war with them, for good reason.
My career saw less emphasis on conventional threats and more on grey space. Most of my career was devoted to counter-terrorism, which was the dominant example, but subsequently we saw state actors working in sub-threshold space—operations short of conventional war—to harm us. That is broadly the situation we are in now, even if we have a very 20th-century example of conflict happening on our continent.
Scott Mann
Q
Sir Alex Younger: It has risen. During my career, we were broadly in a situation where we had to focus on state threats or terrorist threats. I think that all of us, societally, were hubristically convinced of the end of history and the fact that liberal democracy had triumphed. Perhaps another answer to your earlier question is that that was demonstrated to be false. In fact, we are in a geopolitically contested world, just as we always were. That led to the increasing dominance of the state threat over time as the world diverged ideologically. Of course, with Russia and the UK specifically, we had some really acute examples of that, in terms of services demonstrating complete contempt for us and our democracy by attempting to murder people on our soil. In a sense, that got us, particularly in the national security community, to the hard truth quicker than many.
Scott Mann
Q
Sir Alex Younger: I think it is pressing, not least because, as I have said, many of the threats are ambiguous. This legislation, in seeking to dispel ambiguity—daylight is the best disinfectant—has my support. The reality is that the act of using deception on behalf of a foreign power to undermine our democracy, cause our citizens harm, sap our strategic advantage and undermine our economic advantage is essentially not criminalised at the moment, and that is odd. As you would expect, our adversaries have tonnes of legislation outlawing spying. That is what they do; it is part of how they engineer unity. There is a sense of an external and pernicious threat.
I am more struck by the fact that many of our allies, particularly in the Five Eyes, have seen fit, for many years in some cases, to have such measures in place. To that extent, I regard them as basically uncontentious and overdue. If I may be permitted a professional observation as someone who has worked in this area for 30 years, they will definitely make it harder for people who mean us harm to operate, in a way that they would not like and the public would like.
Scott Mann
Q
Sir Alex Younger: Yes.
Holly Lynch
Q
Sir Alex Younger: First of all, I think it is a good idea, fundamentally, to require people to say if they are acting on behalf of a foreign power. I am supportive of that because I know how difficult it makes it for people intent on conducting operations against us to operate, and makes it much easier to prove. I am therefore instinctively supportive of that, and of a register, and I think that we should get on with that. I have talked to the Government about that; they are understandably cautious, given all the unintended consequences attached to it, and the fact that our adversaries use those techniques in a way that lacks good faith and is malicious. However, fundamentally, I am supportive of it.
I have to be honest; I am more ambivalent about the idea of distinguishing between nations. My view of legislation generally, but particularly when it comes to technology, is that it is a mistake to write things to the current circumstances. It is much better to write things to the principles that you are seeking to employ. I am not a lawyer or a member of the Government, but my recommendation would be that we go for a principles-based approach in so far as we can.
Holly Lynch
Q
Sir Alex Younger: You are referring to the amendment to the Serious Crime Act?
Holly Lynch
That is right, yes.
Sir Alex Younger: I strongly believe that that is necessary. I am conscious of the concerns that you will have, and even the contentious nature of the assertion, so if you will forgive me, I briefly have to tell you why.
First, alongside our ability to uphold our values and not be terrorists, the other reason why we have been successful in stopping bombs going off has been international partnership. That is because no one state or intelligence service really ever has the full facts. They have to work together and combine their information to get the intelligence that is required, proactively, to disrupt terrorist events. That was true in the analogue world; it is really true in the digital world. It is the thing that works and keeps us safe.
That involves an unavoidable risk. That risk, through all the safeguards that you will be familiar with—but which I am happy to talk about—is managed down to the very lowest level possible. However, ultimately, we are dealing with sovereign actors—other states who we do not control—and ultimately, when we are exchanging large bulk datasets, notwithstanding all the scrutiny and risk management, there is a possibility that there will be data in that dataset whose significance we do not understand until it is compared with another dataset that we do not have. That is an unavoidable risk.
An issue that I think you have to consider is, who should be carrying that risk? My view is that there must be accountability, but where an SIS officer or any other UK intelligence community officer is acting in good faith, within their instructions, as authorised by Ministers, on behalf of you and the public, it should not be them carrying the risk. It is more appropriately carried by the Government more broadly. I feel that, as you can tell from my body language, very strongly, as a leader.
It was unavoidable that we sent our young men and women into harm’s way when it came to physical risk. For instance, I served in Afghanistan. Our people were asked to go out on to the streets day in, day out. It involved physical risk that we mitigated down to the lowest level we could possibly manage, but it was part of the deal.
These risks are avoidable. Through this legislation and other measures, we can make sure that these risks are attached to the appropriate person or people or entity. I am much less comfortable as a leader about the idea that we therefore ask individual men and women in the UK intelligence community to suck it up. I do not think that is right.
Professor Sir David Omand: I very strongly agree with what Alex Younger has just said. I know from my own experience of GCHQ that information-sharing with our close allies and indeed more broadly is essential, and I think it is morally wrong to place that burden on the individual member of staff, who may be quite junior, who is simply following the policies and the instructions that they have had. In the end, the Government Ministers must account if something unexpectedly does go awry.
Holly Lynch
Q
Professor Sir David Omand: My counter-argument would be that this is actually a question of principle—how Government works, particularly in relation to people whom we as a nation are asking to take some significant risks on our behalf. This is an additional risk. You may say that it is theoretical; they may not feel it that way, and I think that we owe it to them to protect them.
Sir Alex Younger: It does not feel theoretical. You know, you have to examine the motives of the staff of the UK IC, who are ordinary members of the public, just like you and me. They are not doing this for personal gain.
There is a very practical point that I think the Committee must consider, which is the incentive. Over time, what is going to motivate admittedly a very mission-orientated community if they see personal legal jeopardy in an area where there is an unavoidable level of ambiguity? I think that will inhibit people from the exercise of sharing. I hope I have been really clear that it is the exercise of sharing that allows us, as a team, to deal with the threats that we face. The risk may be theoretical, but it does not feel like that when you are stood in front of the person or the computer.
Stewart Hosie
Q
The Chair
Just before we get the answer, I will just flag up that this may be outside of the scope of this Bill, but we will allow the discussion to proceed, because we have not made a precise ruling on it as the co-Chairs of this Committee. So please proceed, but there the potential for it not to be within the scope.
Sir Alex Younger: My answer is a less eloquent version of that, which is that I have talked about the Government about this. Essentially, they say that they think it is too complicated to work this issue through in the timescale that this Bill is operating in. I am not a lawyer; I apologise. I do not have a detailed answer to your question.
Professor Sir David Omand: I believe that the powers in the Bill are not only necessary, but urgent. In addition to everything that Alex was saying, we are living through a digital revolution. The digital harms are there. I would hate to see the powers in this Bill held up, and possibly even miss their legislative slot, while quite difficult work is done on the 1989 Act.
Maria Eagle (Garston and Halewood) (Lab)
Q
Sir Alex Younger: It is sincere.
Maria Eagle
It is novel for me—I speak as a lawyer.
I would like to come back to clause 23 and the changes proposed to the Serious Crime Act 2007. I could tell you are very strongly in favour of the changes, but I wonder whether this kind of complete carve-out from liability for the agencies is something you have come across before anywhere else. Is this totally novel, or have you seen it operate somewhere else, and you think it would work well in these instances? There are already defences in that legislation to protect the people you were expressing concern about. What is so wrong with the defences that are already there?
Sir Alex Younger: There are other examples. Australia is the clearest, but it goes much broader than this, actually. In our case, you are right, and it is really important to recognise that a large part of what is already there works. The SCA is, by the way, an Act that I absolutely support—I hate to see fat cats here helping people launder money overseas; it is really irritating. We need this stuff, but I am fairly sure that this aspect, the potential criminalisation of intelligence exchange, was unintentional. The reality is that the way the SCA is drawn, with its extraterritorial nature and its very broad conditions, captures things that would not be adequately addressed through the safeguards that were in place before.
Of course, as you allude to, there are defences in place, but to go back to the conversation we have just had, I do not think I as a counter-terrorist operator, which I was, would be particularly happy—even though I have faith in the justice system and the wisdom of juries—to know that what I did could be tested in a court of law with all the uncertainty that entails, when I am obeying a lawfully authorised instruction with all of the oversight that exists. I want to be really clear: when a UK intelligence community individual acts not in good faith or outside those instructions, they should absolutely be subject to all the considerations, including of secondary liability, that exist, but I think any ambiguity in the circumstances I just described is wrong and will have a chilling effect on our intelligence exchange.
Maria Eagle
Q
Sir Alex Younger: Again, I am not a lawyer, but I do not believe that it does, no, not entirely. In fact, that is the predicate for what I am saying.
Maria Eagle
Q
Professor Sir David Omand: Yes, I would agree with that.
Damian Hinds
Q
Professor Sir David Omand: From my experience, I would point to the consequences of the digitisation of every conceivable kind of information. That is proceeding apace. We have digital cities. Our infrastructure is now wholly dependent on IT.
In my recent book, I coined an acronym, CESSPIT—crime, espionage, sabotage and subversion perverting internet technology—and that perversion is going on as we speak. I will add one thought: I put “crime” in my acronym deliberately. If you take the activities of something like the North Korean Lazarus group, which was responsible for the WannaCry ransomware attack on our national health service, it is operating in order to obtain foreign exchange to pay for the North Korean nuclear programme and North Korean intelligence activity. In March, the group took more than $0.5 billion-worth of Ethereum currency from an exchange. This is large-scale larceny on behalf of a state.
My hope is that the powers in the Bill will help the police and agencies to deal with state-based criminal activity. I know that there are aggravated offences powers as well, which will help the police.
Damian Hinds
Q
Professor Sir David Omand: If you recall the statement made almost exactly two years ago in the House by Dominic Raab, he said that the Government had concluded that it was “almost certain” that “Russian actors” had “sought to interfere” in our election in 2019; and we had the evidence from the American elections and the French presidential election in 2017. All the techniques were deployed. I do not know whether any members of the Committee have been watching the TV series showing on Channel 4, which is as good a primer as any on how such techniques can be used to pervert our political discourse as well as actually harm individuals. This is the world we are in, these are the harms we face and I think that this Bill is a good start in helping the agencies to address some of those harms.
Sir Alex Younger: On this issue, you are right to focus on the possibility of interference in our democratic process and the potential unintended consequences of what we are talking about here. Of course, one person’s interference is another person’s legitimate intervention. Perish the thought that it should be the Government’s responsibility to say what is true and what is not. That is the difference between us and our opponents.
I can understand the scale of the problem; I have seen it. I had a long chat with the Government about this, and the thing that convinced me that this was an appropriate response was, first, the foreign powers condition—to be clear, that is about people acting on behalf of a foreign power—and, secondly, essentially the use of deception to achieve your aim. It seems to me that if someone is working on behalf of a foreign power, using deception, to distort our political process, we have a pretty clear basis for taking action. That, I think, is as it should be.
Sally-Ann Hart
Q
“A person commits an offence if…the person engages in conduct intending that the conduct, or a course of conduct…will have”
a negative “effect” on the UK for or on behalf of the foreign power in question. In other areas of law, in particular the criminal law, we have intent and recklessness. Do you think that clause 13 should be expanded to include recklessness?
Professor Sir David Omand: I looked at clause 24, “The foreign power condition”, and there is quite a lot of scope in it for a successful prosecution to demonstrate that the individual who as, as you say, acted recklessly, could reasonably have been expected to know that their act would benefit a foreign power, for example, so I was not so concerned about that particular question.
Sally-Ann Hart
So you do not think that it should be included in clause 13?
Professor Sir David Omand: No, I had not concluded that.
Sally-Ann Hart
Sir Alex?
Sir Alex Younger: I do not have anything to add to that.
Stewart Hosie
Q
Sir Alex Younger: First of all, “carve-out” means different things to different people, but there is a wild idea that this is a granting of immunity that means we can behave willy-nilly. You will know from your Committee experience that this is not true. I want to make that really clear. The reality at the end of all this—we have had the theoretical versus practical conversation already—is that there exists a risk that individual UK IC officers will face criminal sanction for doing their job. I do not think that risk should exist. That is fundamentally where I am. You can decide as politicians that it is better than what is being proposed by the Government, but I am saying that I do not think it is compatible with a healthy sharing regime of the sort that produces the security benefits I have outlined.
Ben Everitt
Q
Sir Alex Younger: I cannot. I am sorry, but it happened just at the end of my time. I know from conversations with my Australian colleagues that they are very satisfied with the legislation that exists, in so far as that it deals with this issue. I would recommend looking into that yourself or speaking to the Australians. I do know that it is broader than what we are proposing here today. I am sorry I cannot be more helpful.
Ben Everitt
Q
Sir Alex Younger: Yes. It is not something I have thought hard about, but the fundamental principle of operating as a team is probably our most powerful riposte, alongside our values, to the threat of authoritarianism. It is something I am completely signed up for, but alliances are a thing we have that our opponents generally speaking do not. I was very proud to operate in one of those—Five Eyes—which is a particularly effective version. If we, as a matter of principle, aimed for interoperability through legal alignment, that is something I would absolutely support. It is never going to be complete. The United States particularly has a very different legal process to us. Certainly as regards counter-terrorism, the extent that we manage to align legally massively boosts operational co-operation. I am wholly confident that the same would be true when it comes to state threats.
Ben Everitt
I think everybody here would agree that a team has to play by the same rules.
Holly Lynch
Q
Professor Sir David Omand: I was pleased to see the power in the Bill because, particularly in the digital age, you can take the offensive and you can prepare, but you may not have got to the stage of actually pressing the button. If you can demonstrate that a foreign state was engaged with help from inside the country in some serious espionage or sabotage activity, it seems to me that the very preparation is something that the prosecutors ought to be able to bring forward. In the terrorism example, the cases would be slightly different, but the offence of acts preparatory to terrorism has been extremely helpful to the prosecution authorities for good reason.
Sir Alex Younger: The bottom line is that we have to get in front of this stuff. Just speaking as a counter-terrorist practitioner, that is the additional discipline. It is not like solving the crime. We need to solve it before it has happened, and that raises a set of ethical and legal dilemmas where it is important to be striking the right balance, so I really welcome the proper treatment that we see of that in the Bill.
Holly Lynch
Q
Professor Sir David Omand: Probably not, but on the other hand you have to balance that against the risk that legislation would inadvertently catch, for example, academic activity in think-tanks. Alex Younger has referred to transparency and covertness. Where a foreign power is taking covert acts and dirty tricks in order to access our institutions, think-tanks and universities, that would be criminalised by the Bill.
Where a member of the embassy of any foreign state represented here attends, quite openly, think-tank meetings and so on—everybody knows who they are and they know they are on the guest list—that does not pose a direct harm. It would be a mistake to start to try to confuse those categories too much. However, what it comes down to is that this is a probabilistic business; this is doing things that increase the chances that we all protect the citizens and the interests of the state. This Bill alone is not going to prevent states from attempting harm against us, and it probably will not catch all those harms either, but it is a good start.
Scott Mann
Q
Professor Sir David Omand: Well, there is a lot in the Bill. The move away from having to identify states as enemies, for example. States have interests of their own and they will promote those interests. If they are doing so openly through diplomatic and academic means, that is one thing, but if they are doing it, as some are, covertly, then although you might not categorise them as enemies, they are none the less conducting themselves in a way that causes harm. That is one of the examples where I think the Bill takes a more up-to-date view. It is not just nations with which we are at war or potentially could be at war.
Holly Lynch
Q
Professor Sir David Omand: My reading of the Bill is that trade secrets and theft of intellectual property are well covered. You probably also have to have in mind the Online Safety Bill, which has a whole different set of considerations but which is, again, intended to reduce the amount of harmful content that citizens are exposed to. It is quite easy to envisage cases where a foreign state is putting material online covertly and pretending to be someone else.
In the 2016 US presidential election, there were a number of egregious examples of that—for example, in order to stir up conflict within society by exaggerating an existing split in society, be it over race, inequality or any other issue. That is the nature of the threat that we currently face in all democracies. You cannot solve it all by creating criminal offences where a link cannot be established back to the foreign powers condition, but you may be able—by working with the companies, which will exercise their own terms and conditions—to get more of this stuff removed. You need that as well as the powers in the Bill.
Holly Lynch
Q
Professor Sir David Omand: Yes, and another important consideration is public education. I have argued before that we should start teaching critical thinking in schools and teaching kids how to be safe online when they come across deliberate and malicious misrepresentation.
Damian Hinds
Q
Professor Sir David Omand: I recommend the use of the OECD’s triplet of “misinformation”, which is wrong, but innocently so, and should be corrected; “disinformation”, which is deliberately and maliciously wrong; and “malinformation”, which is information that is true but was never intended to enter the public domain, such as the personal emails of Members of Parliament.
Sir Alex Younger: Please hold that thought, because I spent years trying to work out whose side Vladimir Putin was on, as he was propagating all sorts of contradictory causes, and then I just realised that he wants an argument—he wants distrust and discord. I have not been to the OECD on the subject, but I entirely support that.
The Chair
That brings us to the end of the time allocated for this session. On behalf of the Committee, I thank our very distinguished witnesses for your time today.
Examination of Witness
Paddy McGuiness gave evidence.
The Chair
Q
Paddy McGuinness: My name is Paddy McGuiness, and I am currently an adviser with a critical issues firm called Brunswick Group. I was previously a national security official, latterly as the deputy national security adviser for intelligence, security and resilience in the Cabinet Office from 2014 to 2018. In that role, I oversaw hazards and threats affecting the UK homeland, including some aspects of counter-terrorism, alongside Sir Alex, and cyber-security programmes, offensive and defensive. I began the work on hostile states, and I also dealt with questions of broader resilience to natural hazard. For much of that time, I was also the Government’s chief security officer, overseeing matters of vetting, classification, investigation, and disciplinary and criminal proceedings to protect classified information.
Scott Mann
Q
Paddy McGuinness: I really welcome the way you framed that question, because when I thought to myself, “What am I going to say in front of this Committee?” that was absolutely at the centre of it. As the representative, in a policy sense, of the intelligence agency—Sir Alex and the others—and as a person trying to practise Government security and see through disciplinary and sometimes criminal investigations around compromise of classified material, my lived experience was that our legislation and regulations were, frankly, a Potemkin front, and that behind them there was not very much.
I would move in public or speak to Members of Parliament and Ministers, and they would say, “Ah, we have got the Official Secrets Act. We have got this and that,” and they would look at the terrorism powers, which Jonathan Hall described so fully, and the way they interplay with the powers proposed in the Bill, and they would assume we have similar powers, but as you see we had almost nothing. Where there were powers, very few of them crossed the serious crime threshold to engage the full range of intrusive investigative techniques and police time to pursue them. That was very disturbing at a time, certainly when I was deputy National Security Adviser and previously, when the impact on the digital age, as described by Sir David and Sir Alex, came to the fore, and when many states were messing, within the United Kingdom, with our institutions, corporate life and communities, over which they thought they had some share because those people came from that country of origin.
The answer is that I was left very disturbed. That is why under the coalition Government, the Cameron Administration and the May Administration—I left during that—I was, if you like, an apolitical advocate of new powers to shore up what was a weakness or shortfall in our national security capability.
Scott Mann
Q
Paddy McGuinness: Yes, and this is illustrative. In the other areas, as Sir Alex described and did fantastic service in countering terrorism, we have not had as much terrorist pressure on our societies and values as there might have been, because of the suppressive effect we have been able to have with our partners. That is because we had capabilities and powers. In the case of hostile state threats, we have some capabilities but perhaps not enough powers, and that is true in cyber. So we have left in front of people who wish to have purchase over our decision making, or to be able to influence us or possibly attack us, free space.
Inevitably, we concentrate on those that are most egregious. Sir David referred to the Lazarus Group in North Korea, and we might look at Iranian behaviours. Indeed, we might look at Russian or Chinese behaviours, particularly around intellectual property and technology, which are all very serious, but I refer you to the number of advanced persistent threats that are now listed because that gives you a description of the number of states that, unconstrained, are beginning to use these techniques for their policy purposes, whatever they are.
For me, almost the best example of this was in the covid pandemic, when there were intrusions and potentially damaging activity in the networks of international healthcare organisations that we needed to help us deal with the pandemic, such as the World Health Organisation. The APT—advanced persistent threat—identified was Vietnamese. I refer you to that list. We do not need to ask any former official to breach the confidentiality of high classification material to know that many states act in this space, and they have clear space in front of them in the cyber domain and in some of the techniques that are countered by the Bill.
Holly Lynch
Q
Paddy McGuinness: It was quite extraordinary that we had a range of different possible offences that relate to the kinds of things that a hostile state would commit in order to sabotage, for instance, critical national infrastructure—a target entity in the UK—and that it was not coherent. What I would put in front of the Committee when you are thinking about this is: the most common thing that I find now in corporate life, but also in Government or in policy space—and in Parliament where I do a bit of advisory work—is stovepiping.
You say “cyber” or “cyber-security” and people immediately think of cyber-security issues, or you say “insider issues” and they say they will deal with that, or they think of physical attacks or physical disruption and they deal with that. They do not understand that this is a playbook, which, if you are a Russian commander, you put together, and you have a choice of what you do.
So you go in an escalation route from, “Can we access this remotely through the internet? Is there another way of accessing it electronically? Do we have a spy within it? Can I send someone from the embassy to go and get close to it and do something to it? Shall I send in Spetsnaz covertly—you know, go to Salisbury and poison some people? Or shall I go to war?” You have that whole range of things and they all relate to each other. And all of them relate to sabotage. We need to approach this by understanding what the adversary is doing and not having little bits of powers in some criminal damage legislation, or in the Computer Misuse Act. That will not do because that is not the purpose of the opponent.
I have described it for disruption and destruction in a sense of warfare, and I have used a kind of Gerasimov Russian example. It is very interesting when one looks at the way in which intellectual property has been stolen. There are a few cases where we see the end-to-end Chinese state effort, where you begin with remote cyber-attacks in close proximity—the case I am thinking of was in the United States—and an inability to get in by those means. Eventually, the subversion and recruitment of a member of staff operating in Switzerland provided them with the intellectual property, which they were not able to access using the cyber techniques. All the way through they were intervening in the networks and activities of that company.
One final thought on this: one of the difficulties with this grey space activity, as Sir Alex described it, is that if you have a presence for an intelligence purpose, you can flick it over and turn it into a disruptive or destructive attack. That is where that preparatory bit is quite important, too: understanding that the simple fact of engaging and being present quickly takes you towards sabotage. I think these are absolutely vital powers.
Holly Lynch
Q
Paddy McGuinness: The Clerks may have told you, or it may be in my bio, I do not know, but after I left Government I was asked by the Oxford Internet Institute to join them in a thing called the Oxford Technology and Elections Committee, prior to the 2019 elections—with an urgency because of what had happened in the United States in 2016—to come up with some practical suggestions for what we might do to protect our elections. I refer you to it: it is a great bit of work, and the Oxford Internet Institute has gone on doing that work. I am no longer as involved, but there is good work there.
The way I would frame it is this: it is a bit like what I said about the powers that we have. Because we do not occupy the space, others step into it, so because there are not strong controls and real clarity about what is happening around our electoral processes, people mess about in that space. It is really important—this rather echoes something Sir Alex said—that we do not take messing about in the electoral space as being the same thing as delegitimising an election. We have a strong tradition in the United Kingdom of being able to make judgments about whether the way in which candidates have behaved or the way in which money has been spent in a given constituency makes an election void, and you possibly have to run it again. We are used to making that judgment.
One of the risks that I note in this space—again, this is a point Sir Alex made very nicely about Vladimir Putin’s intent, which is to have us off balance—is that if the Russians do hack into a political party’s servers and mess about within them, and maybe mess with the data or interfere, or if they play games with a technology platform that people rely on for information and put out information, and we decide as a result that we cannot trust a referendum or an election, they succeed. That is success for them, so I think what really matters in this space is the ability to measure the impact that state activity has on the democratic process we are looking at, and—as Sir Alex said—that there is bright transparency so we know who is doing what.
Sally-Ann Hart
Q
Paddy McGuinness: I would expect it to be a dynamic process. I think you will be looking at further legislation; let us hope you have a long life as an MP, but in your time as an MP I would expect you to have to look at this again.
To Sir David’s point, I do not think we should delay for a moment fixing the things that the Bill fixes because of the fact that technologies develop dynamically. There is a lag. I can remember—I think I was actually working at GCHQ at the time—us thinking about what was happening with Facebook as it emerged as a widely used platform. Here we are with the Online Safety Bill, about 13 years later. There is a natural and quite proper lag between rapid technology innovation and slow and considered regulation and legislation, and we are going to have to live with that. I think this is good. It provides a basis, and I think the extraterritoriality is particularly important, as is the way in which sabotage is broadly defined to allow you to deal with the kind of range of things that I have been talking about, given that the opponent will move through those spaces.
Antony Higginbotham (Burnley) (Con)
Q
Paddy McGuinness: I think it does a very significant thing in the way in which it criminalises specifically the trade secrets aspect, which covers a very broad range. Again, we may have to return to this. This kind of legislation and the type of work that Sir Alex and his successors in MI5, MI6 and GCHQ are doing has Darwinian effect, so I have no doubt that as companies have got better at certain kinds of protection advised by the interaction with the CPNI and the National Cyber Security Centre, so the opponents have got better at it. And we will have to go on doing it.
It does not feel as though we have quite the same volume of opencast mining of our intellectual property and economic value that we had, as was described previously by General Keith Alexander, the head of the National Security Agency in the US. He described the enormous volume—trillions of value—taken out of our economies. There still is a very high level, though, so there is more work to do on this, and it is a significant challenge to the corporate sector to do the right thing in this space, because of the difficulty that it represents. The Bill provides a really solid basis for that discussion, because of the criminalisation of the trades secrets aspect.
Antony Higginbotham
Q
Paddy McGuinness: One must constantly avoid complacency, but one of the strengths of the British state is the way in which institutions and agencies work together pragmatically and practically—within the bounds of law, obviously. That is how we have managed to get this far, with a lack of powers, without something going catastrophically wrong. It has felt really nerve-wracking doing it. As the person who had to represent it to Prime Ministers and the National Security Council, my word I was nervous about this. I was much more confident in other areas of my responsibilities, because there was a real shortfall. The Bill closes out quite a lot of that.
I would note something that I think reads across several of the points that have been made by the previous witnesses that I have heard today that it is important for the Committee to understand and for me to represent. When you are dealing with state threats, and in particular against really capable actors, that is a different task from dealing with terrorism or serious and organised crime, because we must work on the assumption that some of our communications, some of our computers and some of our people are under their control.
When I look at, for instance, the STPIM powers, I reflect that it is much more difficult still to bring prosecutions in this area than it is for terrorism and for serious and organised crime, where sometimes people have been suborned by the crime group. This is all together more serious, and it would be naive to think that no one spies for a foreign country, no communications are intercepted and no one is in any of our computers. That just raises the level of difficulty that we have got in this space.
The Chair
Thank you very much. That brings us to the end of the morning sitting and the time allocated. On behalf of the Committee, I thank Mr McGuinness for giving evidence today.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
National Security Bill (Second sitting)
Thursday 7th July 2022
(2 years, 4 months ago)
Public Bill CommitteesRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 7 July 2022 - (7 Jul 2022)
The Chair
We will now hear from Carl Miller, research director of the Centre for the Analysis of Social Media at Demos, and Sam Armstrong, director of communications at the Henry Jackson Society. We have until 2.40 pm for this panel. Will the witnesses please introduce themselves for the record?
Carl Miller: Hi everyone. My name is Carl Miller. I am the research director for the Centre for the Analysis of Social Media at Demos. That means that my day job is trying both to build and then use technology to research the internet in different ways. I have been doing that for about 13 or 14 years now. I suppose most pertinent to the issues being discussed now would be the work that we have been doing for quite a long time trying to pull apart and understand illicit influence operations online and how they affect various aspects of British public life.
Sam Armstrong: I am Sam Armstrong. I am the director of communications at the Henry Jackson Society. I look after our work on China and I also serve as the director of strategy and communications at the Inter-Parliamentary Alliance on China, which I know a couple of members of the Committee are members of as well.
Scott Mann (North Cornwall) (Con)
Q
Sam Armstrong: My fundamental answer is yes. There are a number of good powers in the Bill. It does not address every issue that some of our allies have wrestled with, but in so far as there are powers in it, all of them are in my view good and helpful powers, which will greatly aid the security services in their important work keeping us all safe.
Carl Miller: I will restrict myself from any broad observations and will keep to the one area that I actually know something about, which is to do with information warfare and influence operations, especially over the internet and social media, and how that might impact things. In so far as that is the case—I am sure we will dig into this more in a second—I do not see the Bill as doing any harm. In fact, strangely, as a centre-left think-tank, we have long been calling for more direct state activity in this area. We have deferred far too much and far too often to the tech giants to try to sort these kinds of problems out for us. My fear, though, is about how the Bill will be enforced and deployed. I do not think that in and of itself, as it stands, it alone will be enough to secure—digitally secure—elections and quite a lot of other important moments, themes and aspects of life against the kinds of online influence that we have seen.
Scott Mann
Q
Carl Miller: If there is one thing to take away from any of my evidence it is probably this: we have completely misconceived—the Bill slightly, but generally in Government at the moment—the problem as one of disinformation. The problem is not overwhelmingly or primarily one of disinformation. When we pull apart these campaigns, ones that we know or highly suspect of being in one way or another sponsored or driven by, or of having interacted with, a foreign, usually autocratic state, we notice that disinformation is only one of a whole array of different methods that can be used to influence people. You can paint an extremely distorted picture of the world simply by amplifying some truths over others.
If we look at what is happening in Ukraine at the moment, it is as much about “Putin riding bear” memes as it is about explicit disinformation. Much of this interacts at the level of identity, belonging, kinship, friendship, reasons for getting up in the morning and the problems that people see in the world—hugely subtle. Even at the level of lying, it is less to do with the overt falsehood circulating on the internet and much more to do with the harnessing of false identities and false reasons for being involved in debates. I tend to view this as the emergence of a kind of shadowy tradecraft. It is one that can wrap together, yes, some disinformation, but also some black-hat search engine manipulation, the harnessing of outrage, things to do with identity, as I have been saying, and humour and comedy—all that is influential in different ways.
The way we often set up this problem is through a hyper-rationalist idea that there is this thing called disinformation that propagates online, people lacking digital literacy believe it, and that influences their behaviour and attitudes. I will shut up in a second. I rarely interview people, but I have interviewed some of the perpetrators that actually do these operations and they tell me one thing, time and time again. They say, “Carl, we don’t lie about the world to get people to change their minds. We tell people things they already think are true about the world and then guide that in a particular direction.”
The current influence operation in Ukraine is a brilliant example of that. What we are seeing is Russia or pro-invasion-linked influence operations targeting the global south, trying to portray the invasion as essentially being an anti-colonial gesture and tapping into deep-seated anti-western and anti-colonial attitudes within the audiences they are addressing.
Scott Mann
Q
Sam Armstrong: Yes. In a sense, the threat is changing less so than our recognition of the change. Increasingly, we are waking up to the threat of the more all-encompassing nature of interference launched or directed by branches of the Chinese Communist party. Unlike traditional Russian or Soviet Union espionage, this is not 100 or 200 individuals in the UK at any time running a network of agents in a very organised way. This is something more full-throated and all-encompassing—they call it the united front—in which people who would not ordinarily be, or who would not see themselves as being, operatives of a foreign intelligence state are being brought into it or are acting in it.
In addition, the nature of the way that we have woken up to this threat means that there are individuals acting on behalf of the Chinese state quite explicitly and openly who are also employed concurrently, and declaredly so, by public authorities in the United Kingdom, most particularly at British universities, where we have Confucius centres. That is one well known example. They are a branch of the Chinese state and they often take money directly from the Chinese state for their operations. People are double-hatting in roles in the academy there and in the university. That means there is the bizarre case of the British Government—not the British Government as in Her Majesty’s Government, but public authorities at their largest—employing Chinese spies. The British state is certainly knowingly employing agents of the Chinese state.
Scott Mann
Q
Sam Armstrong: This Bill will do an awful lot to deal with it. There are some offences in the Bill that are drawn extremely broadly and will allow the security services to take a knife to whichever problems they would like.
The Bill does not do certain things that other countries have done. For example, Australia introduced the Foreign Relations Act, which allowed the central Government to terminate relationships that public authorities had entered into with foreign states where they were undermining Australia’s foreign policy position. That is a power that I know Australian officials have been keen to encourage the British Government to replicate.
In terms of assisting foreign intelligence services, which I think is by far and away the most broadly applicable offence in the Bill, and the trade secrets offence, there are broad powers there and the Government deserve commendation for bringing those powers before Parliament, although not before time. The security services have been keenly pushing for them and they will appreciate them in doing their work.
Holly Lynch (Halifax) (Lab)
Q
Carl Miller: That is a great question. We can start by cleaning up the grubby world of spam. Often, when talking about online influence operations and disinformation, we descend into this kind of rarefied world of grand geopolitics, but it has as much to do with a very wide array of services and companies. If anyone googles “buy retweets now”, you will be able to see what I am talking about.
There are a tonne of companies that operate in plain sight, selling social media manipulation as “social media services”. You can buy fake followers; you can buy fake engagement. I looked it up on the way here; as of about 10 minutes ago, there was a company selling positive comments in Ukrainian on Instagram—mostly, they claim, by users from Ukraine—for $78 per 1,000. That is on the light net; we are not even talking about the services that are cryptographically secured or anonymised.
There is an array of these kinds of operations. An almost shadowy grey-area marketplace has emerged, which radically lowers the barriers to entry into doing those kinds of activities. That has always been there, but the consensus has emerged among researchers like me that, over the last year or two, the actual number, sophistication and variety of those services has increased quite dramatically. To be honest, if we were to really try to genuinely start increasing the cost and penalties for the actors that do that kind of thing, we would have to target that entire industry as participants in it.
Lastly, in pulling apart some of the operations regarding Ukraine, our hunch is that state-backed activities have likely made use of those exact same services. We will see states maybe rolling out capability outside of state, setting up as private companies, and selling those capabilities back into state.
Holly Lynch
Q
Carl Miller: I have spent 10 years saying the social media companies have not been doing enough on just about every matter of importance that I can possibly think of. They are doing a tremendous amount more now than before, but that has a couple of implications.
First, we have dramatically overfocused on Facebook and Twitter. There are reasons for that, and a lot of them are the fault of researchers like me. We research Facebook because it is big, and Twitter because it is easy to research. If you have a look at the journalistic stories that drive the awareness and debate, they are very often furnished by exposés and revelations about those two platforms.
If I were to point to one part of the internet that I am genuinely afraid about, it would be Wikipedia. If I were an information operation officer, I would have no idea why I was mucking around with Twitter. In Wikipedia, we have an open platform that is protected and serviced by an open community of people who can freely join. If I were a state, I would employ a phalanx of people to contribute completely legitimate edits to Wikipedia and build up their standing in the community, and then they could run for office within Wikipedia and start using the powers they would gain to change what is on Wikipedia and the policies that govern it.
There are lots of other such open-source communities, many of which, including Wikipedia, inform and drive the decisions that the tech giants make. They have not managed to build the kind of internal defensive teams that a Facebook or a Twitter can to try—often in the shadows and in secret; we do not know enough about what happens—to clear that kind of stuff off at scale.
Holly Lynch
Q
Sam Armstrong: The problem is that it is so broad, in that there are problems even in this building. The security services will tell you privately that—far beyond Christine Lee, who obviously was named—there are agents of the Chinese state here who are known to the security services and in whom they have taken an active interest.
There are huge problems in academia; China has made no secret of its interest in academia. When the Zhenhua database leak happened a couple of years ago—this was a database that China was using to identify potential targets of intelligence activity—it was no surprise that they had targeted think-tanks and academics very carefully.
The third and final area that China is very, very interested in is anything related to technology, and to the areas that it would like to obtain and that it set out in its “Made in China 2025” programme. Those areas are twofold. The first is universities and open research. There are researchers in the UK right now who are, frankly, working with branches of the Chinese navy to come up with devices to track nuclear submarines around the world. That is as dangerous as it comes to our national security, and that work is going on in the open. I am also aware of British companies that are making engines—or casings for engines in this case—that they have admitted are good for nothing other than for engines in tanks. There are grievous concerns about the whole level.
Where do you start first? Well, that is a choice between those that are dangerously undermining our national security and tech, and those that are dangerously undermining our democracy in accessing this building and in terms of the influence and space in which they are influencing our democratic process.
Damian Hinds (East Hampshire) (Con)
Q
Carl Miller: One suggestion that I was going to make today was that we have nothing like a comprehensive picture. This is often extremely sporadic project-based research, and it is usually platform-specific, even though we know that, in all likelihood, that is not how the campaigns work—they will work across tonnes of platforms all at once. We will see only certain kinds of campaigns. We are broadly better at seeing broad-based campaigns addressing quite large slices of a population, but again, if we were to put ourselves in the mind of an influence operator, there would be much more targeted campaigns directed towards—if you will—higher-value targets as well.
What we know about scale is that many more countries than those we talk about are doing it. I understand that in the last Indian election, accounts attributable to every single mainstream political party were taken down by Facebook during that campaign. It has emerged as an almost mainstream campaigning tactic.
Damian Hinds
Q
Carl Miller: Yes. One of the reasons that I am hesitating is that, for researchers like me, clear and guaranteed attribution—outside the platforms—is unbelievably difficult, and I do not want to overstate. I can tell you that there are dozens upon dozens upon dozens of incidences, scenarios and narratives that we regard—reading the tea leaves of machine-learning patterns as we do—as suspicious. With the open data that is available to me, I cannot definitively link that back to a state. However, Twitter and Facebook, for example, have both disclosed dozens of campaigns that were—at least in part—likely targeting the UK, and linked them back to what they believe to be state actors.
Damian Hinds
Q
Carl Miller: No, there is not. In fact, I am sure it does, and that is one of the big trends we are seeing. We ran an effort over COP26, and we saw that there were certainly various kinds of organised attempts to manipulate big global thematic conversations about climate action, for instance. Given the barriers of entry into this world, I also do not think that it will be national elections; it might be quite small and local events that see some level of manipulation happening, too.
I will also point out one reality about how these work. One of the difficulties in seeing how the Bill—I am sorry if I have misunderstood this—might apply is its requirement that the actors involved have to be conscious that they are working on behalf of a foreign power.
Quite often, my suspicion is that you would have a state agency with various kinds of links with online actors, and there might be a whole chain, from a PR company to another more specialist digital consultant to a much spammier consultant, and that person might be the person reaching in and actually gathering together various kinds of functionalities, capabilities or services to do overtly illegitimate and malign forms of manipulation online. It might be very difficult; they might never know that a state is at the other end of the trail. With the companies that I mention—the ones selling large amounts of digital manipulation—I cannot believe that they do any kind of “know your customer” activity. I do not think that they have any idea who is employing them.
Damian Hinds
Q
Carl Miller: I cannot create a profile for how each state would approach information operations, to be honest. I do think that there is quite a high degree of heterogeneity among the actors involved. You have all kinds of different intelligence agencies, and military-based and political PR comms-based actors. One of the truisms is that it is a bit of a scattergun approach at the moment, where lots of things have been tried and they are attempting to evaluate them, and they do not really know which ones are succeeding and which are not. I am not quite sure if that is true or not.
The actual nitty-gritty of the techniques and technologies involved is probably the shadowiest part of this whole area. If the Bill were to be effective, something we need in parallel to it would be almost a digital influence version of the national risk register, where we have state support to pull apart and lay out where we think the genuine threats are and the genuine bodies of capability and technology that have been built to do this kind of stuff. It is very difficult for researchers in the open to do this by ourselves.
Damian Hinds
Q
Sam Armstrong: Yes. China initially began—there is some really interesting stuff that has only happened in the UK in this space. We had a university that for a very long time rather openly advertised itself as providing services and specialist media training to officers of the Chinese propaganda Ministry, among others—various branches of the Chinese state—right here in London, metres away from the BBC. You also have the Confucius centre picture, which is important.
Where China has actually done very poorly is in its direct Government-to-Government disinformation. Some of the stuff that you saw around “Wolf Warrior” or that the Global Times—its state international newspaper—puts out is very ineffective. What China is incredibly effective at is not really that disinformation or misinformation public communications picture, but identifying individuals of influence within academia, business or wherever, and building up close relations with them. They are invariably people of influence, who in turn use their own networks to say, “Well, look, I’d be careful of all this talk about China. They are the biggest-growing economy on Earth, we really need to trade with them and we shouldn’t do anything to upset them at any point.” In so far as I have seen, that is where the Chinese influence picture has been focused.
Maria Eagle (Garston and Halewood) (Lab)
Q
Sam Armstrong: Yes, there are two things. The first is the foreign influence transparency register system. I note that there has been a promise that it is to come, but the devil will be in the detail on that because there is a series of policy judgments that have to be made—whether it is expansive, where the teeth bite and so on. It is incredibly important that it is seen quickly.
Secondly, there should be an ability for the Secretary of State, either of the Home Office or the Foreign, Commonwealth and Development Office, to intervene in known problematic institutional relations. There are excellent powers here, such as the individual prevention and investigation measures, but there is very little capacity when that is done more corporately—to go in and say not just to universities but to companies, which would be an expansion of the Australian power, “This arrangement is not in the UK’s interest, and we are ordering you to terminate it.” To say that is a glaring omission is perhaps overstating it, but those are the two powers I would really like to see.
Maria Eagle
Mr Miller?
Carl Miller: There is nothing I dislike in the Bill. It makes a lot of sense to criminalise conscious influence activities linked to foreign states, but we should not think that it will have an appreciable impact on the kind of illicit influence operations that we know are happening.
Maria Eagle
Q
Mr Armstrong, you obviously think the foreign influence registration scheme would help a very great deal. Mr Miller, would it make any difference to some of the issues that you have been discussing if it were clearer that some of the actors that work in social media that you have been talking about had to register?
Carl Miller: No, it will not. Identity is being hijacked and used at a very great scale, so we do not know who these actors are. To be honest with you, the way to start to reduce this activity is to try to create some cost and penalties for the people who do it. They are not doing it from the UK. The nature of the internet is that crime on the internet, like anything, passes unbelievably easily across borders, almost without being noticed. The way forward will be for us to create ways of reaching beyond our own borders and increase the costs. This might sound strange for a think-tanker to say, but we need to increase cyber-offensive activity against the criminal architectures that allow this kind of work to happen.
Maria Eagle
Q
Carl Miller: It is difficult, because the web of powers that the intelligence agencies have to use cyber-offensive activity—various kinds of online action, such as device interference—is spread out across a number of different pieces of legislation.
One of the difficulties is that online influence operations are so widespread and common that most of them would probably not pass the thresholds for the intelligence agencies to become interested and engaged in them. That is one of the difficulties that we have with cyber-crime in general. A tremendous amount of it happens, but so much of the capability to do something about it is concentrated within GCHQ, and not in the police services that have to handle most of it. Sorry, that was a slightly amorphous and broad answer.
Maria Eagle
Q
Sam Armstrong: The Australian scheme is by far and away the best example—in my view, the US FARA system is not a good comparator—and it is a shame that we have not taken the opportunity to bring it in sooner. The Australian high commissioner in London was George Brandis, who was the Attorney General who wrote that very Bill, and I know he was keen wherever possible to impress on the Government that he was there and ready to help. I am sure that offer has not dissipated.
Sally-Ann Hart (Hastings and Rye) (Con)
Q
“a person commits an offence if…the person engages in conduct intending that the conduct, or a course of conduct”
and
“the foreign power condition is met…if… the person knows, or ought reasonably to know, that”
it is a foreign power. Do you think that should be widened to include an element of recklessness or recklessness?
Carl Miller: I think doing anything that might compel any of the services involved to do any kind of due diligence on the people who are employing them can only be a good thing, although the general point I am making is that I don’t think criminalising activity within domestic legislation has been a particularly effective way of changing what people do on the internet, especially when those people are largely concentrated in jurisdictions that do not have any co-operative relationship with British law enforcement.
I remember I spent time with a number of cyber-crime teams across the UK and, in the words of one cyber-crime police officer, “If you are in Russia, the cost or penalty of doing cyber-crimes against British citizens is basically nil.” This is not going to be an effective way of reaching beyond our borders and addressing where we believe a large number of actors doing this kind of thing are; they are not doing this from the UK.
Sally-Ann Hart
Q
Carl Miller: Sure. First, we need to change the intelligence picture slightly. We should integrate SOCMINT—social media intelligence—within the national strategic intelligence picture. We overlooked open-source intelligence—
Sally-Ann Hart
But that is not to do with this Bill, is it?
Carl Miller: Sorry, I thought you asked me— Would you like to hear what I think?
Sally-Ann Hart
Yes, carry on.
Carl Miller: Partly it is to do with changing our national knowledge of where these threats are and who is doing them, so the integration of intelligence. Then, as I said, there should be a national risk register and possibly the creation of powers for parts of the intelligence establishment to undertake direct activity against some of the technical architectures that allow this to happen.
Sorry to delve into the technicalities for a second, but for instance residential proxy IP addresses are a very important way in which this stuff happens. Residential proxy IPs are toasters and fridges and stuff. Basically, they each have an IP address and many of them are hijacked. They are the kind of things you that you use if you want to fool a social media platform into thinking that you are 10,000 people from around the planet when you are not—you are one operator sitting in a particular country. These are criminal architectures that have been amassed and rented out and sold to people, and I am sure they are rented out by some of the actors who seek to do influence operations. These are the kinds of things that we need to target. Putting pressure on that kind of asset is the kind of thing that will probably not get rid of them, but will meaningfully increase the costs of this kind of activity.
Gary Sambrook (Birmingham, Northfield) (Con)
Q
Sam Armstrong: Yes, I think so. Imposing a duty on the social media companies is one of the only immediate tools and levers we can pull. I take Carl’s point; I do not think it is going to be sufficient to deal with the hordes of people overseas who are, frankly, conducting quasi-military-type activities against the UK through cyber means here, because criminal law is not the tool for that. Should they exist and are they necessary? Yes. Are they sufficient? Probably not.
Carl Miller: It is just massively insufficient. The reason why is that the platforms, however rich, clever or large they are, cannot reach beyond the platforms themselves. That is the problem. The way we have tried to respond to this problem so far is to have Facebook take down accounts, but take-down is a very weak response. That is essentially being priced in to those kinds of activities. They have developed methodologies for setting up or acquiring new accounts as they go. In principle, I am not hostile to platform regulation across a range of online threats, but for those problems where we are dealing with a set number of actors who have specific capabilities and tap into a specific and constantly evolving tradecraft, I do not think it is going to be the tool to make much difference.
Ben Everitt (Milton Keynes North) (Con)
Q
Carl Miller: The main thing I would say that the state can step in to help with is around attribution. That is something that we cannot do without state powers. It is something that, at the moment, only the tech giants do, and that is only linked to take-down. If we were to have any prospect of either taking direct cyber-action, or actually bringing criminal prosecution, it would be something that we need. One big thing here is around data access—I am sure you have had other panellists talk to you about that before. To foreground that, I have come here as a researcher whose job it is to do that kind of research, and one of my main things is that we know so little. We know nothing about TikTok—it makes none of its data available. Facebook makes some of its data available, and that is why we have some picture of it. Twitter makes a lot of its data available, and that is why we have a bigger picture.
TikTok is enormous, likely very influential, anecdotally there is tonnes of Ukraine-invasion activity happening on it now, and it has absolutely no application programming interface available for researchers in any way, whatsoever. By the way, there are also rumours that Facebook is withdrawing some of the data access that it currently gives researchers. I am sorry; I know this is ranging far beyond the scope of the Bill. However, to put this on your radars, I think that legislators may have to step in sooner or later to compel platforms to maintain data availability. Otherwise, even the very small window we currently get is going to continually shrink.
Ben Everitt
Q
Sam Armstrong: Yes, I would say that we should actually open this up. One of the best things about the Ukrainian war—there is not much to take solace in—is that defence intelligence has been publishing daily information that has been countering many of those problems. That is a really good thing; we have seen it work and it is wonderful.
We saw a foreign intelligence asset, Christine Lee, regularly making use of this place and having worrying relations with Members of this House. That continued right up until MI5 published a foreign interference alert about her. She is not alone; a number of countries have foreign intelligence and influence assets operating in and around here. There are a number more from the country that sent Christine Lee.
It has been a few months now. If you want to deal with this problem, the fastest way is some sunlight and disinfectant. Let us see a routine publication of those individuals that lengthy, hugely expensive but necessary investigations launched by MI5 have established—beyond MI5’s doubt, at least—are engaged in foreign interference.
The Chair
Order. That brings us to the end of the allocated time. I thank our witnesses for coming in today.
Examination of Witness
Louise Edwards gave evidence.
The Chair
We will now hear, via Zoom, from Louise Edwards, director of regulation at the Electoral Commission. We have until 3 o’clock for this session. I would be grateful, Louise, if you could introduce yourself for the record.
Louise Edwards: Thank you. My name is Louise Edwards. I am the director of regulation at the Electoral Commission.
Scott Mann
Q
Louise Edwards: Of course. We are, fundamentally, an organisation that oversees the running of elections in the UK. We also have a role as the civil enforcement and regulator body for political finance in the UK. For foreign interference, that means that we are the experts on electoral law, electoral finance and the running of elections, and we offer that advice to law enforcement and indeed to the security services, on request. We are not a national security body per se. We do not have an intelligence function per se. It is really a question of working with the intelligence services or law enforcement where we can to offer them that advice.
Scott Mann
Q
Louise Edwards: As I said, we are not a national security body, so our knowledge of the threat of foreign interference in the UK is very much based on what law enforcement and the police tell us, essentially. If you think about elections in the UK, we have not been notified by the security services of any successful attempts at foreign interference in UK elections, and I think we take some confidence from that.
On the political finance side—the money that is going in and out of political parties, campaigners and others involved in our democracy—I caught the end of the previous session and there was reference to one notification from MI5 in that area. That is the only one that we are aware of. However, I would say that it is not a matter to be complacent about. There are things that could be done, particularly on the political finance side, to really modernise and improve the safeguards in the system, not just for foreign interference but for any kind of abuse or interference in the political finance regime.
Scott Mann
Q
Louise Edwards: There is a key principle here, which is that you could hope there is a link between increasing the penalty that can be imposed for an offence and therefore disincentivising or deterring people from committing that offence. That seems like an in-principle link that you would want to see made. That is what perhaps the Bill is aimed at creating.
The measures in the Bill—the offences relevant to elections that are in it—are offences that the police will have to investigate and that will then go through the courts for prosecutions, so really key to making the provisions work effectively is to ensure that the police have the capability and capacity to take them forward, investigating them and passing them on to prosecutors when appropriate.
Holly Lynch
Q
Louise Edwards: Do you mean a potential problem in the sense of a foreign state interference issue?
Holly Lynch
Yes, foreign interference.
Louise Edwards: Okay. If we were made aware of that, it is likely that it would be from the intelligence community or the police, because they are likely to be the ones that would have that information.
If we think about the sorts of offences that are being considered in the Bill, they are broadly around, if we look at the political finance ones, for example, the people who put money into the political system. In political finance, you have the people who are making donations and the people who are receiving the donations, that being the political parties, campaigners and candidates. For donors—the people putting the money into the system—the regime as it currently stands has a set of criminal offences that broadly sit with law enforcement rather than with the commission.
We, as a civil regulatory body, have a set of sanctioning powers for political parties and campaigners, so if we were to be notified of an instance of foreign interference—money coming into the political system from a foreign state power, say—our first response would be to discuss the matter with law enforcement, which would then decide whether to pursue it.
Holly Lynch
Q
Louise Edwards: That is how the process would work. It is very common for civil regulators to have a route into law enforcement for anything that is a criminal matter. In fact, a number of offences in electoral law are both civil and criminal, so even now, before the Bill goes through, we would hand anything involving a foreign state power over to law enforcement to take forward. If the Bill goes through, we will have to hand that over to law enforcement anyway, because the offences listed in it will be investigated only by law enforcement, not by us.
We have a good, established process to notify police forces around the UK if we think that a matter is for them to look at and decide whether to investigate. We have very strong links with police around the UK through which we can do that.
Holly Lynch
Q
Louise Edwards: The answer to your first question is quite simple: we are not looking at any instances of foreign interference at the moment.
The second question is a very good one. If I may be so bold, I do have an ask. One of the challenges when working with law enforcement is that we do not have effective information-sharing powers. One of the things that the Bill would achieve is to bring the police in particular further into the political finance enforcement regime by making the listed offences matters for them only, rather than for us at all. We need a more effective information-sharing power under which we can just hand evidence straight over to the police, unlike at the moment. Currently, it is like we have to say to the police, “Can you please ask us for the evidence information that we want to give you?” If we could cut through that with some decent information-sharing powers, it would make the process an awful lot more straightforward.
Holly Lynch
Thank you. There is an awful lot for us to look at closely there.
Damian Hinds
Q
Louise Edwards: The intelligence community have not notified us of any successful attempts to interfere in UK elections. As I mentioned, the Electoral Commission is not a national security body—we do not have intelligence functions—so when it comes those matters, we receive the information rather than creating it or analysing exactly what it means.
Damian Hinds
Q
Louise Edwards: That is my understanding of what the intelligence community mean when they tell us that, yes.
Damian Hinds
Q
We talk in other contexts about regulating political advertising—meaning adverts placed by political parties that are registered under the Political Parties, Elections and Referendums Act 2000—but in reality, political parties’ advertising is a very small fraction of the total online influencing that goes on in the run-up to elections. What is your expert assessment of how the whole political arena is changing? How do our institutions and our legislative approach need to change to keep up?
Louise Edwards: That is a very interesting question—how long do I have? The political finance side of the regime—I will unpack what I mean by that in a moment—is very much focused on the concept of regular and routine transparency that is enhanced significantly around an electoral event—an election, essentially.
When we talk about the political finance regime, we are talking about a defined set of actors: registered political parties, third-party campaigners, candidates or other members of political parties, and those who have specific responsibilities under law, including regular donation-reporting obligations. For example, political parties have to tell us about their substantial donations on a quarterly basis, and we then publish all that information.
When it comes to elections, as I am sure you know, there is a period in the run-up to elections called the regulated period. Any spending on campaigning that happens during that period—obviously, it gets more intense the closer you get to polling day—also has to be reported to us and gets published so that people can see it.
However, you are right that that is only one side of the nature of influencing or of the wider concept of political campaigning in the UK. There are some really interesting questions there around whether it is sustainable to look only at detailed spending in the run-up to an election, when you might well argue that political campaigning these days is year-round rather than in the run-up to particular polls.
There is also another side to it: how do you define regulated political campaigning and the spending that has to be reported? Back in 2018, we did some work with voters looking at what they thought about online campaigning specifically. One thing we found was that quite often voters did not realise that something they saw online was actually trying to influence their vote, because it was not immediately obvious on the face of the piece of literature that that was what was happening.
In terms of how things might change or develop in the future, there was a bit of thinking done about this in the Elections Act 2022, which introduced what we call “digital imprints”. They are a little bit of text that goes on a message online and says, “This was produced by this person, on behalf of this person, paid for by this person,” so you can see that it is a political advertisement. It is that level of detail and transparency that now needs to be applied.
Damian Hinds
Q
Louise Edwards: It applies to anybody who is putting out regulated political material, so it would be political parties, third-party campaigners and candidates. The regime is fairly comprehensive, although not entirely comprehensive. I realise I am going slightly outside the scope of this Bill, but there is opportunity to make it more comprehensive and to really make it clear to voters every time they see a little bit of campaign material online who is paying for it. So it is those established actors who are—
Damian Hinds
Q
Louise Edwards: Yes.
Maria Eagle
Q
Louise Edwards: You have hit upon one of the hardest issues here. Broadly speaking, people who are within the regime already—the established actors we have been talking about—comply with the law. Many of them, in fact, already put digital imprints on their online material, even though it is not yet a legal requirement to do so. The challenge is those who are perhaps based overseas or who do not want to play by the rules, basically. There are real enforcement challenges there, particularly when you are thinking about organisations or individuals based overseas.
If I go back to the recent Elections Act, one of the provisions that the Government brought in at that point was to lower the spending threshold in elections for people who are based overseas to £700: if you are an overseas entity, you can spend up to £700 campaigning in our elections, then that is it—that is your spending threshold. The problem is that, from our point of view, that can only really be symbolic, because it is virtually impossible to enforce spending at that low level. Even if we were to identify an overseas organisation spending in UK elections, they are overseas, so we have no enforcement powers that we can use to try to stop them.
I am painting a fairly awful picture, but there are some ways to tackle it from a slightly different perspective. For example, we have recently started launching a campaign before elections that is helping voters to look at online material with perhaps a more critical eye, to try to assess whether they should let it affect their vote and to give them a place to find out how to express concerns about that material, with the hope then being that we can perhaps raise confidence in legitimate digital campaigning while at the same time giving people an outlet if they see something they think is illegitimate. There is also a fair amount of work that you could do around political literacy at a very young age with voters, to help them to have that kind of critical perspective.
You mentioned the registration schemes. As a civil political finance regulator, our remit does not extend to matters of lobbying and influence, but one thing I would say, if I may, is that when it comes to the integrity of our democracy and voter confidence in it, transparency is key. Any registration scheme that brings more transparency around who is seeking to influence those involved in our democracy can only be to the benefit of the confidence of voters.
The Chair
Are there any other questions? Okay. I thank our witness for joining this Zoom call and for giving evidence. We will move on to the next panel.
The Chair
We will now start our next session and hear from Professor Ciaran Martin, professor of practice in the management of public organisations at the Blavatnik School of Government at the University of Oxford. We have until 3.20 pm, so if colleagues could keep the questions succinct, I would be very grateful—then we can get in as many of you as possible. Could you introduce yourself for our records, Professor?
Professor Ciaran Martin: Thanks very much, Chair. My name is Ciaran Martin. As you say, I work at the Blavatnik School of Government at the University of Oxford. From 2014 to 2020, I served on the board of GCHQ, and I was the first chief executive of its National Cyber Security Centre.
Scott Mann
Q
Professor Ciaran Martin: Thank you for your kind words. I broadly welcome this Bill. There are a serious of fairly antiquated pieces of legislation that—sometimes at the margin, sometimes a little more profoundly—inhibit the pursuit of hostile-state threats, because they are, in effect, pre-digital legislative frameworks, very simply. With some of the language, you are replacing words like “maps” with words like “data”, or at least adding words like “data” to words like “maps”. You are dealing with things such as the flying of unmanned drones over sensitive sites. Despite my previous experience on the inside of the national security side of Government, when I read the explanatory notes, it was a bit of a double-take to be reminded that we had to explicitly criminalise assisting a foreign intelligence service in this country.
I think it is a very sensible piece of legislation, with the modernisation and some of the tidying up. From listening to your exchanges with the Electoral Commission, I think the provisions around disinformation and interference in political and democratic processes are really difficult to get right, so I welcome this sort of process. I think the intent is obviously cross-party and commands widespread support. The intent and basic provisions should be uncontentious, but I think some of the detail is going to be quite tricky.
Scott Mann
Q
Professor Ciaran Martin: When I say scale, I actually mean scale in its very precise meaning about volume. Digital espionage involves the extraction of information on a scale that was hitherto inconceivable, and that has, therefore, extended the scope of that. For example, there are specific references in the legislation to commercial and trade; we have seen that.
One of the changes that digitisation has brought, in terms of hostile foreign intelligence, is that it is possible to inflict large-scale strategic damage on the UK remotely, but it is not always done remotely. There are hybrid elements—there can be activity on the ground in the UK that assists digital espionage and digital penetration of the UK. Our existing legislative framework does not allow for that to be prosecuted. Even when it is done entirely remotely—for example, the People’s Republic of China has done some of its operations entirely remotely—we have seen from the United States that, although it is not transformative, it is a useful policy lever to have a framework of criminal law that criminalises activity even in eventualities where you will not realistically be able to apprehend a named human being.
To be a bit more succinct, the large-scale extraction of and interference with data is essentially the risk. The willingness of nation states—principally Russia and China, to a lesser extent Iran, previously but not so much recently North Korea, and a bunch of up-and-coming potentially hostile states—to do that has been a very significant feature of the national security landscape over the past decade, as the head of MI5 and so forth emphasised.
Scott Mann
Q
Professor Ciaran Martin: One sees only the tip of the iceberg when there are major breaches. I will use a well-known example from the United States—a close ally that is perhaps easier to talk about because it does not involve disclosing sensitive things about the UK.
The hybrid operation against the United States in 2015, which the US Government at the time acknowledged formally was undertaken by the People’s Republic of China, involved the extraction of more than 20 million security clearance records from the United States Office of Personnel Management—effectively the civil service department of the US Federal Government. It was the security clearance application forms of everyone who had applied for security clearance from the US Federal Government in the first 14 years of the century. As a dataset, it is incredibly rich. For example, if you are part of a commercial data breach, it is likely to be just your name and email address—possibly a password, although perhaps not even that, and possibly the last four digits of a credit card. If you go through a Government security clearance process, it is everything.
Think of the current politics of the US and China, and think about the established fact that the Chinese Government have this dataset of US Government personnel, with lots of information about them. You can see the strategic impact that that can have. To the best of my knowledge, based on public scholarship and disclosures relating to that incident, it was a largely remote operation, but it did include some activity on the ground. You can see how the sort of legislation we are talking about here might be useful in at least deterring or being able to deal with that.
Holly Lynch
Q
Professor Ciaran Martin: I would say this, wouldn’t I, but there has been a reasonably decent trajectory of controlling it.
There is a challenge for defenders. If you are attacking—if you are Russia and you have a programme of destabilisation of the UK through these sorts of means—it is all the same programme to you. But if you are defending against it, the defence of the networks of a privately owned critical infrastructure company, such as the energy grid, is one problem, and the protection of sensitive Government networks—diplomatic cables and intelligence services—requires you to do something slightly different.
Disinformation is a different problem again, because historically under our laws, quite rightly, it has not been an offence to make up a lie and put it on the internet. That is different from a cyber-attack. Putting it under a single organisation is really quite hard.
Things were starting to get better around the time of the end of my Government service in 2020, although there is probably some way to go, on the synthesis of operational cohesion—the sharing of information—across these different parts. It is better than it is in quite a lot of other countries—it is less siloed—but I am sure, Ms Lynch, that there is plenty more that could be done to improve it.
Holly Lynch
Q
Professor Ciaran Martin: A lot of countries have struggled with it, and it goes beyond just legislation, if I am honest. In terms of things like disinformation, quite interesting were some of the things that the French did in 2017, when there was the Russian attempt to do something and they deliberately sort of cast doubt on the integrity of it. They knew the information was being, in effect, data dumped, but they are believed to have done some alterations so as to cast doubt on the authenticity of the whole thing.
In terms of civic society and discourse, in advance of the 2020 election the Washington Post editorial board did something really interesting. Although it did not come to pass in the way that it did in 2016, they issued a proactive statement to say that if they received very sensitive political information but from a suspect source that was likely to be a foreign intelligence service, they would treat it differently from, say, a leak from within the United States—they might sort of print it differently. There is a discussion about how we handle the outcomes of disinformation, on the assumption that it might happen. That is one idea.
On the other hand, on the duties to protect within Government, for example, we are not always very good at gradations of harm. When I started in the civil service at the end of the last century there was still this approach that any leak of any data was potentially quite serious. These days, there is far too much information to take that approach—things are going to leak all the time. We need to focus on an understanding of harm caused and the duty to protect the most sensitive information.
Antony Higginbotham (Burnley) (Con)
Q
Professor Ciaran Martin: It is for your detailed scrutiny to work out whether you think that activity that is clearly on behalf of a hostile state is adequately deterrable and punishable by this Bill. It is quite clear, from both my previous job and discussions and concerns in academia, that it is a target sector—of course it is—for hostile foreign powers, particularly China.
I have to say that even before I went to work for a university I thought it was a very, very hard thing to leave to universities to police. I am not a legal expert, so I do not know how this is going to work on the ground, but the question is: does this Bill provide a sufficient legislative framework to deter some of the actions? There is plenty in the Bill that says that damaging foreign intelligence activity in this country is unlawful, and that would obviously include the academic sector. Whether that sufficiently captures activity is an interesting question.
I think it does help, but it is probably quite tricky to specify, if you like, academic institutions as distinct from general malevolent activity in whatever the sector may be. It is a question worth asking, though, because the sector that I work in now is clearly of significant interest to hostile intelligence services in all sorts of different ways, including in respect of people and individual areas of research. That is one of the key threats that legislation like this is designed to counter.
Antony Higginbotham
Q
Professor Ciaran Martin: I do not mean to be flippant, but obviously there could be as many different opinions as there are academics. I think that Government providing clear frameworks, laws and guidance to universities without infringing on academic freedom is where I would want to be. I do not think that it is fair to rely on universities to police this activity. It is extremely difficult in open and collaborative research environments like universities to be able to identify what is malevolent activity. If they do, it is extremely difficult to know where to go, what the relevant laws are, and so forth. The combination of a clear legal framework and clear guidance to universities is something that I personally would welcome. I imagine quite a few people, particularly in sensitive areas like technological research, would absolutely welcome that.
Sally-Ann Hart
Q
Professor Ciaran Martin: They are not mutually exclusive. The thing about offensive capabilities is that they are sometimes seen as almost symmetrical—cyber is a sort of enclosed boxing ring, where you have offence versus defence—but offensive cyber can be used for anything. Our own British Government’s one declared offensive cyber-operation was against so-called Islamic State, not against the cyber-capabilities of another state.
I need to be reasonably careful about what I say here, but if you think that the US’s offensive cyber-capabilities are largely in the Cyber Command and the UK’s in the National Cyber Force, the GCHQ-MI6-Ministry of Defence partnership, one would expect that the operational security of those capabilities to be pretty good and therefore make quite hard targets for other actors. Similarly, some of China and Russia’s offensive cyber-capabilities against us will have quite good operational security, which will make them hard targets. We cannot rely on offensive cyber-capabilities to stop other people, particularly at the top end of the spectrum, at the elite nation- state level.
There is no magic panacea in the Bill, because no magic panacea is available. Even in the areas we were talking about, such as completely remote activity, one of the things that we saw anecdotally—there is some emerging research to support this—was that when the US in particular had a legal framework, where it can prosecute and indict people in absentia, in China and to some extent Iran, that did have some impact for some time. It did not solve everything, but it did affect the behaviour of some actors—they could not travel to the west, most practically, because they were under indictment by the US and therefore all the US’s allies. It meant that the associates of these people, because digital infrastructure is global, could get arrested.
Some people working with Russian groups have been arrested in eastern European countries with which we can co-operate in law enforcement terms. Strengthening that sort of legal framework gives you something. It is probably more incremental than transformative, but it is still something.
Damian Hinds
Q
Professor Ciaran Martin: Why is so-called data sovereignty such an issue? There are all sorts of reasons in economics, but one of them is that the location of the storage of data is really important. Data centres are massive strategic assets and a vulnerability for any sort of country, and you can see that combined effort. Why did we have such a big debate about the role of Chinese technology in UK infrastructure? It is because of the potential—never mind 5G and so on, but rather in things like smart cities—for data to be siphoned off covertly and so forth. It is possible.
There are stats to show, if you had compromised the International Atomic Energy Agency in Vienna and you went in there, how much you could photocopy versus how much you could steal electronically. There is now the possibility and, in some cases, the practice of comprehensive strategic compromise of huge, important datasets and sensitive strategic knowledge across all sorts of sectors by a combination of mostly digital but sometimes human-enhanced means. Until now, as you say, Mr Hinds, we have not really had a legislative framework for it. This Bill does provide a no doubt improvable such foundation.
The Chair
That brings us to the end of this section of questions. On behalf of the Committee, I thank our witness, Professor Ciaran Martin. Thank you very much.
Examination of Witnesses
Dr Nicholas Hoggard, Professor Penney Lewis and Rich Owen gave evidence.
The Chair
We will now hear from Dr Nicholas Hoggard, Professor Penney Lewis and Mr Rich Owen. We have until 4 o’clock for this session. I would be very grateful if the witnesses introduced themselves for the record.
Dr Nicholas Hoggard: Hello, I am Dr Nick Hoggard. I was the lead lawyer for the Protection of Official Data project at the Law Commission, which was the project referred to us by the Cabinet Office. It informs a number of the offences in part 1 of the National Security Bill.
Professor Penney Lewis: I am Professor Penney Lewis. I am the criminal law commissioner at the Law Commission, so I led that project in its latter stages.
Rich Owen: I am Rich Owen. I am here today in my capacity as the chair of the access to justice committee for the Law Society. I am also director of a pro bono law clinic, the Swansea Law Clinic, which is part of Swansea University, and the chair of a regional advice network for Swansea, Neath and Port Talbot, which was set up by the Welsh Government.
Scott Mann
Q
Professor Penney Lewis: That is a great question. This Bill implements the first part of our report, which was concerned with the espionage offences. I think it is worth saying that we did not envisage that any one statute would implement all the recommendations that we made in that report, even were the Government minded to accept them all.
The second and third parts of the report concern unauthorised disclosure and the role of the public interest in relation to unauthorised disclosures. We understand that the Government are still considering those recommendations. But in relation to the espionage recommendations, yes, this Bill implements our recommendations. There are minor differences, which is to be expected as part of the parliamentary drafting process, but we are very pleased that the Government have accepted those recommendations.
We had several concerns about the existing offences; as the previous witness mentioned, they were not fit for the current threat. The focus, for example, on enemies was unhelpful. It did not—does not—fully reflect the nature of the threat against the UK. It also risks causing offence to states with which we are not at war. We had concerns about the territorial ambit of the offences, which are addressed by this Bill—the offences in part 1. We were also concerned that there were not sufficient culpability thresholds, such that individuals might be prosecuted for the existing offences without being sufficiently culpable. We are pleased to see that those thresholds have been raised in the offences in the Bill.
Dr Nicholas Hoggard: As a matter of generality, I think Penney has it absolutely right: the offences reflect well the recommendations that we made. As Penney said, there are some differences that will arise naturally in the course of drafting and negotiating with parliamentary counsel, but our view is that the spirit of our recommendations has very much been carried through. There is probably not much more I need to add at this point.
Scott Mann
Q
Professor Penney Lewis: I am afraid that I will be less happy about that question. The Law Commission was asked to look at the Official Secrets Act. The project’s terms of reference focused on official Government data, so we have not looked at those matters. There are a number of matters contained in the Bill that were well outside the scope of our project, and I am afraid that we just cannot comment on them.
Holly Lynch
Q
Dr Nicholas Hoggard: Yes, I think we are. One of our concerns about the existing offences in the 1911 Act was that the existing prohibited places—though extensive; it is an extensive and complicated piece of drafting—have a strong military focus, and they do not necessarily reflect the way that critical national infrastructure, for example, or sensitive information is held by the Government.
There are some powers for the Secretary of State that exist under the 1911 Official Secrets Act, but they are quite restricted. What is good to see about the powers under this Bill is they are quite principled powers. The basis on which the Secretary of State can define something as a protected place is much more transparent. There are just three limbs that are easy to understand. That basis for affording the Secretary of the State the power is much more useful. It is more transparent, but it also enables us to capture within the offence places where there is actually a real risk of harm arising from hostile state activity.
On that front, I would say the power is good in so much as it aligns with the spirit of our recommendation. The fact that there will be parliamentary oversight of this process is important. It was a fundamental feature of our recommendations, and the negative resolution procedure is an important part of that process. The Secretary of State’s powers are more effective than is permitted under the current law, but also there is sufficient oversight.
Holly Lynch
Q
Dr Nicholas Hoggard: I do not think so. We gave some consideration to the differences throughout the project in many different parts of legislation between, say, national security and safety, and interests of the state. There is a risk that one ends up swimming in a sea of semantic exercises and trying to work out what the differences and permutations might be. The requirement to consider what might be necessary to designate a prohibited place in the context of the safety or interests of the state is an important power. I do not think it affords unlimited sweeping power to designate anything.
I think safety or interests of the state still make up a relatively confined subset of consideration. It does not enable somebody to start thinking about, in very broad terms, what might be necessary. I suppose the concern, which was raised by Government at the time and some of the stakeholders, was that if you frame these considerations in the context of national security alone, that might unnecessarily narrow the inquiry. Our position is that safety or interest of the state is consistent with a lot of the wording that already exists within the Official Secrets Act, it is consistent with the wording in some of the Bill and it avoids what might risk being an unduly narrow focus on national security.
Holly Lynch
Q
Professor Penney Lewis: The espionage offences here really do not fall into that category. The kinds of offences that you are talking about are the ones currently in the Official Secrets Act 1989 that are about unauthorised disclosure, where there is legitimate concern about information that is embarrassing. Indeed, we recommended a mechanism for authorised disclosures to an independent statutory commissioner, which would have appropriate investigatory powers to look into, for example, disclosures that might be embarrassing to the Government.
However, in relation to these offences, they have with them conditions that relate to the purpose of the person committing the offence that take them outside of someone who is leaking information, whether to embarrass the Government or not, and focus them squarely on someone who is acting to help a foreign power. I think we are in a slightly different realm here: the realm of espionage and not the realm of leaks.
Holly Lynch
Q
Professor Penney Lewis: Sadly, no. That was not within the scope of our project. It really exceeds the focus of our project on official Government data, so we did not make any recommendations in relation to those kinds of powers and we do not have a view.
Damian Hinds
Q
Rich Owen: We think the solicitors’ profession should be subjected to the scheme in just the same way as any other, although we would like an exception on grounds of legal professional privilege. This is an ancient common-law right going back 400 years or more. It is also regarded as a human right and as a corollary of everyone’s right to receive legal advice and assistance and we feel it plays a crucial role in the proper administration of justice.
To be clear on what we mean by legal professional privilege, it is communication between a client and lawyer whose dominant purpose is to seek legal advice, or a communication between a client and lawyer in anticipation of pending or actual litigation. We therefore think that if there is a foreign influence registration scheme without legal professional privilege, then solicitors acting for foreign states or foreign state-related actors, such as companies controlled by or influenced by foreign states, would have to disclose documents. We think that profoundly compromises the rule of law and the fairness of trials, and will affect the relationship between client and lawyer.
I think it is easy to forget that legal professional privilege is not a privilege for solicitors or lawyers; it is for the client. Of course, clients want to be open with their lawyers when they are seeking advice, and we think this scheme would inhibit that openness. Of course, very often, the reason why they want to be open with their lawyers is that they want to know how to comply with the law, rather than breach it. That is why an exemption is needed in any such scheme.
Damian Hinds
Q
Rich Owen: It is important to know the limits to legal professional privilege. It cannot be used to further a crime—because of the so-called “crime-fraud exception” or the “iniquity exception”—so if a solicitor advances an assertion of legal professional privilege in bad faith, then they are not in a privileged situation and could potentially be charged with conspiring to pervert the course of justice.
Legal professional privilege would complement any scheme. The Home Office consultation on a possible scheme said it would respect the human rights framework. That privilege is an ancient common-law right. It is has also been recognised as a human right. The consultation also said that a scheme would not interfere with legitimate activities. It would be a legitimate activity to seek advice from your lawyer and not have that advice disclosed. If anyone was furthering that for espionage purposes, then that would not be a privileged situation; they would be acting outwith legal professional privilege.
Damian Hinds
Q
Rich Owen: Yes. Well, we are looking for something similar to the Australian scheme. The Australian legislation specifically exempts legal professional privilege, as well as seeking legal advice and assistance. That sort of model, which expressly exempts legal professional privilege, would be a suitable way forward for the scheme.
Sally-Ann Hart
Q
Dr Nicholas Hoggard: You can, although I am afraid I will have to be very boring. Speaking with my Law Commission hat on, we are limited in what we can say with respect to those things that did not form part of the scope, regarding the protection of Government data. I am very sorry; I do not mean to be deliberately unhelpful, but we do not really—
Sally-Ann Hart
Q
Rich Owen: Well, those provisions are modelled on terrorism legislation, when they concern a serious risk to the public, and there are suitable safeguards attached to them as well, so the position of the Law Society is to regard that provision as proportionate.
Sally-Ann Hart
Q
Rich Owen: I was saying that an exemption on grounds of legal professional privilege, or seeking legal advice and assistance, could not be used for espionage, because you are outwith legal professional privilege. You are seeking to advance a crime, so that does not come within the ambit of legal professional privilege.
Sally-Ann Hart
Q
Rich Owen: Yes. There has to be access to justice for everyone, including rich people. They can communicate with their lawyer, and if they need advice on the law, that should be privileged. However, if they are seeking, through their communication with lawyers, to advance a criminal offence, then that is outwith legal professional privilege.
Holly Lynch
Q
Professor Penney Lewis: I am sorry but I am going to be very boring again. The offence in clause 3 is not the implementation of one of our recommendations. It is one of the offences that was outside the scope of our project. The main espionage offences that are in the existing Official Secrets Act, which implement our recommendations, are in clauses 1 and 4 of the Bill.
Dr Nicholas Hoggard: I will add to that without going outside our own remit, but thinking more broadly about the distinction between UK interests and Government interests. To re-emphasise a point that Penney made earlier, the essence of espionage offences lies in that purpose prejudicial. That is why we see in those offences that have the purpose prejudicial element—where your purpose is prejudicial to the safety or interests of the United Kingdom—that the sentence is so much greater.
The mens rea—the fault element—of those criminal offences lies in that purpose prejudicial. You need not only your purpose but to have known, or ought to have known, that your purpose was prejudicial to the safety or interests of the UK. Also, you must have known, or ought to have known, that you were acting to benefit a foreign power on behalf of a foreign power. Taken together, it is that essence that makes those offences substantively different from the sort of behaviours that might embarrass a Government—or a Government Minister. That sort of thing often falls for consideration within unauthorised disclosure offences, but it is not really the meat of an offence focused on the active interference with the proper safety or interests of a state.
Regularly throughout the project we met with a number of the UK intelligence community in Cobra with the Government security group. The evidence we heard of the nature of hostile state activity does not really have a bearing on the sort of material that sometimes gets disclosed that might embarrass Government Ministers. They are two quite different creatures.
Damian Hinds
Q
Professor Penney Lewis: Maybe I will start with the high level and then Nick can come in with a bit more detail. I should preface my answer with a slight caveat. This project started in 2015. Nick joined the Law Commission in February 2019 and I joined in January 2020, so while we were heavily involved in the final report, neither of us were involved in drafting the consultation paper or in the consultation period, which happened in 2017. None the less, we have read the consultation responses, and I can also talk slightly more generally about how we go about doing a consultation.
We were asked to take on this project. The way we work is that we undertake a pre-consultation investigative phase where we talk to stakeholders. That involved Government stakeholders, including Government security stakeholders. We talked to a lot of academics who work in this field. We talked to the media, because obviously they were particularly interested in the 1989 Act, and various organisations that are interested in freedom of expression and open government. We then drafted a consultation paper, which contained provisional proposals for reform. We put those out to public consultation. We had a three-month consultation period, and we had a number of consultation events during that. At the same time, we are continuing to talk to Government security colleagues, as Nick mentioned.
We eventually came to an agreement with Government security colleagues about how they would brief us about the details of the threat facing us without us then being in a position where we would have to say in our report, “Well, we have heard all this secret evidence. We can’t tell you what it is, but trust us that these are the recommendations we think will safeguard the security and interests of the UK”, and without also putting the security and interests of the UK at risk. We agreed a confidential briefing process that involved Nick and me. We then also agreed the disclosure by Government of hypothetical examples that they had drafted to represent the real threats that they told us about confidentially and securely.
Throughout the report, there are hypothetical vignettes that illustrate particular risks. Those are the Government and intelligence services’ creatures, but they were the way in which we were able to reflect the reality of the threat. We then considered the consultation responses and the information we had had from the Government security group. We actually changed a number of things we had said in our consultation paper, so in between the provisional proposals and the recommendations there are a number of significant differences, particularly in relation to the 1989 Act. We then published a report in 2020, which contained our final recommendations for reform.
Dr Nicholas Hoggard: I will go into some specifics of what we learned, which is generously open-ended. What Penney says is correct; there were a number of changes that followed the consultation paper, come the final report. One of the major reasons for that was our engagement more substantively with confidential material and representatives from the UK intelligence community—UKIC—and across a number of Departments. It became increasingly clear to us that the scale of the threat was of an order of magnitude that, even in relatively recent integrated reviews, had not really been reflected. That scale really comes from the cyber-threat. I do not want to repeat what far more sophisticated witnesses said earlier in respect of that, but it also became increasingly clear to us that the way in which very capable state actors were wielding that cyber-threat meant that certain of the original provisions we had made needed to be reconsidered.
One example of that would be the extraterritoriality provisions, both in relation to the espionage offences and the unauthorised disclosure offences. The nature of the way in which cyber-information is held—of course, cyber-information now basically means all information—has changed. The existing offences under the 1911 Act and its ancillary Acts are now almost quaint in the way that they perceive espionage as something that happens on our territory. Of course, that is simply not the case anymore. These extraterritoriality provisions, though relatively unusual for criminal offences, are none the less vital if we are to capture the sort of behaviour that we see now. I think the process we went through in engaging with UKIC was actually vital for the understanding of, and background to, some of the recommendations that we made.
The Chair
If there are no further questions, can I thank our witnesses? We will now move to the next panel.
Examination of Witness
Poppy Wood gave evidence.
The Chair
Q
Poppy Wood: Good afternoon, everyone. My name is Poppy Wood, and I lead on UK public policy for an organisation called Reset. We are a philanthropic organisation that focuses on digital threats to democracy. We have a particular interest in disinformation. I was a civil servant about 10 years ago, and have worked in tech and, at times, in cyber-security over the past decade. I am pleased to be here today to talk about some of our work as it relates to the Bill, particularly our research on disinformation and state actors.
Scott Mann
Q
Poppy Wood: That is a good question, and one I hope is being asked every time that we are looking at new versions and new clauses of the Bill. When the consultation came out last year, those of us who had worked in state-backed disinformation for a while were delighted to see some of the questions being asked, at least in the first instance, about the role of state actors and about foreign interference.
When Ken McCallum said last year in his annual threat report that our adversaries are really good at using co-ordinated behaviour to probe UK vulnerabilities, and that we in return really need a holistic response to that—that was about a year ago—a lot of us thought, “But we’re not. It’s great that they are, but we certainly aren’t. No one is really gripping this.” That echoed language from the ISC report in 2020—the Russia report, which said that co-ordinated disinformation and state-backed interference is a really hot potato. No one wants to grip it—not GCHQ, not DCMS, not the other security services. It is too difficult, so we were really relieved to see the Bill come forward, and the consultation late last year.
We were even more relieved earlier this week to see that there will be a link between this Bill and the Online Safety Bill. I have not yet seen that amendment brought forward by the Government; I am hoping that is happening now, because we expected to see it yesterday—I hear the Government have been quite busy this week. That is really about saying that the Home Office and DCMS recognise the role of social media in pushing these co-ordinated campaigns, that electoral interference and foreign state interference is a priority, and that we are seeing platforms being weaponised in order to push the sort of disinformation you mentioned in your question.
We have seen that time and again. In the Scottish referendum in 2014, the Free Scotland 2014 campaign turned out to be backed by Russian and Iranian actors. They were massively weaponising social media by putting up inauthentic accounts and Facebook pages, with mocked-up pictures of the royal family, saying they wanted to take all the money from Scotland and buy new houses. It was complete nonsense, the aim of which was to destabilise the Union.
The Free Scotland 2014 campaign was called out by Twitter and Facebook in 2018. So four years later they said, “Hey, we’ve just found all these accounts that were trying to destabilise the Union four years ago”, and we were going, “But what did you do about that four years ago?” I think we are going to see that again in Northern Ireland, we saw it in the US elections in 2016 and 2020, when the US Senate said that Russia was targeting African- American electors as a priority, to drive division in the States, and we will see that in any election we have in the UK.
I am really pleased to see that the Government are trying to link the two Bills. I think there are three words missing from both the Bills, and they are “co-ordinated inauthentic behaviour”. This Bill and the Online Safety Bill might be getting towards those words, but one of them has to say them, because we are talking about individuals and organisations in this Bill and social media in the Online Safety Bill, but the examples I have just given are absolutely about co-ordination.
It will be hard to find one person. The extra-territoriality provisions in this Bill are good, but we should not be measuring the success of this Bill as people in prison. This is all about troll armies abroad, so the link is important, but I think it needs to go further on specifically calling out co-ordinated inauthentic behaviour in either or both of these pieces of legislation.
There are some questions about case law linked to the Online Safety Bill and the National Security Bill. In the amendments, we are expecting, hopefully today, for foreign interference to be listed as a priority harm in the Online Safety Bill. The question arises of how social media platforms, which will now effectively be given the power to police these kinds of things, will catch foreign interference when, as the Online Safety Bill says, the
“content amounts to an offence”.
How can a social media platform judge how content would amount to a criminal offence?
We need to think about some of the language around how people identify that criminal offence. I think Carnegie UK, or another group, has suggested something along the lines of illegal content meaning content that the provider has “reasonable grounds to believe” amounts to a relevant offence. I do not think that “amounts to” has the precedent, and it is going to be hard, particularly in content law, to catch that.
The other thing about the Online Safety Bill and the National Security Bill is that we may end up seeing the case law being made in the civil courts, because we will see Ofcom taking a case against a platform, that platform appealing and the case being handled in the civil court, even if it involves foreign interference and a criminal offence. That needs to be thought about. I certainly do not have a solution, but I just want to flag it as a risk of linking these two Bills but not thinking about how they are fully linked.
However, going back to my first point, we were delighted to see that the Government are taking this really seriously.
Scott Mann
Q
Poppy Wood: Obviously, you have heard from much greater experts than me about hack-and-leak operations et cetera, and I refer you to their remarks about that. In terms of co-ordinated disinformation campaigns, as I said we have seen that in the US election, with really targeted approaches to particular groups that people wanted to divide. When I mentioned that the US Senate said that African-American electors were being targeted, it was clear that the Russians wanted to stir up tensions within that group and between that group and white police. They would really push Ku Klux Klan narratives, false images and all sorts to make sure that those groups were infighting. I would absolutely expect to see that here as well.
Political ads are also a really big issue. I cannot work out whether they are dealt with in the Bill, but they are certainly not dealt with in the Online Safety Bill. The Cabinet Office seems to own the political ads regime, but we are seeing shell companies buying these ads purely to stoke division and tension, and we would expect to see that again. One of the problems with not having a grip of the issue, particularly as we could go into an election period in the UK at any point, is that we need someone to comprehensively pull this all together.
The Russians and the Iranians often leave quite a lot of fingerprints on their work, sometimes intentionally. I know that Ken McCallum, who is director general of MI5, and the FBI discussed the threat from China yesterday. They did not mention disinformation, which I thought was interesting, but the Chinese have historically been much better at not leaving their fingerprints on things, so I cannot really speak to some of their activity. However, we have seen it time and time again.
It is probably best not to talk about the Brexit referendum, but we all know what happened there with the engagement from foreign actors. We should not be surprised to see disinformation. We are vulnerable in the UK because of our role in supporting Ukraine, and we have to pull it all together. If the Online Safety Bill, combined with the National Security Bill, does not do so, I do not know what will.
Holly Lynch
Q
Poppy Wood: We have to be careful not to try to define disinformation. There is some language in the Bill about misrepresentation, and the idea of intentionally misrepresenting is important. We will never get a grip on exactly what disinformation is, because it is a shapeshifter.
On the first part of your question, it is about the system of amplifying and the ease with which people with malicious intent can manipulate systems by creating fake accounts, not verifying IDs and exploiting the recommender algorithms so that they hook you with one piece of content. We see this time and time again. One piece of bad content is not the problem, but they hook you on it, which then leads you down a rabbit hole to something much darker and more radical. It does not even have to be radical; it can be the sort of stuff that we were talking about with the Scotland referendum. It can be innocuous, such as stories about what the royal family are doing. It is about sowing seeds and exploiting cognitive dissonance, which bad actors are very good at and which social media is absolutely weaponised to make the most of, because of the pace and amplification of the content.
The Online Safety Bill goes part of the way there; it is imperfect, partly because it is so hard to define disinformation. There is very little in the Online Safety Bill on disinformation. There is an advisory committee that is years down the road. It is ironic that the National Security Bill is about trying to rein in certain types of transparency. Transparency is a really big part of all this, so it is about trying to find out who is behind things and what the data patterns really look like, and building in researchers. I think that was something Ken McCallum said last year. A holistic approach is a cross-Government approach, but it also involves industry, civil society, journalists and researchers. Everyone has to focus on this. Both Bills could go further on systems and, as I say, the co-ordinated inauthentic behaviour language just is not there either.
Holly Lynch
Q
Poppy Wood: That is a brilliant idea. It goes back to the point about grip. We are seeing really good work being done by the Home Department and the Department for Digital, Culture, Media and Sport. I think the DCMS counter-disinformation unit is an important tool, but it is very small, as is DCMS, and it is lacking the transparency that such interventions require. It should probably be a body like the Intelligence and Security Committee—some kind of cross-party body, quasi-independent of Government, thinking about the issues, with input from expertise in the relevant services and relevant Departments. I know that the Home Department and DCMS work together closely on this, and I think the Cabinet Office also has a role to play. Instinctively, I feel that something like the ISC would be the best place for it, but I am sure that is to be worked out.
One of the issues with a lot of this stuff is the role of the Executive, and making sure that the body is that far removed from political interference.
Damian Hinds
Q
Poppy Wood: Absolutely. If you are suggesting that they respond to PR crises, I would agree with you on that one. Of course, this about brands. We have seen with revelations from Frances Haugen that Facebook is not understaffed but just not focusing them in the right direction on this stuff. There are only handfuls of people focusing on co-ordinated disinformation for the whole world within these big technology companies. It should be dozens, especially if they are hiring 10,000 engineers for the metaverse in Europe. They can put some of them on elections and tracking. They say that they go far, but they could go much further. When there is pressure on them, they respond, and so far that pressure has been PR because there has not been regulation.
Damian Hinds
Q
Poppy Wood: We do not know, because we have not got the transparency. They may seem to have got better, but as a percentage of what, we cannot know. They will say that it has got better and that they have caught this many thousand as opposed to that many thousand last time, and those accounts have been taken down, but we have no idea if it is a percentage of what. That is why people, such as Frances Haugen, who have come forward as whistleblowers to say, “They are telling you this, but the data says that,” show that we should not be relying on those people. I am sure we will come on to the whistleblowers, but there have to touchpoints much earlier on, from civil society, from Government, from researchers, to say “Hey, actually, the scale is much larger,” or, “You’re not even looking at this stuff.”
London is one of the most linguistically diverse cities in the world, and when we are talking about counter-terrorism speech, one of Frances’s revelations was that 75% of counter-terrorism speech was identified as AI—it is terrorism speech, so it is taken down. We are thinking about the UK as an English monolith, but there is plenty of linguistic diversity that puts us at risk when those platforms are weaponised in elections, focusing on diaspora and so on.
I would hope that the platforms have got better, and I would like to give them the benefit of the doubt, but the truth is that we just do not know.
Damian Hinds
Q
Poppy Wood: I would challenge the first assumption that you can see what you can see on Facebook. They still view that as private information. Researchers cannot get access to that unless they kind of beg, borrow and steal. I understand the question—
Damian Hinds
But you can see public postings on Facebook. That is my point.
Poppy Wood: On your page, you can, but researchers cannot.
Damian Hinds
But that is still more than you can see on WhatsApp, where you cannot see a post at all.
Poppy Wood: That’s true. I suppose I would say they could do much more about transparency just about the public posts—that is my first point. Secondly, on encryption, there are concerns about some of the amendments in the Online Safety Bill and what that really means for encryption. I know we are not here to talk about that Bill, but encryption is an important tool. We know that those spaces are misused, but we need to be really clear about some of the benefits that encryption offers to lots of people, particularly the security services, for sharing information safely. We need to be careful.
Damian Hinds
Q
Poppy Wood: Let me give you a good example on Russia Today. We do a lot of work and analysis around Russia and Ukraine. Obviously, Russia Today was taken down from most national broadcast networks. It has been resurrected multiple times on social media. This week, we saw it resurrected with another name, like “Discovery Dig” or something, on YouTube, where lots of the comments, imagery and language were directing people to Telegram channels where they are actively mobilising.
What we see in the active mobilisation on Telegram channels is the outing of national security agents, the putting up of email addresses of politicians and saying, “Target them and say they are on the wrong side of the debate,” or, “Write to this national newspaper.” In all three of those examples, it is predominantly in the UK. They are telling them it is all fabricated. They are absolutely weaponising those private spaces. As you say, it is quite hard to get into them—but actually, it is not that hard. They are pretty open channels, with thousands and millions of engagements and followers. That is the scarier bit. They are private, but you are getting tens of millions of people and engagements on them. I am not sure that is the true definition of private, but it is certainly in an encrypted space.
Jess Phillips (Birmingham, Yardley) (Lab)
Q
Poppy Wood: The role of whistleblowers in society is really important. I know the Government understand that. There are some good recommendations from the ISC about whistleblowers that I do not think have been adopted in this version of the Bill. That is about at least giving some clarity to where the thresholds lie, and giving a disclosure offence and a public interest defence to whistleblowers so they can say, “These are the reasons why.” My understanding is that at the moment it sits with juries and it is on a case-by-case basis. I would certainly commend to you the recommendations from the ISC.
I would also say—this was a recommendation from the Law Commission and also, I think, from the ISC—that lots of people have to blow the whistle because they feel that they do not have anywhere else to go. There could be formal procedures—an independent person or body or office to go to when you are in intelligence agencies, or government in general or anywhere. One of the reasons why Frances Haugen came forward—she has been public about this—is that she did not really know where else to go. There were no placards saying, “Call the Information Commissioner in the UK if you have concerns about data.” People do not know where to go.
Getting touchpoints earlier down the chain so that people do not respond in desperation in the way we have seen in the past would be a good recommendation to take forward. Whistleblowers play an important part in our society and in societies all round the world. Those tests on a public interest defence would give some clarity, which would be really welcome. Building a system around them—I know the US intelligence services do that; they have a kind of whistleblower programme within the CIA and the Department of Defence that allows people to go to someone, somewhere, earlier on, to raise concerns—is the sort of thing you might be looking at. I think a whistleblower programme is an ISC recommendation, but it is certainly a Law Commission recommendation.
Sally-Ann Hart
Q
Poppy Wood: I have certainly read and heard concerns about journalism, about the “foreign power” test on civil society and about having Government money being quite a blunt measure for whether or not you might fall foul of these offences. On journalism, I think that is why you should never try to define disinformation: because those kinds of shape-shifting forms are very hard to pin down, particularly with questions like “What is journalism?”, “What is a mistruth?”, “What is a mis-speak?” and so on. We need to be careful about that.
On your specific question, I refer you to Article 19 and others who have really thought through the impact on journalism and free speech. I am sure it would be an unintended consequence but, again, we are seeing Russia using its co-ordinated armies on Telegram and other channels to target Ukrainian journalists. They are saying, “Complain to the platforms that the journalist is not who they say they are or is saying something false, so they are breaking the terms of service. Bombard the platforms so that that journalist gets taken down and cannot post live from Ukraine for a handful of days.”
That is just another example of how these systems are weaponised. This is where you can go much further on systems through the Online Safety Bill and the National Security Bill without worrying too much about speech. But I refer the Committee to other experts, such as Article 19, that have looked really deeply at the journalism issue. I think Index on Censorship may have done some work as well.
Sally-Ann Hart
Q
Poppy Wood: I think that where we are now is much better than where we were last year, but my concern is whether this will all be law when we have an election. If not, what are the backstops that the Government have in place to focus on this stuff? It will get tested only when we have an election, really. If that is before March next year or whenever these laws get Royal Assent, there will be a genuine question of crisis management: if this is not law, what are we doing? I would ask that question of the Government and the civil service.
As I said, the disinformation committee in the Online Safety Bill is years down the line. Bring that forward—there is no need not to bring it forward—and please make sure that it is not chaired by someone from a tech platform. I would write that into the Bill, because otherwise there is a risk that that will happen.
Sally-Ann Hart
Q
Poppy Wood: Why should the committee on disinformation not be chaired by someone from a tech platform? They have a vested interest in this stuff, so I would get an academic or someone from civil society—someone at arm’s length who can take a holistic view. These platforms will want to protect their interests on this stuff, so I would warn against that.
I would like to see the transparency provisions in the Online Safety Bill go much further. This is a bit in the weeds of the Online Safety Bill, if you will forgive me, but there is a very good clause in that Bill, clause 136, which says that Ofcom should ask whether researchers should be given access to data. It is an important clause, but it says, “Ask the question,” and it gives Ofcom two years to do it. I do not think it needs two years; I think we know that the answer is “Yes, researchers desperately need access to data.”
Almost all the stuff that is caught about malign information operations is caught via Twitter’s API. Twitter makes 10% of all the tweets public, and researchers use that to run analysis, so if you ever want to do research on disinformation, you always use the Twitter API. In many cases, that is mapped over to Facebook to identify the same operations on Facebook, but they are always caught in the first instance because of open data. I think that the Online Safety Bill, if this Committee and this Bill want to back it up, could bring that forward and say, “Either do the report in six months or don’t even ask the question.”
By the way, the European legislation that is equivalent to the Online Safety Bill makes that happen as of Tuesday this week, so researchers should, in theory, be able to access data. I would bring the transparency provisions forward, and I would really want the Bill to call out co-ordinated inauthentic behaviour.
The Chair
That brings us to the end of this panel. On behalf of the Committee, I thank our witness for taking the time to give evidence.
Examination of Witness
Dan Dolan gave evidence.
The Chair
Last but not least, we will now hear from Dr Nicholas Hoggard, lead lawyer for—I am so sorry; it is that time of day and the lack of coffee. [Laughter.] I should have confiscated my colleague’s coffee and had it for myself! Apologies; we are going to hear from Dan Dolan, the director of policy and advocacy at Reprieve. We have until 4.40 pm for the session. Could you introduce yourself for the record, Mr Dolan?
Dan Dolan: Thank you very much. My name is Dan Dolan, and I am the director of policy and advocacy at Reprieve, a legal action charity that seeks to uphold the rule of law and human rights around the word. Over the past 20 years, Reprieve has provided legal and investigative support to hundreds of prisoners on death row, the families of innocents killed in drone strikes, victims of torture and extraordinary rendition, and scores of prisoners in Guantanamo Bay. Thank you for the opportunity to give evidence.
Holly Lynch
Q
Dan Dolan: Absolutely. I should start by saying that we absolutely recognise that the country’s intelligence agencies do a difficult and often dangerous job to keep us safe, and we give our evidence in recognition of that. We think clause 23 is much more likely to protect Ministers and senior officials from criminal liability than anyone in the midst of an operation overseas.
The reason why we say that is because there is already a regime, under the Intelligence Services Act 1994, under which acts that could constitute a criminal offence overseas would be authorised by a Minister if they are in the furtherance of the agencies’ duties. That is well recognised. The Minister who took that Act through described offences such as bugging, bribery and burglary, which you can imagine an officer of the intelligence agencies may need to do overseas to keep the UK safe. That regime already exists in law, and it allows for authorisation of potentially criminal acts overseas.
Clause 23 disapplies provisions of the separate Serious Crime Act 2007 relating to encouraging or assisting the commission of a crime—specifically, schedule 4, which relates to extra-territoriality, meaning crimes that would be encouraged in the UK but committed overseas. There is already a regime that protects officers of the UK who are involved in operations overseas and do things that may be criminal by giving them insulation from criminal liability.
Clause 23 insulates people from criminal liability for acts undertaken in the UK to encourage or assist offences overseas. Realistically, we are talking about conduct that might take place, for example, behind a desk in Whitehall, but would ultimately result in what would be a criminal offence overseas. There is an existing legal regime to cover offences of those who undertake them outside the country; this is about actions taken within the country, if that makes sense.
Holly Lynch
Q
Dan Dolan: Yes, it would be. Effectively, clause 23 looks a lot like an effort to protect Ministers from criminal liability for actions that they encourage or assist in the UK that could constitute a crime overseas. This is not a hypothetical idea. There have been instances that were extensively documented in the Intelligence and Security Committee’s detainee report, where UK Ministers and officials authorised intelligence sharing that led to appalling torture and mistreatment of people overseas. The ISC has documented that extensively.
A good example is the case of Abdul Hakim Belhaj and his wife Fatima Boudchar, who in 2004 were rendered to Libya where they faced appalling mistreatment, both in Libya and in the course of their rendition by the US CIA. Subsequently, it emerged that the UK Government had provided the tip-off to enable that extraordinary rendition. The couple ultimately received an apology from Theresa May’s Government, recognising that the UK had shared intelligence that had contributed to the couple’s absolutely appalling mistreatment.
That is not an isolated case. During the war on terror era, there were many instances where the UK shared intelligence that contributed to torture. That has been recognised. The then Prime Minister recognised that in her response to the ISC’s report, and pledged never to do that again. What this clause would do is effectively to insulate Ministers from criminal responsibility for those kinds of offences.
Holly Lynch
Q
Dan Dolan: That touches, importantly, on the point about whether clause 23 would protect officers acting overseas in the UK’s national interest, or whether it would protect politicians and officials taking actions in Whitehall, like sharing intelligence. In response to your question, I want to read a quote given by MI6 to the ISC’s detainee inquiry—quoted in the report—with respect to section 7 authorisations under the 1994 Act. The Secret Intelligence Service said that, in the cases they were talking about,
“we are … always going to go for a section 7 authorisation. Because, you know, why should my officers carry the risks on behalf of the Government personally? Why should they? So, you know, as we have already discussed, serious risk is…a subjective judgement. So we will go for belt and braces on this.”
I think that “belt and braces” is the important phrase to think about, because that is MI6 describing the separate 1994 section 7 authorisations as a belt-and-braces approach to protecting officers from criminal liability. That regime exists already, under the Intelligence Services Act 1994, so why do we need clause 23? It relates to actions taking place here in the UK—not people operating abroad on operations, but people acting in the UK—so what kind of actions are we talking about? The area that is not covered under existing legislation is the authorisation of acts or the sharing of intelligence that happens here in England or Wales.
We are therefore not of the opinion that the clause would offer additional protection over and above the 1994 Act. The clause covers a different category of offence, and that would be the encouragement or assistance of a crime from within the United Kingdom. We are talking about Ministers and officials approving things here, not people on operations overseas.
My final point—I know this was made on Second Reading—is that the Serious Crime Act 2015, sections of which would be disapplied by clause 23, already includes, in section 50, a reasonableness defence. Even if you imagine a case in which the Government argue that a Minister needs to order something that might be a crime overseas in the national interest—they would have to make a strong case for that—they would have a legal defence under reasonableness to say that their action was reasonable under section 50 of the Serious Crime Act. What we are talking about here is clause 23 disapplying legislation that would hold Ministers to account were they to encourage or assist a crime overseas.
Jess Phillips
Q
Dan Dolan: I am sorry to be unhelpful, but Reprieve’s evidence largely covers the provisions under clauses 23 and 57 to 61. I can pass it on to somebody.
Jess Phillips
Q
Dan Dolan: Part 3 of the Bill—clauses 57 to 61—is in some ways the other side of the coin to clause 23. Clause 23 significantly hampers criminal accountability for ministerial or official involvement in crimes overseas, but there is also a very important civil avenue by which we might get accountability were the UK to get mixed up in torture or unlawful killing.
The Britons who were detained in Guantanamo Bay unlawfully without charge for many years and Abdel Hakim Belhaj, to whom the Government apologised, got accountability for the UK’s involvement in their appalling abuse through civil cases. They fought very hard, multi-year legal battles in the civil courts to win recognition from the Government that they had been involved in their mistreatment. Clauses 57 to 60 effectively introduce a range of so-called national security factors that would allow the Government to request a reduction of damages, potentially to nil, if those factors are present.
Say you are Mr Belhaj, who sued the Government and ultimately exposed their involvement in his torture, a national security factor that could have been applied in his case, were it in the form in the Bill, is that the UK, when it undertook the action that enabled his abuse, was acting to avert a real risk of harm. That obviously sounds convincing, but it is difficult to imagine an instance where the intelligence agencies would say they were not acting to avert a risk of harm—that is their core purpose.
The Bill also has national security factors that include the involvement of a third party. Say the UK Government passed on intelligence that led to someone’s torture by Colonel Gaddafi’s Libya, historically. Colonel Gaddafi’s Libya is a third party and its involvement would mean that UK did not need to pay damages on that front. The action happening overseas is another national security factor. If there were any wrongdoing by the UK intelligence agencies that led to torture or abuse overseas, the person would not be able to seek damages because of that factor. Effectively, what we are seeing in clauses 57 to 60 is a really sweeping effort on the part of the Government to get out of paying any damages to anyone who suffers due to Government wrongdoing overseas.
Clause 61 is really interesting, because it effectively relates to all civil cases. It allows for the freezing of damages in all civil cases, not just cases in which the Government are accused of wrongdoing. We just have not seen any basis that there is an issue with global terrorist groups receiving financing from damages in personal injury or medical negligence cases. It seems an incredibly, sweepingly broad curtailment of one’s right to receive damages—one that likely duplicates existing provisions for asset freezing and terrorist financing.
Jess Phillips
Q
Dan Dolan: I would say that our evidence to the Committee covers clauses 57 to 60 and does not look in detail at the legal aid provisions, but my understanding of those provisions from the Independent Reviewer of Terrorism Legislation’s notes on those is that these are extremely broad provisions, and I would note that—
Jess Phillips
They would not be able to access legal aid.
Dan Dolan: There are a number of people every year—teenagers—who receive non-custodial sentences under terrorism legislation. That might be someone who shares something online at the age of 16, and my understanding is that the Bill would have an incredibly sweeping impact on their ability to receive those kinds of orders, and, equally, on their rights to access the civil courts for the rest of their lives, which is a fairly dramatic constitutional action.
Jess Phillips
It does not stop them accessing the civil courts. To be fair, it stops them accessing legal aid to the civil courts.
Dan Dolan: Which, as you will be aware, may be, at times, the same thing.
Jess Phillips
Just on a point of fact, it stops them from accessing legal aid.
Sally-Ann Hart
Q
Dan Dolan: I am afraid I might have to give the frustrating answer that our evidence does not cover clause 20. There is clearly a concern there, but I am probably best leaving that to more expert witnesses to answer.
The Chair
Any other questions? Thank you all very much. That brings us to the end of this session. I thank our witness on behalf of the Committee for taking the time to give evidence today.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
National Security Bill (Third sitting)
Tuesday 12th July 2022
(2 years, 4 months ago)
Public Bill CommitteesRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 July 2022 - (12 Jul 2022)
The Chair
I welcome the Committee to the line-by-line consideration of the Bill. Let us first have a few moments of parish notices. Many people here are old hands at this business, but some are not. Members will therefore forgive me if I talk them through the way in which the Committee ought to consider the Bill, from the beginning—forgive me if I am telling you things that you already know.
The Bill before you is the Bill as agreed, without Division, on Second Reading. The purpose of the Committee is to consider the Bill in detail and seek to improve it. That is done by any member of the Committee tabling amendments. Most often, amendments are tabled by Her Majesty’s loyal Opposition, although anybody can do so. On this occasion, there is also a large number—perhaps larger than usual—of Government amendments. We talk through the amendments.
Amendments are grouped on the selection list before you and are linked together by subject. If there are amendments across the field on a similar subject, they are debated together in one group. Amendments are then voted on not at that time, but when we get to the relevant part of the Bill; amendments are debated together, but often we will vote on them two or three days later, as we come to them. That removes the confusion on that part. The Member who tabled the lead amendment in a group starts the debate. Others may then catch my eye. Members may speak as often as they like on each amendment, although we might seek to avoid overdoing it.
Behaviour, as it were, is identical here as to that in the main Chamber. Things such as eating and drinking are not allowed, and—to begin with, at least—gentlemen are wearing their coats. I am a very old-fashioned traditionalist and tend to start that way. However, if somebody at some stage wanted to make a point of order, I might be persuaded to change that particular rule—for the first time in my 25 years as a Chairman, mark you, but these are extreme conditions. I am sure that the Doorkeeper will kindly ensure that everyone has plenty of water, as we need to be aware of the heat today.
Clause 1
Obtaining or disclosing protected information
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I beg to move amendment 46, in clause 1, page 1, line 10, leave out “prejudicial” and insert “damaging”.
This amendment seeks to clarify the tests to be met before the offence of obtaining or disclosing protected information is committed.
The Chair
With this it will be convenient to consider the following:
Amendment 47, in clause 1, page 1, line 10, after “safety or” insert “critical”.
This amendment seeks to clarify the tests to be met before the offence of obtaining or disclosing protected information is committed.
Amendment 48, in clause 27, page 21, line 4, at end insert
““critical interests” includes security and intelligence, defence, international relations and law and order”.
This amendment seeks to clarify the tests to be met before the offence of obtaining or disclosing protected information is committed.
Clause stand part.
Stuart C. McDonald
It is a pleasure to serve under your chairmanship, Mr Gray. I welcome the new Minister to his place and wish him all the best in his new role. I certainly foresee this experience as being thrown in at the deep end, but it is a Bill on which there is broad consensus, so I hope that it is not too much of a baptism of fire and that he enjoys it.
It is nice to be able to join colleagues. I was sorry to miss the evidence session last Thursday, as I was indisposed, but I have read the transcript, and the session seemed to prove incredibly useful. I therefore did not miss the usual experience I have at around this time of a Bill Committee, when I think, “If only I had been able to hear or read that evidence before drafting my amendments, they might have been slightly different.”
Let me reiterate our position: the vast majority of provisions in the Bill are welcome and probably long overdue. Clause 1, like clause 4, implements part of the Law Commission’s review recommendations. The clauses are broadly welcome and should stand part of the Bill. Our amendments to clause 1, like most of the handful of other amendments we have tabled, are simply designed to probe whether the offences are drawn tightly enough. The crimes that we are talking about are serious—the offence in clause 1 can lead to life imprisonment. I do not think that anybody on the Committee would say that that is not appropriate when a person steals or hacks protected security information at the behest of a foreign Government and puts the lives of UK citizens at risk.
The amendments are simply designed to ask whether the offence might catch conduct that it was not intended to catch, particularly behaviour that might embarrass the Government but is not in any genuine sense prejudicial to our safety. The shadow Minister put that question to the Law Commission witnesses last Thursday. Professor Lewis responded that such questions are probably legitimate in relation to the Official Secrets Act 1989 and leaks, but the offence is different in this case because of the requirement to be acting for a foreign power. She said succinctly:
I think we are in a slightly different realm here: the realm of espionage and not the realm of leaks.—[Official Report, National Security Public Bill Committee, 7 July 2022; c. 52, Q98.]
On the whole, I absolutely accept that point, and I fleetingly considered withdrawing some of the amendments, but there are questions about whether that distinction is 100% correct. There are legitimate concerns—they were raised on Second Reading and in the written briefings provided to MPs in advance of it—that the clause also catches behaviour that is more akin to a disclosure under the 1989 Act.
Article 19 and the Campaign For Freedom of Information argue that some of the broad concepts used in clause 1 combine in a way that puts civil society organisations and journalists at risk. I am grateful to those groups for their Second Reading briefings, which have largely prompted my remarks this morning. They point to several features of the clause that cause difficulty. First, it covers material that does not bear a security classification, and information is in scope even if it is not restricted but the person receiving it reasonably believes that it should have been.
Secondly, the concept of “safety or interests of the United Kingdom” is essentially determined by the Government of the day, so it is a policy of the state and, potentially, a broad concept. Thirdly, as well as not being confined to hostile states, the foreign power condition appears to be met simply by obtaining funding from a friendly Government who are pursuing perfectly reasonable aims.
That combination of factors gives rise to concerns for NGOs and journalists. I will give some hypothetical examples of each, which I have borrowed from Article 19. Let us say that an NGO in the UK has some general overseas funding from a friendly Government to campaign on climate change. The Government of the day decide that fracking or new coal are essential for UK interests—who knows where we might be in a few months’ time? The NGO is provided with leaked information undermining that policy—perhaps about the safety record of the company being lined up to operate the plan—and publishes it. Has the NGO involved committed a criminal offence? The way the clause is worded suggest that it might have.
The right hon. Member for Haltemprice and Howden (Mr Davis) made the point that lots of excellent organisations receive funding from overseas foreign powers, as they are currently defined. In fact, a list would include ActionAid, Anti-Slavery International, Article 19, Client Earth, Global Witness, Index on Censorship, Media Defence, the Organised Crime and Corruption Reporting Project, Privacy International, Reprieve—from which we heard evidence last week—and Transparency International. The funders of those NGOs include organisations such as the Danish International Development Agency, IrishAid, New Zealand’s Ministry of Foreign Affairs and Trade, the US State Department’s Bureau of Democracy, Human Rights and Labour, and the US State Department’s Office to Monitor and Combat Trafficking in Persons—there are many more in that vein. That is why we have concerns about the effect of clause 1 on NGOs.
In contrast, if a different NGO—one just across the road—had published that document online, it would not be committing an offence, not just because it does not receive any such foreign funding, but because the 1989 Act is more specifically about the subject matter or material that leads to an offence of disclosure—namely, it would have to relate to security and intelligence, defence, international relations and law enforcement. Environment or energy policy—or fracking, in my example—would not be covered. The punishment under the 1989 Act would be two years’ imprisonment, not life, so there is real inconsistency between the disclosures caught by the Bill and those caught by that Act.
My second example relates to journalism. What happens if, rather than directly publishing the leak, the NGO passes it to a journalist who reports the leaked information as part of their story? If that journalist is employed by a UK news organisation, all is well, because the foreign power conditions are not met. However, if the journalist works for another Government state broadcaster—even a friendly one—the foreign power condition is adequately met. One reporter commits no offence at all; another reporter—who perhaps works for Danmarks Radio or any other state broadcaster—commits an offence that could mean life imprisonment.
Our amendments offer different ways of addressing that. Amendment 46 would reintroduce the test of damage. Interestingly, the Law Commission’s proposals for reform of the 1989 Act recognise that damage can sometimes act as a public interest test, and that it is a concept worth keeping in relation to offences that could be committed by journalists or citizens generally, even if the Law Commission was arguing for removing it in relation to other disclosure offences.
Our amendments would also clarify what interests are protected by that serious offence, and would match the clause up with what is protected by the 1989 Act. Amendment 48 mentions simply “critical” interests—meaning security, intelligence, defence, international relations and law and order.
There is another alternative that I will come to later, which relates to fixing the foreign power clause so that NGOs are not caught if they get funding from benign foreign powers for perfectly reasonable purposes. Those are different alternatives, and I would be interested to know whether the Government accept that those two scenarios are caught by the clause. If so, what is their response?
The Minister for Security (Stephen McPartland)
It is a pleasure to serve under your chairmanship, Mr Gray, and to be here in Committee. I will start with the clause and then deal with the amendments tabled by—let me see if I can get this right—the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East.
Stephen McPartland
Thank you.
I will quickly respond to some of the hon. Gentleman’s points. There are a variety of protections throughout the Bill. One is that someone has to be doing activity designed to benefit or help a foreign power in order to commit an offence. Secondly, most of the offences in part 1 of the Bill need sign-off from the Attorney General. Thirdly, the Crown Prosecution Service has to be satisfied that prosecuting is in the public interest. Those are three very large protections that exist throughout the Bill. As we go through the Bill clause by clause, we must always remember those three big principles.
I will start by referring to the recent case of the individual working in the British embassy in Berlin who was extradited and charged, and to the conviction of a Ministry of Defence contractor in 2020 under the existing espionage legislation, which indicate the threat that is posed by those looking to harm the United Kingdom by committing espionage. Clauses 1 to 3 create four separate but overlapping offences to ensure that the Bill proportionately covers the wide range of threats and harms that constitute espionage, without capturing legitimate activity. The clauses are supported by other provisions in the Bill, including the “prohibited places” provisions, by building on and modernising our existing tools in the Official Secrets Acts 1911, 1920 and 1939. The new provisions continue to criminalise harmful activity while reducing the risk of loopholes that can be exploited by sophisticated state actors. I will speak later to clauses 2 and 3, and to the “prohibited places” regime.
Before I get into the detail of the offence set out in clause 1, it is important to flag that, along with other offences in the Bill, it will apply only in circumstances where there is a clear link between the activity and a foreign power. This is provided for by the foreign power condition, which we will discuss in more detail later. In essence, a person’s conduct must be carried out for, on behalf of, or with the intention to benefit a foreign power. This responds to the recommendation, made by the Law Commission in its 2020 “Protection of Official Data” report, to move away from outdated concepts.
Stuart C. McDonald
The foreign power condition includes activities carried out with the financial or other assistance of a foreign power. The concern is that if an NGO gets regular funding for environmental or human rights work, it would be accidently caught by the foreign power condition. A journalist who works for a friendly state broadcaster would also be caught by the foreign power condition. We still think that such scenarios are a concern.
Stephen McPartland
As I said earlier, we have three huge protections. One is that activity must be for, or on behalf of, a foreign power. I understand the point the hon. Gentleman is making, but there are another two layers on top of that protection. The first is that the Attorney General’s consent must be obtained. Secondly, the Crown Prosecution Service must be satisfied that prosecution would be in the public interest. Those are three very strong layers of protection that would help protect an NGO if it were to do something inadvertently.
Maria Eagle (Garston and Halewood) (Lab)
I welcome the Minister to his place. Having such protections in place is all very well, but the real issue is the chilling effect this could have in the kinds of circumstances that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has set out. It is not right, is it, for us to criminalise activity that we do not really want to criminalise, but then say, “Well, the Attorney General will sort it out later in each individual case.”? That is not really a very good way of legislating.
Stephen McPartland
We are not talking about legislating in that way. If the hon. Lady will forgive me, we are saying that there are three layers of protection. The first layer is that people would be deemed to be obtaining or disclosing protected information for, or on behalf of, a foreign power. The next layers would involve the Attorney General and the Crown Prosecution Service. The hon. Lady, as a lawyer, will be very well aware that the CPS always determines whether it feels it is in the public interest to prosecute. People will not be caught up by accident, and I think we are getting into theoretics by going further and further down that line.
Ben Everitt (Milton Keynes North) (Con)
I am struck by the hypothetical example given by the hon. Member for Cumbernauld, Kilsyth and—
Ben Everitt
Okay, we will just go with Cumbernauld. The hypothetical example referred to a Government of the day diversifying their energy sources so that, potentially, they were less reliant on fuel and power from a possibly hostile foreign state. The Minister has detailed the extra layers of defence that will act in the public interest. Does he agree that in the hypothetical example cited we would want some protection from foreign interference in Government policy—a democratically elected Government of the UK?
Stephen McPartland
My hon. Friend is correct. Three tests must be met for someone to be prosecuted: conducting harmful activity with regard to information that is protected effectively, knowingly prejudicing the safety or interests of the United Kingdom, and acting in a way that benefits a foreign power. Forgive me, but I do not believe that an NGO will accidentally fail all three of those tests.
Mr Kevan Jones (North Durham) (Lab)
But it may, because subsection (1)(b) states that a person commits an offence if
“the person’s conduct is for a purpose that they know, or ought reasonably to know, is prejudicial”.
An NGO might think that putting something into the public domain is in the public interest. They may not even take into account that that disclosure may damage UK security. For example, in this morning’s newspapers—
Stephen McPartland
That example demonstrates how important the Bill is, because it sets out that activities that are illegal will still be illegal if actors are acting in a particular manner. The Bill is trying to bring current provisions up to date to provide our intelligence services with the toolkits they need to keep our nation safe and secure. I believe that the three tests are strong enough to help provide those protections.
Mr Jones
I accept that, but just take this morning’s example cited on the BBC of the alleged illegal acts by the SAS. Someone has got the information, put it in the public domain and may feel that it is in the public interest for it to be scrutinised. Will that damage our interests? Yes, it will. The Government might think that that disclosure will help a foreign power or damage our interests—and I would argue that possibly it will—but that is not to question the judgment of the individuals who have decided that the allegation should be in the public domain.
Stephen McPartland
I understand the right hon. Gentleman’s point, but I believe that we have three very strong tests that must be applied: the information must benefit a foreign power, the Attorney General must consider the case, and the CPS must decide that it is in the public interest to prosecute. Those three tests and protections run throughout the Bill.
Jess Phillips (Birmingham, Yardley) (Lab)
I recognise that the Minister is trying to make progress and I apologise for intervening, but does he have any concerns about the Attorney General test? Does he think that the Attorney General does not protect the Government from embarrassment? Does he think that the law always comes above with the Attorney General?
Stephen McPartland
Current events demonstrate that we never protect the Government from embarrassment!
Before I get into the detail of the offence itself, it is important to flag that, along with other offences in the Bill, it will apply only in circumstances where there is a clear link between the activity and a foreign power. That is provided for by the foreign power condition, which we will discuss in more detail later. It responds to recommendations in the Law Commission’s 2020 “Protection of Official Data” report about moving from outdated concepts such as “enemy”.
Clause 1 enhances our ability to tackle the threat of espionage by introducing a modern offence to capture those unlawfully obtaining, copying, recording, retaining, disclosing or providing access to protected information. Protected information is any information, document or other article that is or could reasonably be expected to be subject to a form of restriction of access in order to protect the safety or interests of the United Kingdom—for example, if the information is stored within a secure Government building or has a form of restricted classification. Protected information can cover a wide range of Government material, including information such as raw data, documents such as committee reports and other articles such as memory sticks.
Protected information includes, but is not limited to, classified material. That is important, given that serious harm can be caused by obtaining or disclosing seemingly non-sensitive information that, if used in a certain way by sophisticated state actors, could be capable of damaging the United Kingdom’s national security. However, I want to be clear that the definition will not cover truly benign items such as the lunch menu of the Home Office canteen.
Like the existing espionage provisions, and as recommended by the Law Commission, clause 1 will require that a
“person’s conduct is for a purpose…prejudicial to the safety or interests of the United Kingdom”.
The term
“safety or interests of the United Kingdom”
has been interpreted in case law as meaning the objects of state policy determined by the Crown on the advice of Ministers, which includes national security. That enables the United Kingdom to respond to threats targeted against its wide range of interests.
Amendment 46 would require that a person’s conduct be instead for a purpose that they know, or ought reasonably to know, is damaging to the safety or critical interests of the UK. That would create a higher evidential threshold to secure prosecution in an area that is often difficult to evidence due to the sensitive nature of the information that may have been obtained or disclosed. Put simply, we would have to explain why it caused damage, which may require evidence that compounds the damage. That would provide challenges to our law enforcement agencies and courts, and is likely to result in fewer prosecutions being pursued, offering further opportunities to those looking to harm our country through acts of espionage. The use of “prejudicial” mitigates some of that risk.
Maria Eagle
I am grateful to the Minister for setting out the difference between those two words, but can he give us an example? The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East gave a theoretical example to illustrate why he tabled the amendments. Can the Minister give us an example of something that is prejudicial and not damaging?
Stephen McPartland
I will come on to that in a bit. I will provide an example shortly.
Stephen McPartland
You are very welcome. I would not want to get it wrong.
Amendments 47 and 48 would introduce and define the term “critical interests”. In the amendments, “critical interests” is defined to include security, intelligence, defence, international relations and law and order. Although I recognise that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East tabled the amendments to attempt to specify exactly what should fall under UK interests in order to add clarity, I must stress that it limits the scope and utility of the clause 1 offence and risks creating loopholes that could be exploited by those looking to harm the UK. There is also the risk that the offence would become quickly outdated as the UK’s interests naturally and properly evolve. Notably, the list does not include economic interests or interests relating to public health, to name just two areas that would be overlooked by such a definition. Those are areas that are targeted by hostile actors and should rightly be protected.
The safety or interests of the UK test is used not only in clause 1, but in several other offences throughout part 1 of the Bill, such as sabotage or entering a prohibited place with a purpose prejudicial to the UK. There is a risk that creating a notably different test under the clause 1 offence would confuse the legal interpretation of the tests under those other offences and may have a significant impact on their operational utility.
Finally, I reiterate that the test of a person conducting activity
“prejudicial to the safety or interests”
of the UK already exists and is understood in the courts. Just last week at an oral evidence session, the law commissioner invested considerable time and effort in reviewing this area of law, outlining their support of the Government’s decision to retain that term. They commented that the
“safety or interest of the state is consistent with a lot of the wording that already exists within the Official Secrets Act…and it avoids what might risk being an unduly narrow focus on national security.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 52, Q97.]
Moving away from the amendments, it should be noted that instead of using “enemy”, as in the espionage provisions, the offence in clause 1 includes a foreign power condition. That moves the offence away from labelling countries as enemies, which is less relevant in the 21st century.
The hon. Member for Garston and Halewood asked about the difference between prejudicial and damaging. The damage requirement would require the court to demonstrate harm and explain why it is damaging, whereas prejudice is broader and could include reducing future opportunities. That will also mitigate some of the risks associated, as I have said. It provides a wider test so that we can intervene at an earlier stage of a plot or something else that would affect our national security.
I turn to the extent of the provisions under the 1911 Act. An activity that takes place wholly outside the UK would be an offence only if it is committed overseas by a UK national or officer, such as a Crown servant. Technological developments in a more global world mean that it is now more likely that information that warrants protection to safeguard the safety or interests of the UK may be vulnerable to activity that takes place outside the UK by a wider range of actors—for example, a locally engaged security guard working in a UK embassy stealing papers, or the theft of information held there digitally via cyber means.
To keep pace with the modern threat, the extraterritorial jurisdiction for the offence has been expanded so that the offence can be committed anywhere in the world and by anyone, regardless of their nationality. The extraterritorial jurisdiction is a critical reform within the offence as a better defence for the United Kingdom against a modern espionage threat, whose global nature is not reflected in the current provisions in the espionage offence of the Official Secrets Act 1911.
Another key difference from the existing offence is the increase in the maximum penalty available to life imprisonment. The emergence of modern vectors such as cyber means that espionage has the potential to cause a greater level of harm than was possible in 1911 when the United Kingdom’s espionage offences and penalties were first drafted. In the most serious cases, an act of obtaining or disclosing protected information can result in the loss of life or can gravely undermine the United Kingdom’s ability to defend itself from a range of threats. This demonstrates the United Kingdom’s resolve to make it more difficult and detrimental for hostile actors to undermine our country’s interests and safety by committing acts of espionage.
Although we will come to this in more detail later in Committee, I want to flag a key safeguard that applies to prosecutions to this and other serious offences in part 1. Given that state threat activity and the United Kingdom’s response can have a significant impact on the safety and interests of our country and wider international relations, the Attorney General’s consent, as I said earlier, must be obtained in the case of England and Wales before a prosecution is taken forward. In Northern Ireland, the consent of the Advocate General must be sought.
I stress the importance and need for reform of the espionage laws in the Official Secrets Acts 1911, 1920 and 1939. Recent and ongoing events make it clear that the threat from state threat activity, particularly acts of espionage, is of continuing concern and we must have robust protections in place. The introduction of the offence of obtaining or disclosing protected information as a core part of the Bill provides measures to tackle the harmful espionage activity that the United Kingdom faces. That is why clause 1 is so vital. I encourage my fellow Committee members to support it and I ask that the hon. Member withdraw his amendment to it.
The Chair
Before I call the shadow Minister, it might be helpful if I clarify the order of debate that I normally expect to see. The person who has proposed an amendment moves it. By and large, anybody else then takes part in the debate, including the shadow Minister. The Minister replies to the debate and then the proposer gets a short whack at the end. On this occasion, I will call the shadow Minister, and then the Minister will have an opportunity to reply before the proposer rounds up.
Holly Lynch (Halifax) (Lab)
I am eternally grateful, Mr Gray. It is great to see you joining as Chair of this Committee on this particularly important piece of legislation. Thank you for the refresher on the order in which the Front-Bench spokespersons take part in proceedings.
We have had a highly unconventional start to this Bill Committee. I do not think anybody is more relieved to see the Minister in his place—perhaps the Government Whip. I really do welcome the Minister to his place and wish him all the very best. I know he has made every effort to get across the detail of the Bill in the incredibly short time he has had to prepare. I echo the sentiment we expressed on Second Reading and offer him the assurance that the Bill has our support. It is right, and increasingly urgent, that our laws are updated. We intend to be nothing but constructive in our scrutiny, deliberations and suggested additions, as we work together to ensure that the legislation is as effective as we all need it to be.
The Home Office’s impact assessment is clear that:
“The threat from hostile activity by states is a growing, diversifying and evolving one, manifesting itself in several different forms including espionage, foreign interference in our political system, sabotage, disinformation, cyber operations, and even attempted assassinations.”
I was struck by the testimony of Sir Alex Younger, the former chief of the Secret Intelligence Service, in last week’s evidence session. In response to a question about how threats to the UK have changed, he said:
“What I would call grey threats…often presented us with real challenges, particularly when actors or states felt themselves at war with us and we did not feel ourselves at war with them, for good reason.
My career saw less emphasis on conventional threats and more on grey space. Most of my career was devoted to counter-terrorism, which was the dominant example, but subsequently we saw state actors working in subthreshold space—operations short of conventional war—to harm us.—[Official Report, National Security Public Bill Committee, 7 July 2022; c. 11-12, Q21.]
Following detailed pieces of work such as the Intelligence and Security Committee’s “Russia” report and the Law Commission’s “Protection of Official Data” report, we have been calling for progress in this legislative area for many months, so we welcome the opportunity to work with the Government to get it right.
As the Minister has outlined, clauses 1 to 3 will introduce three new espionage offences: obtaining or disclosing protected information, obtaining or disclosing trade secrets, and assisting a foreign intelligence service. As was highlighted by the Government’s integrated review in 2021, state threats to Departments, national infrastructure, British businesses and private individuals are growing and becoming ever more complex. The situation in Ukraine and the ongoing Russian aggression have brought about an urgency to introduce new offences in this area, but make no mistake: this has been an emerging trend in contemporary national security threats for years.
The director general of MI5, Ken McCallum, in his joint address to UK businesses, journalists and academics with the director of the FBI last week, said that alongside the situation in Ukraine, the
“most game-changing challenge we face comes from the Chinese Communist Party. It’s covertly applying pressure across the globe… We need to talk about it. We need to act.”
I thank the director general and all those who are working so hard in our UK intelligence community for the work that they undertake around the clock to keep us safe. They have to respond to threats that most of us cannot begin to comprehend. We are grateful for their service, and it is at the forefront of our minds as we consider what they need from us in order to do their job. Therefore, these new offences, which reflect the changing dynamics of the challenges to our national security, very much have our support.
Clause 1 criminalises obtaining or disclosing protected information. Further to the Minister’s introduction to the clause, we heard from the witnesses last week about the need for the clause. It is a particular focus of the Law Commission’s “Protection of Official Data” report, and the commission confirmed that it was satisfied that the offences
“reflect well the recommendations that we made.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 50, Q94.]
In explaining why the offences are required, the “Microsoft Digital Defence Report”, which was published in October last year, identified that Chinese actors engaged in this type of activity mostly targeted data and intellectual property exfiltration. A broad range of sectors has been targeted, including comms infrastructure, the defence industrial base, IT, education, law firms and medical research. Interestingly, the report said:
“In the last year, espionage, and more specifically, intelligence collection, has been a far more common goal than destructive attacks.”
However, rather than commercial or industry targets, Microsoft’s data shows that
“nearly 80% of those targeted were either in government, NGOs, or think tanks.”
Its analysis suggested that,
“Think tanks often serve as policy incubators and implementers, with strong ties to current and former government officials and programs. Threat actors can and do exploit the connections between the more traditional NGO community and government organizations to position themselves to gain insights into national policy plans and intentions.”
The theft of research, policy development and datasets has been the focus of hostile state actors in recent months, so we are satisfied that there is a need for the new offence created by clause 1.
Stephen McPartland
It is a pleasure to follow the hon. Lady and I thank her for her kind words. She asked a number of questions, which I will do my utmost to answer.
Protected information is information, documents or other articles to which, for the purpose of protecting UK safety or interests, access is restricted, or it is reasonable to expect that access would be restricted. The hon. Lady’s example of taking a photograph inside the House of Commons would not be considered that. Throughout the Bill there are three tests. First, would the activity assist a foreign power? Secondly, would the Attorney General give consent? Thirdly, would the Crown Prosecution Service consider it to be in the public interest to prosecute? Taking a photograph inside the House of Commons or of something a bit more restricted than the Home Office lunch menu would not come under the provision.
The hon. Lady referred to the director general of MI5; this is about giving the Home Office, the intelligence services and the intelligence community the tools they need to tackle the wider threat. The British public trust the UK intelligence community to do the job and to have the powers. People often worry when other agencies get wider powers, but that is not what is happening in the Bill.
On being able to intervene at an earlier stage, the provisions in the Bill provide a toolkit to allow the intelligence community to intervene earlier in some matters in order to work with people to stop them progressing into specific acts that would break the law. It will help people who may be going down the wrong path, as well as helping the intelligence community to act at a much earlier stage.
Stuart C. McDonald
I am grateful to everyone who has taken part in the debate and to the Minister for his response. As I say, I absolutely accept the case for a clause such as this one. However, the Minister’s explanation of the protections in place in respect of the two scenarios that I outlined falls a long way short of what I would regard as satisfactory.
I outlined three solutions or protections. One was the foreign power condition; I have explained already why both the NGO and the journalist in those scenarios would meet the foreign power condition, so that does not work. Thereafter, we are left with the Attorney General and the Crown Prosecution Service. That offers no protection at all. From the point of view of the rule of law, people need to know whether they have broken the law or are committing an offence that is punishable by life imprisonment. We cannot leave that journalist or NGO in that position by saying it all depends on what the Attorney General or the Crown Prosecution Service thinks.
I have no idea whether the Attorney General or the Crown Prosecution Service would regard that NGO and journalist as having committed an offence that they would want to prosecute. As Members have said, that leaves a big chilling effect on that NGO and journalist. They have no certainty that they will not be prosecuted for the activities they undertake. They open themselves up to the possibility of life imprisonment for what, on the face of it, has all the characteristics of a disclosure of information, which should be dealt with, if at all, under the Official Secrets Act 1989 rather than in this Bill.
Stuart C. McDonald
That is a fair point. In the light of the lack of satisfactory safeguards we have heard this morning, we may have to revisit that question. There is an issue of scope in relation to sticking that into the 1989 Act, but I do not see any reason why we could not include it in some of the offences in this Bill. Unless the Government can come up with better safeguards than have been offered this morning, we are going to have to revisit that.
I urge the Minister to go away and think about this issue. I am actually more worried about those two scenarios now than I was at the start of the day. I am not absolutely sure that the amendments that I tabled are the right ones, so we will revisit the issue on Report. In the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 ordered to stand part of the Bill.
Clause 2
Obtaining or disclosing trade secrets
Question proposed, That the clause stand part of the Bill.
Stephen McPartland
Clause 2 provides for an offence of obtaining or disclosing trade secrets. It will be an important tool for law enforcement and the intelligence agencies to detect, deter and protect modern espionage activity. It will introduce an offence to criminalise the illicit acquisition, retention or disclosure of sensitive information with a commercial, industrial or economic value linked to its secrecy for, on behalf of or to benefit foreign states.
There is an inherent link between economic prosperity and our national security; we cannot ignore one and expect the other not to suffer as a result. We must respond to the fact that our adversaries and competitors are already acting in a more consolidated way, taking a whole-state approach to state threat activity. It is crucial that we ensure our legislation covers the wide range of threats and harms that constitute modern espionage.
For the purposes of this legislation, a person commits an offence if they obtain, copy, record, retain, disclose or provide access to a trade secret; additionally, the person’s conduct must be unauthorised and they must know or ought reasonably to know that their conduct is unauthorised. As with clause 1 and a number of other provisions in the Bill, there must also be a link to a foreign power, such as an intention to benefit that power or to direct tasking by that power.
The clause provides for a maximum penalty of 14 years’ imprisonment or a fine, or both. That reflects the severity of the conduct and the potential damage to the UK, its businesses and our economy, as well as being comparable to existing similar legislation.
Stephen McPartland
The legislation takes civil offences and makes some of them criminal. That case would remain a civil offence. What we are doing is providing the intelligence services with the tools they need to prosecute people who hand over trade secrets in the criminal system. For example, MBDA in my constituency builds Brimstone missiles, which are currently being used in action. If some of those secrets were to be removed and handed over, that would be difficult for the people using those missiles and for the country. There are clear examples of how the loss of trade secrets threatens the country and our allies’ lives.
Stephen McPartland
My understanding is that the action would have to be done on behalf of or for the purposes of a foreign power. If it was done unknowingly, it would be for the lawyers and the Crown Prosecution Service to decide how to proceed.
Maria Eagle
In the example that my right hon. Friend the Member for North Durham gave of a person obtaining information and trade secrets and selling them to a competitor business, if that business had a complex ownership structure that led back to, say, China, would that be enough for the person to fall foul of the legislation?
Stephen McPartland
I appreciate the question and understand the spirit in which it was asked. However, one thing that we must be careful of is laying out exactly what someone must do to fall foul of the legislation. If we did, in that example, the Chinese would create that structure and be in a position to use it ensure that anybody acting on their behalf would not fall under that power. We must provide the intelligence agencies with the tools that they need to interdict and decide whether such people can be pursued and taken to court. As we have seen, it is difficult to get anybody on espionage. However, as we have said throughout proceedings, we do need the foreign power condition, or to reasonably know, and reasonableness is a huge test within English law, so a person would have to reasonably know that what they are doing would benefit a foreign power.
The offence under the clause is first and foremost a national security offence. We have created a definition of “trade secret”, found in subsection (2), which is intended for use in the state threats context. The introduction of the definition in the offence will help to address the increasingly diverse set of tactics employed by state actors to undermine the UK’s national and economic security and target a wide range of information.
There is no specific criminal offence in UK law that directly criminalises the threat to trade secrets by or for the benefit of foreign states. We have trade secrets regulations that transpose European law, but they serve a different purpose. We have therefore modified the definition of “trade secret” to ensure that it is suitable for our specific purposes. For example, as well as requiring that protections are in place that would limit the utility and potentially impose obligations on businesses, the definition in the Trade Secrets (Enforcement, etc.) Regulations 2018 does not account for information with a potential value. We are seeking to capture early-stage ideas such as research as well as established ideas that are more likely to be subject to protective measures.
Subsections (1)(b) and (3) set out in the instances in which a person’s conduct is unauthorised and what that means. The clause uses the term “unauthorised” because it focuses on the consent of the person with the power to give that consent. We want to make it absolutely clear that legitimate conduct is not captured by this offence. For the purposes of this offence, a person’s conduct is unauthorised if they are not entitled to determine whether they are able to carry out the conduct in question—for example, if they disclose a trade secret to a foreign power and they do not have the permission of the person who does have the power to make that decision. An example of where someone is not captured by the offence could be a team of researchers who are working with a foreign power, but although the information they control amounts to a trade secret, their research partnership authorises them to share that information with the foreign power.
Stuart C. McDonald
That is one of a couple of issues that I have. I would like the full information on why the offence can take place only outside the United Kingdom if it is in respect of possession by a United Kingdom national, as opposed to a UK resident or any other description of persons. I do not know whether the Minister can answer that now, but it would be useful to understand it.
Stephen McPartland
I will come back to the hon. Member on that point.
The clause applies overseas where the conduct takes place outside the UK. That includes both a UK national overseas and a UK company based overseas, provided that it is incorporated or was formed, if unincorporated, under domestic law. The clause brings forward an important offence that will form part of a modernised toolkit for our world-class intelligence agencies and law enforcement. It is proportionate to the threat posed by this activity, and imposes no restrictions or obligations on UK businesses, but offers further protections for them, and the UK as a whole, against modern espionage activity. We cannot promote economic prosperity without enhancing our national security and responding to the modern threat posed by espionage.
Holly Lynch
As the Minister just outlined, the clause creates an offence in relation to obtaining or disclosing trade secrets. The former deputy National Security Adviser, Paddy McGuinness, set the scene for this new offence when he gave evidence last week. On the trade secrets element, he said that it does “a very significant thing”, and continued:
“This kind of legislation and the type of work that Sir Alex and his successors in MI5, MI6 and GCHQ are doing has Darwinian effect, so I have no doubt that as companies have got better at certain kinds of protection advised by the interaction with the CPNI and the National Cyber Security Centre, so the opponents have got better at it. And we will have to go on doing it.”
He said:
“It does not feel as though we have quite the same volume of opencast mining of our intellectual property and economic value that we had, as was described previously by General Keith Alexander, the head of the National Security Agency in the US. He described the enormous volume—trillions of value—taken out of our economies. There still is a very high level, though, so there is more work to do on this, and it is a significant challenge to the corporate sector to do the right thing in this space, because of the difficulty that it represents.”
He also said:
“The Bill provides a really solid basis for that discussion, because of the criminalisation of the trades secrets aspect.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 25, Q50.]
All that provides an incredibly sobering outlook on the scale of the challenge that we face as a country.
Let me work through some of the detail further. We have some queries about this clause, as we did for clause 1. The seriousness of the clause is underlined by the fact that it creates an offence for which, if someone was found guilty of committing it, they would find themselves with a jail term not exceeding 14 years imprisonment, or a fine, or both. The Minister did not give us that extra bit of detail about the sentencing guidelines in the discussion about clause 1. I wonder if he might be able to return to that point in the discussion on clause 2.
Further to that, I confess that on my first reading and several subsequent readings of the clause, and having listened carefully to the Minister explain the detail of who can be prosecuted and where, it seems to suggest that this offence could be committed only by a UK national. I asked a former member of the intelligence community to have a look at it, and they felt that subsections (4) to (7) on who can commit the offence only seem to refer to a UK person, a United Kingdom national or a British citizen. Only on seeking a legal opinion was it judged that it could be interpreted to apply to non-UK nationals, but only if their criminal activity takes place in the UK. It does not apply where this activity is wholly outside the UK. That same legal opinion queried what it means to be “wholly” outside the UK, as that is unclear in this online age. It is also unclear why obtaining UK-related trade secrets unlawfully is not criminalised for non-UK nationals operating entirely from abroad, as is the nature of a lot of this type of activity.
We are not naive to the additional barriers to bringing someone to justice in these circumstances, yet such activity is no less wrongful because of nationality or where the criminal act takes place. With that in mind, I would be grateful if the Minister could confirm, first, for absolute clarity, that this crime can be committed by non-UK nationals when acting in the UK and we could prosecute them using this clause on that basis. Secondly, why does the clause not extend to criminalising non-UK nationals when they commit this offence in the theft of UK intellectual property and trade secrets outside the UK? Will the Minister clarify those points?
Again, we have the principle of “ought reasonably to know”, which warrants further consideration and clarity. On the “ought reasonably to know” threshold, I have it on good authority from former members of the intelligence community that the duping of individuals by nation states into doing the bidding of that nation state is not uncommon tradecraft. Are we satisfied that we have the right balance in that regard? Any clarity that the Minister can provide on the sentencing guidelines would be enormously welcome.
Simon Jupp (East Devon) (Con)
On a point of order, Mr Gray. Would you mind awfully if Members were to take their jackets off?
The Chair
I will not be taking my jacket off, but hon. Gentlemen and hon. Ladies may take their jackets off if they wish, as it is very hot.
Stuart C. McDonald
I have three short points building on what Members have already raised in relation to this clause.
First, as raised by esteemed colleagues from the Intelligence and Security Committee, there is a question mark over what happens if somebody recklessly starts dishing out trade secrets, not directly to somebody in way that meets the foreign power condition but in a way that makes that inevitable or very likely. That does not seem to be caught by the clause at the moment, so that is something for the Minister to think about.
Secondly, as I have already asked, I want to understand why the offence is only committed “wholly” abroad if the trade secret is in the possession of a UK national, not, for example, a UK resident who is not a national. The Government have made a conscious choice about that drafting and I am interested to know why.
Finally, the clause states that the offence is committed if
“the person’s conduct is unauthorised”.
Do we need to be a little more explicit about what we mean by authorisation and authorised by whom? I can imagine situations where, for example, the person who we want to prosecute might say, “Actually, my conduct is authorised. It is authorised by the laws of my country,” which may be considerably different from the laws of this country. Does that need to be clarified? That might be implied in the phrase
“the person’s conduct is unauthorised”
but it may be something the Government want to look at.
Stephen McPartland
Earlier, we talked about sentencing guidelines. My understanding is that we are not in a position to give more detail on that yet. That is something I have discussed with the Ministry of Justice, as we will come to later.
With regard to the offence, one issue we have is the offence is designed to catch overseas activity with a strong link to the UK. It has been set at the threshold of a UK offence, so if we extend who it will to apply to, that will end up extending the scope of the offence. It is almost as if we have tried to put a safeguard in place to protect and control it, and the more we extend it, the more it will extend the scope of the offence and bring more and more within its scope, so that is the position we are in.
Jess Phillips
As a point of clarification, how will it apply to somebody who has indefinite leave to remain, who is not a lawful British citizen in the United Kingdom but very much operating here?
Stephen McPartland
It applies in the sense that if that person were to commit murder, they would be prosecuted in this country under the laws applying to murder.
Stephen McPartland
Effectively, it would apply in the same way. As I have said, with all these offences the Advocate General has to sign them off, and the Crown Prosecution Service as well.
Jess Phillips
In actual fact, on a number of occasions I have handled cases where someone with ILR in the UK has committed murder abroad and there was absolutely nothing that could be done about it.
Stephen McPartland
I have nothing further to add.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3
Assisting a foreign intelligence service
Stuart C. McDonald
I beg to move, amendment 49, in clause 3, page 3, line 30, leave out paragraphs (a) and (b) and insert
“activities which are prejudicial to the safety or interests of the United Kingdom.”
The Chair
With this it will be convenient to consider the following:
Government amendments 1 to 4.
Clause stand part.
Stuart C. McDonald
On the face of it, the offence of assisting a foreign intelligence service in the UK or, in the case of UK persons, anywhere else is long overdue. Under the Bill, the offence is rightly a serious one and is capable of seeing a person in prison for 14 years.
We have tabled the amendment to push the Government on whether they have got the scope of the offence right, to ensure that we do not catch people who were not intended to be caught. In particular, is there not a danger that, as drafted, the offence punishes behaviour that might actually be consistent with, or even positively beneficial to, UK interests? That may come about because, as the Minister explained, we no longer have the concept of enemy services and also because of the very limited scope of the prejudice test.
What does “assisting” mean? It means assisting a foreign intelligence service in carrying out “UK-related activities”. Where those activities are outside the UK, it is only an offence to assist that service as a UK person if those activities are
“prejudicial to the safety or interests of the United Kingdom”.
However, where those activities are in the UK, there is no need for those activities to be prejudicial at all—any conduct which assists those activities is very likely criminal. I can well understand that a clear ban on assisting any conduct that supports Foreign Intelligence Service activities is attractive, but I will give another hypothetical example, which is much more dangerous than my earlier one, because it does not come from any briefing—I have had to make it up myself, so let us see how it goes.
What if the Estonian intelligence services, for example, believe that a member of their embassy staff in London is providing information to the Russians? They ask an Estonian student who lives in the same apartment block as that staff member to allow access to her apartment to undertake eavesdropping, or they ask her to undertake some monitoring, such as noting times of arrival or departure. That activity by the Estonian intelligence services, or by that student on their behalf, seems positively consistent with UK interests, but as drafted, it would amount to a serious criminal offence under clause 3.
The clause is so widely drafted that I worry that lots of people involved in setting up and facilitating a future meeting between the head of MI6 and the CIA might be in danger of committing an offence, whether they pick him up at the airport, provide him with a hotel room or serve him breakfast. I very much look forward to being reassured that that is not the case.
The amendment would ensure that, as with activities outside the UK, conduct here would have to be intended to support activities adverse to UK interests, or to be such that a person ought reasonably to know that it would possibly assist activities adverse to UK interests. There might be different ways of fixing this potential problem—perhaps a different hurdle can be used to assess “in the UK” activities, such as “inconsistent with UK interests.”
On the Government’s amendments, why do the Government intend to turn the relevant provision into a defence, which then puts the burden on the person accused? The explanatory notes talk of clarifying that it is a defence, but that seems a very deliberate change of mind by the Government, especially if one reads the explanatory notes, which say that clause 3(7)
“sets out exceptions to the offence to ensure that legitimate conduct that is within the UK’s interests is not caught withing the offence.”
That is what the explanatory notes say about the original drafting of the Bill, so it is not clear why the Government have had a change of heart, and I look forward to hearing the Minister’s explanation.
Mr Kevan Jones
I understand the thrust of the clause, but I would like some clarification on the definition of assisting a foreign power. I have one historical example, although I think it might not work. Eddie Chapman— Agent Zigzag from the second world war—was working for both sides. He was a UK agent and a Nazi agent. He got an Iron Cross for his misinformation work. In that case, he was not assisting a foreign power, because he was given dud information, but what about the case of a UK-based foreign diplomat who is working against us and supporting his or her nation, but is also then feeding information to us? It could be argued that that individual is working against our interests, because they are working on behalf of that other nation, but separately they might be the source of information. What would happen to that individual?
Gordievsky is a good example; he was in the Russian embassy in London for many years, feeding a lot of vital information to the UK, but his daily activities would have been prejudicial to the UK’s interests. How would the clause apply to individuals like that? Would they be separated out because of their benefit to us, although certain activities they are conducting would not be of benefit? I give just two historical examples, but there might be others in the future. Where would those individuals fall under the provisions in the clause?
Holly Lynch
As we have heard, the clause introduces a new espionage offence of assisting a foreign intelligence service. A person commits an offence if that person
“engages in conduct of any kind, and…intends that conduct to materially assist a foreign intelligence service in carrying out UK-related activities.”
Once again, we are broadly supportive of the clause. As highlighted by the Government’s own integrated review in 2021, threats to Government Departments, national infrastructure, British business and private individuals are growing and becoming ever more complex as states become more assertive in advancing their aims. The clause goes a long way towards updating the threat posed by modern-day espionage and the changes are long overdue. The Intelligence and Security Committee’s 2020 Russia report stated:
“The current legislation enabling action against foreign spies is acknowledged to be weak. In particular, the Official Secrets Acts are out of date—crucially, it is not illegal to be a foreign agent in this country.”
Nevertheless, it is important that the Government clarify a number of different aspects of the clause. I highlight two recommendations from the Law Commission’s 2020 review of the Official Secrets Act. Recommendation 12.5 stated:
“In any new statute to replace the Official Secrets Act 1911, the requirement that the defendant’s conduct was capable of benefitting a foreign power should continue to be objectively determined. There should be no requirement to prove that the defendant personally knew or believed that his or her conduct had such capability.”
Will the Minister confirm that that requirement is compatible with the new offence established in clause 3?
The Law Commission also highlighted the danger of an individual unknowingly assisting a foreign intelligence service and then still being charged and convicted with the same offence as an individual who actively sought to assist a foreign intelligence service. This defence is currently accounted for in the Official Secrets Act 1989, as my right hon. Friend the Member for North Durham discussed. I appreciate that that Act is not being updated by this legislation, but the principle still stands. The Law Commission’s recommendation 12.24 stated:
“The ‘defence’, currently contained in section 1(5) of the Official Secrets Act 1989, of not knowing and having no reasonable grounds to believe that the material disclosed related to security or intelligence, should continue to apply.”
It is naive to think that foreign intelligence services advertise who they are and what they are planning to do with any information they are given by someone or in any engagement they may have. The duping of individuals is a somewhat common tool in espionage tradecraft. Let us say that an overseas business research company commissions a UK national to explain how the UK’s parliamentary processes work, but it transpires that the business research company was working for a foreign intelligence service. Under clause 3, could the UK national still be tried for assisting a foreign intelligence service?
We welcome the exemptions in subsection (7) that create an appropriate space for democratic obligations and diplomacy to take place, especially as the Bill makes no distinction between countries that are our allies and those that are hostile and seek to undermine the UK’s interests. However, I also note that the offence is explicit about the definition of a foreign intelligence service. On first reading, I had concerns that where someone is sharing information with a former member of intelligence services, the definition might not extend to criminalising that conduct. As the old saying goes, once a KGB officer, always a KGB officer.
However, given that the definition included in subsection (9) outlines that “foreign intelligence service” means
“any person whose functions include carrying out intelligence activities for or on behalf of a foreign power”,
I understand that anyone sharing information with former KGB officers, for example, would be committing an offence. I would be grateful if the Minister could confirm that that is the case.
Stephen McPartland
That was a range of great examples, and I will do my best to address them. The whole purpose of the clause is to provide our world-class intelligence agencies and law enforcement with the tools to respond appropriately to activity conducted in and against the UK by foreign intelligence services that wish to cause us harm. Although the Government understand and appreciate the intention behind the amendment, we propose to reject it.
The distinction between activities taking place inside the UK and those taking place overseas was deliberate. For activity taking place overseas, clause 3(4) requires the conduct to be
“prejudicial to the safety or interests of the United Kingdom.”
That is to ensure that we target the most harmful activity overseas that has an appropriate link to the UK. For activity taking place inside the UK, there is currently no requirement for the activity to be prejudicial to the safety or interests of the UK. However, taking into account the defence in clause 3(7), foreign intelligence service activity carried out in the UK without even informal agreement or assent is inherently prejudicial to the UK’s safety or interests. Having to prove beyond a reasonable doubt why that activity is prejudicial risks creating a high evidential threshold that could, as we try to meet it, potentially compound the damage caused.
Clause 3(4)(a) has been drafted to ensure that the offence can prevent a wide range of activities from occurring and prevent threats from developing. Any legitimate activity would be covered by the three elements of the defence in clause 3(7), so there are appropriate safeguards in place. If a foreign intelligence service carried out activity in the UK and its conduct did not fall under clause 3(7), we must be able to call it out for what it is and prevent further harm from being caused. The current construction of clause 3(4) allow us to do exactly that, and the amendment risks reducing the operational utility of the clause as a whole.
We cannot allow the UK to become a hotbed for foreign intelligence services running covert and deceptive operations. I understand the examples that have been given, and I am looking into some of them, but the reality is that we need to be in a position to protect the intelligence services and give them an opportunity to go out there and deal with these people and the threats we face. As I have said, we have three protections throughout the whole Bill. We are coming up with lots of examples, but by answering each of them specifically, we will just provide our enemies and state threats with ways to work around the offence.
Stuart C. McDonald
I am grateful to the Minister for his response, but it is important to work through hypothetical examples so that we can understand the scope of the Bill. I absolutely get his explanation as to why there is a distinction between activity inside and outside the UK, and he briefly mentioned the idea of a friendly foreign intelligence service—in my example, the Estonian intelligence service—having permission to engage in the activities that I described. That may well be the solution. I will take away what the Minister has said. In the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Stephen McPartland
I beg to move Government amendment 1, in clause 3, page 4, leave out line 1 and insert—
“In proceedings for an offence under this section it is a defence to show that the person engaged”.
Stephen McPartland
The amendment clarifies that clause 3(7) contains a defence, rather than an exception, because it may be unclear which of the two it is as currently drafted. In doing so, two changes must be made to the clause. One will insert new wording to show that clause 3(7) is a defence, and the other will insert subsection (7A), which states that the defendant must adduce some evidence to establish that a matter in clause 3(7) is satisfied. The prosecution will then be required to prove that it is not met beyond a reasonable doubt.
We tabled the amendments to provide clarity to the operational community and to make absolutely clear the intention behind the offence. Clarifying that clause 3(7) is a defence places an evidential burden on the defendant to adduce evidence that one of the three conditions in subsection (7) applies to them. If someone raises a defence under subsection (7), the prosecution will need to prove beyond all reasonable doubt that the defence does not apply.
There are three separate elements to subsection (7). If it is an exception, the prosecution would be required to prove in all cases beyond reasonable doubt that none of the three elements applies. That would potentially be challenging to evidence, given the wide range of circumstances under which the matters in the clause may arise. In effect, the prosecution would have to prove a negative. Where an offence is believed to have been committed and a prosecution is pursued, subsection (7) being an exception would mean that all three conditions would need to be shown not to apply in each case that is brought forward for prosecution. That is not our intention, and the amendment will mean that defendants must raise a defence under subsection (7), and the prosecution must then prove beyond all reasonable doubt that it does not apply.
We have worked closely with our operational partners, law enforcement and the Crown Prosecution Service on this amendment to provide greater clarity about the scope of clause 3. By tabling this amendment to subsection (7), we can more clearly represent the policy intention behind clause 3 as a whole.
Holly Lynch
I have the Minister’s explanation. We considered the implications of Government amendments 1 to 4 earlier, and on that basis we are satisfied.
Amendment 1 agreed to.
Amendments made: 2, in clause 3, page 4, line 8, leave out “is” and insert “was”.
This amendment is consequential on Amendment 1.
Amendment 3, in clause 3, page 4, line 10, leave out “is” and insert “was”.
This amendment is consequential on Amendment 1.
Amendment 4, in clause 3, page 4, line 10, at end insert—
“(7A) A person is taken to have shown a matter mentioned in subsection (7) if—
(a) sufficient evidence of the matter is adduced to raise an issue with respect to it, and
(b) the contrary is not proved beyond reasonable doubt.” —(Stephen McPartland.)
This amendment provides that a defendant bears an evidential burden in relation to the defence in clause 3(7).
Clause 3, as amended, ordered to stand part of the Bill.
Clause 4
Entering etc a prohibited place for a purpose prejudicial to the UK
Stuart C. McDonald
I beg to move amendment 50, in clause 4, page 5, line 9, at end insert—
“(7) No offence is committed under subsection (1) if the conduct is for the purposes of protest unless the conduct is prejudicial to the safety of the United Kingdom.”
This amendment would restrict the circumstances in which access to a prohibited place for the purposes of protest would amount to an offence under this section.
The Chair
With this it will be convenient to consider the following:
Clause stand part.
Clause 5 stand part.
Stuart C. McDonald
It is obvious what the amendment is getting at: it is about protest rights, which were raised by my right hon. Friend the Member for Dundee East, who unfortunately cannot be with us today.
We all broadly see what the Government are trying to achieve. Clause 4 builds on the Law Commission recommendations. It protects prohibited places against entry etc. for purposes prejudicial to the UK. Clause 5 criminalises entry etc. where there is no purpose prejudicial but where there is actual unauthorised entry. I will come back to why that is necessary.
However, as before, given that a person can receive a hefty 14-year penalty if they are found guilty of an offence under clause 4, we want to be clear about whether it has been drafted tightly enough. As with clause 1, issues are created by the breadth of some of the concepts, such as the safety or interests of the UK. Crucially, if a person even approaches or is in the vicinity of a prohibited place, they are at risk of committing this very grave offence if they have a purpose that they ought to know is prejudicial to the safety or interests of the UK. We must bear in mind that clause 8 allows for additional sites to become prohibited, not necessarily for the safety of the UK but to protect its nebulous interests. Again, there is that very broad concept.
In Chandler v. Director of Public Prosecutions, the plan of the folk being prosecuted was to enter a prohibited RAF station and prevent access to others, thus preventing aircraft from taking off. Unsurprisingly, it was held that, objectively, it was access for purposes prejudicial, even if the protesters themselves believed it to be in the interests of the state to get rid of nuclear weapons. It was decided that the interests of the state are not for the jury to decide on, but for the Government of the day.
Of course, many more protesters will approach or be in the vicinity of a prohibited place for peaceful protest with no intention of inhibiting its operations. Others want to cause a degree of nuisance—for example, in minor blockades, chaining themselves to plant pots— with no real risk to safety. The amendment simply asks what the new provisions mean for them. What is the Government’s intention? Is a protest against nuclear weapons in the vicinity of Faslane, which the state currently believes to be in its interest, prejudicial to the interests of the United Kingdom? Would a minor blockade causing temporary inconvenience be in contravention of the clause? Surely these people are not to be convicted of such a serious offence, which carries up to 14 years in prison.
Mr Jones
I sympathise with the amendment. In terms of legitimate protest, I may disagree with, for example, the peace camp at Faslane, but does it fall within the remit of the clause? Is that proportionate in an open and free society? I may disagree with what the protesters call for, but I would defend their right to make their opinions known.
We need clarity and to get the balance right between legitimate protest in the public interest and protecting security. The clause is detailed on access to prohibited areas. The clause states that a person commits an offence if they cause
“an unmanned vehicle or device to access”
an area. That is very clear. A drone, for example, would be prohibited. But what happens in the case of a trained eagle wearing a camera? I think that is covered by “device to access” an area. Will the Minister confirm that if someone strapped a camera to an eagle and sent it over a prohibited site, that would be covered by the Bill?
The clause is clear about inspecting
“photographs, videos or other recordings”,
but how wide is the area? It would cover someone standing with equipment that had access from 20 miles away, but what about somebody just observing through binoculars? Would that be covered? How big is the prohibited area? If we are not careful, the points that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has raised could fall within the scope of the Bill, or be used by the Government to stop legitimate protest or people who have an interest in opposing activities taking place at a certain site.
Holly Lynch
The SNP spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, and my right hon. Friend the Member for North Durham have outlined their thoughts on amendment 50. I will speak to clauses 4 and 5 more broadly.
Clause 4 establishes a new offence of entering a prohibited place for a purpose prejudicial to the UK. We welcome the measure, and the protection it will offer to sites and places that are vital to our national security. It has been a long time coming, and we have been falling back on somewhat antiquated legislation in the absence of such provisions. Giving evidence to the Intelligence and Security Committee in January 2019, the director general of MI5 said,
“The purpose of [a potential new Espionage Act] is to be able to tighten up on the powers that have become, you know, dusty and largely ineffective since the days of the Official Secrets Act, half of which was drafted for First World War days and was about sketches of naval dockyards, etc.”
In his evidence on behalf of the Law Commission last week, Dr Nicholas Hoggard said
“One of our concerns about the existing offences in the 1911 Act was that the existing prohibited places—though extensive; it is an extensive and complicated piece of drafting—have a strong military focus, and they do not necessarily reflect the way that critical national infrastructure, for example, or sensitive information is held by the Government.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 51, Q96.]
Clause 4(2) sets out that,
“a reference to inspecting a prohibited place includes—
(a) taking, or procuring the taking of, photographs, videos or other recordings of the prohibited place;
(b) inspecting photographs, videos or other recordings of the prohibited place.”
We heard some more innovative examples, as my right hon. Friend the Member for North Durham likes to think outside the box, and as those acting on behalf of hostile states will continue to evolve and adapt to the legislation that we progress through this place.
Clause 4(3) explicitly states that the offence applies if the person inspects a prohibited place
“by electronic or remote means”,
and clause 4(4) states that the offence applies
“whether the person’s conduct takes place in the United Kingdom or elsewhere.”
The use of drones has been an asset in many ways, but inevitably a headache in others. I have raised concerns previously on behalf of constituents that it is at the extremes of distaste and disrespect for drone footage of serious or even fatal accidents to be taken by members of the public and shared on social media, or published by news outlets. It is with urgency that we need to update the laws that ensure national security is not compromised in the absence of up-to-date legislation, but for the reasons I have highlighted I hope this might also be the start of a conversation about drones, beyond their national security implications.
Clause 5 establishes that
“A person commits an offence if—
(a) the person—
(i) accesses, enters, inspects or passes over or under a prohibited place, or
(ii) causes an unmanned vehicle or device to access, enter, inspect 15 or pass over or under a prohibited place,
(b) that conduct is unauthorised, and
(c) the person knows, or ought reasonably to know, that their conduct is unauthorised.”
The Opposition welcome this provision, and see it as a necessary step to protect sites that are vital to our national security. I would like to probe the Minister on the stipulation that a person who commits an offence “ought reasonably to know” that their conduct is unauthorised. There is a concern that an individual may unknowingly stumble on a prohibited place, and then be prosecuted in the same way as someone actively seeking to undermine UK national security. Further detail on the sentencing guidelines might allow us to work through that uncertainty, but we have to work with what we have in primary legislation. The chances of that occurring are made more likely by the fact that this stand-alone offence does not need the foreign power condition to be met.
Let me provide some rare light relief in today’s proceedings. In 2016, civilians began to wander on to the grounds of several restricted air force and military bases in Canada while playing Pokémon GO, which is an augmented reality game where characters spawn randomly in the proximity of a user’s location—it was all the rage at the time. Documents released on request to the Canadian Broadcasting Corporation revealed the military’s confusion about what was happening at the time. One email from a major read,
“Please advise the Commissionaires, that apparently Fort Frontenac is both a PokéGym and a PokéStop”.
He went on to say,
“I will be completely honest in that I have no idea what that is.”
Just three days after the app’s release, two men drove a van on to an air force base near Toronto just before midnight. A corporal confronted the occupants and found them playing with their smartphones. In another incident, one woman was found at the Borden base playing the game, while her three children climbed over tanks. In their attempts to get on top of what was going on, the documents revealed that one colonel wrote,
“There’s a game out there taking off like gangbusters, and it requires people to move to digitally cached locations to get points”.
I do not know what “gangbusters” means. Another security expert recommended they hire a 12-year-old to help them out with the problem.
As part of the military response, at least three officers at different bases were assigned the task of playing Pokémon GO on site, and logging the appearance of every gym, PokéStop, and wild monster. In what I thought was a particularly enterprising spirit, in my constituency of Halifax’s namesake, they instead recommended that the PokéStop be relocated nearer to the museum, in the hope that it would increase footfall in a helpful rather than unhelpful way. I intended to share those examples by way of demonstrating that innocent players of Pokémon GO should be protected from the harshest of sentences, but on reflection, having read out the details, I am not so sure.
Back to the serious—I could not find specific examples here in the UK, but I can only imagine that there were some. We cannot afford to create carve-outs for Pokémon GO players that could be exploited by those acting on behalf of hostile states. The example outlines the need for appropriate consideration of such mitigations in the sentencing guidelines for such offences.
I note that the Law Commission proposed that in any reform of the Official Secrets Acts, a safeguard similar to that contained in section 131 of the Serious Organised Crime and Police Act 2005 should be introduced, requiring the Secretary of State to take such steps as he or she considers appropriate to inform the public of the effect of any designation order, including, in particular, by displaying notices on or near the site to which the order relates. That would ensure that an individual is given fair warning that he or she is approaching a location that is given enhanced protection by the criminal law. If I am not mistaken, that point was made by the right hon. Member for Dundee East on Second Reading. I hope that the Government will recognise the merit of doing so.
Maria Eagle
I have a short point of clarification for the Minister, if he would be so kind. It is about what is covered by the offence.
I am looking at clause 5(1)(a)(i), which states:
“A person commits an offence if…the person…accesses, enters, inspects or passes over or under a prohibited place”.
Clause 5(3) clarifies further:
“In subsection (1)(a) a reference to inspecting a prohibited place includes taking, or procuring the taking of, photographs, videos or other recordings of the prohibited place.”
Does that include someone who is off the premises with binoculars or some device to enable them to look closely at the prohibited place, without being under or over it? Does that include the old-fashioned spy looking through binoculars and taking notes, rather than taking photographs, or is that not covered by the clause? It does not seem that it is, but I might have missed something. I will be grateful for clarification.
Stephen McPartland
I may dwell on this clause slightly longer than others, because it is the first of a number of clauses regarding a regime to protect sensitive sites in the UK. There has been a range of examples and questions. To the hon. Member for Garston and Halewood, the simple answer is yes.
With regards to the Pokémon examples of the hon. Member for Halifax, the answers again are about—this very much determines the whole scope of the clause—prejudicial interest and people doing something accidentally. To fall foul of the clause, someone needs to have prejudicial interest against the UK. In the examples, people have wandered in and done something accidentally; they would not be prosecuted under the clause.
The right hon. Member for North Durham gave the example of strapping a camera to an eagle; if that is something that someone can do, fair play to them. However, if that camera strapped to the eagle were then to record activity in the place, and that was prejudicial to the UK, the person would be prosecuted. If they just wanted to strap a camera to an eagle to see what happened, the intelligence services have the opportunity not to prosecute someone, because, given the protections throughout the Bill, the Attorney General would have to sign off on whether to prosecute, and the Crown Prosecution Service on whether that was in the public interest.
I understand the point made by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East on ability to have lawful protest, and for lawful protest not to be restricted. It has been reflected by other Members and I raised it with the Department last week.
Sally-Ann Hart (Hastings and Rye) (Con)
It is absolutely right that people have the right to protest, but the attention of the Minister and that of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to the recent cases in which, for example, Extinction Rebellion protestors were found not guilty of criminal damage, despite the judge directing jurors that there was no defence in law. Likewise, the protestors who toppled the Colston statue were found not guilty. We have to be careful: jurors might find people not guilty, but we have to protect the ambitions of the Bill.
Stephen McPartland
I understand my hon. Friend’s point, which is that we have to be careful to provide the intelligence services with the tools they need to protect our protected sites. I may not agree with the purpose of protest, but I agree with the ability of everybody to protest lawfully. People will start to fall foul of this clause when they try to scale the walls of a restricted site and to impede lawful activity going on at the restricted site—when they start to move from protest towards criminal activity. That will be captured.
Mr Jones
I am not sure it will. Let us take the Faslane peace camp as an example. I totally disagree with what those people are arguing for, but if somebody there took a photograph and put it out on social media to make a political point, would they be caught under the Bill? Is not that prohibited under the Bill?
Stephen McPartland
No, because they would not be doing something designed to prejudice the United Kingdom.
Stuart C. McDonald
That is useful and it might answer my question. The offence is committed if somebody approaches or is
“in the vicinity of a prohibited place”.
That obviously covers the peace camp. Is the Minister saying that at that stage there is nothing prejudicial to the UK’s safety and interests, and that such action only becomes prejudicial to UK safety and interests when people take further action, along the lines that he suggested?
Stephen McPartland
Yes. The intention is that people have to do something prejudicial to the UK’s interests to fall foul of the clause.
Prohibited places are inherently sensitive sites that are likely to be the target of state threat activity. Unauthorised access to such sites could be a precursor to harmful acts such as espionage or sabotage, and it is important that we have the tools and powers we need to adequately protect those sites.
Mr Jones
I think the Minister just said yes to my question and the question of my hon. Friend the Member for Garston and Halewood about a person with binoculars. Does that fall under clause 5(1)(a)(i), which refers to an offence being committed if a person
“accesses, enters, inspects or passes over or under a prohibited place”?
Would somebody on a hill several miles away with a pair of binoculars be classed as inspecting an area? Is that why the Minister says that is covered in the Bill?
Stephen McPartland
Yes, that is the intention. Remember that the Official Secrets Act 1911 refers to sketches. We are trying to reform that Act and the others to get to a point at which we help our intelligence services to come up with ways of dealing with some stuff that could technically be considered out of scope. The idea behind the clause is that we will be able to give the intelligence community the tools they need to deal with somebody inspecting a site or doing something prejudicial to the UK’s interests.
Mr Jones
I come back to the fact that if we looked at the Official Secrets Act 1989 and had one big Bill, it would have been far better than this one. Will the Minister clarify that somebody with binoculars would be classified as “inspection”? My hon. Friend the Member for Garston and Halewood asked whether a person looking at a site through binoculars would be captured by this offence, or whether they would have to be writing something down. What is the situation with the old-fashioned sketches mentioned in the 1911 Act? Would they be covered?
Stephen McPartland
The purpose is to cover activity that is prejudicial to the United Kingdom’s interests. For example, if someone were bird watching and they looked at the site through their binoculars, they would not be captured by the offence because they would not be doing anything prejudicial to the United Kingdom’s interests. However, if they were sketching a site to identify how they could break into it or to record activity going on there, that would be prejudicial to the United Kingdom’s interests, so the clause covers that. It is a case-by-case situation.
The current prohibited places provisions fall under the espionage offence within section 1 of the Official Secrets Act 1911.
Stephen McPartland
I thank the right hon. Gentleman for his intervention and am happy to give way to my hon. Friend the Member for Hastings and Rye.
Sally-Ann Hart
Does my hon. Friend not agree that “other recordings” would include a sketch?
Stephen McPartland
Sketches are included, because a sketch would have to be inspected. The question was: are sketches included? The answer is yes.
The Chair
Order. This really must not become a conversation. Minister, you might perhaps wish to conclude your remarks. We cannot have a conversation backwards and forwards across the Chamber.
Maria Eagle
I regret having to ask more than once, but I am just not quite clear from the Minister’s answers. Perhaps he could write to the Committee if it is not totally clear; that would not be a problem. In subsection (1)(a)(i), does inspecting include looking from a distance—not over or under—say through binoculars that magnify, if someone is doing that with a malign intent, so they are caught by subsection (1)(b), which are the other requirements of the offence?
Would just looking through binoculars from a distance—not taking videos or photographs—and just doing notes or a sketch still be covered, or are we creating a lacuna? That is the only question I seek an answer to. I am afraid the Minister has not been totally clear on how looking through binoculars is covered. We are not inspecting the sketch—we are inspecting the site through the binoculars. Is that not right? In which case, is it still okay for this person to do a sketch? It is not clear.
Stephen McPartland
I am grateful for the intervention and shall try to clarify. It is clear that the provision is not exhaustive, but the reality is someone has to inspect the site, whether that is through binoculars or making a sketch, and the purpose of that activity—that inspection—is to be prejudicial to the interests of the United Kingdom.
Stephen McPartland
I will move on to amendment 50. The condition inserted through amendment 50 removes the term “safety or interests of the United Kingdom” in the context of protests. It is the Government’s view that this is detrimental to the offence under clause 4 as it limits the range of conduct that would be considered prejudicial to the UK and risks creating loopholes that hostile actors could use to exploit using protest as a tool to disrupt sensitive sites in the UK. It is also likely to mean that sites that are not directly involved in the safety of the UK would not be afforded any protection where protests are being inappropriately used to disrupt the lawful functioning of the site. It is crucial that we retain the existing term if we are able to effectively protect the UK’s most sensitive areas from harmful activity.
In addition, the effect of amendment 50 would be that no offence would be committed by protesters if their conduct were not, as a matter of fact, prejudicial. In practice, this would not have any further effect on safeguarding protest activity because if the activity were not in fact prejudicial, a person cannot know, or be in a position where they ought reasonably to know, that that is the case. The amendment may be designed to ensure that no offence is committed unless actual damage results from the conduct, but it would not have that effect and the Government would not support a narrowing of the offence along those lines. While I understand the intention of the amendment, I do not see any requirement for it, given the fact that sufficient safeguards for legitimate protesting activity are already in place.
It is important to say that we will work with the police and the College of Policing ahead of commencement of the provisions to ensure that those implementing these clauses have the appropriate training and guidance to use these powers proportionately. I do not support the amendment and ask that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East withdraws it.
Finally, clause 5 provides a second offence to capture harmful activity within the reformed prohibited places regime. A person commits this offence if, without authorisation, they engage in conduct at a prohibited place and they know, or reasonably ought to know, that their conduct is unauthorised. A person’s conduct is unauthorised if the person is not entitled to determine whether they may engage in the conduct, or if they do not have consent to engage in the conduct from a person entitled to give it—for example, if they walk past signage stating that access to the site is prohibited without authorisation, or if they take pictures from outside the site in spite of clear signage that that is not permitted.
Holly Lynch
This is a question I asked members of the UK intelligence community because I could not answer it: does a list of prohibited places exist in the public domain? Such a list might equip someone with the information prior to arriving at a site and enable them to determine whether a place is prohibited. It is not clear to me whether a list exists. Can the Minister clarify?
Stephen McPartland
I am grateful to the hon. Lady for her intervention, and I will certainly look at that. A number of sites will be prohibited in law, and some sites will not want people to know exactly where they are and what they are doing because they will become targets. Once again, there is a balance to be struck in relation to provision for the intelligence community.
Holly Lynch
I completely accept the sensitive nature of the subject and why we might not want to put such information in the public domain, but with respect to the “ought reasonably to have known” defence, I wonder whether we should ensure that people are equipped with the information that a site is indeed prohibited before they find themselves, perhaps accidentally, in a compromising position. How can we ensure that all that is communicated appropriately and sensitively so as to protect people from accidentally falling foul of these stipulations?
Stephen McPartland
It goes back to the reasonableness test: is the person conducting a reasonable activity, or is the activity prejudicial to the United Kingdom’s national security interests?
For a person to be guilty of the offence, the prosecution must prove beyond reasonable doubt that the person knew, or reasonably ought to have known, that their conduct—for example, in entering the prohibited place—was unauthorised, which provides protections. Unlike the clause 4 offence, there is no requirement that the person have a purpose prejudicial to the safety or interests of the United Kingdom to commit this offence. That ensures that action can be taken in cases when a person has knowingly carried out unauthorised conduct at a prohibited place, such as trespassing, without having to consider whether that person has a purpose prejudicial to the United Kingdom’s safety or interests, which requires a higher threshold of potential harm to be demonstrated.
To take account of the fact that a purpose prejudicial to the safety or interests of the United Kingdom does not need to be proven, there are differences between the conduct caught under the offence under this clause and the offence under clause 4. For example, this offence does not criminalise the inspection of photographs of prohibited places, and it is not capable of capturing conduct in the vicinity of a prohibited place.
The Government do not consider it proportionate or necessary to capture the inspection of photographs under this offence, given that inspecting a photograph that has already been taken of a prohibited place cannot be classed as inherently unauthorised activity. Given the wide range of legitimate activities that could be undertaken in the vicinity of a prohibited place, and given that there is no inherent need for walking past a prohibited place to be authorised, the offence under clause 5 does not capture activity in the vicinity of a prohibited place.
The second prohibited places offence under clause 5 is a crucial addition to the tools our law enforcement agencies and courts can use to capture the full range of harmful activity that can take place at prohibited places. Even though this offence is not aimed at capturing the most damaging activity around those places, as clause 4 does, and attracts lower penalties, it is equally important that we introduce an offence that can capture activity that may seem less severe, but is still capable of interfering with and damaging the operations and security of the United Kingdom’s most sensitive sites.
This offence should be seen as part of a tiered approach alongside the new police powers to protect those sites, which I will come to, and it will ensure that law enforcement has a range of tools and powers at its disposal to protect those sites.
Stuart C. McDonald
The debate has been useful, particularly in relation to protestors, and it is useful to know that, apparently, the Minister’s view is that protestors approaching or being in the vicinity of a prohibited place will not necessarily engage the clause because, at that stage, the activity is not prejudicial to the interests of the United Kingdom. Something more is required before that part of the test is engaged. We might need to explore that further on Report, but for now it is important that we say protestors are not so interested in the Pokémon players. We can revisit that on Report. In the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 ordered to stand part of the Bill.
Clause 5 ordered to stand part of the Bill.
Clause 6
Powers of police officers in relation to a prohibited place
Question proposed, That the clause stand part of the Bill.
Stephen McPartland
The powers set out in clause 6 allow for a police officer to exercise specific powers in order to protect prohibited places. A person commits an offence if they fail to comply with an order imposed under the police powers in relation to a prohibited place. Those powers include the ability to order a person who has accessed or entered a prohibited place or is in the vicinity of one to leave it immediately. Under these powers, a police officer may also arrange for the removal or movement of a vehicle or device from a prohibited place or an area adjacent to a prohibited place.
Alongside the police powers, the clause provides that is an offence to fail to comply with an order given by a constable under those provisions. As an example, if a person is circling the perimeter of a prohibited place and taking detailed photographs of the infrastructure and activities within, the police may order this person to cease to engage in that activity and leave the area immediately, given that they are carrying out an inspection of the site and their activity is in an area adjacent to the prohibited place.
In order to exercise any of those powers, a constable must reasonably believe that doing so is necessary to protect the safety or interests of the United Kingdom. For example, exercise of the powers may be necessary for the prevention of activity that could harm or disrupt the operations or functioning of a prohibited place. In most instances, we consider that the use of these powers will be intelligence-led and that the police will be called to prohibited places where there is a concern identified from the site itself.
The aim of the police powers in relation to prohibited places is not to impede legitimate activity, such as lawful protest, but rather to catch and deter activity around prohibited places that is prejudicial to the safety or interests of the UK. That includes activity that is harmful to and disrupts or impedes the functioning or operations of a prohibited place, such as scaling fences, blocking access points or wider disruption to the critical and sensitive work being conducted at these sites. Ahead of implementation, my officials will work with the police and the College of Policing to ensure that clear guidance and training are in place to ensure that the powers are used reasonably and proportionately to protect these sites.
The additional powers are a critical part of the reformed prohibited places regime and provide significant operational utility, given that they enable law enforcement to prevent harmful activity from taking place at these sensitive sites—activity that could be a precursor to state-threat offences such as espionage or sabotage. Without their inclusion, the UK will be less equipped to counter hostile activity as it happens, which will leave these sites more vulnerable to state-threat activity or wider threats that do not have a state link.
Holly Lynch
Subsections (1) and (2) set out the powers that police constables can exercise to protect a prohibited place, which include ordering a person to cease their activity or move away from the site. Subsection (3) provides that a constable must reasonably believe the use of those powers to be
“necessary to protect the safety or interests of the United Kingdom.”
This includes prevention of activity that could harm or disrupt the operations or functioning of a prohibited place in a way that could jeopardise the safety or interests of the United Kingdom.
The clause gives the police powers to direct people to stop using devices and leave the area, but when I discussed its detail with a recently retired senior police officer he observed that the clause seemingly does not confer on the constable the power to seize the device or any video or images or, indeed, sketches or footage off the back of an eagle taken by the device. Can the Minister explain whether that is the case? If so, would the clause not benefit from an addition to prevent any such sensitive material from leaving the scene with a person instructed to take it with them?
I find it curious that all police officers tend to be referred to as “constable” in legislation, despite the fact that constable is just one of several possible ranks. Indeed, there is some variety in the responsibilities for keeping sites defined as prohibited places safe. The Civil Nuclear Constabulary, overseen by the Civil Nuclear Police Authority, is the armed police force in charge of protecting civil nuclear sites and nuclear materials in England and Scotland. The Ministry of Defence police is responsible for law enforcement and security of military bases in the UK; as it says on the tin, it reports into the Ministry of Defence.
Will the Minister confirm that the powers conferred in clause 6 extend beyond those officers serving in regular police forces that report to the Home Office? It is the specialist forces sitting outside of those structures that tend to pick up the lion’s share of the responsibility for protecting prohibited places. Could he confirm that the powers apply to all officers, regardless of rank, and where the military also provide defences at their own sites, or are at least partnering in that work? Could the Minister explain whether the powers extend to the military, or are exclusively for police officers?
Finally, the powers conferred will also allow a constable to arrange for the removal of a vehicle from a prohibited place “or an area adjacent” to it. Does the Minister envisage any further guidance on what constitutes “adjacent to a prohibited place” to assist a constable in determining distance, proximity, and so on, in making those judgments and communicating those clearly in a reasonable way to members of the public?
Stephen McPartland
I am grateful to the hon. Lady for the very good points she has raised. My understanding is that the powers currently apply only to police officers, not to members of the military. It is very clear throughout the clause that it refers to “a constable”, and it is referenced as “Powers of police officers”.
Mr Jones
Is that not a hole in the legislation? We are coming on to Cyprus next, where it is not civilian police that do security there, and I can think of a few others around the world where it is done by the military. Therefore, should those powers not also be given to the military?
Stephen McPartland
When we talk about military, MOD police will have those powers.
Stephen McPartland
Both the right hon. Member for North Durham and the hon. Member for Halifax made a very good point. We will take that away and look at it. If they want to strengthen the Bill, we are happy to work with them to do that.
Antony Higginbotham (Burnley) (Con)
Would my hon. Friend agree that there is a difference between providing force protection for a site and providing constabulary and law enforcement duties?
Stephen McPartland
My hon. Friend makes a good point. We must also bear in mind that it is not our intention to introduce search-and-seize powers under these police powers. This is part of the tiered approach we referred to earlier, with the police being able to warn people to go away before they fall foul of the law. There is the opportunity to give them that warning before any arrest.
Mr Jones
I agree with the hon. Member for Burnley, but there are also sites that are benign, so it is not a force protection point but a constabulary duty that is carried out by members of the armed forces. Therefore, I think they need these powers if this is a comprehensive suite of powers.
Stephen McPartland
I am grateful to the right hon. Member. As I said, that is certainly something that we will look at and come back to.
The Chair
The Minister has concluded his remarks, unless I am much mistaken.
Question put and agreed to.
Clause accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
National Security Bill (Fourth sitting)
Tuesday 12th July 2022
(2 years, 4 months ago)
Public Bill CommitteesRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 July 2022 - (12 Jul 2022)
The Minister for Security (Stephen McPartland)
I beg to move amendment 5, in clause 7, page 7, line 3, at end insert—
“(ca) any land or building in the United Kingdom or the Sovereign Base Areas of Akrotiri and Dhekelia which is—
(i) owned or controlled by the Security Service, the Secret Intelligence Service or GCHQ, and
(ii) used for the functions of the Security Service, the Secret Intelligence Service or GCHQ;”.
This amendment and Amendments 7 and 8 make provision for sites used by the intelligence services to be prohibited places.
The Chair
With this it will be convenient to discuss the following:
Government amendments 6 to 8.
Clause stand part.
Clause 8 stand part.
Stephen McPartland
Amendments 5 to 8 make critical additions to the definition of “prohibited place” in clause 7. The sites used by the UK’s intelligence services are some of our most sensitive locations and must be afforded the measures and protections given by the wider prohibited places provisions. These measures will mean that those who commit unlawful conduct can face prosecution under either of the two new prohibited places offences in clauses 4 and 5. Moreover, the police will have powers to stop people engaging in conduct in relation to a prohibited place that may harm the safety or interests of the United Kingdom. While the Government initially intended to add these sites by way of regulations, on reflection we concluded that it would be preferable to give Parliament the opportunity to debate the provisions up front—lucky me!
The amendments make provision for sites used by the intelligence services to be prohibited places under the meaning of “prohibited place” in clause 7. Under amendment 5, any land, building or part of a building used for the functions of the intelligence services will be designated only if it is also owned or controlled by those services. That offers safeguards so that places used temporarily for the functions of the intelligence services would not be designated; that would not be proportionate. I will not dwell on amendments 6 to 8, which are consequential, centralising the definition of a building for the purpose of the clause and providing a definition of GCHQ.
Turning to clause 7 stand part, section 3 of the Official Secrets Act 1911 sets out the places that are, or can be by declaration, a prohibited place under existing legislation. They are mainly defence-related sites or those that are used, or can be used, in times of war. Clause 7, which replaces those provisions, defines what sites will be prohibited places for the purposes of the two offences in clauses 4 and 5 and the police powers in clause 6, and it has been drafted to continue to capture the majority of the sites that are set out as prohibited places in the existing provisions.
The language and drafting has been simplified to ensure that there is clarity about what is or is not a prohibited place under the clause, removing long lists of terms that are less relevant for modern legislation. The definition in the clause includes Crown land or a vehicle in the UK or the sovereign base areas of Akrotiri or Dhekelia used for UK defence purposes or for the defence of another country. That covers the range of defence sites, including military barracks, bases and military headquarters.
Limiting prohibited places to Crown land in the UK or the sovereign base areas ensures that the provisions retain a focus on places important for UK defence, and that the range of sites covered does not become disproportionate or impractical. The definition is extended to sovereign base areas in Cyprus because there are several military bases there that are important for UK defence and should be covered by these provisions, as they are now.
Clause 7 also ensures that we can continue to capture defence vehicles as prohibited places. A vehicle used for defence purposes would include military transportation that is either sensitive in itself—for example, aircraft, vessels, submarines or tanks—or used for the purposes of transporting sensitive defence technology, equipment or weaponry. That may include trains or convoys used for the purposes of transporting weaponry. It is crucial that those vehicles are afforded the protection that the prohibited places regime provides.
Clause 7 also designates Crown land or vehicles in the UK or the sovereign base areas used for the purposes of the defence of a foreign country or territory. It is imperative that these provisions extend to and protect the sites and vehicles that the UK’s allies use and operate. For example, there are several military bases in the UK out of which our allies operate; those need to continue to be afforded the protection given by the prohibited places regime. Lastly, clause 7 covers buildings or vehicles designated by regulations made under the clause 8 designation power.
Clause 8 provides for the Secretary of State to declare additional sites as prohibited places by way of secondary legislation. In order to do so, the Secretary of State is required by the clause to reasonably consider the designation necessary to protect the safety or interests of the United Kingdom. The designation can be made either by listing specific sites or vehicles or by introducing a description of sites or vehicles. Any site that met such a description would thereby be designated—for example, the listing of UK defence vehicles would capture military aircrafts, tanks, submarines and vessels. The clause maintains our existing ability to designate sites while ensuring it is appropriately modernised and futureproofed, as recommended by the Law Commission.
When deciding whether a designation to declare an additional prohibited place through the power in clause 8 is necessary to protect the safety or interests of the United Kingdom, the Secretary of State must have regard to certain matters, including the purpose for which the place is used; the nature of the information held, stored or processed on the land or in the building or vehicle; and the nature of any equipment, technology or material that is located on the land or in the building or vehicle. That requirement provides safeguards to ensure that only sites at risk of harmful activity can be designated as prohibited places.
The power to designate additional prohibited places is limited to land or buildings in the United Kingdom or the sovereign base areas in Cyprus, or any vehicle. Although it may seem broad to enable the designating of any vehicle around the world as a prohibited place, in most instances it would be possible to capture harmful activity at such vehicles only within the United Kingdom or in countries with which we have extradition agreements, given the difficulty of enforcing the offence overseas. It is beneficial to be able to designate a vehicle anywhere in the world because, unlike land or buildings, vehicles are clearly capable of being moving targets at different locations.
In the near term, the Government intend to designate as prohibited places certain sites in the nuclear sector, including major licensed nuclear sites. Specific nuclear sites such as Sellafield and Dounreay are currently designated as prohibited places under the existing provisions of the Official Secrets Act 1911. The Government want to ensure that sites in the sector continue to be afforded protection under the reformed prohibited places regime. Consultation is currently ongoing with the nuclear sector to ensure that the range of places that require designation as prohibited places are captured and that the impact of any designation is fully considered before a decision to designate is made.
Given that in rare cases it may be necessary to rapidly designate a site as a prohibited place in response to intelligence about an imminent threat at a certain location, the reformed designation power is subject to the negative parliamentary procedure. The power could be needed to rapidly designate, for example, medical research facilities used during a public health crisis that may be the target of state threat activity. Even in such rapid cases, the Secretary of State must still reasonably consider designation necessary to protect the safety or interest of the United Kingdom and we would expect that, where reasonably practicable, the Secretary of State would consult with the landowner.
A designation power to declare additional prohibited places is a crucial part of the reformed regime. By futureproofing the provisions in such a way, we can continue to capture and deter those who seek to conduct harmful activity at the United Kingdom’s most sensitive sites, as the threat landscape will undoubtably evolve over the coming years. I ask the Committee to support the inclusion of clauses 7 and 8 in the Bill and to agree to the amendments.
Holly Lynch (Halifax) (Lab)
Let me take clauses 7 and 8 and Government amendments 5, 6, 7 and 8 together. As the Minister has outlined, clause 7 defines a prohibited place for the purposes of clauses 4 to 8. The definition includes Crown land and vehicles used for defence purposes; places used for the invention, development, production, operation, storage or disposal of weapons; and land, buildings or vehicles designated by regulations made under clause 8.
Clause 8 provides for the Secretary of State to declare additional sites as prohibited places by way of secondary legislation. This will ensure that additional sites that are vulnerable to state threat activity can be designated when it is considered necessary. The Committee will note that, historically, the list of prohibited places has had a strong, if not total, military focus.
We just need to read the legislation to be struck by how dated it is. The Official Secrets Act 1911 defined a prohibited place as:
“any work of defence, arsenal, naval or air force establishment or station, factory, dockyard, mine, minefield, camp, ship, or aircraft belonging to or occupied by or on behalf of His Majesty, or any telegraph, telephone, wireless or signal station, or office so belonging or occupied, and any place belonging to or occupied by or on behalf of His Majesty”
and so on. While reflective of the contemporary climate and the threats posed to the UK, this list has long been out of date. We therefore welcome this expansive update for defining what a prohibited place is, as well as giving the Government the ability to adapt the list where there is a reasonable case to do so. In the light of that, we recognise that Government amendments 5, 6, 7 and 8 complement the clause in that aim.
That said, I did probe the Law Commission during last Thursday’s evidence session on this point. It is important that this legislation is laid in such a way that it is not used by Government or future Governments to infringe on other democratic freedoms. During the consultation period of the Law Commission’s report on the Official Secrets Act, a number of stakeholders expressed concern about giving the Home Secretary such powers to designate a new site as a prohibited place.
The Trinity Mirror raised concern that an unchecked power to create designated sites based on national security may create a new criminal offence without parliamentary debate and could potentially stifle legitimate investigations in the public interest. WhistleblowersUK stated that the list should not end up being widened to include council officers or schools, for example. It would be incredibly worrying if a Home Secretary interpreted this power to allow himself or herself to mark places that served a purpose in the execution of an unpopular Government policy, for example, as a prohibited place. I outlined these concerns to Dr Nicholas Hoggard of the Law Commission, who provided some reassurance. He said,
“What is good to see about the powers under this Bill is they are quite principled powers. The basis on which the Secretary of State can define something as a protected place is much more transparent. There are just three limbs that are easy to understand. That basis for affording the Secretary of the State the power is much more useful. It is more transparent, but it also enables us to capture within the offence places where
there is actually a real risk of harm arising from hostile state activity. On that front, I would say the power is good in so much as it aligns with the spirit of our recommendation. The fact that there will be parliamentary oversight of this process is important. It was a fundamental feature of our recommendations, and the negative resolution procedure is an important part of that process. The Secretary of State’s powers are more effective than is permitted under the current law, but also there is sufficient oversight.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 51, Q96.]
I look to the Minister for the same political assurances: that such powers would not be used should the Government find that to declare somewhere a prohibited site would serve a purpose in the execution of an unpopular Government policy, for example. Having gone through the prohibited places National Security Bill factsheet on the Government website, I have already asked the Minister what information should be in the public domain to confirm that somewhere is a prohibited site.
I completely accept that somewhere might be so secure that extensive signage and its inclusion on any such list might not be appropriate. However, in the event of our Pokémon GO example, it is about being able to check without needing to travel to a prohibited place to observe the signage to find out, which might itself bring someone in scope of earlier offences. I want to ensure that the status of such a site, the restrictions and the consequences of not adhering to those restrictions are appropriately and clearly communicated to the public.
Before closing, I want to bring the Minister’s attention to clause 7, where we have sovereign based areas overseas for UK defence purposes. He has made the undertaking to consider military powers within the earlier clauses on police powers. It is my understanding that the Ministry of Defence police would not provide that service to these sites deemed to be prohibited places within clause 7. Once again, he might need to write to us to work through some of that detail further.
Mr Kevan Jones (North Durham) (Lab)
Mr Gray, we know that it is officially summer when you remove your jacket.
The Chair
Order. In 25 years in this place, I have never once removed my jacket until now. I am embarrassed!
Mr Jones
Possibly this historic day shows the effects of global warming.
I was a little surprised at some of these amendments, to say the least. I want some clarification first of all, and then I will come to some other issues. Clause 7 says that a “prohibited place” relates to Crown land used for the extraction of
“metals, oil or minerals for use for UK defence purposes”.
I would like to define why it has been outlined in that way in the Bill.
I found Government amendment 5 quite surprising. There are quite a lot of assets that our defence and intelligence use around the world that are not known about, and it is important that they are not in the public domain. Government amendment 5 identifies a military area or base, but the Minister will know—or he might not yet have been briefed on this—that many sites around the world are used for defence and intelligence purposes; those are not in the public domain for very good reasons. How do they come into the scope of the Bill? I would not suggest for one minute that we should list them all—if we knew where they all were, that would be wrong. But I want to know how the legislation intersects with the protections that those sites clearly need.
The Bill talks of the Crown estates that we actually hold or control, but there are a number of occasions where we are collocated with other forces. We do not control those areas, although our defence and intelligence services will be using them. I am trying to think of a couple of examples. A few weeks ago I was in Lithuania with the rapid reaction force, a coalition of different nations under NATO, and the UK contingent was located in a wood outside Tallinn. That deployment was a temporary arrangement. How would that be defined under the Bill? Technically, that area is under the control of the Lithuanian defence force. Would that operation be classified in the Bill?
Likewise, I look back to deployments in Afghanistan and Iraq and the green zone, for example. We clearly had defence and intelligence assets there, but we did not control a lot of those areas in terms of force protection or even areas shared with other nations. How does the Bill cater for the jointness of those operations, some of which will be temporary and some permanent?
I accept that it would be completely wrong to put all these sites into the Bill but it is important that we understand how those sites—temporary or permanent—interact with the Bill. This morning, my hon. Friend the Member for Halifax mentioned the Pokémon question and I raised the flying eagle. How will the Bill be effective when it comes to such a person being seen to penetrate a prohibited area? Will it catch people who end up there by accident?
I support the amendments, but think they need a bit more clarification. If the Minister does not know the answer to my questions, I will be happy for him to write to me.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
Clause 7 and the Government amendments to it seem to make sense; my concern is about clause 8. I read the exchange that the shadow Minister referred to, when she asked the Law Commission about the broad powers in clause 8; it was one of the very rare occasions when I was not absolutely convinced by the answer that came back. At the end of the day, clause 7’s definition of “prohibited place” is very defence oriented, and it will now be defence and security oriented. But clause 8 opens the definition up to any sort of land at all and the nebulous concept of the safety or interests of the United Kingdom: if the Secretary of State considers it reasonably necessary for the safety of UK interests, a place can be added to the list.
I worry about immigration detention facilities or a fracking site being added to the list. Regardless of the rights or wrongs of the policy, that is a fairly significant extension to how the whole policy area operates. That is where our concern lies. Has it been opened up too broadly? I appreciate that the Minister says we need flexibility and to be nimble, but I worry that we have left it too open to potential—abuse is probably too strong a word—overgenerous interpretation.
Stephen McPartland
I commit to write to the hon. Member for Halifax—and the whole Committee—to answer her point about the police. I totally accept the genuine concern I am hearing from across party lines about what safeguards are in place to ensure that a place is designated for reasons of defence as opposed to Government embarrassment. The safeguard is that the power to designate only be exercised may if the Secretary of State reasonably considers it necessary to do so in order to protect the safety or interest of the United Kingdom.
Holly Lynch
There is that difference between safety and interest; it would be quite easy for a Home Secretary, if she has an unpopular deportation policy—to give a topical example—to argue that that it in the UK’s interest rather than its safety. That gives us cause for concern.
Stephen McPartland
I appreciate that. We have heard this morning and in previous sittings about that tension in respect of the Government interest and defence. There is case law that defines it. The purpose of the Bill is to provide the intelligence services with the tools they need to keep the country safe. They feel that they need these tools to do that. There are safeguards. The idea behind the number of factors is that there are a variety of checks on the Secretary of State, so they would have to demonstrate all the way through that they have considered that multitude of factors and that it was necessary for the defence of the country.
On the point made by the right hon. Member for North Durham, I cannot believe I am going to say this but I cannot tell him what I have been briefed, for national security reasons. The reality is that in these clauses we have moved away from designating places to categories. One of the categories is unavowed sites. That means that some of the sites that he suggested would be covered by the category.
Stephen McPartland
Another query raised was about oil and metal, which I understand are already in the existing provision for use in defence. That is why we refer to those areas. Finally, we are not designating military bases abroad, other than sovereign bordered areas, purely because of difficulties with jurisdiction and making that work.
Amendment 5 agreed to.
Amendments made: 6, in clause 7, page 7, line 4, leave out
“(including a part of a building)”.
This amendment is consequential on Amendment 7.
Amendment 7, in clause 7, page 7, line 24, at end insert—
“‘building’ includes any part of a building;”.
See Amendment 5.
Amendment 8, in clause 7, page 7, line 37, at end insert—
“‘GCHQ’ has the meaning given by section 3(3) of the Intelligence Services Act 1994;”—(Stephen McPartland.)
See Amendment 5.
Clause 7, as amended, ordered to stand part of the Bill.
Clause 12 ordered to stand part of the Bill.
Clause 9
Power to designate a cordoned area to secure defence aircraft
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider the following:
Clauses 10 and 11 stand part.
Stephen McPartland
The power set out in clause 9 allows a constable to designate a cordoned area around a military aircraft, part of an aircraft or related equipment. Regrettably, there have been several aircraft crashes over the past several years, including an F-15 aircraft crash in Lincolnshire in 2014. In such cases it is common for sensitive technology or material to be dispersed, and a specific power to cordon an area will ensure that such material is sufficiently protected until it can be removed.
Under the clause, a constable may designate an area under the cordon power only if they consider it expedient for the purposes of securing an aircraft, parts of an aircraft or equipment relating to such an aircraft, used for military purposes. The clause goes on to describe the process for designating a cordoned area this power, including ensuring that the boundary is appropriately marked and that a written record is made of the relevant decisions.
Members will appreciate the interest that hostile actors would have in accessing military technology. A cordon power that allows us to protect sensitive military aircraft technology beyond prohibited places—for example, in the event of a crash—is a tool that our armed forces and police can use to prevent harmful activity from taking place if sensitive technology is exposed and becomes vulnerable to access or inspection.
Clause 10 sets out the duration for which a designation of a cordoned area made under the clause 9 power may have effect. The end of the cordon must be specified in the designation, and initially an area can be cordoned only for a maximum period of 14 days. The initial period of the cordon specified in the designation may, in many cases, be adequate for the secured military aircraft, parts or related equipment to be safely removed. Should the process take longer—for example, if more time than originally anticipated is required in the event of a criminal investigation or an investigation by the Defence Accident Investigation Branch—the duration can be extended up to a maximum of 28 days from the point of the initial designation. Setting out the duration for which a designation of a cordoned area may have effect is an essential provision as part of the wider military aircraft cordon power. It prevents the provisions from being implemented for longer than is justified or proportionate.
Clause 11 provides the police with the powers to enforce a cordoned area that has been designated under the clause 9 power. The powers are similar to those that the police are able to use to protect prohibited places under clause 6. They include requiring a person not to carry out specified conduct, such as entering or inspecting a cordoned area; requiring a person or persons in charge of a vehicle or device to leave a cordoned area or an adjacent area immediately; and arranging for the movement or removal of a vehicle from a cordoned area.
It is especially important to have powers in relation to an area adjacent, given that people are able to take photographs, videos or other recordings of a crashed aircraft that is within a cordoned area from outside the cordon perimeter. The powers to prohibit such activity allow for enhanced protection against the threat that may be posed when sensitive technology or information is exposed—for example, hostile actors may still be able to gather potentially damaging information from outside a cordon through the use of long-range cameras, or may use photos and videos obtained by others and posted on social media.
Alongside the powers I have outlined, clause 11 will make it an offence to fail to comply with an order given by a constable under the powers. There may well be instances in which a person has a reasonable excuse for failing to comply with such an order, so the clause includes a defence to protect those who have a legitimate reason to be within a cordoned area.
The police powers in relation to a cordoned area in clause 11 are crucial, as they give our law enforcement agencies the tools needed to deter hostile actors from accessing the sensitive defence technology or material that may potentially be exposed—for example, following the unfortunate event of a military aircraft crash.
Holly Lynch
Clause 9 provides a power for the police to create a cordoned area around a defence aircraft, presumably, as the Minister outlined, if it has crashed or had to make an emergency landing outside a prohibited place. We agree that the powers in clause 9 are entirely appropriate and that the ability to cordon off scenes of that kind is necessary to ensure that the aircraft and any equipment or material relating to it can be sufficiently protected until removal has been completed. Under subsection (2) a constable may designate an area under the cordon power in subsection (1) only if they consider it expedient for the purposes of securing an aircraft used for military purposes, or part thereof, or equipment relating to that aircraft.
I have explored this clause with a recently retired senior police officer, and I will relay his query. Why is this provision needed, given that the police already have the ability to cordon off such areas through common law powers? Where is the gap that needed to be closed by the clause? What does it do that was not there previously? The Minister may outline the differences we have missed; further to that point, the explanatory notes make it clear that the power will not be applicable to aircraft other than those used for military purposes. Say, for example, a civilian fixed-wing light aircraft has raised espionage concerns, having flown over a prohibited place without clearance before making an emergency landing: although it would not be a military aircraft, I would be quite comfortable with clause 9 powers being used in such circumstances. Will the Minister consider that in his response?
Antony Higginbotham (Burnley) (Con)
I wish to speak briefly to the clauses. In Lancashire, we are home to BAE Systems Air, in Samlesbury and Warton. That is a significant manufacturing and assembly location for the fourth generation Typhoon aircraft, the fifth generation F-35 and, looking ahead, potentially the sixth generation of the future combat air system. Manufacturing and assembling those aircraft brings a requirement to test them and put them in the air. With any new aircraft, we run the risk of some kind of emergency landing, so the clause is entirely necessary and proportionate to allow the police to put a cordon in place, should that be required. We have to remember the highly sensitive nature of some of the aircraft, recognising in particular that many contain not just UK technology but technology from our friends and allies around the world.
Not that long ago, as we may all remember, one of the F-35s fell off the deck of the Queen Elizabeth carrier as it was meant to be taking off. On the news, we all saw that other allied warships had to go towards the area to ensure that unfriendly or hostile states could not go to find that aircraft on the seabed and try to take some of its technology. The clause seems to do something similar: it will ensure that in the event of an emergency, we have the ability to protect a site so that we can clean it up and investigate it in a controlled way. That control is important, because hostile states are always looking at ways to take advantage of unforeseen circumstances.
Will the Minister confirm that the area where the cordon is put in place will be as tightly defined as possible? We must recognise that in Lancashire, for example, where such events might happen, there is a significant amount of farmland and land used for other things, so we must try to find a balance. It is about proportionality and recognising that although a site is controlled—not just in terms of where it is but recognising that parts might be spread over a significant area—the land might have another use. Will the Minister confirm that the Government expect there to be a balance and that an area will not be so widely defined that it becomes unusable for a significant number of people?
I was pleased to see that there is a 14-day limit for the cordon zone in clause 10, with the potential to expand it to 28 days if needed. That properly tries to balance the different access requirements that the police will have during the clean-up. We all recognise that these will sometimes be complex sites to try to clean up. I very much welcome the clause. For an area such as Lancashire, which has aircraft test flights all the time because of BAE, it will put lots of residents’ minds at ease that if the worst happens, there is a controlled, legislative way to make sure that the site is managed.
Stephen McPartland
I am grateful to my hon. Friend for his helpful contribution. The maximum time period is 14 days because we are trying to put in place a limit. The idea is to restrict the areas as tightly as possible to protect the sensitive material without having an impact on other issues. A cordon around the military area will cover a much tighter area. There are already other cordoning factors, which is why the provision is not wider in scope.
The clauses have been drafted because of the experiences in Lincolnshire with the crashed F-15 aircraft in 2015, and the gaps during that period. My understanding is that the pilot lost control of the aircraft, successfully ejected and crashed into farmland adjacent to a village. Once the fire was extinguished, because there were no fatalities Lincolnshire police left it to the relevant military teams to run the area. As result, potentially sensitive debris was left vulnerable to harmful hostile actors over quite a wide range of areas. The purpose of the clauses is to address the direct experience of what happened during that unfortunate aircraft accident.
The hon. Member for Halifax asked a range of questions, including one on civilian light fixed-wing aircraft. The answer is that the provision currently applies only to military aircraft and does apply to foreign aircraft. The powers in the Bill enhance the powers in common law to try to compensate for what happened with that F-15 aircraft. Although the hon. Lady made an incredibly good point about search and seizure powers, as it stands they are not included in the clauses. I will go away and think about that point and ask my officials to look into it in more detail.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.
Clauses 10 and 11 ordered to stand part of the Bill.
Clause 12
Sabotage
Question proposed, That the clause stand part of the Bill.
Holly Lynch
Clause 12 is a substantial addition to the Bill so warrants further consideration. It introduces a new bespoke offence of state-sponsored sabotage, capturing activity conducted for, on behalf of or for the benefit of a foreign power, resulting in damage to property, sites and data affecting the UK’s interests and national security, which we are happy to support. What has taken the Government so long? It is an extremely welcome provision.
The need for a specific criminal offence of sabotage on the UK’s statute books is long overdue. The necessity for it has increased over time. Over recent years, the nature of sabotage—most notably, the nature of cyber-attacks and sabotage—has changed rapidly. Subsection (3) outlines all the ways in which the act of sabotage can manifest. Subsection (1)(b) is explicit, covering a person’s intent and whether they are
“reckless as to whether their conduct will result in damage”.
As MI5 director general Ken McCallum highlighted,
“cyber is no longer some abstract contest between hackers in it for the thrill or between states jockeying for position in some specialised domain...cyber consistently bites on our everyday lives.”
I was struck by the evidence provided by Paddy McGuinness, the former deputy national security adviser, when I asked him about clause 12 last week. He said:
“one of the difficulties with this grey space activity…is that if you have a presence for an intelligence purpose, you can flick it over and turn it into a disruptive or destructive attack. That is where that preparatory bit is quite important, too: understanding that the simple fact of engaging and being present quickly takes you towards sabotage. I think these are absolutely vital powers.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 24, Q47.]
The sense that someone engaged in espionage on behalf of a hostile state could just as easily be instructed to engage in sabotage reminds us why the new offences are necessary as a package of measures. A report published by Lloyd’s of London only last month crystalises the threat posed by cyber-attacks and sabotage. The report, entitled “Shifting powers: Physical cyber risk in a changing geopolitical landscape” and written in partnership with the Centre for Risk Studies at the University of Cambridge, warned that:
“Whilst most cyber-attacks are digital, physical cyber-attacks–defined as virtual attacks which trigger physical disruption–are becoming increasingly commonplace. The rise of state-sponsored cyber-attacks is a significant focus for businesses and governments, driven by an evolving geopolitical landscape in the wake of Russia’s invasion of Ukraine.”
The UK’s national cyber strategy, published in February this year, also demonstrates the potential threat posed by cyber-sabotage. It states:
“The threats we face in and through cyberspace have grown in intensity, complexity and severity in recent years. Cyber attacks against the UK are conducted by an expanding range of state actors, criminal groups (sometimes acting at the direction of states or with their implicit approval) and activists for the purpose of espionage, commercial gain, sabotage and disinformation.”
From this, we can see that cyber-activity could be prosecutable under a number of the new offences, but I know that the ability to robustly take on sabotage with clause 12 is welcome to those on the frontline of mounting the UK’s defences.
Although outside of scope of the Bill, I will briefly make the point that the Computer Misuse Act 1990, which was the first major legislative attempt to tackle cyber-crime and criminalise hacking, is now also long overdue an update. May I suggest that we have another look at that legislation alongside the Bill and the provisions in this clause, to ensure that we are meeting the cyber-challenges we face as a nation as robustly as is required?
Existing legislation largely fails to accommodate for state-sponsored acts of sabotage. The Criminal Damage Act 1971 defines sabotage as:
“A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”
We therefore welcome the foreign power condition in subsection (1)(d), which will allow police to bring to justice those who work for or conspire with hostile Governments to prejudice the safety or interests of the UK.
We welcome that the offence will link to the preparatory conduct offence to give law enforcement and the intelligence agencies the powers to intervene at an early stage. Despite the changing nature of sabotage, we also welcome that the clause contains provisions to tackle acts of physical damage on sensitive sites, such as critical national infrastructure, property belonging to Her Majesty’s Government, military buildings and sites, other defence assets, or acts that impact goods, systems or services supplying the UK, such as data centres or undersea cable infrastructure. If I have not been clear enough, we very much welcome the addition of clause 12 to the Bill.
Stuart C. McDonald
I echo much of what the shadow Minister, the hon. Member for Halifax, said. As ever, I have slight concerns about the breadth of the foreign power condition and how that might interact with sabotage—for example, if a protest on behalf of one of the aforementioned non-governmental organisations causes some damage to a site. Of course, such protestors should face criminal law, but I would hope it would be general criminal law rather than the sabotage offence set out in clause 12 and the heavy sentence that comes with that.
For all the reasons set out by the shadow Minister, we support the inclusion of clause 12. The Minister moved the clause formally, but it would be useful for us to talk it through because this is a new departure for us, and it would be interesting to hear the Government’s thoughts on the nature of the offence.
Stephen McPartland
I will go through clause 12 in a bit more detail. As hon. Members have outlined, the clause makes provision for an offence of sabotage. It is designed to capture intentional reckless activity resulting in damage to assets including property, sites and electronic systems where the person is acting in a way that they know or should know is prejudicial to the UK’s safety and interests.
A state-linked saboteur poses as much of a potential risk to the UK’s national security as someone undertaking terrorist activities. Working to further the interests of a foreign state by damaging something of importance to the UK is sabotage and therefore should be reflected as such.
Although there are offences in legislation that cover similar activities, sabotage as a crime is not an offence under domestic legislation, which was a surprise to me. The existing related offences were not developed to address the specific threat of state-linked sabotage, and the new offence more appropriately addresses the threat that this type of state threat poses. For example, none of the existing offences has a link to a foreign power. Clause 12 resolves those issues by giving law enforcement and the intelligence agencies the tools to tackle sabotage that is carried out for a purpose that the saboteur knows, or should know, prejudices the UK’s safety or interests.
Stuart C. McDonald
I beg to move amendment 51, in clause 13, page 11, line 26, leave out “England and Wales” and
“any part of the United Kingdom”.
This amendment would mean that “condition A” for the offence of foreign interference would be met by conduct outside the UK that would be an offence in any part of the UK.
The Chair
With this it will be convenient to discuss the following:
Government amendment 9.
Clause stand part.
Stuart C. McDonald
I will be brief. Clause 13 introduces a general offence of foreign interference that is punishable by up to 14 years in prison. As with clause 12, we support the broad idea—indeed, the structure of the offence appears to make sense—but it is a fairly novel departure for this country. I look forward to hearing the Minister talk us through precisely how the provision will work given that it is so novel and fairly complicated. I have said my piece on my concerns about the foreign power condition and the rather nebulous concept of the interests of the United Kingdom, so I will not repeat it.
The amendment asks a short, sharp question. Condition A applies if the foreign offence takes place outside the UK, and it is met only if the conduct is an offence under the law of England and Wales. The simple question is: why does that apply to England and Wales only? It does not apply to Scotland or to offences under the law of Northern Ireland. I genuinely do not know what the thinking behind that is. There may be a perfectly reasonable answer, and the amendment is designed to tease it out. I look forward to hearing much more from the Minister about how the offence will work. On the whole, the clause provides a justified and welcome new offence that we would support.
Holly Lynch
Clause 13 is quite substantial, and creates a new and general offence of foreign interference. Under the clause, someone who behaves recklessly but for whom an intention to aid a foreign intelligence service cannot be proven would not be committing an offence, unlike under clause 12.
The hon. Member for Hastings and Rye has a particular interest in that element of the offences. She will remember that in last Thursday’s evidence session, she asked Professor Sir David Omand, the former director of GCHQ, about the question of recklessness in clause 13. He said that he
“looked to clause 24, ‘The foreign power condition’, and there is quite a lot of scope in it for a successful prosecution to demonstrate that the individual who has, as you say, acted recklessly, could reasonably have been expected to know that their act would benefit a foreign power, for example, so I was not so concerned about that particular question.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 17, Q34.]
However, in response to a very similar question, Carl Miller, the research director of the Centre for the Analysis of Social Media at Demos, made the interesting point that introducing recklessness in such a way may make businesses or service providers take their responsibilities on those types of risks more seriously when agreeing to take on commissioned work. I put that example to the Minister in our discussions on clause 3.
We will propose later in proceedings, through new clause 2, an independent reviewer to look annually at all the powers in the Bill—not just part 2—and not only check that we have the right balance when using the powers, and consider any unintended consequences, but make recommendations. I think clause 13 is viewed as fair by both sides of the Committee, but I hope that our debate about recklessness has shown that new clause 2 would make a great deal of sense.
Government amendment 9 is a welcome step—if somewhat presumptuous—that would make foreign interference a priority offence in the “Online Safety Act”, as on the amendment paper. It is slightly odd to amend the Online Safety Bill through this Bill, given that that Online Safety Bill is only just out of Committee—it is on Report in the Chamber as we speak—but the change is a very welcome development none the less. Reset.Tech’s Poppy Wood spoke in evidence of her hopes for that provision, and was pleased to see its addition.
Later in proceedings, we will come back to what more could be done in the disinformation space when we discuss new clause 3, which addresses the reporting of disinformation originating from foreign powers. Alongside clauses 13 and 14, we have discussed separately with the Minister that we are still awaiting further news about the planned foreign influence registration scheme, which has been called for since the aforementioned 2020 Russia report. It was a big focus on Second Reading, when the Minister’s predecessor was under a great deal of pressure from the Chair of the Intelligence and Security Committee and others for not having produced the detail in time for the whole House to be able to discuss and debate it. The practical outcome of the implications of clause 13 is that we would like to see the detail as soon as possible, and the Minister knows our views on that.
Before closing, I want to touch on the issue of foreign interference. On Second Reading, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) spoke extensively about the need to tackle shell companies. The new offences outlined in these clauses will mean little if they cannot be detected or if measures are rarely enforced. Again, we urge the Government to remove the loophole that allows shell companies to be used to make donations to political parties, and to hide foreign donations and donations linked to hostile states. I expect the Minister will say that further work on interference of that type is under consideration as part of a second economic crime Bill, but I am looking to him for further assurances on that type of foreign interference.
Maria Eagle (Garston and Halewood) (Lab)
I rise to support some of the points made by my hon. Friend the Member for Halifax. Given the Minister’s recent arrival, I am sure that this is not his responsibility and would not have happened had he been in charge, but it is particularly bad for a Government amendment to seek to amend a Bill that is still going through its Commons stages and has not reached the other place. In fact, it is still on the Floor of the House. It is a particularly poor practice that I hope the Minister, in his new role, will deprecate among his officials and seek to prevent from happening in the future.
It is really bad for the Committee to seek to amend a Bill that is still on the Floor of the House and has not been passed yet, when it is quite clear—unless the Minister has a good reason why it is being done this way, which I would be interested to hear—that it is not sensible for us to amend a Bill that has not yet even passed its Commons stages. It seems to be a recipe for incoherence and confusion. I hope that the Minister will agree and seek to prevent us from seeing such amendments in the future, because it is just rank poor practice.
The clause introduces an important defence for the country and fills a gap that has needed to be filled for many years, so I very much support it. However, it is noticeable that, unlike clause 12, which we have just discussed and approved, the offence set out in clause 13 does not include recklessness in the same way as some of the other offences set out in the Bill. There must be a reason for that, but it is not immediately apparent what that is, and it would help the Committee a great deal if we could hear the rationale for recklessness being left out.
Obviously, the offence also does not include where an individual is unwittingly used to conduct the activity that the person who is engaging in the interference is seeking to conduct. I can understand that a bit more, because if someone is a dupe—perhaps without any intention or recklessness at all—one can understand why the offence might not extend to that person. However, given that some of the offences being introduced by the Bill do include recklessness, it would still constitute an offence if there was recklessness rather than intent. Why has recklessness not been made a part of the offence? I am sure there is an explanation, and I think it would help the Committee a lot to hear what it is. If there is no good explanation, perhaps the Minister might go back and produce an amendment that includes “recklessness” in clause 13.
Stephen McPartland
Clause 13 provides for a criminal offence of foreign interference. It is and always will be an absolute priority to protect the UK against such interference. The principal aim of the clause is to create a more challenging operating environment for, and to deter and disrupt the activities of, foreign states who seek to undermine UK interests, our institutions, political system and our rights, and ultimately prejudice our national security.
Clause 13 will act as a tool for disruption and deterrence, raising the cost to foreign states of carrying out interference activity by holding those responsible to account for their actions. I noted the concerns expressed by the hon. Member for Garston and Halewood very clearly. I have raised that issue myself, and it is something that we will talk about in the Home Department, because I understand those concerns. I will address the issue of recklessness later in my remarks. Reference was also made to the foreign power condition, which we will debate in much more detail later in our proceedings.
On the foreign influence registration scheme, I have spoken to hon. Members about that. The Home Secretary has committed to its formal introduction during Committee proceedings, and I put on record that I would like it to introduced during Committee proceedings in the Commons, so that it can be debated properly and dealt with here before being considered in the House of Lords. Donations from shell companies will be dealt with in the economic crime Bill.
We know that states around the world, including the UK, conduct open and transparent influence activities, such as using diplomacy to shape and align policy to benefit shared interests. That is a welcome part of transparent international engagement and is vital to the UK in achieving its interests. However, some states seek to further their strategic interests by going further than overt political influence, such as through cultivating and manipulating relationships with individuals and entities in the UK where power and influence lies and undertaking deceptive lobbying operations to shape public policy making. Although not necessarily hostile, those “interference” activities are typically non-transparent and outside the norms of diplomacy.
In our approach to legislating against foreign interference, we have chosen to target the intended effect of the foreign interference rather than the specific method used to achieve that result. We considered whether it would be more appropriate and effective to create specific offences, such as a bespoke “hack and leak” and disinformation offences, but that approach risked leaving gaps in our ability to prosecute foreign interference. Disinformation campaigns seek to sow discord and undermine public confidence in our institutions and values. Often, the damage caused by disinformation cannot be measured until long after the information is in the public domain. Our approach to foreign interference is intended to enable harmful behaviour to be disrupted at an early stage, before significant damage occurs. That is yet another reason to focus on the intended effect of foreign interference, as opposed to focusing on specific actions and methods of a state actor.
Clause 13 has been constructed with three conditions that must all be met in order for a person to have committed an offence. As is the case throughout the Bill, there must be a link to a foreign power, that is to say where conduct is undertaken for, or on behalf of, or with the intention to benefit, a foreign power. A person must intend that their conduct, or that a course of conduct of which their conduct forms a part, will have a specific effect. I will now turn to those effects to more detail.
The first stipulated effect is interfering with the exercise of a convention right as it has effect under the law of the United Kingdom. The aim of encompassing such intended effect is to catch activities that interfere with a right that is already protected from unjustifiable domestic interference under UK law such as freedom of speech. It has been evidenced that foreign states have engaged in activity that seeks to intimidate or threaten diaspora communities to stop engaging in lawful protest activities, or to embrace their home country or face punishment. It is our aim that such hostile activity can be stopped through this targeted approach.
The second and third effects look at affecting the exercise by any person of their public functions and manipulating whether or how someone uses services provided in the exercise of those public functions. The first of these two effects could relate to the functions of a person who holds public office, such as a Member of Parliament. The type of activity this effect could capture, subject to the other legal conditions being met, is conduct that seeks to affect a political decision. The second of the two effects could be manipulating whether or how any person makes use of vaccination services. In isolation, this is of course not a crime, but sophisticated and well-resourced state actors will choose topics that divide public opinion and pit us against one another. As I have already touched on, this clause focuses on the person’s intention, as opposed to the vector or means they use to achieve it. That is at the very core of what foreign interference is.
The fourth and fifth effects capture conduct that manipulates whether, or how, any person participates in a political or legal process under the law of the United Kingdom respectively. Examples of the type of activity that we consider those effects capturing, subject to the other legal conditions being met, would be threatening a member of a jury in order to prejudice a trial, stealing evidence of a crime in order to disrupt an investigation, or intending to secure the election of candidates with views favourable to, or favoured by, the foreign power.
The sixth effect is consistent with other offences in the Bill and could cover foreign interference in UK defence and security interests or trade deals being negotiated with countries around the world.
In addition to the foreign power condition needing to be met and an intention to cause one of the effects in subsection (2), the person’s conduct must meet at least one of three specific conditions: A, B or C. Condition A is that the person’s conduct constitutes an offence or, if it takes place in a country or territory outside the United Kingdom, would constitute an offence if it took place in England and Wales. That reflects the potential for foreign interference to be conducted through a range of methods, all with different outcomes. In seeking to bring about one of the effects in subsection (2), a foreign state actor could, in theory, commit an offence such as fraud or bribery in the course of their conduct.
Condition B is met when a person’s conduct involves coercion of any kind. The term coercion captures aggressive and violent forms of conduct such as damaging or destroying, or threatening to damage or destroy, a person’s property, or damaging or threatening to damage a person’s reputation. In addition, the term “coercion” also encompasses activity that causes spiritual injury to, or place undue spiritual pressure on, a person. This term follows existing precedents, as debated during the passage of the Elections Act 2022.
Condition C is met when a person’s conduct involves making a misrepresentation. A misrepresentation may include making either a statement or by any other kind of conduct and may be either expressed or implied. This covers a misrepresentation as to the person’s identity or purpose, as well as presenting information in a way that amounts to a misrepresentation, even if some or all of the information is true. As the recent Russian invasion of Ukraine has demonstrated, information can be weaponised. The new offence of foreign interference is a significant step forward in the UK’s response to tackling state-sponsored disinformation. We believe that the vast majority of state-sponsored disinformation captured by this clause will be done so by meeting condition C.
It is right that the framework we have devised consists of three high legal tests, which must all be met for an offence to apply. That is an effective and appropriate way to safeguard against capturing legitimate forms of influence or undermining and eroding the freedoms and values we are actively seeking to safeguard.
Additionally, this clause provides that the offence applies regardless of whether a person’s conduct takes place in the United Kingdom or elsewhere. This important component reflects the threat landscape of the 21st century and enables activity conducted overseas to be captured. I must reiterate that if this component did not apply to the clause as drafted, vast swathes of hostile activity could go unpunished, which could ultimately undermine the UK’s safety and interests. The provision in clause 13(10) is consistent with other offences in the Bill.
As I have said, clause 13 is not about restricting the rights and liberties of the British people. It reinforces such protections and privileges we care so deeply about. As I have noted, the offence consists of a framework with three explicit legal conditions that must all be met in order for a person’s conduct to be caught. Furthermore, the measures underpinning this clause also include the requirement of Attorney General consent in England and Wales, and Advocate General in Northern Ireland, in order to bring forward a prosecution.
Turning to the penalty, we propose a maximum of 14 years’ imprisonment on conviction, or a fine, or both. That reflects the seriousness of the harm that state threats can have on the UK and its interests. This is about activity that intends to interfere in our democracy, and we must not be complacent in ensuring that sentencing judges have available to them penalties that can reflect the potential harm caused by this type of conduct.
Therefore, the best way of tackling the significant threat we face from hostile activity by states is to ensure that we have appropriate and proportionate measure that do not overshadow our freedoms. As previously stated, I am committed to ensuring that we have a full suite of provisions in our arsenal to protect our national security. I hope the Committee will agree on the clear requirement for clause 13.
Government amendment 9 creates a bridge from the offence in clause 13 to the priority offences in the Online Safety Bill, which will strengthen the Government’s response to the state-sponsored disinformation that seeks to undermine the UK’s interests. The new offence of foreign interference will criminalise state-sponsored disinformation affecting the UK, allowing us to disrupt and deter foreign actors engaging in disinformation campaigns against the UK. As well as prosecuting perpetrators where possible, we need online platforms to take action against the content. Designating the offence as a priority offence in schedule 7 to the Online Safety Bill will require online platforms to guard against and act swiftly to remove content that amounts to an offence.
The risk assessment and safety duties provided for in the Online Safety Bill include the use of proportionate measures to reduce and manage the risk of harm to individuals and prevent users from coming across priority illegal content on the service. Where priority illegal content is present on the service, providers must minimise the length of time for which it is present and also swiftly remove the content on being alerted to it.
Officials in the Home Office and the Department for Digital, Culture, Media and Sport continue to work closely with Ofcom and platforms to ensure that guidance is produced to allow platforms to take proportionate steps towards removing state-sponsored disinformation. To comply with these duties, platforms will have to consider the design and features of their service and the operation of their algorithms. In the context of the foreign interference offence, that could include measures to ensure that platform manipulation, such as engaging in artificially co-ordinated messaging campaigns, is more difficult, thus mitigating the risk of co-ordinated inauthentic behaviour and disinformation more broadly.
While amendment 9 ensures robust action on state-sponsored disinformation, it must be set in the context of a regime that will also defend freedom of expression and the invaluable role of a free press. Platforms and Ofcom will have duties relating to freedom of expression for which they can be held to account. Platforms will not be able to arbitrarily remove harmful content. They will need to be clear what content is acceptable on their services and enforce the rules consistently. Users will have access to effective mechanisms to appeal the removal of content without good reason.
It is right for the Government to go further in addressing disinformation and wider information operations undertaken and amplified by foreign states. Amendment 9 will address the most concerning information campaigns being amplified by foreign powers who are seeking to advance their interests and harm the UK.
On the point about recklessness, my understanding is that we are trying to get the balance right between legitimate and illegitimate restrictions. The concern was that including recklessness would possibly widen the scope and would then move into the political and diplomatic arenas. There is a reason—it may not be the best one, but there is a reason.
Amendment 51 seeks to modify condition A subsection (4), so that conduct outside the UK is within the scope of condition A where such conduct would amount to an offence in any part of the UK, not just England and Wales. Condition A
“is that the person’s conduct constitutes an offence or, if it takes place…outside the United Kingdom, would constitute an offence if it took place in England and Wales.”
Conduct taking place in Scotland or Northern Ireland that constitutes an offence in Scotland or Northern Ireland would be covered here. It is only where the conduct takes place outside the UK that the criminal law of England and Wales is currently used as the benchmark. The clause has been drafted this way for operational effectiveness and to ensure no unintended or complex consequences where, for example, a prosecution is brought in one part of the UK but relies on a charge from another part of the UK. We expect the amendment would have little practical impact on prosecutions.
However, that said, I accept the spirit of the amendment and I personally believe that we should be seeking to legislate for all parts of the UK. If the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East will withdraw the amendment, I propose to take the point away to consider further. In particular, I want to ensure that there are no unintended practical difficulties for investigators and prosecutors that may make bringing charges for foreign interference, which can often emanate from overseas, harder than necessary. Another consideration is ensuring that any amendment does not affect the utility of our Government amendment to add the offence of foreign interference to the Online Safety Bill, where platform operators will be under a duty to guard against and swiftly remove content that amounts to an offence of foreign interference.
I will consider those points and hope to be able to come back favourably at a later stage. I ask that the hon. Gentleman withdraw the amendment.
Stuart C. McDonald
On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 9, in clause 13, page 12, line 13, at end insert—
“(12A) In the Online Safety Act 2022, in Schedule 7 (priority offences), before the italic heading “Inchoate offences” insert—
“Foreign interference
32A An offence under section 13 of the National Security Act 2022 (foreign interference).”—(Stephen McPartland.)
This amendment amends the Online Safety Act expected to result from the Online Safety Bill currently before Parliament to make foreign interference a priority offence for the purposes of that Act.
Clause 13, as amended, ordered to stand part of the Bill.
Clause 14
Foreign interference in elections
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Government amendments 10 and 11
That schedule 1 be the First schedule to the Bill
New clause 3—Reporting on disinformation originating from foreign powers—
(1) The Secretary of State must appoint a person or body to review the extent of disinformation originating from foreign powers which presents a threat, or potential threat, to national security.
(2) A review under subsection (1) must include an assessment of the extent of foreign interference in elections.
(3) A review under subsection (1) may include—
(a) examining the number and scale of offences committed, and estimating the number and scale of instances where an offence is suspected to have been committed, under—
(i) section 13, where Condition C is met, and
(ii) section 14,
and,
(b) any other matters the person or body considers relevant to the matters mentioned in subsections (1) and (2).
(4) The person or body appointed under subsection (1) may be the Intelligence and Security Committee of Parliament, or another person or body the Secretary of State considers appropriate.
(5) A review must be carried out under this section in respect of—
(a) the 12-month period beginning with the day on which section 13 comes into force, and
(b) each subsequent 12-month period.
(6) Each review under this section must be completed as soon as reasonably practicable after the period to which it relates.
(7) The person or body must send to the Secretary of State a report on the outcome of each review carried out under this section as soon as reasonably practicable after completion of the review.
(8) On receiving a report under subsection (7), the Secretary of State must lay a copy of it before Parliament.
(9) The Secretary of State may pay to the person or body—
(a) expenses incurred in carrying out the functions of the reviewer under this section, and
(b) such allowances as the Secretary of State determines,
except where financial provision is already made to the person or body for the discharge of the person or body’s functions, of which this section may form part”
Stephen McPartland
The clause provides for substantially increased maximum penalties where a person commits any of the existing electoral offences set out in schedule 1 and the person’s conduct meets the foreign power condition found in clause 24. I will also deal with amendments 10 and 11 and new clause 3 in the course of my speech.
As I touched on in highlighting the necessity of clause 13, activity that interferes in our elections, political processes and democratic events reflects the most egregious form of state threats activity. It is therefore absolutely right that we have the tools and powers at our disposal to be able to deter, disrupt and withstand the actions of foreign states who seek to harm the UK and its interests. The clause’s primary aim is to provide for substantially increased maximum penalties where a person commits any of the existing electoral offences set out in the related schedule and the person’s conduct meets the requisite foreign power condition. That will help to create a more challenging operating environment for those who seek to do the UK harm, raising the cost to foreign states of carrying out interference activity by holding those responsible to account for their actions.
We have constructed a provision that applies to a range of existing electoral offences under the Representation of the People Act 1983 and the Political Parties, Elections and Referendums Act 2000. The offences remain unaffected, but, where the foreign power condition is met, a substantially increased maximum sentence will be available. For example, existing offences under the Representation of the People Act criminalise interfering with elections—for example, undue influence in section 114A, bribery in section 113, and tampering with ballot or nomination papers in section 65—but the maximum penalties available do not reflect the significance of malign political foreign interference at the hands of a foreign power. Where a person commits any of the existing electoral offences set out in schedule 1 and their conduct meets the requisite foreign power condition, the maximum sentence available to the court will be substantially increased.
As I mentioned, part 1 of schedule 1 sets out a table that lists the relevant electoral offences in column 1 and the specified maximum term for each relevant offence in column 2. Part 2 of the schedule provides for necessary amendments to the Acts from which the offences are taken, where the clause applies. Let me turn briefly to the table in part 1 of schedule 1. In respect of the relevant electoral offences from the Representation of the People Act 1983, there will be a seven-year maximum sentence for offences relating to personation, postal and proxy voting, tampering with nomination papers, and handling of postal voting documents by political campaigners. There will be a four-year maximum sentence for offences relating to providing false statements in nomination papers, bribery, treating, and undue influence.
In respect of the relevant electoral offences from the Political Parties, Elections and Referendums Act, there will a four-year maximum sentence for offences relating to information about donors, providing a false declaration about source of donation or a false declaration as to residence condition, failing to return donations, evading restrictions on donations, failing to comply with requirements about recording donations, providing a false declaration in a donation report, donating to individuals and members associations, loaning to individuals and members, donations to recognised third parties, and donations to permitted participants. There is also a two-year maximum sentence for an offence relating to incurring controlled expenditure in contravention of restriction.
These offences and associated penalties have been determined following robust engagements between the Home Office, other Departments and law enforcement agencies, highlighting that the provisions under the Representation of the People Act 1983 and the Political Parties, Elections and Referendums Act 2000 signify the most egregious conduct associated with political and electoral interference. Therefore, if such conduct has been carried out for, on behalf of, or with the intention to benefit, a foreign power, it fundamentally changes the seriousness of the conduct already criminalised, and therefore requires a greater and more severe sentence. Obtaining the strongest possible deterrence is essential to deliver our broader objectives of pushing back on state threats and making the UK a hard operating environment in which to conduct hostile activity.
The offences in clause 14 are excluded from clause 16 —dealing with the aggravating factor where the foreign power condition is met—to aid investigations and create clarity for prosecutions. Many of the offences in the Bill have the foreign power condition built in, such as clause 13, and we have replicated that approach for the offences in part 1 of schedule 1. Many of the offences under part 1 of schedule 1 have a time limit for investigations. We have removed that to reflect the complexity of state threat investigations, but that also means that we must exclude the offences contained in that schedule from clause 16.
I now turn to Government amendment 10, which is concerned with the relevant electoral offences referenced in clause 14 and contained in part 1 of schedule 1 to this Bill. For context, clause 14 provides for substantially increased maximum penalties where a person commits any of the existing electoral offences set out in the related schedule and the person’s conduct meets the foreign power condition in clause 24. These offences are currently found solely in the Representation of the People Act 1983 and the Political Parties, Elections and Referendums Act 2000. The relevant electoral offences in part 1 of schedule 1 in the RPA are applied in several pieces of secondary legislation. Where that is the case, the Interpretation Act 1978 effectively cascades the effect of clause 14 so that it will apply to the applied versions of the offences without the need to include an express provision in clause 14.
Government amendment 10 proposes to include certain offences contained in the Electoral Law Act (Northern Ireland) 1962 as relevant electoral offences. Those are offences that are akin to the offences from the RPA that are already set out in the schedule. Given the complexity of electoral law, it was right for us to ensure that we have fully considered what else we ought to include in relation to foreign interference in elections, given the threats that we face in this space. That is why the amendment includes the Electoral Law Act (Northern Ireland) 1962. That piece of legislation is specific to Northern Ireland and contains its own stand-alone offences. Many of them are akin to those in the RPA—for example, personation, bribery and treating. Because they are stand-alone offences and not applied versions of the RPA offences, it is necessary to include them expressly in the schedule of offences to which clause 14 relates.
Although the current list of relevant electoral offences under part 1 of schedule 1 has been determined following extensive engagements with wider Government, law enforcement and the devolved Administrations, it is evident that these additions need to be made to clause 14 to respond fully to the threat posed by foreign interference in elections. These changes will ensure a complete and coherent footprint across the whole United Kingdom in responding to foreign interference in elections. It is right that the Government have considered our approach for dealing with foreign political interference and are seeking to expand the list of relevant electoral offences in order to provide greater protections against foreign interference in elections. The amendment does just that and I hope the Committee will support it.
Separately from the amendment, the topic of shell companies being used to make donations to political parties and to hide foreign donations was raised extensively on Second Reading, so it is right that I address what the Government are doing in that area. First, there are strict rules that ensure that foreign money is prohibited from entering through proxy donors, providing a safeguard against impermissible donations by the back door. It is also an offence to attempt to evade the rules on donations by concealing information, giving false information or facilitating the making of an impermissible donation. Under this clause, substantially increased maximum sentences will apply to those offences where the foreign power condition is met.
Secondly, UK electoral law sets out a stringent regime of donations and spending controls to safeguard the integrity of our democratic processes, and only those with a genuine interest in UK electoral events can make political donations. This includes registered UK electors—including registered overseas electors—UK-registered companies, trade unions and other UK-based entities or otherwise eligible donors, such as Irish citizens meeting prescribed conditions who can donate to parties in Northern Ireland. The recently passed Elections Act 2022 introduced a restriction on ineligible foreign third-party campaigning above a £700 de minimis threshold.
Transparency is the best form of disinfectant with regards to who is donating or contributing to political parties, and that is why all political parties, recognised third-party campaigners and candidates must record their election spending and report this to the Electoral Commission or local returning officer. This information is publicly available. In addition, political parties, third-party campaigners and candidates are required to record all contributions over £500. It is also right that the Electoral Commission publishes information about larger donations online for transparency.
New clause 3 would require the Home Secretary to create an independent body for monitoring disinformation originating from foreign states, producing a report to be laid before the House on an annual basis. The new clause would duplicate existing work being carried forward by Government to ensure that the threat posed by disinformation spread by foreign states is monitored effectively. It is, and always will be, an absolute priority to protect our democratic and electoral processes from foreign interference. That is why the Government have robust systems in place to protect UK democracy, bringing together Government, civil society and private sector organisations to monitor and respond to attempted interference, in whatever form, to ensure our democracy stays open, vibrant and transparent.
The intelligence agencies produce and contribute to regular assessments of state threats, including potential interference in UK democratic processes. We keep such assessments under review and, where necessary, update them in response to new intelligence. Where new information emerges, the Government will always consider the most appropriate use of any intelligence they develop or receive, including whether it is appropriate to make it public.
Ahead of major democratic events, the Government stand up the election cell, which brings together capabilities and expertise from across Government to address complex risks that threaten our democratic processes. The cell works closely with the Electoral Commission, police, and devolved Administrations to ensure rapid information sharing and a response that covers key risks, including electoral logistics, policing, counter-terrorism, cyber-security, disinformation and electoral interference.
During major democratic events the DCMS-led counter-disinformation unit works with the election cell and plays a pivotal role in the protection of elections by working with a range of partners to understand the extent and reach of disinformation across a number of risks, including foreign interference. The Government are keen to do more to tackle state-sponsored disinform-ation. That is why we have now also put forward an amendment to make the foreign interference offence a priority offence in the Online Safety Bill. That will require companies in scope of the regime to conduct regular risk assessments for the presence of content that constitutes an offence and to put in place proportionate systems and processes to mitigate the possibility of users encountering this content. That will include disinformation spread by foreign states that is intended to undermine our democratic, political and legal processes.
Furthermore, the Online Safety Bill’s advisory committee on disinformation and misinformation will provide cross-sector expertise on disinformation and misinformation and advice to Ofcom about how providers of regulated services should deal with disinformation and misinformation. It will advise Ofcom on how it should exercise its transparency powers and its duty to promote media literacy in relation to disinformation and misinformation. This could include recommendations relating to disinformation originating from a foreign power, for which this amendment seeks to establish an independent review.
However, the Government can see merit in considering whether additional oversight is required for state threats legislation, including the offence of foreign interference, and we will come to a broader amendment in this regard later in Committee. In view of the significant cross-Government work in this area and the need to consider the most effective way of ensuring transparency and oversight of state threats legislation more broadly, I ask the hon. Member for Halifax to withdraw her amendment when the time comes.
In closing, the construction and inclusion of a provision for foreign interference in elections reflects how seriously the Government take the threat posed by hostile activity by foreign states. I am sure the Committee is committed to ensuring that we have a holistic and effective suite of measures to tackle such corrosive activity and to counter its malign impact. I hope the Committee will agree that there is a clear requirement for clause 14.
Holly Lynch
I listened carefully to the Minister. The Opposition welcome those measures in clause 14 that will bolster the UK against acts of foreign interference in our elections that are committed on our soil and abroad. For too long the Government have been complacent about the threat of foreign interference, and we seek to complement the measures in the Bill through new clause 3. I will continue to make the case for the new clause, but I have heard what the Minister had to say.
According to a report from the Centre for Strategic and International Studies, Russian hackers launched a cyber-attack in 2014 against the Polish electoral commission’s website, which damaged faith in the election. In 2015, the German Parliament was the victim of a cyber-attack linked to Russia that was aimed at collecting documents ahead of the federal elections. During the Scottish independence referendum, pro-Russia accounts on social media spread stories claiming voter fraud.
Ahead of the Finnish parliamentary elections, Russian entities created fake social media accounts posting as official parliamentary accounts. At first, those accounts posted mainstream political content and amassed thousands of followers, but as the election neared, the accounts turned to posting misinformation and vitriol aimed at sowing confusion among the electorate. Russian-sponsored disinformation through state media and fake social media accounts was also rampant in general elections in Italy and the Netherlands throughout 2017 and 2018, and in Spain at the time of the Catalonian independence referendum.
The evidence base is massive, and those are examples of just some of the most aggressive and obvious attempts to interfere in elections, which, until now, legislation has largely failed to address. We can only assume that, as Russia’s belligerence increases, so will its attempts to undermine our democracy and society. The measures proposed are long overdue.
On being asked his thoughts on the matter in last week’s evidence session, Paddy McGuinness made the interesting point that
“because there are not strong controls and real clarity about what is happening around our electoral processes, people mess about in that space.”
He wanted to make a distinction between “messing about” in that space—as he put it—and delegitimising an election. He went on to explain that
“Vladimir Putin’s intent, which is to have us off balance—is that if the Russians do hack into a political party’s servers and mess about within them, and maybe mess with the data or interfere, or if they play games with a technology platform that people rely on for information and put out information, and we decide as a result that we cannot trust a referendum or an election, they succeed. That is success for them, so I think what really matters in this space is the ability to measure the impact that state activity has on the democratic process we are looking at, and…that there is bright transparency so we know who is doing what.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 24, Q48.]
Turning to the relevant electoral offences in part 1 of schedule 1, I wonder whether the list of offences is grounded in a dated understanding of how someone might seek to interfere in an election when acting on behalf of a state. Although they are all very serious in themselves, my concern is that they might need a fresh look to consider whether they would capture state actors interfering in elections.
It is worth noting that in its 2020 Russia report the Intelligence and Security Committee recommended that MI5 should be operationally responsible for upholding the safety of our democratic process, stating:
“In our opinion, the operational role must sit primarily with MI5, in line with its statutory responsibility for ‘the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy’.”
Last week, we heard from Louise Edwards, director of regulation at the Electoral Commission. Despite the fact that almost all the other witnesses confirmed that state interference in elections was a significant cause for concern, we heard that the Electoral Commission is not currently undertaking any investigations on the issue. That suggests that, as things stand, it is not the right organisation to lead on this work.
With all of that in mind, we very much support the provisions in clause 14 and are content with schedule 1 —despite the points I have made—and with Government amendments 10 and 11. However, I would also make the case for new clause 3, and I am seeking to persuade the Committee and the Minister that an annual review on disinformation, with particular consideration of interference in elections, would help with the transparency and awareness piece that needs to sit alongside these offences. I think the Minister said that some of that would replicate the work already happening in Government, but he largely talked about the enforcement agencies being stepped up to try to protect those processes in real time from interference. All of that is actually quite clandestine; it does not seek to enhance the public’s understanding of some of that interference, which might assist them in making informed decisions when digesting information and allowing that to inform their voting decisions. The new clause would grant the Government the discretion to determine who would be best placed to carry out that annual but independent review, with the Intelligence and Security Committee being one of the bodies that could undertake it.
We have discussed the matter with the UK intelligence community, and it was clear from the evidence we heard on Thursday that raising awareness within the general public is a slightly separate piece of work from criminalising and disrupting hostile activity online. We heard that, while disinformation and misinformation are a problem—Government amendment 9 is very much welcome in tackling that—there is the issue of the amplification of often uncomfortable truths or single viewpoints, which is much harder to address. None the less, efforts should be made to identify the origins of such content and ensure that the public can see how narratives and public discourse can be manipulated to suit the agendas of foreign states, empowering the public to make more informed judgments about how they use social media. When I put these proposals to Poppy Wood of Reset.tech on Thursday and asked for her judgment about the measures and about who would be best suited to undertake such a review, she said:
“That is a brilliant idea…It should probably be a body like the Intelligence and Security Committee—some kind of cross-party body, quasi-independent of Government”.––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 60, Q113.]
I have heard what the Minister has said, and I very much hope that he will take seriously his commitment to have a further look at this issue—not just at the law enforcement of it, but at a report that would be published in the public domain that would reveal some of the origins of this content, alongside criminalising it where it meets certain thresholds. I will give the Minister the benefit of the doubt, and I am persuaded to withdraw new clause 3 on the basis that he does commit to further consider this matter very seriously.
The Chair
Of course, we will deal with new clause 3 when we get to the new clauses at the end. An offence under any of these provisions of Schedule 9 to the Electoral Law Act (Northern Ireland) 1962 (c.14 (N.I.)) Maximum term of imprisonment Paragraph 1 (bribery) 4 years Paragraph 2 (treating) 4 years Paragraph 3 (undue influence) 4 years Paragraph 4 (personation) 7 years Paragraph 4A (postal and proxy votes) 7 years Paragraph 5A (false statements in nomination papers etc) 4 years Paragraph 26(2) (tampering with nomination papers etc) 7 years”
Question put and agreed to.
Clause 14 accordingly ordered to stand part of the Bill.
Schedule 1
Foreign interference in elections
Amendments made: 10, in schedule 1, page 51, line 5, at end insert—
“Offences under the Electoral Law Act (Northern Ireland) 1962 (c.14 (N.I.))
This amendment adds offences under the Electoral Law Act (Northern Ireland) 1962 to the list of offences to which clause 14 applies.
Amendment 11, in schedule 1, page 52, line 27, at end insert—
“Electoral Law Act (Northern Ireland) 1962 (c.14 (N.I.))
1 (1) The Electoral Law Act (Northern Ireland) 1962 (c.14 (N.I.)) is amended as follows.
(2) In section 105 (restrictions on summary prosecution) after subsection (8) insert—
‘(9) A corrupt practice or electoral offence in relation to which section 14 of the National Security Act 2022 (which provides for higher sentences in cases of foreign interference) applies is triable only on indictment.’
(3) In section 106 (prosecution of offences disclosed on election petition) after subsection (1) insert—
‘(1A) The duty in subsection (1) to obey a direction given by an election court does not apply to a direction with respect to the prosecution of a corrupt practice or electoral offence in relation to which the Director has reasonable grounds to believe section 14 of the National Security Act 2022 (which provides for higher sentences in cases of foreign interference) applies.’
(4) In section 108 (penalties for corrupt practices) after subsection (4) insert—
‘(5) This section does not apply where section 14 of the National Security Act 2022 (which provides for higher sentences in cases of foreign interference) applies in relation to the corrupt practice.’
(5) In section 111 (penalties for electoral offences) after subsection (2A) insert—
‘(2B) Subsections (1) to (2A) do not apply where section 14 of the National Security Act 2022 (which provides for higher sentences in cases of foreign interference) applies in relation to the electoral offence.’
(6) In section 112(1H) (incapacities resulting from convictions) after ‘109’ insert ‘or under section 14 of the National Security Act 2022 (which provides for higher sentences in cases of foreign interference)’.
(7) In section 118 (time limit for prosecutions) after subsection (3) insert—
‘(4) This section does not apply where section 14 of the National Security Act 2022 (which provides for higher sentences in cases of foreign interference) applies in relation to the electoral misdemeanour.’” —(Stephen McPartland.)
This amendment amends the Electoral Law Act (Northern Ireland) 1962 in relation to offences under that Act to which clause 14 applies, e.g. to prevent such offences being tried summarily and to remove time limits for prosecuting such offences.
Schedule 1, as amended, agreed to.
Clause 15
Preparatory conduct
Stuart C. McDonald
I beg to move amendment 52, in clause 15, page 13, line 6, leave out “in preparation for” and insert “which materially assists”.
This amendment ensures that only actions materially contributing towards to acts prohibited by this section will be criminalised.
Stuart C. McDonald
Clause 15 criminalises conduct that is preparatory to some of the offences we have debated. It is fair to say that this is another amendment that I might have approached slightly differently had I been able to draft it in the light of the evidence session on Thursday, rather than in advance of it. Obviously, this clause was widely welcomed at that evidence session, and I accept that evidence.
I thought Sir Alex Younger made an interesting observation when he said:
“The bottom line is that we have to get in front of this stuff…We need to solve it before it has happened, and that raises a set of ethical and legal dilemmas where it is important to be striking the right balance”.––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 19, Q38.]
While he welcomed how the issue was treated in the Bill, he recognised that there are ethical and legal dilemmas.
I am another one of those lawyers who seem to overrun this place. [Laughter.] Thanks very much. Punishing preparatory conduct is not something I can recall from my dim and distant past as a law student, although that is probably as much to do with my memory as anything else. However, the serious point is that various crimes are set out and designed to punish certain acts; after that, other inchoate crimes such as attempts or conspiracy attach themselves to those basic criminal laws.
I absolutely appreciate that criminalising preparation allows enforcement and prosecution at an even earlier stage than an attempt, but the sort of legal and ethical questions raised by it come sharply into focus when we realise that the maximum sentence for such preparatory conduct is life imprisonment. What is particularly striking is that some of the completed offences do not attract that sentence. That seems pretty odd. If somebody guilty of completing the actual offence faces a maximum sentence that is lighter than the maximum sentence for somebody who is simply convicted of preparing for that offence, that seems a bit of an inconsistency.
Preparatory conduct offences also attach themselves, of course, to offences that I have already argued might be worded quite broadly. When we debated clauses 1 and 4, I made various points about the foreign power condition, national interest and so forth. For example, on clause 4, I expressed concerns about protesters operating in the vicinity of a naval base. The idea of life imprisonment for preparing for a blockade at Faslane naval base seems quite extreme. I appreciate that, for various reasons that we discussed, clause 4 does not attach in that way, but that is why we should take adding a preparatory offence to arguably already wide offences very seriously and be very cautious about it.
Indeed, in the clause the notion of preparatory conduct is pretty vaguely defined, I would say. It refers to
“any conduct in preparation for”.
Not to be flippant—particularly in relation to jackets, which everyone has taken off—but if someone puts their jacket on before heading along to a peaceful protest, is that preparatory conduct? I accept that that will not lead to life imprisonment—we hope—but what exactly do we mean by preparatory conduct? The amendment suggests that it must materially contribute to the offence.
The ethical point is that we need to leave people able to change their mind and not end up incentivising them just to carry on and complete the act. If they will already get life imprisonment for preparing, they might arguably say, “Well, I’ve gone this far. I might as well just carry on and complete the act.” Where is the incentive of saying, “Well, okay, you’re going to get punished for your preparatory conduct, but the consequences will be much less severe if you stop now rather than carry on and complete the act”?
If someone sits for three days with a confidential document on their desk in an envelope addressed to a Russian agent, does not the threat of life imprisonment for having stuck the document in an addressed envelope and put a stamp on it effectively encourage them to go through with that act?
Sally-Ann Hart (Hastings and Rye) (Con)
The hon. Gentleman is talking about acts in preparation for an offence. A person engaged in preparing for an act of this type, even if they fail, could still be prosecuted, because they have been preparing for something. Who assesses material assistance? It could be a very small thing, but small things can be very incremental and lead to something bigger. Perhaps he could highlight that a little.
Stuart C. McDonald
That is a perfectly legitimate question and I suppose that ultimately it would be down to the judge to decide what is meant by a material contribution. As I say, putting a jacket on—again, I do not want to be flippant—could be about anything. Does it bring whatever is planned closer to fruition? I do not know. It could be more readily argued that purchasing equipment materially takes forward what was in contemplation, for example. However, as I say, that is a perfectly legitimate question.
The point that I was coming to was that the amendment seeks to put us in a place where we encourage people to change their mind, essentially, and not to put people away for life even if they are on the verge of engaging in conduct that would thoroughly merit that sentence. It would give them an out that will still attract punishment—possibly—but will give them that choice, basically.
We have not have very much in the way of written evidence, but we did receive some interesting written evidence from Dr Kendall at the University of Queensland. She makes the argument, as I have tried to, that the sentence is too harsh. She also argues that the Bill could be better worded. Furthermore, she makes the point that we should probably put in the Bill that someone cannot be convicted of an inchoate preparatory conduct offence. Basically, she is worried that someone might be found guilty of attempting to prepare, which takes us a step further back and complicates the picture even further. In her written evidence, she suggests that it should be made clear that someone cannot be charged with an attempt to prepare, which will take us too far through the looking glass.
Maria Eagle
I have a couple of points to ask the Minister about. The clause is a generally necessary and helpful provision. It provides for the offence of preparatory conduct, and makes it an offence to do things that are not an offence at the moment. The point, however, is that it helps law enforcement to intervene at an earlier stage, before the preparatory conduct has turned into the capacity to commit whatever it is that is being prepared for. It must be difficult for those seeking to disrupt such activities to have to sit around and wait for an offence to be committed before putting a stop to the preparatory conduct.
The purpose of the clause is clear, and it will be a useful addition. However, will the Minister explain why the clause covers preparatory conduct for various offences, but not all the offences in the Bill? Why does it not cover preparatory conduct with the intention of committing a new foreign interference offence, for example, because it does not? What is the reasoning behind that offence being left out of the clause?
It would be helpful for us to hear from the Minister what the thinking is in that regard. If it is good to have an offence of preparatory conduct to prevent at an early stage offences that might otherwise be committed that would be quite serious, why not for the foreign interference offence?
Stephen McPartland
The clause provides a disruptive tool to tackle preparatory activities carried out by those who seek to cause us harm. Malign actions by states have the potential to cause significant damage to the UK and its interests, and it is therefore vital that the law can intervene at an early stage when preparatory activities are under way. That is already provided for under the Official Secrets Act 1920, and the Law Commission has recognised the importance of maintaining the provision.
The offence covers preparatory conduct in two scenarios. The first is preparation to commit acts that would constitute one of the following offences: obtaining or disclosing protected information, obtaining or disclosing trade secrets, entering a prohibited place for a purpose prejudicial to the UK, and sabotage. The second is preparation to commit state threats activity that involves serious violence, that endangers life or that creates a serious risk to the health and safety of the public. The offence of preparatory conduct covers those who are preparing to carry out harmful acts themselves, and those who make preparations for another person to commit the acts.
Importantly, the preparatory conduct offence is committed only where there is an intention to commit a relevant act and that can be proved beyond a reasonable doubt—I hope that provides some reassurance. The element of intention provides an important safeguard that will prevent the offence from capturing legitimate acts, or acts undertaken by individuals who did not engage intentionally in state threats activity. In addition, consent will be required by the Attorney General, or the Advocate General in Northern Ireland, before a prosecution can be brought under the offence.
When preparatory acts are caught at an early stage, it may be unclear exactly what the perpetrator intended as the ultimate outcome—for example, an act of sabotage or obtaining trade secrets. The offence may therefore be committed if there is a general intention that the preparatory conduct will result in harmful state threats activity of a general nature. That is in line with the approach taken by Parliament when it provided the offence of the preparation of terrorist acts under section 5 of the Terrorism Act 2006. A requirement to demonstrate that the preparatory act was undertaken with the intention that specific harmful state threats activity result would, in many cases, constrain the offence in a way that would be wholly undesirable and potentially allow state actors to evade the law.
Those caught preparing to harm us could face a maximum sentence of up to life imprisonment. The Committee will be aware that the ultimate decision on the length of the penalty faced will be decided by the courts, taking into account the severity of the preparatory activity and the harms that were intended to result from it, which could include long-lasting damage to the UK or the loss of life. I totally understand what the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East said about life imprisonment being a heavy penalty, and the courts would not give such a sentence for some of the examples that he described. But the courts could impose life imprisonment if someone was preparing to commit murder and the courts would want to treat some activities in the same manner, because if someone had another person assassinated, the court would want the full ability to impose a life sentence in those circumstances.
We know all too well that state actors operate using sophisticated methods, and that they can cause unimaginable harm. I therefore stress the importance of clause 15 as a key tool in our fight against states who seek to harm us. Where we can disrupt state actors at a preparatory stage, we must do so, before they have the opportunity to manifest their intentions to cause harm to our nation. As we discussed earlier, the ability to deal with the offence already exists in the Official Secrets Act 1920, and the proposed offence in the Bill modernises its terms. With regard to why the offence is to be expanded to apply to some rather than others, we believe that we have carefully assessed the link between the two, and we do not think it is necessary or appropriate to extend the offences to apply to foreign interference or assisting a foreign intelligence service at present. That is something that we will continue to look at.
Effectively, we need to continue to get the powers on the statute book to help the intelligence services and provide them with the toolkit that they need to help keep us safe.
On amendment 52, which seeks to raise the threshold—
Maria Eagle
I was trying to work out the Minister’s answer to me. The foreign interference offence in clause 13, which we have debated, covers a wide range of harmful activity, including manipulating legal or political processes, interfering with fundamental rights. Why is the offence of preparatory conduct not applying to those activities? What is the reasoning, because it would be an important disruption tool for authorities to try to prevent foreign interference, would it not?
Sally-Ann Hart
Clause 13 on foreign interference refers to a person committing an offence
“if…the person engages in conduct intending that the conduct, or a course of conduct of which it forms part”
so that would include preparatory conduct, because it is a course, so the conduct goes from beginning to end. There will be preparatory conduct. Does my hon. Friend agree that that might scoop up the relevant particular point?
Stephen McPartland
My hon. Friend makes a very good point. At the end of the day, my understanding is that the offences are designed differently, which is why we were unable to capture the relevant preparatory activity as part of the offences themselves. I am not a lawyer, but effectively those offences are designed differently, and that is where we are.
Amendment 52 seeks to raise the threshold of that which be proven to show the preparatory nature of the clause. Those who intentionally engage in preparatory conduct, as specified under clause 15, pose a significant risk to national security, and that will be true regardless of whether or not their actions materially assist the ultimate outcome. For example, if a security guard in the employment of a foreign power leaves a door open to facilitate access into a prohibited place by a hostile actor, that would constitute a preparatory act. If the hostile actor then used an alternative route to access the site, for example, cutting through a fence, the guard’s act would not have materially assisted them and his acts would go unpunished. I am sure that the Committee would agree that that would be an unacceptable outcome.
Furthermore, the offence enables disruptive action to be commenced at an early stage, to provide the greatest chance of avoiding the harmful activity occurring. It will not always be possible to determine the end goal of a person’s conduct, and thus whether their preparations are of material assistance. Indeed, in some cases, an individual may not even have decided the precise harmful acts that will result from their conduct, but rather will have the intent that their preparatory conduct will bring out harmful activity in general. However, in order to be caught by this offence the individual must have the intent that their conduct will bring about one of the relevant harmful outcomes. I hope that reassures the Committee that the offence cannot be used to prosecute those who undertake actions without any awareness or intent that it could support the commission of a relevant act.
The amendment would undermine the utility of what is otherwise a key preventive tool. Therefore, I do not support it, and I ask the hon. Gentleman to withdraw it.
Stuart C. McDonald
I am grateful to the Minister for his explanation. I particularly take his point about the door being left open, and that ultimately ending up not making a material contribution to what happened thereafter. I will go away and think again about the issue, but I think the Minister’s explanation was very helpful. In the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
National Security Bill (Fifth sitting)
Thursday 14th July 2022
(2 years, 4 months ago)
Public Bill CommitteesRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 July 2022 - (14 Jul 2022)
The Minister for Security (Stephen McPartland)
Although the Bill provides a range of offences specifically targeted at state threats activity, it will not always be appropriate or possible for harmful activity to be prosecuted under the Bill. Where offences already exist on the statute book that deal effectively with the relevant state threats activity, there is no need to create a similar offence in the Bill. For example, the offence of murder deals effectively with state-sponsored assassinations.
While the Bill provides a suite of offences and accompanying tools and powers, there remain cases in which it will be difficult to secure prosecution due to the covert nature of the activities and the difficulties involved in presenting admissible evidence to a court to illustrate all the components of an offence beyond reasonable doubt. In some cases, however, it might be possible or more appropriate to charge the individual with another offence on the statute book.
The aim of the aggravating factor in clauses 16 to 18 is to ensure that in such scenarios the state threats element is acknowledged in court and offenders are sentenced accordingly. The state threats aggravating factor will apply in cases where the foreign power condition—to which I have referred a number of times in Committee—is satisfied. Currently, if someone is convicted of an offence and it is known that the offence was linked to state threats activity, the judge may take that into account, but there is no formal mechanism to require the judge to factor that in when making a sentencing decision, and there are no clear definitions to enable the court to apply that consistently. This is in contrast to terrorism, where there is already a statutory requirement to acknowledge a terrorist connection when considering the seriousness of certain offences. That has been effective in cases such as those of the murder of Jo Cox MP, and Lee Rigby, where the seriousness of the offences was aggravated by the sentencing judge because of the terrorist connection, so a higher sentence was imposed.
The Government believe that the state threats aggravating factor should be available in relation to any offence. A state threat is a unique national security threat that can take a wide range of forms. We must ensure that our justice system is able to acknowledge all forms that such activity might take, and be able to penalise it accordingly.
Clause 19 ensures that the aggravating factor can apply to those who are convicted of offences in service courts. The service courts system applies to those who are bound by the Armed Forces Act 2006—for example, serving members of the armed forces. The state threats aggravating factor will apply in the same way in service courts as it does in civilian courts, in that if an offender pleads guilty to or is found guilty of an offence—for example, theft—and the foreign power condition is met, the offender’s sentence will be aggravated accordingly.
Mr Kevan Jones (North Durham) (Lab)
I support the proposals. My concern, which is one I will express throughout the passage of the Bill, is the Bill’s relationship with the Official Secrets Act 1989, under which the maximum penalty is two years. The Minister or his officials might not know the answer now, but I am happy for him to write to me. How will the two Acts intersect? Clearly, if someone has committed an offence, they will want to be found guilty under the Official Secrets Act, under which the sentencing powers are limited, as opposed to under the Act that this Bill will become. That will be the problem with the Bill—I still cannot understand why the Government did not do both: what they promised, which was the full reform, and a Bill for a new Official Secrets Act.
Stephen McPartland
As the right hon. Gentleman knows, we are reforming the first three Official Secrets Acts, but not the 1989 Act, with the Bill. We will write to him with the information to explain how that is going to work.
In summary, the aggravating factor provides another tool for prosecutors to deploy, and helps to future-proof the Bill by ensuring that our judicial system can respond to any evolving state threats and activity in the future.
Holly Lynch (Halifax) (Lab)
It is a pleasure to see you in the Chair, Ms Ali. I very much welcome your early judgment call on jacket wearing; we are all eternally grateful.
Clause 16, as the Minister outlined, inserts new section 69A into the sentencing code to provide a new aggravating factor for sentencing when the foreign power condition is met in relation to an offence. The court will make its determination on the basis of the usual information before it for the purposes of sentencing, which may include the evidence heard at trial or evidence heard at a Newton hearing following a guilty plea. If the court determines that the foreign power condition is met in relation to conduct that constitutes the offence, it must treat that as an aggravating factor when sentencing the offender and must state in open court that the offence is so aggravated.
We are introducing a measure that will mean that, if an individual is found guilty of an offence that is not outlined in the Bill, but the foreign power condition can be proven, a judge may aggravate their sentence. On Second Reading, the Home Secretary provided a serious recent example to highlight why she felt the measure was needed, and we very much recognise the merit in that.
However, I note that a sentence would be aggravated only up to the maximum available for the original offence. I have sought a legal opinion about whether there is a precedent for aggravating an offence beyond the maximum sentence where deemed appropriate. Although the judge ultimately has discretion to sentence beyond the sentencing guidelines, it is far from common practice and will be subject to appeal.
I want to work through the application of the measure. For example, if someone acting on behalf of a foreign state were to commit a section 18 assault against someone who was going to speak at an event against that Government as a means of preventing them from honouring that commitment, it might be possible to prosecute them under some of the new offences in the Bill. If that is not the case and they are prosecuted for the section 18 assault, the foreign power condition having been met and the sentence aggravated, it is still subject only to the maximum sentence for a section 18 assault. I feel that the weight of the very serious sentences in this Bill will not be felt by the perpetrator in that instance.
Will the Minister outline why we are not able to push the sentences under clauses 16, 17 and 18 further? Will he comment on whether the usual so-called early plea discount will be ruled out in cases where the foreign power condition is met?
Clause 17 introduces the measure for offences in Northern Ireland, and clause 18 makes a corresponding provision to the one in clause 16 for sentences to be aggravated where the foreign power condition is met for offences in Scotland. Clause 19 amends the Armed Forces Act 2006 to make corresponding provision for service courts considering the seriousness of a serious offence for the purposes of sentencing. The case for tougher sentencing is even stronger in those circumstances, given that people serving in the armed forces and acting on behalf of our nation potentially have a level of access to the UK security apparatus that others do not have. We recognise the seriousness and necessity of these measures, and fully support them, but will the Minister address the points I have raised?
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
It is a pleasure to serve under your chairmanship, Ms Ali. I have one very short point. I am very supportive of these measures. Clause 18, as we have heard, relates to Scotland. As I understand it, it operates and is drafted similarly to other aggravations in Scottish criminal law. I just want to be absolutely sure that the Government are collaborating closely with the Scottish Government to ensure it fits with the schemes in Scottish criminal law. What discussions has he had with compatriots up there?
Stephen McPartland
I am very grateful for hon. Members’ responses and support for these clauses, and I will try to provide clarity on the points made by the hon. Member for Halifax.
Serious offences that have a state threat component, such as murder and violent offences, already have significant penalties, as the hon. Lady said, and the aggravating factor will therefore allow for those sentences. However, she is right that for lower-level offences such as harassment, stalking or common assault, this would be a useful example of how these powers can be used if someone is not able to use some of the other clauses, so that they can identify that this person is part of the problem, and the person can at least be prosecuted for something, whereas at the moment it would not really be possible to prosecute them.
Also, the aggravating factor allows for an increase in the sentence, but within the sentencing code. The hon. Lady is correct that if it was a one-year sentence under the guidelines, the aggravating factor would be a maximum sentence of one year.
Question put and agreed to.
Clause 16 accordingly ordered to stand part of the Bill.
Clauses 17 to 19 ordered to stand part of the Bill.
Clause 20
Powers of search etc
Question proposed, That the clause stand part of the Bill.
The Chair
With this, it will be convenient to consider the following: Government amendment 12.
That schedule 2 be the Second schedule to the Bill.
Stephen McPartland
Robust investigative tools are crucial to enable the police effectively to counter threats by state actors, which operate using highly sophisticated means and often have access to significant resources and are skilled in tradecraft.
Clause 20 introduces schedule 2, which provides the police with powers of search and seizure when investigating threats posed by state actors to the UK and its interests. These powers replace the power of search in section 9 of the Official Secrets Act 1911.
Under the existing powers and those provided in schedule 2, the police can act on a reasonable suspicion that a relevant act has been, or is about to be, committed. This threshold is a crucial element within the provisions to enable the police to act with the necessary speed to counter state threats activity.
Mr Jones
Can the Minister clarify what he means by “reasonable”? I know what it means in law, but I also know that there is a reasonableness test in the existing section 7 of the Act, which the security services say is not enough? So why is it okay here and it is not okay when it comes to clause 23?
Stephen McPartland
The difference is that under the Police and Criminal Evidence Act 1984, or PACE, the police need to be able to identify in this situation that a crime has been committed, whereas for this measure the police are trying to intervene earlier, so that they can stop a crime from being committed. Effectively, that is what the difference is.
We will debate clause 23 when we get to it—
Stephen McPartland
No, no—we will debate clause 23 when we get to it. I will be very happy to talk about clause 23 then.
Stephen McPartland
No. [Laughter.]
As I was saying, clause 20 introduces schedule 2 to the Bill. Under the existing powers and those provided by schedule 2, the police can act on a reasonable suspicion that a relevant act has been, or is about to be, committed.
The threshold is a crucial element within the provisions to enable the police to act with the necessary speed to counter state threats activity. General search and seizure powers, such as those provided under PACE, are comparatively restrictive because they do not allow the police to act pre-emptively when there is intelligence to indicate that an offence is about to be committed. So, both the Ministry of Justice in 2014 and the Law Commission in 2020 reviewed the existing power, concluding that it was necessary and that reliance on PACE powers alone would limit the ability of the police to disrupt and investigate state threats.
These powers may only be used to deal with the most serious offences covered by this Bill, as well as where state threats activity involves violence or constitutes a serious threat to life or public safety.
Turning to the powers themselves, part 1 of schedule 2 legislates for powers of search and seizure as they apply in England, Wales and Northern Ireland. They provide for the police to gain access to material likely to be evidence of a relevant act, which covers specific offences or certain acts or threats under the Bill.
Where the relevant act has been, or is about to be, committed the powers in part 1 of this schedule are different, depending on the nature of the material sought to reflect the enhanced safeguards that are required to protect confidential material.
Under paragraph 2, for non-confidential material, the police can obtain a warrant to enter and search premises and to seize and retain material. There are two key conditions that a court must be satisfied are met for such a warrant to be granted: first, that a relevant act has been, or is about to be, committed and, secondly, that the material sought on a premises is likely to be evidence of that act and is not confidential material. Should the police apply for an all-premises warrant, an additional condition applies: it must not be reasonably practicable to set out all the premises that the person of interest occupies or controls, but that may need to be searched. To access confidential material, a production order must be obtained, should this course fail or be unavailable through a warrant.
Holly Lynch
I thank the Minister for his explanation. Clause 20 and schedule 2 deal with the power of entry, search and seizure in relation to the new offences created by part 1 of the Bill. There are a number of powers here that seem largely appropriate and proportionate for the reasons outlined by the Minister.
However, I will press the Minister on paragraphs 3 and 4 of part 1 in schedule 2, on the production orders relating to confidential material. These provisions set out the conditions that must be met in order for a constable to apply to a judge for a confidential material production order. I was listening carefully to what the Minister said on that. The person specified in that order then has to produce, within a specified period, any material that they have in their possession, custody or control.
The specified period is seven days. The clause says that it is seven days unless it appears to the judge that a different period would be appropriate in the particular circumstances of the application. Why is it seven days? Given the seriousness of some of the offences and the consequences of confidential material being in the hands of someone who should not have it—potentially to the benefit of a hostile state—that feels like quite a long period for such material to be able to be used against us. I would be grateful if the Minister explained the rationale for specifying the period as seven days.
My second point is that there is a lot going on in schedule 2, much as there is in schedule 3. While there are provisions for an ongoing review of the powers created by part 2 of the Bill, at clause 49, I think that part 1 should be reviewed by an independent reviewer to safeguard against any unintended consequences once the legislation is enacted. That is why the Opposition have tabled new clause 2; we will make the case for that provision when we reach the appropriate point.
Stuart C. McDonald
I broadly welcome the provisions. As the hon. Member for Halifax said, they are extensive powers, so I am very sympathetic to her suggestion that they should be subject to review in the same way that other parts of the Bill are. I appreciate that those extensive powers are modelled on the equivalent provisions in terrorism legislation. I have no problem with those provisions being borrowed from such legislation, but they need to be justified in their own context. The Minister has usefully set out why exactly they are needed here. The SNP is broadly supportive of that.
I have a couple of questions. I am not familiar with the idea of allowing police officers or sheriffs to order a person to explain material that is seized. I see that is borrowed from terrorism legislation. However, I wonder how that works alongside the right not to require someone to self-incriminate, particularly when there is an emergency power for police officers to require an explanation—if that is not complied with, it can be a criminal offence. I am interested in how that works; I assume it works in the context of the terrorism legislation, but it would be interesting to hear a bit more about that. I am also interested in the idea of what a “great emergency” amounts to. That is not a concept that I have seen before. Are we talking about threat to life and limb, essentially? I am not sure about that.
My only other point is that how the provisions on search and seizure apply depends largely on how the foreign power condition operates. I said at the outset of our debates on clause 1 that I have some difficulties with how broadly some aspects of the term were drawn. For example, the non-governmental organisations I referred to during that debate and journalists working for a foreign state broadcaster can be brought within the foreign power condition, meaning that they are subject to the search-and-seizure powers. We can probably come back to that in the context of clause 1, but it is relevant to our discussion. It could be those people who are searched or who have documents seized under the schedule, including confidential journalistic material.
Those are a couple of points to emphasise, but we broadly support what is in the clause and the schedule.
Stephen McPartland
I am grateful for Members’ support. To sum up, the important thing is to recognise that between 2017 and 2022, the powers relating to great emergency have been used seven times in England and Wales and once in Scotland, and they have never once been used by a senior police officer during that five-year period. This will not happen weekly or monthly; it will be a very rare event. We are trying to mirror the legislation that has proven to be successful in the Terrorism Act 2000. The seven days figure also mirrors the legislation in that Act. I totally accept the point made by the hon. Member for Halifax: if the judge has the evidence in front of him and wants to make it a different time period, that is then a judicial decision as opposed to any other kind of decision.
Question put and agreed to.
Clause 20 accordingly ordered to stand part of the Bill.
Schedule 2
Powers of entry, search and seizure
Amendment made: 12, in schedule 2, page 62, line 9, after “rules” insert “and magistrates’ courts rules”.—(Stephen McPartland.)
This amendment enables Northern Ireland magistrates’ courts rules to make provision about proceedings under Schedule 2.
Schedule 2, as amended, agreed to.
Clause 21
Arrest without warrant
Question proposed, That the clause stand part of the Bill.
Stephen McPartland
Currently, the police must rely on the powers of arrest and detention available under the Police and Criminal Evidence Act 1984, as we discussed earlier, when tackling state threats activity. In contrast, under the Terrorism Act 2000 the police have enhanced powers to facilitate early disruption and the investigation of acts of terrorism and terrorism-related activity.
The enhanced police powers are available for terrorism investigations and have proven very effective at tackling the threat. We consider the risks posed by state threats to be similar and to require enhanced powers and tools. Clause 21 creates a new arrest power whereby a constable can arrest without a warrant anyone who they reasonably suspect is or has been involved in foreign power threat activity. If an individual is arrested under clause 21, the further provisions in the clause and in schedule 3 will apply. We will debate the latter powers shortly.
The police must currently arrest an individual for a state threats offence under the arrest power in PACE. On arrest under PACE, the constable must specify the offence that the person is suspected of committing or being about to commit. For example, that could be foreign interference under clause 13 or obtaining or disclosing protected information under clause 1. As we all know, state threats actors are highly trained operatives, with police often needing to rely on sensitive intelligence to build their case and understand the threat that the suspect might pose to UK national security.
In some circumstances, police might have evidence to suspect an individual’s involvement in state threats activity but might not yet have the full picture to determine the intended offence. In such circumstances, where police have the intelligence to indicate that state threats activity is imminent, police can deploy the arrest power in order to prevent that person from committing the activity. That early disruption by the police is critical in saving time and ensuring that the activity is not allowed to occur. That prevents harm to UK national security and potentially prevents harm to people’s lives.
The clause is modelled on the similar arrest power that operates under the 2000 Act, which has been shown to be effective in providing the police with an early disruption tool. I ask the Committee to support the clause.
Holly Lynch
The clause provides a power of arrest without warrant and includes provisions about subsequent detention. The explanatory note explains that the provisions are modelled on those in section 41 of and schedule 7 to the Terrorism Act 2000, as the Minister said, which give police officers the power to arrest persons suspected of terrorism-related offences without a warrant.
We recognise the importance of granting law enforcement officers this power. The sense within policing is that it will provide the police a window in which to work, in order to undertake the necessary analysis and investigative work needed to confirm if an act of espionage or sabotage has been committed. Once a more substantive offence is established, the person in question must then be arrested for that offence, which would trigger the further relevant detention powers.
I have a query from within law enforcement, which relates to subsection (9). If the warrant for further detention is refused, a person can still be detained in hospital or if they are removed to hospital because they needed medical treatment. I am not aware that any such provision to continue to detain someone on the basis they need medical treatment when the application has been refused exists within any other detention powers. I would be grateful if the Minister could clarify that point.
Stuart C. McDonald
The provisions are for very significant powers of arrest and people can remain under arrest for a quite striking period of time, so we should be cautious. The key issue for me is subsection (1), because arrest without a warrant is justified not by the suspicion of a specific event set out in the Bill, but by involvement in foreign power threat activity. Will the Minister say a little more about why that decision has been made?
We will obviously get to clause 26 and the definition of “foreign power threat activity” soon, but it is a much broader concept than being under suspicion of one of the particular offences in the Bill. It could be somebody providing assistance or support to individuals, or known to be involved in certain types of conduct. Why have these powers of arrest without warrant been drafted differently compared with the powers on search and seizure? The search-and-seizure powers relate to specific offences under the Bill. The power of arrest without warrant applies to a much broader category of people. Given the significance of the powers, and how long people can be detained for, it is important that we push the Minister a little bit further on why the Bill has been drafted in this way.
Stephen McPartland
I am grateful for the contributions and the general support. On safeguards, the powers mirror the powers in the Terrorism Act 2000, which are very important and have proven to be very disruptive, as well as useful and effective in keeping the country safe. It is critical that the police have strong powers of arrest and I outlined the reasons for that. Currently, a person can be detained for 24 hours. These provisions allow a detention for 48 hours, which would have to be reviewed periodically after 12 hours, so there are safeguards. The provisions mirror the 2000 Act, which has proven very effective and very disruptive.
On the question asked by the hon. Member for Halifax, the detention clock stops if the individual goes to hospital. If a warrant is refused, they can only be detained for 48 hours. These may appear to be very significant powers, but a person is not going to be held for a huge number of days.
Question put and agreed to.
Clause 21 accordingly ordered to stand part of the Bill.
Schedule 3
Detention Under Section 21
Holly Lynch
I beg to move amendment 45, in schedule 3, page 70, line 27, at end insert—
“(1A) A place designated by the Secretary of State under sub-paragraph (1) must be subject to an independent inspection by—
(a) Her Majesty’s Inspectorate of Constabulary, or
(b) a different person or body appointed by the Secretary of State.”
I will speak to amendment 45, tabled in my name and those of my hon. Friend the Member for Birmingham, Yardley and the shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper). I will also address the wider schedule 3 powers.
The amendment reflects the place of detention powers at the start of schedule 3, which gives the Secretary of State the power to designate places at which persons may be detained under section 21. The Minister’s predecessor was asked repeatedly whether he could clarify what types of buildings could be designated places of detention beyond police stations on Second Reading. In response, he said:
“I do not think that this is an appropriate forum in which to discuss the detail of such measures, but I hope I can reassure my hon. Friend on that particular point. As I have said, this is to allow for cases in which such capacity is required owing to operational need, and it cannot be outside the United Kingdom.”—[Official Report, 6 June 2022; Vol. 715, c. 636.]
I am still not convinced about the provisions based on that response.
Maria Eagle (Garston and Halewood) (Lab)
The provisions in paragraph 1(1) of schedule 3 give the Secretary of State the power to designate places at which persons may be detained under section 21. However, sub-paragraph (2) states that in the entire schedule a reference to a police station includes a reference to any place that the Secretary of State has designated. That means that as long as the Secretary of State says, “I designate this place”, any building in the UK—it does not even say “building”—or any place can be a police station. Can that possibly be adequate and correct?
Holly Lynch
My hon. Friend makes an incredibly important point. I was just about to say that operational need provided a reason for the appalling asylum accommodation provided by the Home Office during the pandemic, and we now know that the official guidance was ignored. That leads to a great deal of concern about the ability to designate any type of building as a place suitable to detain somebody.
To introduce some safeguards, we propose an amendment whereby any such place designated as a place of detention must be subject to an inspection regime. We have given the Government some discretion to determine who the most appropriate body to do that would be, given the absence of any steer at all, as my hon. Friend has just said, about what type of buildings might be used. Her Majesty’s inspectorate of constabulary and fire and rescue might be the most obvious choice. I hope the Minister will reflect on that and adopt our sensible and measured proposal.
Schedule 3 is massive—32 pages of powers. To consider the implications of it all once enacted is an enormous undertaking. That is why I come back to this principle when making the case for new clause 2.
Mr Jones
It is a pleasure to serve under your chairship, Ms Ali. I have some sympathy with the amendment as I am always against things that give Ministers or the Executive broad powers. As my hon. Friend the Member for Halifax has already said, the powers seem to be unlimited. We are talking about national security and the confidence that we should have in our agencies to act in our interests, with the best of intentions and proper oversight, so the amendment is important. What does “any site in the UK” mean? My hon. Friend said that that was quite a broad power, and I want to ask about sites in the UK that are not under the control of the UK Government, such as US sites. Could Mildenhall airbase, a US airbase in the UK, be designated as one of these sites? I raise that because it limits UK authorities’ oversight and jurisdiction.
People may ask why that is important, but I am very conscious that we should always ensure that civil servants, Ministers and others have historical knowledge and take into account what happened in the past. I served on the Intelligence and Security Committee when we did our inquiry into detainee mistreatment and rendition in 2018. I have to say, it did not make for pretty reading. We did not shy away from the facts, and the actions of our agencies and certain Ministers—including some Ministers in the Government I served in—did not come out of that report very well. Guidance and regulations were put in place to ensure that did not happen again. I would like some clarity about whether such bases could be designated under this measure? Some of those sites could potentially have been used for what the ISC report on rendition highlights. They certainly were abroad, but this is about sites that are actually in the UK.
Stephen McPartland
I looked at the amendment in a lot of detail, and I discussed it with my officials and challenged them. I think the hon. Member for Halifax makes a very, very important point and has a strong case, and she will be delighted to know that, although I will resist the amendment today, I will commit to consider it and whether the Bill should clarify that only sites located in the UK can be designated as places of detention. I share her concerns about the possibility of rendition and stuff outside the UK. I will go into a bit more detail for her, and hopefully that will help the right hon. Member for North West Durham—
Stephen McPartland
Sorry—North Durham.
I am grateful for the way the hon. Member for Halifax has tried to help us improve the Bill. She has been constructive throughout.
Paragraph 1 provides a delegated power for the Secretary of State to designate places where someone may be detained after arrest for foreign power threat activity under clause 21. If arrested under PACE, suspects are taken to a designated police station and held in a custody cell, unless they are being questioned, when they will be in an interview room. When arrested under the Terrorism Act 2000, suspects are taken to a TACT custody suite. If a TACT suite is not available—for example, because the nearest one is located too far away—as an alternative a police station can be used.
There are five TACT suites in England and Wales, one in Scotland and one in Northern Ireland. Currently, they are all located inside police stations. Police use TACT suites in the first instance because they are designed to hold suspects for longer periods and address their specific personal needs. They are also designed to take into account the operational requirements for handling those suspects. For example, they are bigger and they ensure that, when multiple arrests have been made, suspects cannot communicate with other. The staff are also specially trained to deal with those types of suspects.
Under the designation power in paragraph 1, the Secretary of State will issue a certificate to the chief officer in charge of a facility to affirm its accreditation. The designation will be published through the routine Home Office circular update, so it will be publicly available to view. In order for a facility to be designated, it must meet the technical standards of custody suites set by the Home Office and Ministry of Justice. The power means that a bespoke custody suite or other suitable facilities built or identified in the future outside a police station, where they meet the standards above, can be designated as a place of detention by the Secretary of State. That is just future-proofing.
Her Majesty’s inspectorate of constabulary and fire and rescue services already independently assesses the effectiveness and efficiency of police forces. It already regularly inspects police custody conditions and, in 2019, published a joint inspection with Her Majesty’s inspectorate of prisons of TACT custody suites in England and Wales.
Maria Eagle
The Minister has just given a great deal more information than is written in the Bill. Paragraph 1(1) states:
“The Secretary of State may designate places”,
and, at sub-paragraph (2), that
“a reference to a police station includes a reference to any place”
so designated. That could be a square in the middle of a field. Will the Minister consider inserting into the legislation some of the detail that he has just put on the record to make it clear that a specific power is being taken to designate more custody suites?
Stephen McPartland
As I have said, I am very interested in the amendment and am looking at possibly doing something along similar lines. I am trying to get the facts out. I heard what was said about the response on Second Reading so I am trying to be open and transparent and to put stuff on the record, in the official record of the sitting. I am doing the best that I can to be open, so that people are not concerned about rendition or people being taken overseas.
Maria Eagle
I am grateful to the Minister for giving way again. I am glad to hear about the amendment, but that is of course about inspecting such places. As he is doing more work, does he mind also taking away the suggestion that I have just made? He might like to make it clearer in the legislation that we are talking about custody suites and not about squares of ground in the middle of a field or any other such place.
Stephen McPartland
I am always happy to take away the hon. Lady’s suggestions.
My initial concern with the amendment is that, as drafted, it adds little value, just a statutory requirement for Her Majesty’s inspectorate to fulfil a role it is doing already. I note all the concerns of hon. Members, however—
Stephen McPartland
I have given the right hon. Gentleman the blink and he still wants to intervene.
Mr Jones
It takes a lot to get that in a Bill Committee. My hon. Friend the Member for Garston and Halewood is right—this needs clarifying in the Bill. When the Minister goes away to think about it, will he look at and ask officials about the issue of those sites that are in the UK, but outside the control of Her Majesty’s Government? I will not say too much, but we occasionally work with organisations and countries in certain places in the UK, but do not control what goes on there. Will he reflect that when doing his work?
Stephen McPartland
I will come back to the right hon. Gentleman on that. As I have said, we will be designating sites and that information will be publicly available. I am not sure that he would want to make the information about the sites he mentions publicly available.
Mr Jones
But that is not what the Bill says at the moment, as my hon. Friend the Member for Garston and Halewood said. It gives sweeping powers to designate things, and I am always against giving such sweeping powers to the Executive—whether it is the present Government or the Government I was a member of—or to anyone. When the Minister comes back, clarification would be welcome, even if that is for the Bill to require publication.
Stephen McPartland
I hear what the right hon. Gentleman says. If the hon. Member for Halifax is kind enough to withdraw the amendment, I commit to considering it further. I will look to provide further clarity in the legislation.
Holly Lynch
I am very grateful to the Minister for the spirit in which he has responded, taking our concerns about this element of the Bill seriously. I am reassured by his commitment, that he understands what we are trying to achieve with the amendment and that he will seek the best way to deliver that in the Bill.
Slightly separately, the clarity and detail that he has been able to provide about the minimum standards for the places of detention were welcome. In addition to putting that on the record today, however, I think that he has understood the point made by my hon. Friend the Member for Garston and Halewood on the need for it to be put on the face of the Bill and that he will continue to have a positive personal impact on some of the detail of the provisions. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Stephen McPartland
I beg to move amendment 13, in schedule 3, page 81, line 26, leave out sub-paragraph (3) and insert—
“(3) In any other case, paragraph 19 material must be destroyed unless it is retained under any power conferred by paragraphs 20 or 21.”
This amendment and Amendments 15, 18 and 22 make provision for the indefinite retention of fingerprints, data and other samples taken from a person who is or previously has been convicted of a specified offence.
Stephen McPartland
As we have discussed, clause 21 provides for a state threats power of arrest. If an individual is arrested under that power, the further provisions in schedule 3 will apply. As part of that, schedule 3 provides for a new regime whereby biometric data, such as fingerprints and DNA profiles, that are collected on arrest for foreign power threat activity may be retained for an initial period of three years, with the option to extend the retention period for a further two years where considered necessary. A similar provision is made in schedule 9 for those subject to state threats prevention and investigation measures, or STPIMS. These are the same timeframes and procedures that operate for arrest under the Terrorism Act 2000—once again, we are trying to mirror the terrorism legislation.
The group covers a number of technical Government amendments to the biometric regimes in schedules 3 and 9. I turn first to amendments 13, 15, 18, 22, 28, 29, 30, 31 and 36, which relate to the indefinite retention of biometric data in certain circumstances. Again, the amendments put the new retention regime in line with what already operates for arrests made under PACE and the Terrorism Act. The law rightly sets strict limits on how long biometric data, such as fingerprints and DNA, can be retained where a person is investigated but ultimately not convicted of an offence. In certain circumstances, including under the Bill, biometric data taken in the course of an investigation can be retained for longer periods, and further retention of that data can be authorised, but the principle is that the data will be deleted unless further retention is specifically provided for. Where a person has been previously convicted of an offence, their biometric data can be retained indefinitely, subject to the requirement for ongoing review that is set out in the Data Protection Act 2018.
Both the Police and Criminal Evidence Act 1984 and the Terrorism Act 2000 allow for the indefinite retention of biometric data taken during an investigation, if it is found that an individual has previously been convicted of a recordable offence. This means that if an individual has previously been convicted of any offence that could carry a term of imprisonment, their biometric data taken during any new investigation can be held on the police national database indefinitely, irrespective of the outcome of that new investigation.
Maria Eagle
Generally, these are very sensible measures. There has obviously been some major redrafting of the schedule for the Government amendments to be necessary, and it would be interesting to hear why that is. I am looking at Government amendment 18, which says:
“For the purposes of paragraph 20, a person is to be treated as having been convicted of an offence if…the person has been found not guilty of the offence by reason of insanity”.
Why is that instance included here? The person has been found not guilty by reason of insanity. They have not admitted the offence, unlike in the situation described in proposed new paragraph 20A(1)(a)(i), whereby a person has received a caution and admitted the offence. By contrast, this person has been found not guilty.
Stephen McPartland
I know, and I will write to the hon. Lady, because I do not know the answer.
As we have already discussed in Committee, state threats activity poses a serious and enduring risk to UK security, and the Bill must provide law enforcement agencies with the tools they need to combat hostile activity. Indefinite retention of biometric data enables the police and the security services to use the data to support investigations into state threats offences and other criminal activity. That mirrors the approach taken in PACE and the Terrorism Acts.
Given that threat, it is right that where an individual with a previous conviction for a recordable offence is arrested under the state threats arrest power in clause 21, or is subject to a STPIMs notice, biometric data taken under those regimes should be retained indefinitely. Accordingly, the amendments provide for indefinite retention of biometric data in these circumstances in schedules 3 and 9 respectively.
Out of an abundance of caution, the provisions were not included when the Bill was introduced while we considered the questions raised by the Gaughran judgment. Based on the UK response to that judgment, I am pleased to confirm to the Committee that these provisions are indeed compatible with the European convention on human rights and, therefore, should be included in the Bill.
As highlighted, state threats investigations can be complex and resource-intensive. By bringing forward the amendments, we are strengthening the ability of the police to use biometric data to support criminal investigations. Not agreeing to the amendments would create a position where the police’s ability to retain biometric data of a person with a previous recordable conviction would be more restricted than in other cases.
Aligning our approach with that of TACT and PACE ensures consistency in respect of biometric regimes. The requirement for ongoing review of retention, in accordance with the Data Protection Act 2018, ensures that interference with the right to respect the private and family life of persons to whom the data belongs is necessary, proportionate and in accordance with the law. I will now speak briefly to the remaining amendments in the group, which are comparatively minor and technical.
Stuart C. McDonald
Before the Minister moves on, I get the general thrust of why those amendments have been tabled but my concern is the inclusion of people who have accepted a caution or even a youth caution. It seems quite extreme to make them subject to lifelong retention of significant information on them. They have not been tried and the fact that they have had a caution means that, presumably, the circumstances were not the most serious. Does he have anything to say about those circumstances?
Stephen McPartland
I am grateful for the intervention. What we are trying to do is to mirror what is in TACT and PACE to keep the regimes identical so there are not different ones for different areas. Obviously, if someone has accepted a caution, they have in essence accepted that they were guilty of an offence—they have just not proceeded to court.
Maria Eagle
Would not an additional safeguard in those circumstances be to ensure that before a youth caution is offered and accepted in any given case, it is made clear to the individual concerned that if they were to accept it, it would mean the retention of their data for their entire life? In those circumstances, the individual concerned could consider whether they really wanted to accept the caution or go for a trial.
Stephen McPartland
The hon. Lady makes an important point. I would add that it is “may” be held indefinitely not “will”. There is still an element of choice and discretion.
Maria Eagle
The Minister is correct about that, but perhaps the individual who may be considering accepting a youth caution and their adviser ought to be advised, before they do so, that there “may” be a consequence of biometric data and so on being kept for that person’s entire life, so they can make a proper decision about whether they want to accept the caution in full knowledge of the potential consequences.
Stephen McPartland
My understanding is that that what happens under TACT and PACE, and that would be the intention for what would happen under this legislation, so the regimes mirror each other.
Amendments 16 and 17 to schedule 3 separate the reference to the Chief Constable of the Police Service of Northern Ireland from those in England and Wales in the list of chief officers who can extend the period of biometric retention. They make no practical change to the provisions.
Amendments 14, 25 and 27 address some unnecessary duplication in the list of databases against which biometric data obtained under the powers in schedules 3 and 9 can be searched. Amendment 26 provides that data obtained under the powers in schedule 9 can be searched against data taken under the provisions of the Terrorism Prevention and Investigation Measures Act 2011.
Holly Lynch
Having heard the Minister’s detailed explanation for this group of Government amendments, I will come back to the issues in the slightly wider discussion on schedule 3, which is the next proceeding.
Stuart C. McDonald
I do not need to say much more. The Minister understands from my intervention that I have some reservations about the lifelong retention of the materials. I shall give that further thought. Other parts of the relevant amendment are perfectly sensible, so I will not oppose the amendment at this stage. Further thought should be given to it, though. The Government have explained a number of times how they are copying what is in the counter-terrorism legislation, which is fine and understandable but does not in of it itself justify the measures in this sphere of behaviour. I will look at the matter again. I want to put on the record that I am slightly uneasy about that type of provision.
Stephen McPartland
I am grateful for the support for the amendments.
Amendment 13 agreed to.
Amendments made: 14, in schedule 3, page 82, line 22, leave out “or 42”.
This amendment removes reference to paragraph 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019 from a list of provisions under which fingerprints, data and other samples may be taken. Reference to paragraph 42 is not needed because its contents are already covered by paragraph (e).
Amendment 15, in schedule 3, page 82, line 26, leave out sub-paragraph (2) and insert—
“(2) Paragraph 19 material may be retained indefinitely if—
(a) the person has previously been convicted—
(i) of a recordable offence (other than a single exempt conviction), or
(ii) in Scotland, of an offence which is punishable by imprisonment, or
(b) the person is so convicted before the end of the period within which the material may be retained by virtue of this paragraph.
(2A) In sub-paragraph (2)—
(a) the reference to a recordable offence includes an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute—
(i) a recordable offence under the law of England and Wales if done there, or
(ii) a recordable offence under the law of Northern Ireland if done there,
(and, in the application of sub-paragraph (2) where a person has previously been convicted, this applies whether or not the act constituted such an offence when the person was convicted);
(b) the reference to an offence in Scotland which is punishable by imprisonment includes an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute an offence under the law of Scotland which is punishable by imprisonment if done there (and, in the application of sub-paragraph (2) where a person has previously been convicted, this applies whether or not the act constituted such an offence when the person was convicted).
(2B) Paragraph 19 material may be retained until the end of the retention period specified in sub-paragraph (3) if—
(a) the person has no previous convictions, or
(b) the person has only one exempt conviction.”
See Amendment 13.
Amendment 16, in schedule 3, page 83, line 37, leave out “and Northern Ireland”.
This amendment and Amendment 17 clarify the identity of the specified chief officer of police in Northern Ireland.
Amendment 17, in schedule 3, page 84, line 5, at end insert “, and
(c) the Chief Constable of the Police Service of Northern Ireland, where—
(i) the person from whom the material was taken resides in Northern Ireland, or
(ii) the chief constable believes that the person is in, or is intending to come to, Northern Ireland.”
See Amendment 16.
Amendment 18 in schedule 3, page 84, line 5, at end insert—
“20A (1) For the purposes of paragraph 20, a person is to be treated as having been convicted of an offence if—
(a) in relation to a recordable offence in England and Wales or Northern Ireland—
(i) the person has been given a caution or youth caution in respect of the offence which, at the time of the caution, the person has admitted,
(ii) the person has been found not guilty of the offence by reason of insanity, or
(iii) the person has been found to be under a disability and to have done the act charged in respect of the offence,
(b) the person, in relation to an offence in Scotland punishable by imprisonment, has accepted or has been deemed to accept—
(i) a conditional offer under section 302 of the Criminal Procedure (Scotland) Act 1995,
(ii) a compensation offer under section 302A of that Act,
(iii) a combined offer under section 302B of that Act, or
(iv) a work offer under section 303ZA of that Act,
(c) the person, in relation to an offence in Scotland punishable by imprisonment, has been acquitted on account of the person’s insanity at the time of the offence or (as the case may be) by virtue of section 51A of the Criminal Procedure (Scotland) Act 1995,
(d) a finding in respect of the person has been made under section 55(2) of the Criminal Procedure (Scotland) Act 1995 in relation to an offence in Scotland punishable by imprisonment,
(e) the person, having been given a fixed penalty notice under section 129(1) of the Antisocial Behaviour etc. (Scotland) Act 2004 in connection with an offence in Scotland punishable by imprisonment, has paid—
(i) the fixed penalty, or
(ii) (as the case may be) the sum which the person is liable to pay by virtue of section 131(5) of that Act, or
(f) the person, in relation to an offence in Scotland punishable by imprisonment, has been discharged absolutely by order under section 246(3) of the Criminal Procedure (Scotland) Act 1995.
(2) Paragraph 20 and this paragraph, so far as they relate to persons convicted of an offence, have effect despite anything in the Rehabilitation of Offenders Act 1974 or the Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27)).
(3) But a person is not to be treated as having been convicted of an offence if that conviction is a disregarded conviction or caution by virtue of section 92 or 101A of the Protection of Freedoms Act 2012.
(4) For the purposes of paragraph 20—
(a) a person has no previous convictions if the person has not previously been convicted—
(i) in England and Wales or Northern Ireland of a recordable offence, or
(ii) in Scotland of an offence which is punishable by imprisonment, and
(b) if the person has previously been convicted of a recordable offence in England and Wales or Northern Ireland, the conviction is exempt if it is in respect of a recordable offence, other than a qualifying offence, committed when the person was under 18 years of age.
(5) In sub-paragraph (4) ‘qualifying offence’—
(a) in relation to a conviction in respect of a recordable offence committed in England and Wales, has the meaning given by section 65A of the Police and Criminal Evidence Act 1984, and
(b) in relation to a conviction in respect of a recordable offence committed in Northern Ireland, has the meaning given by Article 53A of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).
(6) For the purposes of sub-paragraph (4)—
(a) a person is to be treated as having previously been convicted in England and Wales of a recordable offence if—
(i) the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and
(ii) the act constituting the offence would constitute a recordable offence under the law of England and Wales if done there (whether or not it constituted such an offence when the person was convicted);
(b) a person is to be treated as having previously been convicted in Northern Ireland of a recordable offence if—
(i) the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and
(ii) the act constituting the offence would constitute a recordable offence under the law of Northern Ireland if done there (whether or not it constituted such an offence when the person was convicted);
(c) a person is to be treated as having previously been convicted in Scotland of an offence which is punishable by imprisonment if—
(i) the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and
(ii) the act constituting the offence would constitute an offence punishable by imprisonment under the law of Scotland if done there (whether or not it constituted such an offence when the person was convicted);
(d) the reference in sub-paragraph (4)(b) to a qualifying offence includes a reference to an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute a qualifying offence under the law of England and Wales if done there or (as the case may be) under the law of Northern Ireland if done there (whether or not it constituted such an offence when the person was convicted).
(7) For the purposes of paragraph 20 and this paragraph—
(a) ‘offence’, in relation to any country or territory outside the United Kingdom, includes an act punishable under the law of that country or territory, however it is described;
(b) a person has in particular been convicted of an offence under the law of a country or territory outside the United Kingdom if—
(i) a court exercising jurisdiction under the law of that country or territory has made in respect of such an offence a finding equivalent to a finding that the person is not guilty by reason of insanity, or
(ii) such a court has made in respect of such an offence a finding equivalent to a finding that the person is under a disability and did the act charged against the person in respect of the offence.
(8) If a person is convicted of more than one offence arising out of a single course of action, those convictions are to be treated as a single conviction for the purposes of calculating under paragraph 20 whether the person has been convicted of only one offence.”
See Amendment 13.
Amendment 19, in schedule 3, page 84, line 21, at end insert—
“(ca) the Chief Constable of the Ministry of Defence Police,
(cb) the Chief Constable of the British Transport Police Force, or”.
This amendment enables the Chief Constables of the Ministry of Defence Police and the British Transport Police Force to make a national security determination in relation to fingerprints, data and other samples.
Amendment 20, in schedule 3, page 89, line 36, leave out paragraphs (j) to (l).
This amendment removes reference to the Royal Navy Police, the Royal Military Police and the Royal Air Force Police from the definition of “police force”. Those forces should not be included in that definition because members of those forces do not have the power to obtain fingerprints, data or other samples under Schedule 3.
Amendment 21, in schedule 3, page 90, leave out lines 1 to 3.
This amendment removes reference to the tri-service serious crime unit from the definition of “police force”. Members of that unit should not be included in that definition because they do not have the power to obtain fingerprints, data or other samples under Schedule 3.
Amendment 22, in schedule 3, page 90, line 3, at end insert—
“‘recordable offence’ —
(a) in relation to a conviction in England and Wales, has the meaning given by section 118(1) of the Police and Criminal Evidence Act 1984, and
(b) in relation to a conviction in Northern Ireland, has the meaning given by Article 2(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));”
See Amendment 13.
Amendment 23, in schedule 3, page 90, leave out lines 6 to 24 and insert—
“‘responsible chief officer of police’ means—
(a) in relation to fingerprints or samples taken by a constable of the Ministry of Defence Police, or a DNA profile derived from a sample so taken, the Chief Constable of the Ministry of Defence Police;
(b) in relation to fingerprints or samples taken by a constable of the British Transport Police Force, or a DNA profile derived from a sample so taken, the Chief Constable of the British Transport Police Force;
(c) otherwise—
(i) in relation to fingerprints or samples taken in England or Wales, or a DNA profile derived from a sample so taken, the chief officer of police for the relevant police area;
(ii) in relation to relevant physical data or samples taken or provided in Scotland, or a DNA profile derived from a sample so taken, the chief constable of the Police Service of Scotland;
(iii) in relation to fingerprints or samples taken in Northern Ireland, or a DNA profile derived from a sample so taken, the Chief Constable of the Police Service of Northern Ireland.”
This amendment and Amendment 24 make provision identifying the responsible chief officer of police in relation to fingerprints or samples taken by a constable of the Ministry of Defence Police or the British Transport Police Force.
Amendment 24, in schedule 3, page 90, line 24, at end insert—
“(2) In the definition of ‘responsible chief officer of police’ in sub-paragraph (1), in paragraph (c)(i), ‘relevant police area’ means the police area—
(a) in which the material concerned was taken, or
(b) in the case of a DNA profile, in which the sample from which the DNA profile was derived was taken.”—(Stephen McPartland.)
See Amendment 23.
Question proposed, That schedule 3, as amended, be the Third schedule to the Bill.
Holly Lynch
I want to conclude some earlier remarks that I made as part of the discussion on amendment 45 and the discussion on some of the Government amendments. There is an awful lot going on in schedule 3. I repeat the point: it is massive—it is 32 pages of powers. An ongoing consideration of the implications of all those powers is quite a significant undertaking. That is why I come back to making the case for new clause 2, which would ensure that part 1 of the Bill is subject to the same ongoing scrutiny as part 2, under clause 49, and as counter-terrorism legislation, which a great deal of this Bill is already based on.
We have talked about part 1 of the schedule; the delay in the exercise of rights under part 2 should also be kept under review, alongside the points about the retention of biometrics that were made by right hon. and hon. Members. Even if the Minister cannot share with the Committee some justification for all the measures today, I very much hope he will discuss that further with the Intelligence and Security Committee in the deliberations on the Bill that he has promised to have with the ISC.
Stephen McPartland
I am grateful to the hon. Lady for her support. I know that we will debate things later on. As I have said, we are currently in discussions about how we can securely provide further information to help to provide further clarity. I cannot say more than that.
Question put and agreed to.
Schedule 3, as amended, accordingly agreed to.
Clause 22
Border security
Question proposed, That the clause stand part of the Bill.
Stephen McPartland
Under schedule 3 to the Counter-Terrorism and Border Security Act 2019, counter-terrorism police have the power to stop, question and, if necessary, detain and search individuals travelling through the UK border. As part of a schedule 3 examination, counter-terrorism police are able to retain protected materials by following a lengthy authorisation process. Protected materials include confidential business and journalistic material, as well as legally privileged material. The powers are a vital tool for counter-terrorism police and form part of a range of national security checks that enable the determination of whether a person at a UK port or border area has current or previous involvement in hostile state activity.
The use of protected materials in investigations, particularly confidential business material, can be a helpful insight into a person’s involvement in hostile state activity, whether it be espionage or a disinformation campaign. To use protected materials seized during a schedule 3 examination, an examining officer must currently seek authorisation from the Investigatory Powers Commissioner, who is a serving or retired High Court judge. In most cases, the material must not be examined or used for investigations until authorisation has been granted. Currently, that can take up to six weeks.
Clause 22 will remove the definition of confidential business material—material defined as acquired in the course of trade—from the definition of protected material under schedule 3. This will remove the requirement for the Investigatory Powers Commissioner to authorise the retention of copies of confidential business material. The Bill will replace that authorisation process with a new safeguard: the requirement for a counter-terrorism police officer of at least the rank of superintendent to authorise access to such material.
The clause will bring the schedule 3 safeguards for confidential material into line with those that apply to schedule 7 to the Terrorism Act 2000. It will mean that police do not face lengthy and unnecessary delays to examining material in a schedule 3 stop.
Mr Jones
I have some sympathy with this clause; the Investigatory Powers Commissioner has a big job on their hands anyway. I wonder whether the Minister could say whether he has given any thought to the Investigatory Powers Commissioner not just looking at the material and giving it authorisation but having retrospective powers to dip in and see whether things have been done correctly.
Stephen McPartland
I will take that idea away and consider it. We do not want to enable somebody at the border to say that something is confidential material so that the police cannot look at it for up to six weeks. That would just be the easiest defence. We are dealing with incredibly sophisticated experts and they will know what to say to ensure that the material will be held in abeyance.
The Government are only amending the safeguards for confidential business material and will not change the authorisation safeguard for other material within the definition of protected material or confidential journalistic material, for which judicial authorisation is a proportionate safeguard. I am sure Members agree that it is only right that the security services should be able to use critical information in real time during a schedule 3 examination to address live national security risks posed to the UK. I assure Members that this essential amendment to schedule 3 to the 2019 Act will strengthen and streamline state threats investigations to disrupt and deter hostile state activity.
Holly Lynch
The drafting of clause 22 is complicated and I have had to speak to a number of experts to try to unravel it. It amends schedule 3 to the Counter-Terrorism and Border Security Act 2019, as the Minister outlined. In essence, it allows examining officers a right to confidential material that would currently require the authorisation of the Investigatory Powers Commissioner. I am grateful to the commissioner, Sir Brian Leveson, in his capacity as the independent reviewer of schedule 3, and his office for their insight on the clause.
If I have understood it correctly—I am sure the Minister will correct me if I have not—the clause amends schedule 3 to the 2019 Act to reflect the position of schedule 7 to the Terrorism Act 2000. Schedule 3 subjects are far more likely to possess confidential business records than those stopped under schedule 7. That means the requirement for judicial approval is engaged in the majority of schedule 3 stops. It is therefore important to assess whether the requirement for a judicial authorisation in such cases is necessary and proportionate, taking into account both the sensitivity of the category of protected material and the purpose of the statute specifically to counter hostile state activity.
The Investigatory Powers Commissioner’s Office said
“We are not aware of any other statute that requires judicial authorisation for the retention of confidential business records acquired direct from a person in a public setting such as a port”.
The closest is perhaps schedule 1 to the Police and Criminal Evidence Act 1984, commonly known as PACE, although this is restricted to material on private premises. There is no requirement in PACE to seek judicial authorisation to seize or retain confidential business material found during the search of a person in a public place, or if such material is unexpectedly encountered on private premises.
Confidential business records are protected in PACE as “special procedure material” because they have a degree of special sensitivity that Parliament has decided merits certain access requirements in the context of criminal investigations. The Investigatory Powers Act 2016 does not include any similar requirement for judicial authorisation to acquire confidential business records using covert investigatory powers. The sensitivity of this category of material is not the same as that of legally privileged or journalistic material, the safeguards for which will not be affected by the proposed amendment to schedule 3—I hope the Minister can confirm that that is the case.
The statutory purposes in schedule 3 go well beyond criminal investigations and include national security or protecting life and limb. On that basis, it seems unlikely that the interests of the business, trade or profession would outweigh the interests of national security in any circumstances, or that judicial authorisation should be necessary for the retention and use of confidential business records in circumstances that might prevent death or serious injury.
Having considered those points in the round, the Investigatory Powers Commissioner has concluded that the Home Office’s proposals to replace judicial authorisation for confidential business records with one of internal authorisation from a senior officer strike the right balance and align the definition of confidential material with that of the 2016 Act. Inevitably, that view has very much shaped our judgement on clause 22, but I suggest that it is another area where keeping the provisions under review to mitigate any unintended consequences is the responsible thing to do.
Let me turn to who has the powers to make and retain copies of confidential material. Page 35 of the explanatory notes outline that “examining officers” have that power. However, schedule 7 to the 2000 Act defines an examining officer as a constable, immigration officer or a customs officer. In paragraph (j) of the policy background section of the explanatory notes, it states that part 1 amends schedule 3 to the Counter-Terrorism and Border Security Act 2019
“to allow counter-terrorism police officers to retain copies of confidential business material…without the authorisation of the Investigatory Powers Commissioner. This will allow counter-terrorism police to progress operations and investigations into state threats…at the required pace and reflects the position in schedule 7 to the Terrorism Act 2000”.
Paragraph 17 of schedule 3 to the 2019 Act, on the power to make and retain copies, confirms that the examining officer, only when they are “a constable”, can retain copies when necessary and potentially needed as evidence in criminal proceedings. The references to various different roles in the different supporting documents to the Bill make it a bit of a mess. I was listening carefully to the Minister, but I would like further clarity about who has the powers. Given that we have references to examining officers—who can have different roles—to counter-terrorism police specifically and to an examining officer who can be a constable, I wonder whether the Minister can tidy it up for us on the record and be explicit about who has the powers at the border.
Stephen McPartland
My understanding is that the amendment of the authorisation safeguards to access confidential business material in schedule 3 brings it completely into line with other policing powers. It is not likely that access to confidential business material would be subject to a higher level of safeguarding where there is already consistent precedent set by PACE 1984, the IPA 2016 and schedule 7 to the 2000 Act. As we have said, it does not affect legal, profession or journalistic material, and the provisions are reviewed by the Investigatory Powers Commissioner as part of their statutory function. Only trained counter-terrorism officers will be able to use the powers. I hope that provides the clarity that the hon. Lady requires.
Question put and agreed to.
Clause 22 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
National Security Bill (Sixth sitting)
Thursday 14th July 2022
(2 years, 4 months ago)
Public Bill CommitteesRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 July 2022 - (14 Jul 2022)
The Minister for Security (Stephen McPartland)
This is the clause that many of us have been looking forward to. I am not going to take interventions during my speech; I will set out the reasons why I believe the clause is correct, then I will listen carefully to speeches from hon. Members and then sum up.
Collaboration with key international partners is a vital part of intelligence and national security work. We cannot maximise our national security capabilities and keep people safe without sharing intelligence and benefiting from the capabilities and expertise of our close and trusted allies. Those individuals who work on behalf of the UK are highly skilled and experienced in ensuring that UK activity is necessary and proportionate. Domestic and international law is applied to all activities and there are robust safeguards in place.
The Serious Crime Act 2007 creates offences when an act is done that is
“capable of encouraging or assisting”
an offence and the person “intends” or believes that their act may encourage or assist an offence. Those offences, which were predominantly introduced to ensure that law enforcement had the tools to tackle those orchestrating serious organised crime, are complex and create an incredibly low threshold for liability. There is no minimum level of contribution to the offence that may be encouraged or assisted. The contribution can be small, it can be indirect, and there is no need for an offence to be ultimately committed.
At present, the UK intelligence community and armed forces are required to apply those complex offences to the many and varied scenarios in which they work with our international partners to help protect the UK. They exercise significant caution in their engagement with partners to prevent SCA thresholds being met and the risk of liability for individuals being realised. The impact of that approach is that vital and otherwise legal intelligence opportunities are currently being delayed or missed as the SCA risks are worked through.
There is also an important point of principle here. The Serious Crime Act offences mean that it is the individuals working within intelligence, security and military organisations who carry the risk of liability, despite operating within all authorisations and in the interests of UK national security.
The Committee heard oral evidence from both Sir Alex Younger, the former head of MI6, and Sir David Omand, the former head of GCHQ, on the fairness and appropriateness of individual officers carrying this risk. They believe that the liability risk sitting with individuals is “not right”, and is “morally wrong”. The Government agree with them and do not think it is right or fair to expect the risk of liability to sit with individuals who are acting on behalf of our intelligence services or armed forces for their authorised purposes. Instead, responsibility should sit with the UK intelligence community and the armed forces at an institutional level, where they are subject to executive, judicial and parliamentary oversight.
The clause removes criminal liability for offences of encouraging or assisting crime, but only where the activity is necessary for the proper exercise of the functions of the security and intelligence services or the armed forces in support of activity taking place overseas. This is not a broad general immunity from prosecution; rather we are amending a targeted piece of legislation in response to specific operational issues that are impacting the ability to keep us safe today.
The clause means that in instances where an individual has operated in good faith and in compliance with proper processes they would not face the risk of liability for the offences under the SCA. The risk I have outlined would be removed for activity that we ask of individuals in the course of their roles in keeping us safe.
I am confident that the SCA amendment is appropriate and proportionate, because the UK has one of the most rigorous intelligence oversight regimes in the world. There are myriad safeguards and processes in place that manage the way that UKIC and the MOD work with and exchange information with international partners to prevent potential wrongdoing.
I also have confidence in those we are providing protection to. They are expert and highly trained men and women undertaking intelligence and security work, whose judgment and skill we should respect and have faith in. Of course, those working with our international partners will still need to comply with all other domestic and international law and be beholden to the statutory frameworks and policies that govern the UK intelligence community and armed forces activity.
The policies include the overseas security and justice assistance guidance and the Fulford principles, the implementation of which is assessed by the Investigatory Powers Commissioner annually and reported to the Prime Minister. That means that clause 23 does not in any way make torture legal, for example. UKIC’s activities also remain under the regular inspection of the Investigatory Powers Commissioner’s Office—
Stephen McPartland
I am not giving way. And they are regularly scrutinised by the Intelligence and Security Committee.
Stephen McPartland
The right hon. Gentleman will have the opportunity to make his own speech, and I will listen.
Let me also be clear that clause 23 will not enable activity by individuals who, acting outside the proper functions of their organisations, contribute to criminal activity by others or commit criminal offences themselves. We will retain the ability to prosecute anyone for other offences should their behaviour in support of international partners amount to a criminal offence. Further, it will not remove the ability to challenge the UK intelligence community or armed forces on their activities through judicial review, civil damages claims, or a complaint to the Investigatory Powers Tribunal in relation to the use of intrusive powers.
To conclude, clause 23 is really about supporting UKIC and armed forces officers, who we ask to undertake vital work on our behalf, by ensuring that when they work with our partners in good faith, according to wider domestic and international law, and in support of vital national security aims to keep this country safe, they do not risk personal criminal liability for any actions of that partner state. Responsibility for any action that we cannot support should surely sit at an institutional level, which is what will be the case under clause 23.
Holly Lynch (Halifax) (Lab)
It will come as no surprise to the Minister—we have had the opportunity to discuss this—that we are extremely concerned about clause 23, which amends the Serious Crime Act 2007. We have had the opportunity to discuss this privately with the Minister and his predecessor, and with the UK intelligence community directly, and I am minded of just how much detail of those conversations we might want to put on the record. The clause was a big focus for Members from across the House on Second Reading. As the Minister knows, crucially, it did not have the support of members of the Intelligence and Security Committee, which has statutory responsibility for oversight of the UK intelligence community.
The Labour Party will always work with the intelligence services to find solutions to any barriers that they face in undertaking their invaluable work and keeping the UK safe. As things stand, we have been unable to get an operational understanding of exactly what is broken and requires fixing. I have heard directly from the security services about why they believe they need clause 23—the Minister has sought to outline that again in his contribution. Schedule 4 to the Serious Crime Act allows for a risk of liability to individuals conducting their proper functions on behalf of the UK intelligence community. An offence can arise where support—for example, intelligence sharing—provided in good faith later makes a small or indirect contribution to unlawful activity by an international partner. The security services are keen to convey that their caution in this regard is having an operational impact that requires a resolution.
Mr Jones
My hon. Friend is outlining the protections. SIS and GCHQ staff also have protection under section 7 of the Intelligence Services Act 1994, where there is ministerial authorisation. Like her, I struggle to understand what incidents there could be of an individual being liable, if they were covered by these authorisations and the Act that she refers to.
Holly Lynch
My hon. Friend makes an important point, which I will explore in more detail in a second. I go back to the point that the security services have conveyed to us that their caution is having an operational impact, which requires a resolution. We are sympathetic to that. We recognise that a junior member of staff facing that burden of potential liability when carrying out their proper functions under instruction does not feel right. However, I look to the Minister to find a way through the matter that does not involve what can feel somewhat like a gold-plating of exemptions for the security services, which stands to entirely erode appropriate safeguards and due diligence when considering the risks and consequences of sharing information with partners. As the Minister knows, there is an existing reasonableness defence in section 50 of the Serious Crime Act, which recognises that there may be occasions when it could be shown that an individual’s actions were justified in the circumstances.
Maria Eagle
My hon. Friend is right to refer to the defences that already exist because to agree with the clause, we would need to see that the existing offences and defences are not working. There does not seem to be much evidence of that. Section 53 of the Serious Crime Act sets out the factors to be considered in determining whether it is reasonable for a person to act as he did. That includes any purpose or authority he claims to have been acting under. An individual working for our intelligence service has clearly got extensive protection under that existing provision. Does my hon. Friend agree?
Holly Lynch
I am grateful to my hon. Friend. As a lawyer, she has a great deal of experience navigating some of this legislation, and she makes a powerful point about the reasonableness defence. In addition, a prosecution would have to be deemed to be in the public interest.
Mr Jones
This morning we saw the Minister use reasonableness in clause 20, but he is not prepared to use it here. Does my hon. Friend agree that reasonableness in law is a well-established notion? Does she find it odd that the Minister relies on it in one clause, but in this one he prefers to say that it will somehow not work?
Holly Lynch
My hon. Friend makes the point that, while we will get into the detail of reasonableness and the concern that it is potentially untested in these circumstances, it is a well-established principle across British law. Again, that certainly supports the robustness of the existing defences around reasonableness. On further probing of these defences, and this is exactly his point, it seems that it is not the case that the reasonableness defence is not strong enough, rather that it is untested in these specific circumstances, as no such case has been brought against the intelligence community. We do not believe that that is a strong enough case for the proposals in clause 23. We hope that properly authorised activity to protect national security would and should be interpreted as being reasonable.
I am not currently satisfied, and neither are members of the Intelligence and Security Committee, who we will hear from shortly, that there are grounds to support clause 23 as drafted. I have taken further legal advice, including from a QC with a great deal of experience of the Investigatory Powers Tribunal. Can the Minister answer the following questions? First, as has been said by the hon. Member for Garston and Halewood, given that we already have section 7 of the Intelligence Services Act—this relates to the serious end of some of what we are talking about here—which allows the Secretary of State to give immunity from civil and criminal liability for pre-authorised crimes abroad, why do we need these changes?
Importantly, the existing scheme requires the UK intelligence community to secure permission from the Secretary of State in advance, requiring their personal approval, with safeguards within the decision-making process and oversight by the Investigatory Powers Commissioner, who is a senior judge.
Ben Everitt (Milton Keynes North) (Con)
I understand that clause 23 seeks to address a specific operational challenge currently faced by the UK intelligence community and the armed forces. The clause removes criminal liability for the offences of encouraging or assisting crime, but only where that activity is
“necessary for—
(a) the proper exercise of any function of the Security Service, the Secret Intelligence Service or GCHQ, or…the armed forces”
and only in support of activity taking place overseas. That is because in a specific scenario legislation is affecting the ability to collaborate with key partners and achieve legitimate shared national security objectives.
Essentially, we are trying to avoid there being a disincentive to sharing information that makes us safe. Looking at it the other way, we are trying to remove the liability from a brave young officer who is doing their job and keeping us safe.
Ben Everitt
That is probably beyond what I can say here, and indeed beyond what I am aware of. It is one of those situations in which, were I a Minister, I would be happy to write to the hon. Gentleman—but I am not. Far from gold-plating, as referred to by the hon. Member for Halifax, clause 23 does not create a blanket criminal law immunity for our intelligence officers. It does not change the application of other criminal law offences that overlap with those underneath the Serious Crime Act 2007. It provides no change to the UK’s international law obligations.
I assume that the Minister agrees that the approach undertaken in the Bill is more limited and targeted than the approach other key allies have deemed necessary to protect those working on their behalf. Indeed, last week we heard from Alex Younger, the former chief of the Secret Intelligence Service. During his oral evidence he noted that there is an international precedent for such measures. He was referring to Australia; I understand that it was section 41 of the Australian Intelligence Services Act 2001, where there is a much broader immunity. That Act states:
“A staff member or agent of an agency is not subject to any civil or criminal liability for any act done outside Australia if the act is done in the proper performance of a function of the agency.”
Clause 23 is much more limited than that example. Rather than a proposal for wholesale immunity, it will just remove the legal risk for individuals’ actions that are done in good faith and following all authorised processes. That risk should not be underestimated given the chilling effect that we have discussed over the past couple of weeks. That effect can prevent or even delay the sharing of critical intelligence with international partners. Thus, the line of argument that the provision is too broad does not really hold when considered in the context of what our key allies are doing in relation to sharing information.
I express my support for clause 23, and the core principle that this is the right thing to do. We do not expect the current criminal liability of the Serious Crime Act offences to sit with trusted individuals who are conducting authorised, highly sensitive and vital national security work to keep our country safe.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I rise to support a lot of what the hon. Member for Halifax has said already. Nobody on the Committee doubts the importance of collaboration; we all recognise how crucial that is. I do not think that any of us doubt that the services have approached the Government having identified what they perceive to be a problem, and that the Government are genuinely engaged in trying to resolve that. One of the challenges that we face as parliamentarians is the degree of confidentiality and secrecy that surrounds their operations, which sometimes makes it difficult for us—particularly if we are not members of the Intelligence and Security Committee—to properly understand the nature of the problem and how it can be resolved.
Stuart C. McDonald
I am grateful to the right hon. Gentleman, who is a member of the ISC, for clarifying that. For that reason, I am not dead set in my opposition to the clause by any stretch of the imagination—I am open to persuasion. However, we need evidence through the ISC that there is a problem and that clause 23 is the best way to solve it. As matters stand, I cannot say that I have been persuaded of either of those things.
First and foremost, it remains difficult to see how officers of the services in question can commit an offence under the 2007 Act unless they intend an offence to be committed, or, secondly, unless they have a belief that their action will assist an offence. That is a high threshold, even before defences kick in.
We have heard already that the section 50 defence of acting reasonably applies. Given the “purpose” and “authority” under which any action of information sharing would take place, it surely seems very likely that that defence could easily be made out. That point has already been made by a member of the ISC this afternoon. It almost looks like that defence, in section 50(3) of the 2007 Act, was designed with employees of the agencies in mind. The Minister has asserted that the defence is vague, but they seem to be a perfect fit for some of the circumstances that we are considering.
Even if the Minister is correct, perhaps the better response would be to amend the defence, rather than disapplying schedule 4 altogether. It is not clear why it can be argued that the reasonable defence is any more vague than the concept in this clause of
“the proper exercise of any function”.
It is not clear to me what conduct that concept is and is not supposed to cover. We need clear explanations and I do not think we have been given them.
Will the Minister give an example of conduct that is a proper exercise of any function of the services, but that is currently subject to the chilling effect of the 2007 Act and would therefore be saved by the Bill? Why is such conduct not able to get over the threshold of the reasonable defence already? Why, as has been asked, is such conduct not able to be authorised under section 7 of the Intelligence Services Act 1994? What type of data sharing is subject to this chilling effect and what causes that effect? Is it the remote possibility of data being used for a very serious crime or the significant chance it could be used for a less serious crime? Is it both? Is it neither? It is very hard to get a handle on what precisely the provisions are aimed at.
The Minister knows that concerns were raised on Second Reading about the potential for the clause to have a much more significant effect on actions that could, for example, support rendition or torture. He has set out today and in correspondence that domestic and international law means that such action would not be protected by clause 23. We will give that further consideration, but, in my view, the Government have much more to do to persuade us that there is a real problem here, and one that requires legislative intervention.
Even if a problem does have to be addressed, I am still to be convinced that this is the right response. Are there other options we could look at? Of course there are. For example, in last week’s evidence there appeared to be the suggestion that it was not so much the risk of conviction that was feared, but the risk of an investigation and being dragged to the courts and having to establish a defence of reasonableness. That was one of the problems.
Different things could be done. The clause could be moved around so that it is not a defence, where the burden lies on the person accused. We could make it an intrinsic part of the offence in the first place, so that nobody is dragged to court and has to establish the defence. There are other things that could be done—for example, requiring certain authorisations for prosecutions and so on.
Let us have that discussion, assuming that we can be persuaded that there is a problem here. Are there different ways to address it? For the moment, we remain a little bit in the dark on what precisely the nature of the problem is, and are unconvinced that the provisions in the clause are the best way to resolve any problem that does exist.
Sally-Ann Hart (Hastings and Rye) (Con)
Our intelligence and security services are this country’s frontline of defence, and we need to ensure that they remain the best and most professional in the world. To do that, they need to know that if an individual makes a decision in good faith and in accordance with all relevant procedures, to keep us safe, that individual should not be at risk of criminal liability. That responsibility must lie with the organisation.
Sally-Ann Hart
In a moment.
Last week, Sir Alex Younger, former chief of the Secret Intelligence Service, said the issue was a point of principle. Contrary to some alarmist news reports and those opposed to clause 23, Ministers and spies will not be given immunity from committing crimes overseas. Clause 23 does not have any effect on any other criminal offences that might apply to an individual’s actions.
Mr Jones
I thank the Minister for reading his speech very well, but I take issue with the implication of what he said at the end, and I feel a bit annoyed about it.
The implication is that if someone ask questions about clause 23, somehow they are not supportive of our security services. I am the longest serving member on the Intelligence and Security Committee and a former Defence Minister, and I think most people who know me in the House know that if I am anything, I am a supporter of our security services and defence forces. It is therefore a bit churlish for people to argue that asking questions somehow means that I want to inhibit the work of our defence and security services; I certainly do not.
Having been on the ISC since 2017, I am aware of the bravery involved in the difficult jobs of our security services. I never cease to be amazed when I hear about some of the things they do. The general public would have no idea of the difficult judgment calls they sometimes have to make.
However, I am also a big supporter of proper oversight of our security services. We have the ISC, the Investigatory Powers Commissioner and the Investigatory Powers Tribunal, and that is the web we have in our democracy to ensure that the security services operate legally and that they are supported in what they do. In fact, the director general of MI5 often says in front of the ISC that those three organisations give it the legitimacy to operate. That is a good thing in a democracy, and I agree with him.
What worries me is the justification for why clause 23 is needed. We have heard it before, but we just heard the hon. Member for Milton Keynes North use the phrase “a chilling effect”. In their evidence, Sir Alex Younger and Sir David Omand also supported this provision. I have huge respect for those two gentlemen: they are good public servants whose service has done this country a huge amount of good. However, from reading the transcript—I was abroad when they were here last week; I apologise—I do not quite get the point that they were getting at. They used words, which have just been used again, such as principles and morals, and the idea that the onus somehow lies on the individual officer.
If that was the case, I would totally agree that the onus should not be on the individual officer because, having seen what they do, I know they have to make key judgment calls. In their evidence, I do not think that Alex Younger or David Omand gave us any examples of why this measure is needed.
Ben Everitt
I have been listening carefully to the right hon. Gentleman. He mentioned oversight as a key part of the functions of our security services. I waited for him to develop the point further into liability, which is what we are discussing here. Will he elaborate on what he means in relation to oversight when, I think, clause 23 specifically refers to liability?
Mr Jones
It is about both. I will come to liability, because I do not think that individual officers are liable due to existing legislation. As for what I mean by oversight, I am clear that the structures we have for the authorisation of things that are not pleasant should include oversight—whether from the ISC, the tribunal or the Investigatory Powers Commissioner. We do not live in a society—thank God—where Ministers and the Executive can just say to the security services, “Do x, y and z.” That would be wrong. That is why it is important to have oversight and checks and balances in the system, which were not always there. This morning, I referred to a very sad time in our history—I was a Minister at the time. It was not a good time for our security services, and we should have been ashamed of some of the things that were done.
I want to see an example of what Sir Alex Younger and Sir David Omand were talking about last week. If there is a specific problem, I would be sympathetic and say, “Right, we need to get that sorted.” It may be a broad notion. We are talking about principles and morals, and it is very difficult to legislate on morals—certainly the Conservative party gets into difficulty when we talk about morals—but I would like to know specific examples that would lead to a liability.
Let me turn to the existing protections. Schedule 4 to the Serious Crime Act 2007 includes the offence of encouraging, assisting or commissioning an offence abroad. Clause 23 amends schedule 4 of the Serious Crime Act to disapply that offence when the activity is deemed necessary for the proper exercise of a function of an intelligence agency or the armed forces. The Government are basically asking for a carve-out, which I find extremely rare.
Maria Eagle
Does my right hon. Friend agree that putting in legislation a carve-out from an entire class of offences—in this case, the inchoate offences of crimes committed abroad—engenders more suspicion among those who worry about the intelligence services than would be the case if the law applied properly to them with appropriate defences?
Mr Jones
I do. Since I have been on the ISC, I have always been amazed when I read accusations made in this place or in public about what the security services get up to. Frankly, if they did, good—but, given the scope of their ability to do things, we should bear in mind the difference between fact and fiction.
The important point is that what the security services do must be proportionate, legal and in the interests of this country’s national security. As I say, they have to take some difficult decisions, and there is a difference between a ministerial authorisation to do something and what happens on the ground. The Minister is not sat there with a pen, saying, “No, you can’t do that. You can do that.” It is down to the individual officer, and I accept that there are huge issues around that. That is why we had the consolidated guidance, which then developed into the Fulford principles. That came out of that dark time.
I was on the ISC when we did our very long inquiry into detention, mistreatment and rendition in 2018, and it was not pretty reading. Ministers—in some cases, we named them—took decisions that were not legal. I have been assured by the agencies in evidence that I and the ISC have received that the consolidated guidance has since been updated to the Fulford principles, and a large exercise has been undertaken to ensure that all officers at all levels understand the principles and how to enact them.
That gives us that legal protection. There are people who want to attack our security services. That large exercise gives me huge assurance, and it means that parliamentarians are in a strong position, when people start accusing the security services, to stand up and say, “Well, actually, that is rubbish. These are the rules that we follow, and they are of the highest standard.” They protect not just the work that the security services do, but us as a country.
Carving this out worries me, as it does my hon. Friend the Member for Garston and Halewood. The Government want to disapply the measure, but there is already a reasonableness protection. We discussed reasonableness this morning. Section 50(3) of the Serious Crime Act 2007 sets out that:
“Factors to be considered in determining whether it was reasonable for a person to act as he did include…any purpose for which he claims to have been acting”
and
“any authority by which he claims to have been acting.”
I think that is very clear.
If we now have a situation whereby the agencies and armed forces are concerned that the conduct may not be reasonable, it is difficult to see how it would be deemed necessary for the proper exercise of the functions of the intelligence services or military. The reasonableness test is there and, as I have already said, we have other protections whereby the Secret Intelligence Service and GCHQ also protect their staff from liabilities in relation to offences committed abroad through ministerial authorisation under section 7 of the Intelligence Services Act 1994. The important thing about all that is whether the Investigatory Powers Commissioner can ensure that it is done properly.
To get back to the point, what is the problem? I do not see it. Call me old-fashioned, but if there is a problem, I am up for solving it. However, I do not think that we should try to change things if there is not a problem, and none of the agencies has yet come forward to explain in detail what the problem is.
I accept what was said earlier about the ISC. The individual examples, if there are any, will cover highly classified information—that is why the ISC is there: we can take evidence and look at that information—but there has been no attempt at all by Government Ministers or the security services to give us the examples. One of my colleagues will speak in a minute, but I speak on behalf of the ISC, because we have discussed this issue. We cannot give clause 23 a nod through at this point until we have been convinced that there is a need for it.
My hon. Friend the Member for Halifax made a point about scrutiny. The great thing about having the Investigatory Powers Commissioner is that they can look at warrants and ensure that they are not just legal but proportionate. If we have this provision, who will oversee the individual cases? I get the point that the two former heads of security services made in their evidence about the onus being on the individual. Yes, it is, but those individuals rightly have a huge degree of protection. I would not want to see that in any way diminished because they have the law behind them. In some cases, they also have ministerial warrants, which add to the judicial process.
For those who say that if someone ask questions about this provision, they are against the security services, let me put it the other way. If it is not justified, it will be used as a way to say that the security services now want to go back to the bad old days when things happened that were not under the scrutiny of either Parliament or the judiciary. That would be a retrograde step and would give opponents—as I say, they are against whatever the security services do—a stick to beat them with. I am certainly not in favour of giving those people anything with which to beat the security services.
We could vote against the clause, but I do not think that is the right way forward. I and other members of the ISC would like the Government to provide us with examples of where the chilling effect has been a problem for intelligence sharing, so that we can at least have a look. I accept that other members of the Committee might wonder why they cannot see it—trust me when I say, “You can’t.” I think most people would understand the reasons why that is.
Stephen McPartland
I wanted to be very clear earlier—I wanted to make a point. I agree that the Government will give the ISC examples.
Mr Jones
That is very welcome, but we do not just want that in writing—we want to have the agency heads actually come and speak. I think we have a meeting with them scheduled for some time in October. We would like to get them to come and argue why they need these changes. We need that as well.
The Minister might need to give it a bit more thought, too. I accept that he is new to his post, and he obviously has time to look at this over the summer—depending on what happens at the beginning of September. I know that I have poked fun at the Minister, but we get on well, we have worked closely on other Committees and I even got him promoted on a Committee once, which he was eternally grateful for. Can he just look at the oversight, too? If the Bill does go through, what are the oversight mechanisms for it?
Maria Eagle
I will not go through all the points that have already been made, although I do feel quite strongly about some of this. I generally endorse what has been said by my hon. Friend the Member for Halifax and my right hon. Friend the Member for North Durham—my fellow member of the ISC. Like him, I do not think it is true to say that anybody on this Committee or any of our parliamentary colleagues are intent on trying to stop the intelligence and security services doing their job. They do a very important job and they do it very well. It is dangerous work and we want to support them as much as we can.
But we are a democracy. One of the things that concerns me about clause 23 is its wholesale disapplication of an area of the law that applies to all the rest of us. If we are going to do that for the intelligence services, it is important that we are very clear that it is necessary. It applies only for a certain type of offence in a certain place—overseas—but it is a wholesale carve-out. The clause says that an entire schedule to the Serious Crime Act 2007, which sets out inchoate offences abroad, does not apply if “any relevant behaviour” was necessary for
“the proper exercise of any function”
of the relevant services. That is a wholesale carve-out. I cannot think of too many other examples of that. I do not know if the Minister has a list of examples of other wholesale carve-outs from liability from the criminal law for particular officers of state organisations, but I think it is quite rare.
In those circumstances, I could tell from the evidence we were given that the Government have been asked for this by the relevant services. It did not seem to me that it was coming from the Government—that the Government were saying, “You must have these extra powers.” I accept that they are responding to requests, but because this is a wholesale carve-out from liability for criminal acts, it is important that it is properly justified. We all know about the difficulties of properly justifying it, because a lot cannot be brought into the public domain, but what we have had in the public domain has not been very convincing.
I expect that many people in their day-to-day life would like to have impunity from criminal liability for something that they might do, but it is not something we should be granting easily. The arguments for it need to be very strong. There are already defences that make it harder for people working in the intelligence community to be found guilty of some offences. They have defences that others do not. By the way, it is probably philosophically right that the law should apply to those people but that they should have extra defences. In legislative terms and for the good of society as a whole, it is probably better to do it that way round than to disapply the law to a particular type of person.
I would expect to hear why the current arrangements do not work, but I have not heard that. I did not hear it in the evidence we took from Sir Alex Younger and Sir David Omand. If I can characterise the issue in this way, they both said, “We would rather have this. We feel very strongly that we would rather have this,” but they were unable to give us any examples of why the current arrangements did not work. In fact, I asked Sir Alex whether some of the current arrangements worked. I asked him about the ministerial authorisation, and he just told me that he was not a lawyer, which is not a convincing answer when someone is asking for a whole area of the criminal law to be disapplied. Sir Alex obviously felt strongly about the matter—I could see that. That is perfectly legitimate, but as a scrutiny Committee and as parliamentarians, we need to hear a little bit more.
I hope the Minister will understand—I do not particularly like the fact that he refused to take interventions, but that is his choice—that everybody on this Committee is seeking to do the right thing. We do not want to make a change to the law that opens up our intelligence and security services and our armed forces to accusations that they can act with impunity abroad. Based on some of the evidence that has been sent to the Committee from those who campaign on these issues, some people think that the clause does precisely that. I do not agree with some of what is in the submission from Reprieve that we received recently, but that submission contains quite a representative sample of what people in our society would probably think if they were to take a look at this clause.
A wholesale carve-out from liability under an area of the criminal law is a very serious step to take. I am not saying it is not the right thing to do, because we should take requests from the agencies and armed forces seriously—as the Minister is clearly doing—but I remain unconvinced. Such a carve-out could have unintended consequences, such as making it much less likely that thoughts will be focused on making sure that activity is lawful. We need to make sure these proposals are the right way forward, and that their advantages outweigh their disadvantages. We have been told that reasonableness is a vague concept, but it is vague only in the sense that it is very flexible and can, and does, apply in many areas of the law; its meaning is relatively well known. To my mind, if the agencies and armed forces are concerned that their conduct might not be considered reasonable, it is difficult to see how it could be necessary for the proper exercise of their functions.
Maria Eagle
It would be a very high bar to get over. If we are being told—there was an element of this in the evidence we heard—that there is a chilling effect on individuals trying to do their jobs, those individuals may need to be a bit better trained in what the law says, what it means and what they are able to do. In any event, whatever the law ends up being—whether it is this Bill, or what we already have—it is not a bad thing for those who operate at its margins to know precisely what they can and cannot do. I worry slightly that having a complete carve-out from liability might swing activities a bit too far in the other direction.
There are pros and cons to any way of doing this. I do not want the Minister to think I am being hostile; I am certainly not. I just want us, as the House of Commons, to be sure, when we consider this further, that this way is right and will work better than what we already have. I, for one, cannot see how this will be better than what we already have; I think that in many ways it will be worse.
Stephen McPartland
It has been a great pleasure to listen to the debate and Members’ speeches. I can feel the frustration in the room. I share that frustration, because I have been told by the intelligence services that we need clause 23 because the schedule it amends is having a damaging impact on critical operational activity aimed at keeping the UK safe. That is the reason why we need clause 23. I wish that we could tell the Committee everything, and that we could just all agree to it, but that is what I am told by the intelligence services, so I have frustration too.
I will try to answer some of the questions, and then sum up. We have been asked about section 7 authorisations. Some of the Committee have been in their roles a little longer than I have been in mine, so they will be aware that section 7 authorisations can be sought only by SIS and GCHQ—not by the MOD or MI5—so this is about trying to create reassurance across all the UK intelligence community.
On section 50 and the reasonableness defence, the defence has never been tested in the context of activity of the intelligence services and the armed forces, so we feel it is more appropriate for them to demonstrate that their actions were carried out as necessary in the proper exercise of their functions.
Maria Eagle
If what the Minister says is accurate—that the defence has never been tested—how can he say that it does not work?
Stephen McPartland
What I am trying to say is that we want our UK intelligence services to be focused on keeping us safe and not to worry about whether or not they will be able to deal with a long court case on their actions. As things currently stand, the UK is—
Sally-Ann Hart
Let me give an illustration of the issue. If my hon. Friend saw someone in need of cardiopulmonary resuscitation on the floor, would he give them mouth-to-mouth and pump their chest? Is that something he would do? Would he do it if he thought he could be prosecuted for causing grievous bodily harm if he broke a rib? That would be his defence. That is a simplistic example to illustrate the issue.
Stephen McPartland
I am grateful to the hon. Lady for her intervention. I do not think I would be any good at giving anybody CPR. However, I understand the spirit in which she made the intervention and am grateful for that.
Stephen McPartland
I do not want to get distracted, because this is very serious. I will give way to you in a minute, Kevin; I want to get this point across. [Interruption.] Sorry—I will give way to the right hon. Member for North Durham in a moment.
As the law stands, a member of staff acting in the proper exercise of their organisation’s functions would bear the burden of proving that they had acted reasonably when there is no precedence as to what “reasonably” means in those circumstances. The provision would change that position so that the prosecution would need to prove that a member of staff’s actions were not necessary for the proper exercise or function of their organisation, taking into consideration all the information about the legitimate ways in which those functions could be exercised.
Mr Jones
The Minister has just said that the reasonableness test has not been used. The Attorney General would also have to get over that bar. Alongside that sits the old consolidated guidance—now the Fulford principles—which is quite clear about what actions officers should take in certain circumstances to avoid what we had before. If it has not been tested, I cannot see what the problem is.
Stephen McPartland
The problem is that the UK’s intelligence services are telling us that, every single day, their operatives are second-guessing themselves on operations to keep this nation safe. I believe what they are telling me.
The provisions in section 47 of the Serious Crime Act mean that a person need only believe their activity will encourage or assist such an act, but they might also be reckless as to whether the act is done, with all the necessary elements required for that particular offence to be committed—the offence does not have to be committed. We are talking about the intelligence operative’s state of mind at the time of sharing intelligence. That is what is relevant.
Mr Jones
If that is the justification, why do we not just bin the consolidated guidance and the Fulford principles, on which such judgments are based? The rendition inquiry has great examples of where we passed on information knowing that it would be used for rendition and torture. I have been assured by the agencies, and I have no reason to doubt them, that there has been a huge training programme to ensure all officers fully understand the consolidated guidance and the new Fulford principles. This is clutching at straws, frankly.
Stephen McPartland
I am grateful for the right hon. Gentleman’s point of view.
Clause 23 is primarily aimed at removing the risk and fear of prosecution from individuals within these organisations when undertaking their necessary authorised duties. Sir Alex Younger said:
“Through this legislation and other measures, we can make sure that these risks are attached to the appropriate person or people or entity. I am much less comfortable as a leader about the idea that we therefore ask individual men and women in the UK intelligence community to suck it up. I do not think that is right.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 14, Q26.]
We have already had a conversation about the difference between theory and practice, and the reality is there is a risk that individual UK IC officers will face criminal sanctions for doing their job. I agree with Sir Alex Younger that that risk should not exist.
Question put and agreed to.
Clause 23 accordingly ordered to stand part of the Bill.
Clause 24
The foreign power condition
Stuart C. McDonald
I beg to move amendment 54, in clause 24, page 19, line 5, at end insert—
“(2A) The conduct in question, or a course of conduct of which it forms part, is not to be treated as carried out for or on behalf of a foreign power if financial or other assistance of a foreign power under subsection (2)(c) is provided otherwise than specifically for the conduct or course of conduct.”
This amendment ensures that organisations that receive funding from foreign powers are not guilty of offences if that funding was not for the conduct or course of conduct that would otherwise amount to the offence.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clause 25 stand part.
Stuart C. McDonald
We now come to two of the most important concepts in the Bill: the foreign power condition and the meaning of “foreign power.” Proving that the foreign power condition has been met is crucial to establishing many of the serious criminal offences for which we are legislating in this Bill, and all sorts of consequences flow from it in the powers to seize and search. It is vital that we get clauses 24 and 25 absolutely correct.
On the whole, the concepts are broadly in the right area, particularly in clause 24. The concept includes an agent acting on behalf of a foreign power, and with knowledge, or reasonable knowledge, that that is the case. The idea of “ought reasonably to know” being sufficient to make out a connection is perhaps a concern, but I understand why it is required for the legislation to work. I look forward to hearing more from the Minister on the thinking behind it.
To cut to the chase, the Committee will recall that, thanks to a briefing from Article 19 on clause 1, I raised the potential problem that the foreign power condition could be attached to certain unintended groups, and I highlighted two groups in particular: non-governmental organisations that receive some funding from foreign powers for perfectly good and positive reasons, and I gave an example of NGOs that fall within that bracket; and journalists who work for state broadcasters, including in countries that are our very close allies. These two groups are at risk of being caught up in the Bill because the foreign power condition is expressly met when conduct is
“carried out with the financial or other assistance of a foreign power”.
The Minister set out three protections during our consideration of clause 1: the foreign power condition itself; the discretion of the Attorney General; and the public interest test applied by the Crown Prosecution Service. Several members of the Committee spoke about why the AG’s oversight and the CPS’s discretion are insufficient. We had a debate about the chilling effect, a concept that we have just been discussing, and the fact that that would essentially leave NGOs and journalists to make decisions about whether to publish information or not based only on the very vaguest of ideas that the CPS or the AG might come to their rescue. That is not really protection at all.
As for the third protection—the foreign power condition —as far as I recall, the Minister did not dispute or expressly accept that the foreign power condition would be met in these cases. Does the Minister accept that the conduct of those NGOs and journalists could meet the foreign power condition, simply because of what they do? That is the most important question I will ask him in this debate.
Our amendment tries to stop groups being caught up in the provisions of the Bill as a result of simply receiving funding from a foreign power, when that funding has been put to perfectly legitimate and reasonable uses. The amendment requires there to be a connection between the funding and the conduct that is being complained about. For example, if the US State Department funds an NGO for human rights research, completely unrelated conduct, in particular the publication of “protected information”, would not be treated as a foreign power activity or espionage unless it was specifically linked to that funding. I accept that my amendment may not be perfect, and I can see there would be problems with it, but I think there has to be an acceptance that the clause as it stands is not perfect and there has to be protection for NGOs and journalists.
I have another concern about clause 24, particularly subsection (5) and the interaction between subsection (5) and (6). The idea of someone being brought within the ambit of espionage legislation on the basis that their act is motivated by an attempt to benefit a foreign power, even an unknown foreign power, and that is all—none of the other factors in clause 24(2)—seems dangerously liable to be able to attach itself to behaviour to which it should not be attached. Behaviour that is motivated by trying to help people in a foreign country could suddenly take on a new angle and be seen as helping a foreign power.
I will give a final example of what I am trying to get at here, which is basically whistleblowing. What if a person working for an international company here discloses a trade secret of that company to a regulator in an allied country, because the product that that company supplies there is a dangerous breach of that other country’s regulations? It seems to me that the drafting of the foreign power condition confuses whistleblowing with some of the espionage offences. Have we drawn the foreign power condition too broadly?
In relation to clause 25, on Second Reading I wondered whether the definition of foreign power was too narrow and might not cover enough of the damaging actors who engage in some of the behaviours we are so concerned about. However, the key point is that an actor can form part of an indirect relationship between the conduct of the foreign power under clause 26.
I will close my remarks there. Does the Minister accept that some of these examples are caught by the foreign power condition, in particular NGOs, journalists working for a foreign state broadcaster and whistleblowers who reveal a trade secret to a regulator working overseas? Are they caught by the foreign power condition? If so, surely we must change the drafting of the Bill.
Holly Lynch
I will speak to clauses 24 and 25 and, having heard the contribution from the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, about his amendment 54.
Clause 24 provides for the foreign power condition that is fundamental to almost all the new offences created by the Bill. I appreciate that the Minister has confirmed that we will see the detail of a foreign interference registration scheme before we return to Committee in September, but it will be particularly interesting to see how the provisions in clause 24 interact with a registration scheme, and what an asset that stands to be if it is done properly.
Clause 24(1) provides that the condition is met if a person’s conduct or a course of conduct is carried out for or on behalf of, or with the intention to benefit, a foreign power. In addition, for the condition to be met, the person must know, or reasonably ought to know, that the conduct has that relationship to the foreign power, which I think is clear enough.
Subsection (2) sets out a welcome but non-exhaustive list of different types of relationship between the foreign power and the person engaging in the conduct that would result in a person being considered to be acting for or on behalf of the foreign power.
Under this clause, conduct is deemed to be carried out for or on behalf of a foreign power if it is instigated by a foreign power, it is directed or controlled by a foreign power, it is carried out with financial or other assistance from a foreign power, or it is carried out in collaboration with or with the agreement of a foreign power. It strikes me that thousands of people in the UK could meet all the foreign power stipulations in subsection (2) without ever engaging in any criminality—for example, if they work for a legitimate state-owned company, such as an airline operating out of the UK, or in a foreign embassy. I am keen to see the detail of the registration scheme, so that we have transparency and clear lines about what is welcome and entirely appropriate conduct on behalf of a foreign power and what is not.
Subsection (6) states that is not necessary to identify the particular foreign power that the person intends to benefit. That provision is intended to cover when a person attempts to help a foreign power, but has not yet determined the particular foreign power. I can see how this part of the clause rightly captures the conduct of someone motivated by financial gain, who seeks to sell information or intellectual property to the highest bidder, or perhaps by a desire to cause harm to the UK as a result of a grievance.
For the reasons I have outlined, I imagine that we will come back to clause 24 when debating further parts of the Bill. It would have been advantageous to consider the clause alongside the detail of the foreign influence registration scheme. We will have to undertake that separately, but we recognise that clause 24 is fundamental to this legislation.
Clause 25 defines a foreign power for the purpose of clause 24 and sets out the persons and bodies that comprise a foreign power. We welcome the much-needed update and clarity of what constitutes a foreign power for the functioning of clause 24 and the new offences created by the Bill. I note that the Law Commission’s report, “Protection of Official Data”, made a clear case for replacing “enemy” with “foreign power” and looked to the Canadian Security of Information Act 2001 and the US Congress’s Espionage Statutes Modernisation Bill, which was introduced in 2010, as starting points.
The Official Secrets Act 1911 provides that it is an offence for a person to make or obtain
“any sketch, plan, model, or note”
or
“any secret official code word, or pass word…or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy”.
The Law Commission felt that as the term had been drafted with enemy states in mind, it was unclear whether a court would construe “enemy” broadly enough to encompass non-state actors, such as an international terrorist group. It was further concerned that the inclusion of the term “enemy” had the potential to inhibit the ability to prosecute those who commit espionage. We have already heard quotes from Sir Alex Younger’s testimony last Thursday. In response to a question about how threats to the UK have changed, he said:
“What I would call grey threats…often presented us with real challenges, particularly when actors or states felt themselves at war with us and we did not feel ourselves at war with them.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 11, Q21.]
I therefore welcome the change from enemy to foreign power to ensure that we can secure prosecutions against the right people.
That said, concerns were raised in submissions to the Law Commission’s consultation and I wonder if the Minister can respond to those. Guardian News and Media gave the following example:
“If a journalist obtains information that a nuclear defence installation is unsafe, that concerns have been reported to the appropriate authorities, but have been discounted, and the journalist then proceeds to investigate whether the information is true, they should not be placed at risk of prosecution. Under the existing wording of section 1 OSA, the ‘of use to the enemy’ requirement would it is submitted make such a prosecution unlikely, however if that wording were changed to a foreign power, and a foreign state-owned institution was thinking of bidding to decommission the plant, this could catch the journalist. Such activity by a journalist should not be considered to be espionage.”
Again, it would have been advantageous to consider this clause alongside the foreign influence registration scheme, which will presumably be clear about who needs to register and why, aligned with subsections (1) and (2) of clause 25, but I hope that the Minister can respond to the concerns raised in that example.
Stephen McPartland
We have already spoken in some detail about the foreign power condition, but I will now specifically address that condition and the meaning of “foreign power”. In doing so, I hope to cover some residual concerns from our first day in Committee and some concerns that I have heard today.
Throughout the Committee’s sittings so far, I have tried to demonstrate that I am listening and am trying to work with colleagues across party lines to get to a position in which we are providing what the United Kingdom’s intelligence community needs and are comfortable that we have scrutinised the Bill. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East may be reassured when I get to the end of my speech, just as the hon. Member for Halifax was reassured about her amendment earlier.
Stuart C. McDonald
I just want to repeat that I find that potentially worryingly broad. If somebody does something motivated by the interests of the people of country Z, I worry very much that they could suddenly be treated as if they were benefiting the Government of Z. The foreign power condition would therefore be met and they could be guilty of espionage for whatever act they had undertaken. It just seems incredibly broadly worded. Someone who is simply doing something for the benefit of a people could be caught up in this legislation.
Stephen McPartland
I think the intention that we are trying to get across is clear. I understand that the hon. Gentleman has a concern about how broad the scope is, so if he gives me a few moments, I will try to move on to that point.
My view is that clause 24 forms a key concept that will determine the circumstances in which activities will come within the scope of the Bill or beyond it. Amendment 54 seeks to make it explicit that those who receive funding from a foreign power legitimately will not be guilty of an offence under the Bill where that funding is entirely unrelated to the harmful conduct. I want to reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that this reflects the intention of the provision. The provisions are designed to provide that the funding of an organisation must have a sufficient link to the offence in order for the foreign power condition to be met and an offence to be made out; a tangential link will not suffice. To help contextualise that, and reflecting on Tuesday’s debate, I thought it would help to provide a bit more detail on how the foreign power condition interacts with the offences.
Using the offence of obtaining and disclosing protected information as an example, the offence will be made out only if all the limbs of the relevant test are satisfied. This means that a person would commit an offence only if they obtain, disclose or carry out other specified conduct in relation to protected information. That conduct is for a purpose they know, or reasonably ought to know, is for a purpose prejudicial to the safety or interests of the UK, and the foreign power condition is met in relation to that conduct.
I want to be really clear that a person who engages in the harmful conduct above would commit the offence only if they have a purpose prejudiced in relation to that specific conduct. So it is not sufficient to prove that a person has a genuinely prejudicial position against the UK; the conduct has to be carried out with that prejudicial purpose.
The same is true of the foreign power condition. The foreign power condition has been designed to apply in relation to the conduct that is caught within the offence. So where the foreign power is satisfied because the conduct in question, or a course of conduct of which it forms part, is for or on behalf of the foreign power, the defendant must also either actually know or should know that to be the case.
The hon. Member cited the example of an NGO that receives funding from a foreign power. My and the Government’s interpretation is that there would have to be a link between the funding they receive and any activity that they carry out that could meet the offence for that activity to be for or on behalf of the foreign power. So the NGO would also have to know the conduct was linked to this funding, or they should know that it is. They should not be convicted of an offence unless that link was demonstrated beyond reasonable doubt in a court of law.
I want to be really clear. The foreign power condition, as a standalone concept, is not a statement of wrongdoing. So a person can meet the foreign power condition while carrying out wholly legitimate activities. It is an issue only if the foreign power condition is met in relation to harmful conduct specified in the Bill. In the case of a person who obtains or discloses protected information, the offence is designed so that a person would commit the offence only if they had a purpose prejudicial to the safety or interests of the UK and then either knew or ought reasonably to have known that they were acting for or on behalf of the foreign power in relation to that conduct. For example, they had an arrangement with the foreign power under which they would obtain or disclose that protected data, or they intended the foreign power to benefit from obtaining or disclosing of protected data.
So the foreign power condition would not cover a case where a foreign power incidentally benefits from activity. Nor has it been designed to apply in cases where a person receives general funding from a foreign power not linked to the relevant conduct. But clearly it is right that a person can be prosecuted for an offence where all the relevant conditions, including the foreign power condition, are satisfied and can be proven beyond reasonable doubt.
I hope the Committee is reassured that the intention behind our provisions and the hon. Member’s amendments align, but I recognise the importance of ensuring that the legislation clearly gives effect to that intention, and while I do not think the hon. Member’s amendments are the answer, I will consider further whether there is any more that we can do to ensure that this intention is properly reflected in the legislation.
Having set out the conditions under which acts in the Bill will be considered as linked to a foreign power, I now turn to clause 25, which gives meaning to the term “foreign power”. The Bill follows the Law Commission’s recommendation to replace the existing link of “an enemy”, as set out in the Official Secrets Act 1911, with a definition of a foreign power. As we have already debated, the concept of an enemy no longer serves to reflect the modern age. The change from “enemy” to “foreign power” is accompanied by a wider set of changes in the structure of the Bill, such as the foreign power condition itself, which ensures that the Bill’s provisions are appropriately targeted at the harmful activity that we need to combat.
It is important that the legislation captures the various components of a state that could seek to influence or direct harmful activities in or against the UK. As such, a foreign power will include a Head of State acting in his or her public capacity, a foreign Government or parts of the Government, or person exercising such functions, a local government organisation, an agency or authority of a foreign government, part of Government or local government, and a political party that is a governing political party of a foreign Government.
Clause 24, and indeed the Bill as a whole, recognises and respects the unique circumstances and nature of politics in Northern Ireland. Accordingly, clause 25 excludes a political party that is both a governing political party in the Republic of Ireland and a political party registered in Great Britain or Northern Ireland from the definition of a “foreign power”. This reflects the fact that there are political parties that contest elections in the Republic of Ireland and in the United Kingdom, and ensures that the provisions in the Bill do not inadvertently impact cross-border politics. The foreign power definition provides the parameters within which persons and bodies will comprise a foreign power for the purposes of the Bill and is a critical part of ensuring that the provisions in the Bill address the right harmful activity.
Stuart C. McDonald
I am grateful to the Minister for setting that out. It is particularly helpful to hear his views on the NGO scenario and his explanation of the requirement for some sort of link between the financial arrangements and the specific conduct being complained of. The reason for tabling the amendment is that we did not think that that was necessarily clear enough on the face of the Bill. We will give further thought to whether this aspect needs to be tidied up, so that it is absolutely clear, and I am grateful for his undertaking to look at that as well. I will have to work through some of the other scenarios as well, but it has been helpful to get quite a lot of that on the record. We shall give it some further thought, but in the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 24 and 25 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
National Security Bill (Seventh sitting)
Tuesday 19th July 2022
(2 years, 4 months ago)
Public Bill CommitteesRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 July 2022 - (19 Jul 2022)
Mr Kevan Jones (North Durham) (Lab)
On a point of order, Mr Gray. I wrote to Mr Speaker about new clause 6, which was tabled in my name, to ask whether it was in order. I understand that that the decision was then passed to you and Ms Ali, the Chairs of the Committee. Have you have contemplated the new clause, is it in order, and will it be discussed later?
The Chair
I am most grateful to the right hon. Gentleman for his point of order. He is right: his new clause has been received and we have been contemplating the matter for some time. The question is whether the subject of new clause 6 is in scope, and learned authorities have different views on that. Some, including the previous Lord Chancellor, believe that it is in scope, while others believe that it is not.
Mr Speaker ruled that it is for my co-Chair—the hon. Member for Bethnal Green and Bow—and I to decide. We have taken the view that we are not legal experts and are therefore unable to judge correctly whether the new clause is in scope, but that the business of this place is to debate things rather than to stifle debate, so without commenting on whether the matter is in scope, we believe that it should be debated. If the Government do not like it, they can vote it down in Committee or at a later stage, but deciding that the clause is out of scope would be beyond our pay grade. We have taken the view that the new clause will indeed be in scope and that we can debate the public interest defence.
The Chair
Amendment 48 to clause 27 was debated earlier on, but I understand that its proposer does not wish to press the amendment to a vote. Is that right?
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
indicated assent.
Stuart C. McDonald
I do not intend to detain the Committee long on this interpretation clause, but I think it might contain a typo, because it states:
“‘foreign power threat activity’ and ‘involvement’, in relation to such activity, have the meaning given by section 27”.
This will be section 27, so that is rather circular. I think it should read “the meaning given by section 26”, because clause 26 defines “foreign power threat activity” and “involvement”. I just wanted to point out that possible typo, which the Minister may want to consider.
The Chair
I am sure that the Minister, the Clerks and I are most grateful for that point. I certainly cannot answer it immediately, and the Minister does not look as if he is going to—
The Minister for Security (Stephen McPartland)
I am grateful to the hon. Gentleman for pointing out that typo. That is very important to us all, and I will carry on talking while I wait for some information. I think that is an important point. As we know, the Bill is evolving and will continue to evolve. We will ensure that any potential errors are corrected throughout its passage. It does look as though it should say “section 26”, so we will definitely fix that.
Stephen McPartland
I am grateful to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for his eagle eyes.
The Chair
The learned Clerk also agrees that it should read “section 26”. We are most grateful to the hon. Gentleman for pointing that out.
Question put and agreed to.
Clause 27 accordingly ordered to stand part of the Bill.
Clause 28
Offences by bodies corporate etc
Question proposed, That the clause stand part of the Bill.
Holly Lynch (Halifax) (Lab)
Clause 28 deals with offences committed by bodies corporate. It is a significant clause. I imagine that this legislative area will continue to need to evolve as threats continue to emerge. The clause asserts that where a corporate body commits an offence under part 1 of the Bill
“the officer, as well as the body, is guilty of the offence”.
Finding the right balance here will not be straightforward, but this will become a key battleground, as the Government acknowledged with the National Security and Investment Act 2021.
In its report, the Law Commission outlined that classified evidence, which it was considering, could be explained using the following hypothetical example. P, an IT services company headquartered in a foreign state, has a managed services contract for a large Department. As part of that contract, P creates back-ups in the UK of the Department’s corporate email and file storage system. P is compelled under the foreign state’s national security legislation to share that information with the foreign state’s intelligence services, which use it to target UK interests. Worryingly, that will not be an uncommon scenario; we see such examples regularly in the UK press, and a range of stakeholders need to be alive to the risks. I am afraid to say that the Government have been too slow to respond.
In December 2020, the US Department of Homeland Security issued a data security business advisory, which
“describes the data-related risks American businesses face as a result of the actions of the People’s Republic of China (PRC) and outlines steps that businesses can take to mitigate these risks. Businesses expose themselves and their customers to heightened risk when they share sensitive data with firms located in the PRC, or use equipment and software developed by firms with an ownership nexus in the PRC, as well as with firms that have PRC citizens in key leadership and security-focused roles…Due to PRC legal regimes and known PRC data collection practices, this is particularly true for data service providers and data infrastructure.”
The advisory was issued as a result of several new laws passed in China in recent years—not least the national intelligence law of 2017, which compels all PRC firms and entities to support, assist and co-operate with PRC intelligence services, creating a legal obligation for those entities to turn over data collected abroad and domestically to the PRC.
A UK employee working for a Chinese company will need really robust legislative support in pushing back against the obligations placed upon Chinese businesses by those new laws under the Chinese Communist party. For that reason, we welcome clause 28, and believe that the provisions are sufficiently broad to include anyone in a company who may commit an offence under part 1 of the Bill, and to provide clarity in this space, with a need to consider employees who stand to find themselves in a difficult position due to the Chinese legislative framework.
Subsection (5) will allow the Secretary of State to make regulations to improve the clause through secondary legislation. I have said that I recognise that legislation will need to be dynamic if it is to be effective, but any such regulations should be laid under the affirmative procedure, and must be debated and actively approved by both Houses of Parliament. I hope the Minister will confirm that that will be the case.
Stephen McPartland
The clause provides that where a body commits an offence under part 1 of the Bill
“the officer, as well as the body, is guilty of the offence”
if it is attributable to the officer’s consent, connivance or neglect. The provision is based on a similar one in the Official Secrets Act 1911. For example, where a body commits an espionage offence of obtaining protected information under the direct guidance of the head of the body, both the body and its head would be guilty of the offence. Clause 28 mirrors the provisions found in section 36 in part 3 of the National Security and Investment Act 2021, which makes suitable provision for when an offence under that part is committed by a body corporate.
It is worth noting that in a similar provision in the 1911 Act, a director would automatically be held liable unless they could prove that they did not consent or were unaware. Rightly, the provisions move beyond that burden of proof: the prosecution must now demonstrate beyond reasonable doubt that an officer was culpable in such a case, which provides more safeguards. This is therefore an important provision to ensure that both companies and relevant officers can be held liable for their involvement in state threat activity, and that where there is wrongdoing on the part of an officer of the company that officer can be appropriately prosecuted for the offences.
For an officer to be held liable, they must consent or connive to the act or be negligent in relation to it, which is a higher bar than simply being unaware of the act, as the prosecution would need to demonstrate not just a lack of awareness but that, in being unaware, the person was failing to properly discharge their duties. The clause goes on to define a number of terms, such as a “body” and an “officer of a body”, and it provides that the Secretary of State may make regulations to modify the section in relation to
“its application to a body corporate or unincorporated association formed or recognised under the law of a country or territory outside the United Kingdom.”
That may be required as a result of differences in the nature of bodies corporate, their structures or their terminology under the laws of foreign jurisdictions. This ensures that bodies corporate outside the UK that commit offences under part 1 of the Bill can still be caught under these offences.
I will refer to the example given by the hon. Member for Halifax. We have tried throughout the Bill to demonstrate that the offence will be based on an individual acting directly or indirectly on behalf of a foreign power, and on whether they should reasonably know that that behaviour is on behalf of a foreign power. I understand her point about foreign-owned companies, but the Bill does not say that whole companies are acting on behalf of a foreign power. As she rightly says, there will be a whole range of UK individuals engaged in completely legitimate activity within the UK, and we do not want to give employees of those companies any problems.
The regulations will involve technical, rather than substantial, changes, so they will not widen the scope whatsoever. That is why they will be made under the negative procedure.
Question put and agreed to.
Clause 28 accordingly ordered to stand part of the Bill.
Clause 29 ordered to stand part of the Bill.
Clause 30
Consents to prosecutions
Stuart C. McDonald
I beg to move amendment 63, in clause 30, page 23, line 16, at end insert—
“(c) in Scotland, only with the consent of the Lord Advocate.”
This amendment would require the consent of the Lord Advocate to prosecute certain offences.
Stuart C. McDonald
Clause 30 puts in place one of the protections that the Minister has referred to a few times, including when we were debating the offences of disclosure and the breadth of the foreign power condition. The protection in question is the requirement of consent to certain prosecutions, with that consent coming from the Attorney General in England and Wales, and from the Advocate General in Northern Ireland.
Our amendment 63 simply asks why there is no equivalent requirement of consent from the Lord Advocate for prosecutions in Scotland. It might be a conscious choice—if so, it would be useful to hear what the thinking is behind that. It could also be another mistake, because I notice that section 8 of the 1911 Act requires consent to prosecution, but only the Attorney General is mentioned. Section 12, which provides an interpretation, states that the expression “Attorney General” is taken “as respects Scotland” to mean the Lord Advocate, and “as respects Ireland” to mean the Advocate General for Northern Ireland. That is a slightly dated way of doing things, because if we mean the Lord Advocate, we should say that.
On the clause itself, I have absolutely no objection to the idea that consent for prosecution is an appropriate step. As I say, our amendment simply asks what the provision is in relation to Scotland.
Stephen McPartland
Let me quickly answer those points. Clause 30 provides that the consent of the Attorney General is required in England and Wales, and that the consent of the Advocate General is required in Northern Ireland. I understand that the Lord Advocate is not included because the Lord Advocate has a constitutional role as the head of the criminal prosecution system under the Criminal Procedures (Scotland) Act 1995, and all prosecutions on indictment are taken by, or on behalf of, the Lord Advocate. It is technically not necessary to include the Lord Advocate, because all offences in relation to Scotland are prosecuted by the Lord Advocate under Scots law, so I ask the hon. Gentleman to withdraw the amendment.
Stuart C. McDonald
Very educational; I have learned something new. I am grateful to the Minister for his explanation, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 30 ordered to stand part of the Bill.
Clause 31
Power to exclude the public from proceedings
Question proposed, That the clause stand part of the Bill.
Holly Lynch
I wish only to add that I imagine we would all agree that transparency in this legislative area should be the default, especially given the need to raise awareness of the challenges we face as a country and the individual responsibilities that we all share in combating those challenges with the arrival of these new offences. That said, it is of course right that clause 31 provides power to the court to exclude the public from any part of proceedings or offences under part 1, or for proceedings relating to the aggravation of sentencing, or other offences where the foreign power condition applies, should the evidence being considered deem it to be in the interests of national security to do so.
Stephen McPartland
As the hon. Member said, clause 31 provides those protections. It builds on the Official Secrets Act 1920, which gives the court the power to exclude the public from any proceedings if the publication of any evidence to be given would be prejudicial to national security. However, the passing of the sentence must still take place in public.
One important point is that the decision to exclude the public will be made by the court, not the prosecution. It is also important to reiterate that the power does not grant the use of closed-material proceedings. Therefore, as is the precedent in our criminal justice system, the defendant and their legal team will have access to all the evidence, as they would in other criminal proceedings.
I will end by reassuring the Committee that the clause is not meant to limit the transparency of our justice system or the independence of the judiciary, but to ensure that—only where necessary—the courts themselves have the power to protect the United Kingdom’s national security.
Question put and agreed to.
Clause 31 accordingly ordered to stand part of the Bill.
Clause 32
Power to impose prevention and investigation measures
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 57, in schedule 4, page 111, line 1, leave out paragraph 12.
This amendment would remove the power to require participation in polygraph sessions.
That schedule 4 be the Fourth schedule to the Bill.
Holly Lynch
Clause 32 is the first clause of part 2, and introduces the state threat prevention and investigation measures, or STPIMs, replicating the terrorism prevention and investigation measures, or TPIMs, framework, which is already in existence. Like TPIMs, STPIMs impose significant restrictions on a person’s freedoms without that being the consequence of a crime having been committed and tried before the courts.
Schedule 4 sets out a list of the types of measures that may be imposed on an individual under this part. The Secretary of State may impose any or all the measures that he or she reasonably considers necessary, for purposes connected with preventing or restricting the individual’s involvement in foreign power threat activity.
Taken cumulatively, the measures will restrict the freedoms of the STPIM subject in a way that is normally possible only during criminal or immigration proceedings, or restrictions under the Mental Health Act 1983. Inevitably, we are looking for assurances that measures of this kind are necessary and effective, especially as the threshold for applying an STPIM is naturally lower than the threshold for a criminal conviction.
In considering the balance, we have looked to the efficacy of TPIMs as a starting point, and at the invaluable work of the independent reviewer of terrorism legislation, Jonathan Hall QC, who provides an ongoing assessment in his annual review. According to the latest independent annual review of terrorism legislation, between the Terrorism Prevention and Investigation Measures Act 2011 receiving Royal Assent and 31 December 2020, only 24 individuals were served with a TPIM notice. That would suggest that they are not used often.
In 2020, all but one of the TPIMs in force were against members of the proscribed terrorist network ALM—al-Muhajiroun. The report makes clear that ALM’s direct or indirect impact on UK terrorism includes the 2013 murder of Fusilier Lee Rigby, the 2017 London Bridge Attack and the 2019 Fishmongers’ Hall attack. That underlines the severity and level of risk that those measures are seeking to manage and suppress, when considering the terrorism equivalent.
Jonathan Hall was asked whether he thought the STPIMs might be used more readily that TPIMS when he gave evidence in the Committee’s first session. He said,
“if the regime operates as it is intended to, because the Bill replicates the obligation for the Secretary of State to consider whether it is possible to prosecute in the first place. I do not think in practice that they will become a measure of first resort, just because they are so resource-intensive and complicated.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 10, Q16.]
When asked about the efficacy of STPIMs, he said,
“I expect that they will be effective because the agencies and the Home Secretary will only think about imposing one when they think it is going to work.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 6, Q6.]
We are reassured by Jonathan Hall’s contributions in that first session of the Committee. We will revisit some of his other comments in debates on other clauses, particularly around oversight in clause 49 and the ongoing review process under clause 40.
Sally-Ann Hart (Hastings and Rye) (Con)
There have been several reviews of polygraph accuracy, and they are accurate about 80% to 90% of the time. Although they are far from foolproof, they can detect lies, thoughts and intentions to deceive. They are already used in the UK for probation purposes, and their use can encourage people to tell the truth. Along with the other measures in the Bill, they will have their use.
Stuart C. McDonald
As the shadow Minister, the hon. Member for Halifax, set out, clause 32 introduces the power to impose STPIMs on an individual via a part 2 notice, and schedule 4 sets out the types of measure that can be imposed.
As I argued on Second Reading, none of us should ever feel comfortable about curtailing people’s liberties via administrative civil orders rather than as punishment for crimes that have been proven through trials. None the less, we acknowledge that such prevention and investigation measures are a necessary and useful part of combating terrorism, and our position on TPIMs has been to focus on trying to clip their wings, improve oversight and limit their invasiveness, rather than to oppose their use altogether.
We think that the balance of evidence shows a similar case for STPIMs. However, we should again be careful in our scrutiny of them, and not permit interference in people’s liberties without proper justification and appropriate limits and oversight. We welcome, for example, that the residence measures in paragraph 1 to schedule 4, which are among the most restrictive measures set out in that schedule, apply only to individuals who are thought to be involved in the most immediately serious activity. Some of the measures are broad, but they seem to be curtailed and properly restricted by the provisions in clause 33—which we will discuss shortly—ensuring that they cannot go beyond what is necessary, although we have some concerns about the various tests that the Secretary of State has to require before applying the measures.
As the Committee has heard, amendment 57 would take out paragraph 12 of schedule 4, on the use of polygraph tests as a means of assessing compliance. Our view is that as polygraph tests remain too unreliable and lack an evidence base, they are inappropriate tools for measuring compliance with STPIMs, especially in the light of the all the other means at the Secretary of State’s disposal, including the monitoring measures in paragraph 15 of schedule 4, as well as the full range of investigatory powers that the services have at their disposal. It is hard to see what paragraph 12 will add. As the shadow Minister said, polygraph tests are not currently used at all.
If there is a case for the use of polygraph tests and the Minister is keen to retain the power to impose such a condition, I ask him to consider removing their applicability in Scotland. There is a precedent for that: polygraphs were introduced for TPIMS in the Counter-Terrorism and Sentencing Act 2021, but during the Act’s passage, the Scottish Government indicated that they would not promote a legislative consent motion for polygraphs on the basis that, because polygraph testing is not currently used at all in the criminal justice system in Scotland, the fundamental change of introducing them should be a matter of principle to be determined by the Scottish Parliament.
The SNP welcomed the decision by the then Justice Secretary, the right hon. and learned Member for South Swindon (Sir Robert Buckland), who is now the Secretary of State for Wales, to remove the provisions on polygraphs that applied to Scotland. Following that concession, a legislative consent motion was eventually approved at Holyrood. If I recall correctly, the Northern Ireland Executive expressed similar concerns. We see no case for polygraphs, but we assume that the Minister does, and if he wishes to retain their inclusion in the Bill, we respectfully ask that he take the same approach as his right hon. and learned Friend by not applying the provisions to Scotland.
Mr Jones
I support the measures because they are an extra weapon in the armoury to fight against hostile state intervention in this country. Clearly, the arguments about the level to which the restrictions will be imposed are very complex. There will be cases in which the prosecution test will not be met but we still have evidence about individuals.
My only problem with the measures is in relation to how they will be used practically. As we all know, TPIMs have not exactly been uncontroversial in their prosecution. Will the Minister give us an understanding of how they will be used and in what circumstances? If the evidence is there—and I accept that sometimes that will be difficult, in the sense that a lot of evidence against individuals will be unable to be put in the public domain—when will the measures be used, and for what duration? That would give people some assurance that they will not be used for lengthy periods against individuals. I accept that in a number of cases the evidential test for prosecution will not be met, and therefore the measures may well be a useful tool in the armoury, but we need some oversight of how they will be used and their effectiveness.
On polygraphs, I have some sympathy with the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. Interestingly, the hon. Member for Hastings and Rye seems to be answering for the Minister; I do not know whether she is auditioning for the job, but I thought it was the Minister who replied to such things.
I think the jury is out, not just in this country but internationally, on the effectiveness of polygraphs. If we are to ensure that they will not be challenged legally, we could put something in the Bill. I am not suggesting for one minute that polygraphs be used on every occasion, but if one is used in a case that is then thrown out because of the unsafeness of the test, that would unfortunately weaken the tool. The Minister has to justify it. As I say, I would be interested to know about the oversight, and how long he envisages their being used.
Stewart Hosie (Dundee East) (SNP)
It is a pleasure to serve under your chairmanship, Mr Gray. I have a question on paragraph 8 to schedule 4, entitled “Electronic communication device measure”. It is eminently sensible, when one is considering how an STPIM might be constructed, that one looks at all the restrictions that that may involve. However, when we get to sub-paragraph (6)(c), which refers not to computers or telephones but to other equipment
“designed or adapted, or capable of being adapted, for the purpose of connecting to the internet,”
I want to ensure that there is clarity, and that the provision will be defined in a cogent way.
As we move further into the internet of things, one’s fridge or toaster will be designed for the purpose of connecting to the internet. That might sound glib or flippant, but we may get to the point when half the white goods in any individual’s home are internet enabled. Given that there could be huge sensitivities in the deployment of STPIMs, the last thing that we want to see is a police constable or bailiff removing half the items from someone’s house, when that clearly is not the intention but those items nevertheless fit the category in paragraph 8(6)(c).
Stephen McPartland
I am grateful for Members’ contributions and look forward to trying to answer as many of the questions as I can. I will start with the clause and then come to the amendment and some of the questions.
Part 2 and clause 32 mirror the Terrorism Prevention and Investigation Measures Act 2011—TPIM—and allow the Secretary of State to impose by notice
“specified prevention and investigation measures on an individual”
if specific conditions are met; I will refer to them as STPIMs going forward. The STPIMs mirror the equivalent counter-terrorism measures: well-established tools that have been in use for over 10 years and have been subject to vigorous examination by the courts, including with regard to European convention on human rights compliance. The courts have never found that a TPIM in its entirety should not have been imposed, or that any of the provisions of the TPIM legislative framework are not ECHR compliant. That should give us all reassurance, and give Parliament confidence that the measures will be applied sparingly and only where necessary and proportionate.
I will not go through the exhaustive list, but the Government have publicly committed to provide operational partners with the tools that they need to combat state threats. To be very clear, STPIMs are a tool of last resort; the Government’s preference is to prosecute under any means possible first and foremost, and STPIMs are to be used only when all else has failed and no other options are available to us. I hope that that provides some reassurance as well.
Holly Lynch
I was reassured by some of the detail in these clauses about that point, but the impact assessment from the Home Office says:
“It is assumed that the prosecution rate of state threats investigations is 33 per cent. This is an internal estimate from CPS, based on prosecution of previous OSA 1911-1939 cases.”
Based on where we envisage we might have challenges in securing prosecutions, I wonder whether STPIMs are also for the other side of a prosecution, as well as for when we cannot secure prosecution and get there in the first place.
Stephen McPartland
I am grateful to the hon. Lady for that point. I understand that our responsibility is to scrutinise the legislation to make sure that, as the hon. Member for Dundee East made clear, we do not open up a can of worms that can lead to greater and greater unintended consequences, but the reality is that the provision is to be a last resort.
If we are talking practically, counter-terrorism police are responsible for enforcing STPIMs. The amount of resources required to enforce and monitor a TPIM or STPIM is so great and so large that, as Members can imagine, it is not something that any of the agencies or anybody in Government wants to do, so it is not something that we will look to push. First and foremost, this is about prosecution by any means possible.
To give some kind of hope and clarity, I would like to make the point that the number of TPIMS currently in use is less than four. The number of TPIMs that have been used throughout the 10 years of their existence is less than the clause number that we started on today. I hope that gives some reassurance on how limited the measures will be, and on how few occasions they will be used.
We have been looking at the specific time limit, and we are including a specific condition to have a maximum of five years for the duration of an STPIM. Again, that is to mirror what is in the TPIM legislation. Additionally, subsection (4) requires the Secretary of State to publish factors that she considers are appropriate to take into account when deciding whether to restrict a person’s movement in the UK—for example, ensuring that they have access to appropriate medical facilities.
Part 1 to schedule 4 sets out 16 measures. Right hon. and hon. Members will know there are 17 measures in TPIM legislation for differences around drug testing, but we do not believe that is applicable in this case. The measures have to be tailored to the specific threat that an individual poses.
I want to touch on the polygraph measure, as it has been raised by a number of colleagues. It is designed to allow the Secretary of State to require an individual to take a polygraph test at a specific date, time and location. The purpose of the measure is to assist operational partners to assess whether an individual is complying with the other measures under their STPIM. The outcome of the session may be used to make changes to the individual’s suite of measures—for example, removing or adding specific measures to prevent or restrict their involvement in state threat activity. Again, this measure is expected to be used exceedingly rarely.
Let me reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that the polygraph session cannot under any circumstances be used to gather evidence for a future prosecution. I am stating on the record that polygraph measures cannot be used to gather evidence for a future prosecution, and I hope that that provides reassurance.
Stephen McPartland
Under the way the law system works, that might provide some kind of information, but it will not be used as evidence. The operational partners would then have to go off and identify the evidence in order to find out how they could do that, because breaching a notice is a criminal offence, so they would need the evidence in order to then go to court to demonstrate that.
Mr Jones
I understand what the Minister is saying, but I have a real problem with this; I think the Government are opening up an argument for lawyers who want to defend people. Obviously, if somebody is prosecuted for breaking an STPIM, then in discovery, the lawyer is going to ask, “Was a polygraph test done? Does the individual know they have done it?” I am worried about putting this in, because there is a controversy about polygraphs allowing the defence an opportunity to undermine the process. I understand why the Bill is belt and braces, but I am not sure that this part of it is going to be helpful.
Stephen McPartland
I am grateful to the right hon. Member for his point, and I understand it, but polygraph measures are currently used in the management of sex offenders in this country, and the Bill will operate very much on the same principles. He should remember that in this legislation we are not trying to create new bits and pieces for controlling an individual; operational partners have found these tools effective over the past 10 years, so we are trying to mirror what is already out there. That is the purpose of the legislation.
The hon. Member for Halifax asked about foreign nationals. Our ambition is to prosecute using any means possible, including deportation, so if that is not available, we would look to use one of the measures in the Bill. Because we would look at deportation and everything else as an option, we would expect the measures in the Bill to apply more to British citizens than they would to foreign nationals. As I have stated, counter-terrorism police are responsible for looking after and enforcing the measures. We talked about the number of TPIMs; I am not allowed to give the exact figure, but I have given an indication of how rarely they are used. We imagine that STPIMs will also be used very rarely.
On the right hon. Member for Dundee East’s point about the internet of things and trying to future-proof the legislation, under paragraph 8 of schedule 4 we can restrict access to electronic devices, and as such restrict access to electronic currencies. We talk about cryptocurrency, but cryptocurrency is already becoming a bit old-fashioned. Before I took on this role, I launched an all-party parliamentary group on digital currency and potential bearer currencies run by central banks; cryptocurrency is already becoming something of the past and we are now moving on to bearer currencies managed by digital banks. It is about safeguarding and future-proofing, and under paragraph 6 we can restrict the transfer of property, so we could restrict a transfer of funds in that way.
Stewart Hosie
Before the Minister moves on, can I add to the point that the right hon. Member for North Durham made about polygraph tests? The Minister said that polygraph tests will not be used to secure a criminal conviction; that is true but, as he said, the STPIMs are measures of last resort in lieu of a conviction if it is not possible to secure one. The polygraph measures in paragraph 12(1)(a)(ii) of schedule 4 refer to
“assessing whether any variation of the specified measures is necessary for purposes connected with preventing or restricting the individual’s involvement in foreign power threat activity”.
A STPIM is not a criminal conviction, then, but it is in lieu of a criminal conviction; therefore, the Minister cannot be right when he says the polygraph test would not be used to do something, because it could well be used to vary the conditions and possibly to toughen the STPIM—
Stewart Hosie
I just wonder if the Minister could go a bit further on that point.
Stephen McPartland
I am grateful to the right hon. Member for highlighting that point; I very much enjoy the suggestions that are made in this Committee. I understand the points he is making, and one of the things I have tried to demonstrate throughout the Bill Committee is my willingness to listen and try to work cross-party to get the legislation through.
Stephen McPartland
I am always willing to write to the Committee, as the right hon. Member knows. I am happy to go away, think about this issue and then write to the Committee, so that I can put in writing the safeguard that I do not want a polygraph test to be able to lead to future prosecutions. I think that would work.
Holly Lynch
Before the Minister moved to the polygraph point, he was talking about cryptocurrencies and said that they are already quite a dated concept; however, my proposal is that we add cryptocurrencies to the list, in paragraph 5 on financial service measures, that includes postal orders, cheques and bankers’ drafts. With that in mind, it might be worth making an explicit reference in that list to whatever form of digital currency or cryptocurrency, given that we know it is a focus for hostile state activity.
Stephen McPartland
The hon. Lady makes a very good point. As she knows, I am always prepared to improve legislation so that we are happy with it on a cross-party basis, it goes through the House and we can support our intelligence communities. I am very happy to look at that issue. I did not even know we could still get postal orders and bankers’ drafts.
Let me give some examples of how STPIMs could be used, specifically for the right hon. Member for North Durham—I know that he would like that. If a British national were recruiting, talent spotting and reporting for a foreign intelligence service, and the evidence to prove the foreign power links was too sensitive to be used in court, meaning that a prosecution was not viable, an STPIM that might prevent harm could include a financial order, to prevent the person from accessing funds from the foreign intelligence service; a restriction on contact or association with individuals, to prevent the person from being debriefed by the foreign intelligence service handler; and electronic communications device measures, to ensure full coverage of devices used by the subject. That is one example of how an STPIM could be used.
Another example relates to a British national working in one of our defence companies, and would prevent sensitive technology transfer. Suppose a disgruntled British national employee of an advanced technology company is seeking to market specialised, valuable and unclassified knowledge to foreign companies. The investigation and disruptive conversation means that the individual is moved to less sensitive work and their company computer access is restricted, but they cannot be dismissed. They remain disgruntled, but prosecution is not viable. In that case, we could disrupt travel to prevent an individual from meeting foreign representatives abroad, so that they could not pass the secrets over to them, and we could restrict contact and association with individuals in the UK for the same purposes.
This example relating to the intimidation of dissidents is particularly important. Suppose a senior member of, for example, a cultural organisation from a foreign Government based in the UK is seeking to exert pressure on dissident diaspora through intimidation, harassment and damaging rumours. The individual cannot be expelled or deported, so victims are afraid to make criminal complaints for fear of recrimination in their home country. The STPIM could be imposed, because prosecution is not viable—the victim will not testify or make a statement. We could put measures in place to prevent an individual from associating with the victim or members of their family. We could prevent serious violence by ordering the subject to relocate to an alternative area in the UK. The STPIM could be justified in closed court proceedings, because it would prevent any identification of the victim. I hope the right hon. Member for North Durham enjoyed those examples.
Mr Jones
I did, actually—I am very grateful to the Minister. He has set my mind running in terms of the possible uses of the measures. There is open-source evidence of the intimidation of protesters against the Chinese Government at universities, for example, by Chinese nationals here in the UK. Proving that those individuals were working directly for the Chinese Communist party or a people’s front, for example, is difficult. Could the Minister envisage the measures being used to prevent that type of harassment, by individuals who are intimidating or trying to close down legitimate protest against the Chinese Communist party, of legitimate protesters on university campuses?
Stephen McPartland
I can genuinely understand and imagine a pathway in which that could be the case. However, as I say, because of the huge amount of resources involved in an STPIM, we will try any other means possible, through normal criminal procedures, to prosecute individuals for harassment under normal criminal law. We will be doing everything we can to not actually use an STPIM. We want to prosecute these people. The Government’s first line is prosecution, and the last resort is an STPIM, when there is no other option available to us.
I will also ensure that we add crypto to the list one way or another, but I have to work out how we define it.
Question put and agreed to.
Clause 32 accordingly ordered to stand part of the Bill.
Schedule 4 agreed to.
Clause 33
Conditions A to E
Stuart C. McDonald
I beg to move amendment 55, in clause 33, page 24, line 6, leave out “reasonably believes” and replace with
“believes on the balance of probabilities”.
This amendment would apply the civil standard of proof in relation to the decision to impose Prevention and Investigation Measures.
Stuart C. McDonald
Clause 33 sets out the conditions that must be met before a part 2 notice, or an STPIM, can be made. In short, the individual must have been involved in new foreign power threat activity so that the measures imposed by the Secretary of State are necessary, and generally a court then has to give permission.
Amendment 55 revives an earlier argument about the standard of proof that the Secretary of State must apply when assessing whether someone has been involved in activity that requires a prevention and investigation measure. The relevant standard in relation to TPIMs has varied over the years. When TPIMs were first introduced, the requirement was “reasonable grounds for suspecting”, but that was then lifted to “the balance of probabilities”. When the Counter-Terrorism and Sentencing Act 2021 was introduced, the Government sought to take it back down to “reasonable grounds for suspecting”. However, during the passage of that Bill, a compromise was reached in the House of Lords and the test was set at “reasonably believes”. My understanding at the time was that the compromise set a standard not as low as “reasonable suspicion” but not as robust as “the balance of probabilities”, and we took the view that the probabilities test operated perfectly well.
Indeed, Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation, told the Counter-Terrorism and Sentencing Public Bill Committee:
“If it is right that the current standard of proof is usable and fair, and I think it is, in a word, if it ain’t broke, why fix it?” ––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 7, Q6.]
At that stage, he was happy with “the balance of probabilities”, and not the Government’s original intention to restore the “reasonable suspicion” test. That said, those who accepted that amendment in the House of Lords suggested that the difference between “reasonably believes” and “the balance of probabilities” would be fine, and I acknowledge that far greater legal minds than mine were content with that compromise. Of course, Mr Hall’s clear evidence to this Committee was, slightly to my surprise, that to all intents and purposes the balance of probabilities is the same thing as reasonable belief.
Essentially, this comes down to two questions. First, why not just use the tried and tested terminology of “the balance of probabilities” if it is the same thing as reasonable belief? Secondly, does the Minister agree that basically the two tests are the same? I suppose that is the most important question to ask the Minister arising from this amendment.
Holly Lynch
I will keep my remarks brief. Conditions A to E, set out in subsections (1) to (5), provide a clear framework that the Secretary of State must work within, with conditions that would then be tested by the court. I listened carefully to my friend the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. His amendment probes whether clause 33 should apply the civil standards of proof in relation to the decision to impose prevention and investigation measures, by proposing that “reasonably believes” be replaced with
“believes on the balance of probabilities”.
In considering that, as the hon. Member said, we look to Jonathan Hall’s evidence in this Committee’s first sitting, and then to the Terrorism Prevention and Investigation Measures Act 2011, and we can see that the wording has pretty much been copied verbatim to this Bill.
With that in mind, and given Mr Hall’s assessment that the measures have not been overused, the lower numbers subject to TPIMs and the reality of just how resource intensive they are, I am satisfied that “reasonably believes” is justifiable, but I look forward to hearing the Minister’s response to the points raised by the SNP spokesperson.
Stephen McPartland
Clause 33 mirrors TPIMs, in that it specifies the conditions that must be met in order for the Secretary of State to impose prevention and investigation measures on an individual under an STPIM. Condition A is that the Secretary of State must reasonably believe that the individual is or has been involved in foreign power threat activity. Condition B is that some or all of the foreign power threat activity is new. That ensures that when a notice has expired after the five-year limit provided by clause 34, a further notice may be imposed only where the individual has re-engaged in further foreign powers threat activity since the start of the five-year period.
Conditions C and D outline the two limbs of the necessity test for imposing the measures, so the Secretary of State must reasonably consider, first, that the notice is necessary for protecting the UK from the risk of foreign power threat activity, and secondly, that it is necessary to prevent or restrict the individual’s involvement in foreign power threat activity by imposing the specific measures.
Those two conditions provide an important safeguard that makes it clear not only that must it be necessary in general terms to impose measures on the individual, but that, in addition, each individual measure that is imposed must be necessary in its own right. Condition E requires the Secretary of State to have obtained the court’s permission before imposing measures on an individual. The function and powers of the court on such an application are set out in clause 35.
In urgent cases in which the Secretary of State considers that measures must be imposed immediately, the case must be referred to court for confirmation immediately after measures are imposed. In practice, we expect the emergency power to be used very rarely. The conditions are designed to ensure that STPIMs are used only where they are necessary and proportionate, and they cannot be imposed arbitrarily. There are also several stages at which the courts will be involved in the STPIM process, including granting permission before a notice may be served or confirming one that has been made in an urgent case. The automatic substantive review of the decision to impose the STPIM and all its obligations and a right of appeal against decisions taken in relation to the STPIM provide checks and balances to the decisions taken by the Secretary of State, so I encourage fellow members of the Committee to support the clause.
I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and the right hon. Member for Dundee East for tabling their amendment. It proposes amending one of the conditions for imposing an STPIM by changing the wording from the Secretary of State “reasonably believes” to
“believes on the balance of probabilities”.
I reassure the hon. Gentleman and the right hon. Gentleman that in the development of the measures consideration was given to the conditions that must be met in such cases. The Government consider reasonable belief of a person’s involvement in foreign power threat activity to be the appropriate test for STPIMs. Foreign state intelligence operatives are highly trained, sophisticated and equipped to obfuscate in relation to their activities and avoid Government security measures. Given that, it is important that the threshold is not too high.
Stuart C. McDonald
The Minister appears to be saying that the test is slightly different from the balance of probabilities, but from Jonathan Hall’s evidence, he seemed to think they were pretty much the same. I want to tease out whether the Minister thinks that this test is essentially the same as the balance of probabilities, but with a slightly different formulation, or is it a lower test?
Stephen McPartland
I am going to give in to the hon. Member and say I think that the standard of the balance of probabilities test is slightly higher than reasonable belief, but we are dealing with incredibly sophisticated actors who are very highly trained. In this country, reasonable belief is used throughout in relation to war, and we have gone with the reasonable belief definition because of the nature of the people we are dealing with, the nature of the threats to national security and the nature of state threats, but I accept the point the hon. Gentleman is making.
Stewart Hosie
If the Minister is saying that the “reasonably believes” test in conditions A, C and D is appropriate for the reasons he has just given, why is condition B so hard and fast? The Bill states:
“Condition B is that some or all of the foreign power threat activity in which the individual is or has been involved is new foreign power threat activity.”
There is no evidential test, such as the Secretary of State having a reasonable belief about some or all of the foreign power activity. What is the rationale for having the slightly reduced test in conditions A, C and D, but no test at all in condition B?
Stephen McPartland
As I am a kind and forgiving person, I will answer and say that we have condition B because, throughout the legislation, someone has to have engaged in activity on behalf or in support of a foreign power. That is one of the key tests throughout the Bill, the foreign power test. That is the reason for it.
My view is that “reasonable belief” strikes the right balance, and the threshold mirrors that of TPIMs, which have recently been amended by Parliament in the Counter-Terrorism and Sentencing Act 2021. I ask the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw the amendment.
Stuart C. McDonald
I am grateful to the Minister for answering the question. We will give that answer further thought before consideration on Report, but in the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33 ordered to stand part of the Bill.
Clause 34
Five year limit for Part 2 notices
Stuart C. McDonald
I beg to move amendment 56, in clause 34, page 25, line 12, leave out “four” and insert “two”.
This amendment would mean the Secretary of State could seek to extend a part 2 notice on two occasions rather than four.
Stuart C. McDonald
The clause allows part 2 notices, or STPIMs, to be extended by a year. Not only that but, as drafted, the clause allows for up to four further extensions, thus allowing an STPIM to be in place for five years, even if there has been no new foreign power threat activity.
As we know, these measures can place really significant restrictions on people’s liberty. The ability to extend TPIMs was controversial and only happened after they had been in place for a significant period. The views of the previous Independent Reviewer of Terrorism Legislation, Lord Carlile QC, have been summarised as:
“The TPIM Act 2011 was a balance between on the one hand enabling administrative controls to be imposed outside the criminal process for a significant period of time, and on the other hand ensuring that individuals were not controlled indefinitely on the basis of an assessment that they had once engaged in terrorism-related activity, unless there was evidence that they have done some further act.”
Indeed, the stated purpose of TPIMs when introduced by the 2011 Act was that they were
“targeted, temporary measures and not to be used ‘simply as a means of parking difficult cases indefinitely’”.
The case for and against lifting the two-year cap was considered in detail by another independent reviewer, Lord Anderson, in his report, “Terrorism Prevention and Investigation Measures in 2012”. He observed that it was tempting to wish for longer in the most serious cases, noting:
“The allegations against some subjects are at the highest end of seriousness”.
However, he concluded that the two-year limit was an “acceptable compromise” because, in summary,
“even 2 years was a serious length of time in the life of an individual, and TPIMs should not be allowed to become a shadow alternative to criminal prosecution with their lesser standard of proof…with the possibility of no serious thought being given to how the measures might come to an end.”
It is easy for the Government to say, “Let’s mirror the current TPIM time limit as it is now,” but why should we do that? Those time limits were extended to five years only after about a decade of use of TPIMs. Starting with a five-year time limit appears to be jumping off at the deep end. If we want to mirror TPIMs, we should start off with a much shorter time limit, as happened with TPIMs, and then if, over time, evidence shows that a longer limit is required, we can make that change. But it should be based on evidence about how the orders are operating in practice and not just on saying, “Let’s cut and paste the existing position with TPIMs.”
Holly Lynch
Kirkintilloch East. Thank you for that, Mr Gray—make sure that is in Hansard.
I thank the hon. Member for amendment 56. Clause 34 stipulates that a part 2 notice can remain in force for a limit of five years. There are a number of overlapping clauses in this part of the Bill, focusing on reviews and the ongoing considerations about the necessity of a TPIM. When we get to clauses 39 and 40, I will speak to the importance of the TPIM review group, which Jonathan Hall made very clear in his evidence is essential if we are to learn anything from the lessons of TPIMs. On clause 34, could the Minister confirm the due regard that the Secretary of State must have for other agencies and the review group when considering whether to extend a part 2 notice?
Stephen McPartland
I will start with the clause and then deal with the amendment. Clause 34 provides for when a STPIM notice comes into force, how long it will remain in force and how many times it can be extended. It sets a five-year limit in total. Once a notice has been imposed, it remains in force for one year. Unless renewed, it will expire after that time.
If the Secretary of State believes that conditions A, C and D, which we have just discussed, are met, it may be extended for a further year up to four times, taking the total to five years. A further STPIM notice cannot be imposed after this time unless new foreign power threat-related activity is uncovered. I would also like to make it clear that the notice is reviewed every quarter. Those measures ensure that STPIMs cannot be imposed indefinitely, and there are constant safeguards throughout their imposition.
The one-year period and the five-year limit balance the need to protect against threats to the UK from individuals, and allow further extensions to be granted if there continues to be evidence of the risk of involvement in foreign power threat activity. The provisions do not just look back, but recognise the important work that our security services and police would need to carry out both before and after a notice expires. I would therefore appreciate the Committee’s support for the clause.
Amendment 56 relates to the time limits placed on part 2 notices. Like hon. Members, the Government agree that it is important to ensure that individuals are not placed on STPIMs indefinitely. That is why we have included two important time-limit safeguards. The first is that STPIMs can be extended only after a year if the conditions on which they were imposed are still met. In particular, the approach we have taken contains a number of points where positive action is required to keep an STPIM in place. That important safeguard ensures that an STPIM cannot remain in force when it is no longer appropriate.
Secondly, STPIMs can be extended on only four occasions. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East asked why we had not opted for two occasions, mirroring the original TPIM legislation. That is because of evidence over the last decade from our operational partners about what they feel is appropriate and necessary. We are mirroring their experience with TPIM notices over the last decade, and we will work with them on STPIM notices.
The one-year period and the five-year limit balance the need to protect against further threats. Given the safeguards I have outlined, I ask the hon. Member to consider withdrawing his amendment.
Stuart C. McDonald
I am grateful to the Minister, because he did not just say, “Well, we’re just cutting and pasting from TPIMs.” He did provide an explanation of the thinking behind the five-year limit. I will take that away and give it further thought. In the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 34 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
National Security Bill (Eighth sitting)
Tuesday 19th July 2022
(2 years, 4 months ago)
Public Bill CommitteesRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 July 2022 - (19 Jul 2022)
The Chair
With this it will be convenient to consider the following:
Clause 36 stand part.
That schedule 5 be the Fifth schedule to the Bill.
Clause 37 stand part.
Clause 38 stand part.
Holly Lynch (Halifax) (Lab)
Clause 35 sets out the function and powers of the court on the application by the Secretary of State to obtain permission from the court before imposing measures on an individual, as required under condition E in clause 33(5).
Subsection (4) provides that the court may consider the Secretary of State’s application without the individual on whom the measures would be imposed being aware of the application or having the opportunity to make representations. That feels to be at odds with the rest of the justice system; however, given the nature of the risks we are attempting to manage and supress with the measures, the clarity in the explanatory note that this is
“to avoid a risk of the individual absconding”
is a sobering reality.
We welcome subsections (7), (8) and (9), which provide powers for the court in various scenarios. Clear tests are set out for the courts in subsection (3)(a), under which the court has to determine whether the Secretary of State’s decisions are “obviously flawed”. That standard is also used in schedule 5, under clause 36.
I sought a legal opinion about “obviously flawed” and, although there is a similar test in schedule 2 of the Counter-Terrorism and Security Act 2015, the sense from lawyers was that “obviously flawed” sets an unusual standard—for example, decision making might be found to be flawed only upon scrutiny, but not obviously so. Will the Minister clarify the standard? Is he in a position to confirm how many times the Secretary of State’s decisions have been deemed to be “obviously flawed”, so that we can consider any learning from that?
Clauses 37 and 38 provide for a directions hearing and a review hearing. Under clause 37(2), on giving the Secretary of State permission to impose measures the court must give directions for a directions hearing. According to subsection (3), those directions must not be served on the individual in a case in which permission has been granted until the part 2 notice has been served.
We will come to the importance of the ongoing review in clauses 39 and 40, which I expect will feed into the processes set out in clause 37. I am reassured that the operability of the whole of part 2 will be considered by an independent reviewer, as outlined in clause 49, in addition to the review hearing and the ongoing assessment of individual circumstances.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
As the shadow Minister says, these clauses put in place some important oversight and a scrutiny mechanism in relation to state threats prevention and investigation measures. On the whole, the oversight and scrutiny mechanisms appear to work, but I have some questions to put to the Minister for clarification.
First, to pick up on a point made by the shadow Minister, why is it the function of the court to determine whether the Secretary of State’s decision was “obviously flawed”? I was slightly surprised by that standard and not familiar with it at all. What is the difference between an “obviously flawed” decision and one that is merely “flawed”? Is not the simple requirement in clause 35(6) to apply judicial review principles in itself sufficient to let the court know what it is supposed to do?
Secondly, clause 35(4) allows the court to have its hearing on the Secretary of State’s application “in the absence of” the relevant individual and even without that person being notified of that happening. I can well understand that there will be some reasons why that may appear to be necessary, but the Bill does not provide any guidance at all to the courts as to when it would or would not be appropriate to proceed in that way. That struck me as quite a strange way to do things. It just says that the court may consider the application
“in the absence of the individual”,
without providing any guidance as to when that would be appropriate and the reasons the court should have for doing that.
That question is even more pertinent when the court hears an urgent case under schedule 5, which says that the Secretary of State must serve the part 2 notice on the individual and then, immediately after, refer the measures to the court. Given that the part 2 notice has been served on the individual and is enforced because of urgency, it seems strange that there would be justification for the court to consider the reference under the part 2 notice without the individual being present or even aware of the hearing. The individual will have been served the notice, so why does the hearing then need to proceed without them even being aware of it? Why would that power be necessary?
Finally, on the review hearing, clause 38(3) gives the court a broad power to simply
“discontinue the review hearing in any other circumstances.”
There is not much in the Bill that sets out why the court might want to do that and what factors would prompt a court to behave in that way. When is it envisaged that that would be necessary and why is there no more detail about that in the Bill?
The Minister for Security (Stephen McPartland)
I will respond to the questions as I go through my speech. I am always happy to take interventions.
Clause 35 mirrors the terrorism prevention and investigation measures and sets out the function and powers of the court on an application by the Secretary of State to obtain permission before imposing measures on an individual, as required under condition E of clause 33. The clause means that the court must apply judicial review principles and consider
“whether the relevant decisions of the Secretary of State are obviously flawed”.
The hon. Member for Halifax asked how many times decisions have been considered “obviously flawed” by the court and the answer is never; hopefully that gives some reassurance.
The Secretary of State will put the draft part 2 notice before the court. If the court considers that the decisions that conditions A, B or C are met were obviously flawed, it may not give permission to impose the notice. If the court considers that the decisions relating to condition D were obviously flawed, the court can give directions to the Secretary of State on the specific measures while otherwise permitting the notice to be imposed—again, there are more safeguards.
The court may assess the Secretary of State’s application without the potential subject of the measures being aware. That is important because, as the hon. Member for Halifax made clear, it prevents the individual from receiving notice that the measure could be imposed on them and obviously stops them running away and absconding.
Once the measures are imposed, the subject will of course have the right to an automatic full review by the High Court where the individual will be present and have legal representation. For any closed proceedings in the review hearing, there will be a special advocate to act in the subject’s interest. I have checked that the special advocate cost will be met by the Home Office for both parties. The review hearing is where the court will apply a high level of scrutiny to the Secretary of State’s decisions. The Government feel it is right that, rather than at the initial stage of obtaining court permission, the full scrutiny takes place at the second stage of court review, after the individual has had an opportunity to seek legal advice. We will come on to that in more detail.
Clause 36 gives effect to schedule 5, which makes provision for urgent cases in which the Secretary of State may, under clause 33(5)(b), impose measures on an individual without first obtaining the permission of the court. This provision has long-standing precedents: there are similar provisions relating to TPIMs in the Terrorism Prevention and Investigation Measures Act 2011 and to control orders in the Prevention of Terrorism Act 2005.
This urgent and exceptional power has never been used since the TPIMs regime was introduced. In all cases, it has been possible to obtain court permission in advance, and that will always be the preferred option. We do not expect the regime in this Bill to operate any differently. We have tried to put in place safeguards throughout the whole Bill. As I have said, the STPIMS are a last resort and it is all about trying to find other ways to prosecute.
As we know, the power will be used in rare and exceptional cases when there is an operational need to avoid any delay in taking measures that are considered necessary to protect the UK from a foreign power, threat or activity. We will come to oversight in later deliberations on this part of the Bill. To help the hon. Member for Halifax, I will say that I absolutely expect the person appointed to review the operation of this part to comment on the appropriateness of any use of the urgency process. I hope that provides reassurance.
Clause 37 ensures that there is timely and clear progress towards a full High Court review. The basis of the clause is, in essence, to ensure that in each case, when measures are imposed, a prompt and clear timeline is put in place, with the steps that need to be taken towards the subsequent full High Court review. The directions hearing must take place within seven days of a part 2 notice being served on the individual or, in an urgent case, within seven days of the notice being confirmed. Directions must then be set for a full review hearing to take place as soon as possible. The proceedings leading up to the full review hearing will be agreed by all parties.
The clause is not about the court considering the restrictions or the nature of the evidence; it is there more to ensure the speedy process of the approach to the full hearing. It is important that the hearing takes place speedily within that seven-day period, so that there is a direction of travel to ensure that subsequent oversight is well prescribed.
On clause 38, the involvement of the court is an important safeguard for the rights of the individual subject to the measures, and full judicial oversight of the process of imposing measures is key. As I alluded to earlier, clause 38 provides for a full High Court review to take place automatically in every single case in which state threat prevention and investigation measures are imposed. This will happen automatically, with no need for the individual to initiate the proceedings, in each case in which measures are imposed, subject only to the provisions that allow the discontinuance of proceedings included in subsection (3)—for example, if the person does not want the review to take place. Only the individual or court may make the decision to discontinue the proceedings, and the individual will always be able to make representations in respect of a proposal to discontinue.
At the full review, the function of the court is to review the decisions of the Secretary of State that conditions A, B, C and D were met at the time she made the decision and continue to be met at the time of the review. To remind the Committee, the decisions are that they reasonably believe the individual is or has been involved in foreign power threat activity; that some or all of that activity is new foreign power threat activity; that they reasonably consider that the imposition of STPIMs is necessary to protect the UK from the risk of action that constitutes foreign power threat activity; and finally, that they reasonably consider that it is necessary, for purposes connected with preventing or restricting the individual’s involvement in foreign power threat activity, for the specified measures to be imposed on the individual.
Clause 38 requires the courts to apply the principles that are applicable on an application for judicial review. As Committee members will be aware, the courts take the view that judicial review is a flexible tool that allows for differing degrees of intensity of scrutiny, depending on the circumstances and the impact of the decision in question on the individual concerned.
As well as setting out the functions of the court in a review, clause 38 sets out the powers available to the court, which may overturn the Secretary of State’s decisions in their entirety if it finds that they were unlawful. If the court finds that it was necessary to impose measures but one or more of the measures imposed was unlawful, the Bill is clear that the court may quash the particular measures or direct that they be varied, while also directing that the rest of the notice comes into force. That will provide a balance between being able to protect the UK and ensuring that the measures imposed represent the minimum necessary interference with the rights of the individual.
In addition to the function and powers of the court, clause 38 also makes provision for circumstances in which the review may be discontinued. The court must discontinue the review if the individual requests it—for example, if they do not wish to challenge the case against them. However, as a further safeguard, the Bill specifies that before the court may discontinue proceedings under the power the individual subject to the measures and the Secretary of State must have the opportunity to make representations.
It is imperative that the correct checks and balances are in place to govern the operation of STPIMs, and the Government consider that clause 38, together with other provisions in the Bill that provide the requirement for court permission before the imposition of measures and subsequent rights of appeal, will deliver rigorous end-to-end judicial oversight of the decisions taken by the Secretary of State in the exercise of her powers. The continuous involvement of the court will provide a key, important safeguard for the rights of the individual subject to the measures.
In summary, clauses 35, 36, 37 and 38 are exceptionally important for the Bill and I urge the Committee to support them.
Question put and agreed to.
Clause 35 accordingly ordered to stand part of the Bill.
Clause 36 ordered to stand part of the Bill.
Schedule 5 agreed to.
Clauses 37 and 38 ordered to stand part of the Bill.
Clause 39
Criminal investigations into foreign power threat activity
Question proposed, That the clause stand part of the Bill.
Holly Lynch
Clause 39 creates a requirement on the Secretary of State to consult the chief officer of the police force that is investigating or would investigate any offence, acts or threats in clause 26(3) that could fall to have been committed by the individual, on whether there is evidence that could realistically be used to prosecute the individual. During the evidence session, it was asked whether STPIMs would be easier to secure than a prosecution, so I welcome the provision in clause 39 that a prosecution has to be considered before the move to a part 2 notice—to be fair to the Minister, he was clear about that earlier in today’s discussion. The clause will also give the chief officer a statutory duty to consult the relevant prosecuting authority.
I am mindful that there is a difference between consulting a chief constable for the purposes of information gathering with a view to securing a prosecution and the ongoing necessity of managing someone in their force area who is subject to an STPIM. Will the Minister confirm whether the Civil Nuclear Constabulary or Ministry of Defence police, for example, would be consulted under subsection (2), given their roles in protecting prohibited places, regardless of the fact that they do not have any of the regular responsibilities of the other forces in England and Wales beyond their specific duties? The chief officer must also keep the investigation of the individual’s conduct under review, with a view to bringing a prosecution for an offence, acts or threats under clause 26(3), and must report on that to the Secretary of State while the part 2 notice remains in force.
Stephen McPartland
Clause 39 sets out the detailed requirements relating to the interaction between criminal investigations and the imposition of the STPIM notice. I want to make it very clear that it is always the Government’s preference and priority to seek the prosecution of those engaged in state threat activity. Where we can prosecute, we will. However, we accept that there are and will continue to be dangerous individuals whom, despite our best efforts, we cannot prosecute, which is why we need preventive measures to protect the UK from the threat posed by that small number of dangerous individuals. We believe the provisions in the Bill represent the most appropriate, proportionate and effective powers for dealing with this risk.
The commitment to prosecution is properly reflected in clause 39, which deals with criminal investigations. It requires, before the imposition of an STPIM notice, prior consultation with the police as to whether there is
“evidence available that could realistically be used for the purposes of prosecuting the individual for an offence”
relating to state threats. The police must consult with the relevant prosecuting authority on the same matter before responding to the Secretary of State. The provision will ensure that STPIM notices are not imposed on an individual when prosecution for state threat offences is viable instead. The police will continue to investigate and will refer the case to the prosecuting authorities if sufficient evidence comes to light.
Clause 39 makes the ongoing review of the investigation of the individual’s conduct with a view to prosecution a statutory requirement. As mentioned, there should be absolutely no doubt about our absolute and unwavering commitment to prosecute individuals where possible, which is reflected in the clause. The counter-terrorism police will continue to have full responsibility for overseeing this matter but, if necessary, they will engage with all other forces to ensure a full case for prosecution. The better our chance of getting a full prosecution, the better our chance of not having to use a STPIM notice.
The Government believe prosecuting to be the best way to move forward. The only situation in which prosecution does not result will be when a case has not passed the relevant test in the code for Crown prosecutors. Our ambition is to prosecute at every single stage and use STPIMs as an absolute last resort.
Question put and agreed to.
Clause 39 accordingly ordered to stand part of the Bill.
Clause 40
Review of ongoing necessity
Question proposed, That the clause stand part of the Bill.
Holly Lynch
Clause 40 introduces a review of ongoing necessity, meaning that the Secretary of State has a duty to keep under review the necessity of a part 2 notice and the measures imposed under it while the notice is in force. Through case law, a parallel system was established for TPIMs, following the Court of Appeal ruling that
“it is the duty of the Secretary of State to keep the decision to impose a control order under review, so that the restrictions that it imposes, whether on civil rights or Convention rights, are no greater than necessary.”
We welcome the clause. In Jonathan Hall’s 2020 review of counter-terrorism legislation, he gave a review of the TPIM review group—the TRG—meetings, at which officials from the Home Office, counter-terrorism police and MI5 review the necessity and proportionality of TPIM measures, consider variations, discuss exit strategies, are updated on the prospects of criminal prosecution and consider the outcome of practical and ideological mentoring sessions. He said:
“The Home Office official chairing the meeting injected a proper degree of challenge to the ongoing management of the TPIM subject, including on the possibility of relaxing certain measures, and impact on family members. The TRG is conducted using a draft agenda which now requires consideration of each measure in turn: this is a clear improvement over the previous practice of considering the measures as a whole. Following my observations in previous reports, I am pleased to say that there is greater analysis of whether prosecution for terrorism offending is a reasonable alternative to a TPIM.”
In the first oral evidence session, Mr Hall said:
“The first message from the TPIMs is that you need to have a strong chair of the TPIM review group, or the equivalent”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 5, Q2.]
for the STPIMs.
The clause says only that a Secretary of State must keep the notice under review. Will the Minister confirm that an STPIMs review group will be a key feature of the ongoing assessment of an STPIM? How often will it meet? Will he confirm that the review group will be a primary mechanism for providing information to the Secretary of State, allowing them to make informed decisions?
Stephen McPartland
I will detain the Committee on this clause for only about an hour and a half. [Laughter.] I can feel the excitement. The Government recognise the disruptive nature of the measures on a person’s life. That is why the notice should remain in place only for as long as necessary and the measures imposed should remain tailored to the threat.
Clause 40 provides for an important safeguard by placing a duty on the Secretary of State to keep under review the ongoing necessity of both the STPIM notice itself and the measures specified in it. Regular monitoring to consider how the individual is responding to being on a STPIM, reviewing whether any new evidence has come to light for a prosecution to be possible and considering whether any changes are needed by varying the restrictions will remove any doubt that, while it remains in force, an STPIM notice will be assessed to ensure that it remains necessary at all times.
There were a few questions from the hon. Member for Halifax; I will try to answer them as best I can. There will be quarterly reviews and the individual will be able to appeal, as we discussed earlier in the debate. She is correct that reporting will be done quarterly. The review will be accountable to the Secretary of State and will be chaired by an expert civil servant and attended by operational partners. Here is the bit that the hon. Lady and our friends in the SNP will be most keen to hear about: as with TPIMs, there will be an independent reviewer to ensure that clause 40 and the whole of the STPIMs regime will be implemented correctly. I hope she can support the clause.
Question put and agreed to.
Clause 40 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
National Security Bill (Tenth sitting)
Tuesday 6th September 2022
(2 years, 2 months ago)
Public Bill CommitteesRead Full debate National Security Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 6 September 2022 - (6 Sep 2022)
The Committee divided: - Ayes: 9 / Noes: 4 - Question accordingly agreed to.
Mr Kevan Jones (North Durham) (Lab)
The former right hon. Member for Rother Valley was a very good friend of mine. He also had a knighthood, so you might want to have a word with him, Mr Gray.
I am speaking to get some answers that we did not get this morning. I am glad that we have an audience and more time to deliberate this afternoon, as it would be risky just to nod the adjournment through. We need an explanation of why the Government are adjourning the proceedings. My hon. Friend the Member for Halifax raised a point of order with Madam Deputy Speaker less than 20 minutes ago—not only about the adjournment of the Committee, but about proper scrutiny and the extra day that the Committee will need if we lose a day, as we have done today.
This is a mystery. I do not know whether the Conservative Whips have locked the Minister in a box somewhere or spirited him away on a nice foreign trip or something like that, but he seems to have disappeared from the face of the earth. The point is that in his resignation tweet—that is the “in” thing to do these days, unlike when you started, Mr Gray, when you would use parchment and—
Mr Jones
Quill pens, yes. Now it is about resigning by tweet. The Minister was clear in his tweet that he was resigning—[Interruption.] My hon. Friend the Member for Garston and Halewood has helpfully passed me her smartphone—again, using new technology, which is not the usual way I operate. The Minister made things quite clear in the last paragraph, when he said:
“I will continue to serve until a new Security Minister is appointed and look forward to supporting our new Prime Minister.”
The Minister is therefore still in post, so we need an explanation as to why he is not here to continue discussion of the Bill.
I asked that question this morning, and the Government Whip, the hon. Member for North Cornwall, did the usual by just ignoring it. I thought I would try again because persistence pays off and I quite like the hon. Gentleman, as he knows. We—not just the Opposition, but the House—deserve an explanation as to why today’s sittings are being adjourned when a Security Minister is in place.
In her reply to my hon. Friend the Member for Halifax, Madam Deputy Speaker said that this is the normal process until a new Minister has been appointed. I then raised a supplementary point of order to point out that we still have a Minister; it is just that he seems to have disappeared or is being kept away from the Committee. We need an explanation for this unique event, whereby the Minister has been kidnapped or is being kept away from the Committee, and the Government want to fold the Committee today.
I have one last point about the timings of these things. As I said this morning, there is quite a lot of consensus on the Bill. We—me and my hon. Friends on the Opposition Front Bench—want to get the Bill into statute and provide our security services with the best weapons and ammunition for the difficult job that they do on our behalf. That has not been helped by the rather messy and squalid way in which the Committee has been dealt with today. Will the Whip consider giving the Committee an extra day to pursue the Bill through Committee, to make up for the day that we have lost—not through our lack of willingness—and to give the Bill the proper scrutiny that it clearly deserves?
Maria Eagle (Garston and Halewood) (Lab)
I will speak briefly, as I do not wish to labour the point. I would not be making this point at all if it had not been for the terms of the Minister’s resignation letter, which we have all seen and which has been quoted to the Committee:
“I will continue to serve until a new Security Minister is appointed”.
The new Prime Minister, who is now in post, will no doubt appoint a new Security Minister in the next few days—possibly this evening or tomorrow. That is good; it means that we ought to be able to get back to consideration as planned on Thursday. However, there is no reason that would have stopped the resigning Minister, who is continuing in post until he is replaced, from coming to this Committee today and doing the work on the Bill that he has prepared for, because he has had the whole of August to do it.
The new Minister, no matter how excellent he or she ends up being as a Minister—no matter how knowledgeable in matters defence and national security—is not going to be as familiar with the Bill as the hon. Member for Stevenage. I just cannot see why the hon. Gentleman could not have come here, which is why I asked that question of the Whip, the hon. Member for North Cornwall, this morning. I understand that he has been put in an awkward position, but I did ask him whether he could seek some advice from his Whip colleagues about why the Minister did not come this morning when he had specifically said he was going to continue until he was replaced. Did he decide himself not to come, or was he asked to stay away? The Committee and the House deserve an answer to that question. I live in hope that the hon. Member for North Cornwall has that answer; if he does, it would be excellent if he put it on the record when he replies.
Mr Jones
Would it not also be interesting to know whether the hon. Member for Stevenage—unless, let us say, he has been kidnapped and put in a box or sent on a foreign trip somewhere—is still Security Minister? Not only does he have to appear before us today in that post, but there are obviously ongoing issues in that department that he will have to deal with. Some clarity would be helpful.
Maria Eagle
That is an important point. I was looking at this merely in terms of courtesy to the Committee, proper scrutiny and the way in which Bill Committees ought to and do work, but of course the Security Minister has other duties outside this House. One would not want a discontinuity between one Security Minister and the next, which I expect is why, when the Minister sent his letter to the previous Prime Minister, he said in his last sentence that he would continue until his successor was appointed. However, we now seem to be in a position where he has not continued until his successor is appointed.
When I was a Minister, Mr Gray—no doubt you will recall your own experience of these things—duties in the House took precedence over all other duties that one might have as a Minister, as stated in the ministerial code. As such, if the hon. Member for Stevenage is still the Security Minister, it is extraordinary that he is not here. There are two explanations: either he has decided to stay away himself, in which case it is a dereliction of duty, or he has been asked to stay away by the business managers, in which case this Committee and the House deserve an explanation.
I do not wish to put too much pressure on the hon. Member for North Cornwall, because I realise that he is doing his job and may or may not have had an answer in the time between this morning’s adjournment and the resumption at 2 pm, but we do require an answer. I hope he will be able to give it now, but if he cannot I hope he will undertake to ensure that all members of the Committee get that answer.
The Lord Commissioner of Her Majesty’s Treasury (Scott Mann)
I have heard the points made by Opposition Members loud and clear, and I heard their points of order in the Chamber this afternoon. The Chief Whip and the officials are aware of the requests that hon. Members have made around additional timing. The hon. Member for Garston and Halewood made a point about the Minister for Security. I have not had a chance to get an answer to that question yet, but I will seek reassurances on that point.
Scott Mann
I will not; I have almost finished. It will not surprise the Committee to know that I have very little to say. I am absolutely convinced that the appointment of the new Security Minister will be made very soon, given its seriousness, and I look forward to that Minister taking on the Bill and delivering this very important piece of legislation for the Government.
Mr Jones
On a point of order, Mr Gray. The Whip has had time to clarify whether we still have a Security Minister—yes or no. My hon. Friend the Member for Garston and Halewood was clear that if he could not give an answer, he should write to the Committee with an explanation of what has happened. Do we have a Security Minister in post: yes or no?
The Chair
I am grateful to the right hon. Gentleman for making that point, extending the debate that we have already had. It is, of course, not a point of order at all: it has nothing whatever to do with the conduct of the debate. None the less, he has made his point, and it will be on the record.
Question put.
National Security Bill (Ninth sitting)
Tuesday 6th September 2022
(2 years, 2 months ago)
Public Bill CommitteesRead Full debate National Security Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 6 September 2022 - (6 Sep 2022)
The Chair
I welcome the Committee back to consideration of the National Security Bill. I understand that the Government Whip wishes to move a motion to vary the terms of the Order of the Committee of 7 July.
The Lord Commissioner of Her Majesty’s Treasury (Scott Mann)
I beg to move,
That the Order of the Committee of 7 July 2022 be varied by the omission from paragraph 1(e) of the words “and 2.00pm”.
Holly Lynch (Halifax) (Lab)
May I put on the record my great sense of regret and disappointment that the Committee is not progressing today? There is a great deal of support for the Bill, because we all recognise that our security services need the new measures to keep our country safe. At every opportunity, we the Opposition have sought to be constructive and to undertake our due diligence in providing the level of scrutiny that should come with the powers in a Bill such as this.
We have sought to work with the Government, but it is disappointing that we will now have a fourth person acting as Minister in a Bill Committee on the matter of national security. We very much look forward to meeting again on Thursday so that we have the appropriate opportunity to scrutinise and debate every last bit of the Bill and the new clauses, ensuring that the security services have what they need from us. Despite a real sense of disappointment, we look forward to ensuring that we meet again on Thursday to progress without any delay.
Maria Eagle (Garston and Halewood) (Lab)
I am surprised by the difficulties caused for the Committee by what has happened. I have before me the letter by the Minister for Security, the hon. Member for Stevenage (Stephen McPartland), which he has kindly placed on Twitter. After all the niceties, and saying that he will not carry on, he signs off his letter by saying quite clearly:
“I will continue to serve until a new Security Minister is appointed and look forward to supporting our new Prime Minister.”
So where is the Minister? A new Security Minister—if one is to be appointed—has not been appointed. The hon. Member for Stevenage is still the Minister, and in his letter indicating his wish to resign in due course, he has undertaken to continue to serve until a new Security Minister is appointed. We have business this morning on one of the most important Bills before the House in the current Session—one that has been delayed for years because the Government had not got on with producing it.
Not only that, but we started Committee stage in chaos, when a former Minister suddenly resigned. The poor old Whip, to whom I extend my greatest sympathies —it is not his fault; he is just doing his job—has now been placed in an utterly invidious position on two occasions in one Bill Committee. We started out with a Minister resigning, and now this Minister has indicated his intention to resign but has made it quite clear in that letter that he intends to continue in post until a new appointment is made by the new Prime Minister. Let me remind the Committee that that appointment has not yet been made, although we expect that to happen later today.
So where is the Minister? Has he been asked not to turn up by the Government, or has he chosen not to turn up? If the latter is true, he is not doing as he undertook to do—continue in post until a replacement is appointed. It is an important part of any Minister’s job to take a Bill through the House and answer the questions of the Opposition and their own Back Benchers. This Minister has been working on that; I have no doubt he will have spent the whole of August reading through the Bill and getting his head around it in a way that he had perhaps not quite managed in July, when he was quite honest about being new to it. He will be an absolute expert on it by now. He could have been here this morning, and this afternoon, for us to make progress on it.
I would like the Whip, because he is a Minister, to explain to us in replying, which I hope he will, whether the Minister for Security was asked not to turn up today or whether he chose not to. If the latter, it is a dereliction of duty; if the former, Opposition Members would like to know why. I for one deplore the way in which the Committee has been treated by the Government. We are trying to consider a very important Bill, which is about the future security of this country, and we have been treated shabbily. Government Back Benchers have been treated shabbily, the Committee has been treated shabbily, and the House has been treated appallingly. The Government should resign en masse and let us have a new Government. Then we might be able to make some progress on the Bill.
Mr Kevan Jones (North Durham) (Lab)
This is not just an ordinary Bill. Although every Bill should be important, the idea that we are again delaying a Bill on our national security troubles me, as does the way in which the Bill has been dealt with. As my hon. Friend the Member for Garston and Halewood said, we are now on to four Ministers, including the Whip, who have been involved in the Bill. As my hon. Friend the Member for Halifax said, there is a degree of consensus on the Bill, in the sense that we want to support national security—certainly I do, as a member of the Intelligence and Security Committee—and ensure that we give our security services all the tools that they need to combat those people who would do ourselves and our nation harm.
Certainly when I was in Government, this would have been one of those situations where we would work very closely with the Opposition to see what we could agree on, what we disagreed on, and whether there were things that needed to be tweaked, as there are with all Bills. The present Government have continually presented Bills as though they are the finished item. Well, they are not. The drafting of Bills since I have been here has frankly got worse, in terms of not only mistakes but points being missing completely.
The Chair
Order. The right hon. Gentleman is ranging very wide of the topic of discussion. Perhaps he might bring himself back to the motion.
Holly Lynch
My right hon. Friend is making a powerful point. The Government act as if they are presenting the finished Bill, but we have had the worst of both worlds: there have been significant additions to it at quite late stages of the Committee, in addition to the Ministers changing throughout the process. We are really keen to work with them. Give us everything that we need to be able to do that.
Mr Jones
Mr Gray, I will come back to the point like a boomerang, as you know I always do. My hon. Friend makes a good point. That is the other side to the Bill. Foreign agent registration was announced the other day; why that was not done on Second Reading is baffling. It is not as though the Bill has not had a long gestation period; that has been longer than an African elephant’s. It has all been worrying for those people who treat national security with importance.
Let me say publicly that I understand from speaking to some people in the civil service and others that they want the Bill to make progress. I cannot understand the delay. When the Bill was introduced it was incomplete, but somehow the Government had the attitude that it was the final product. No—scrutiny in Committee is very important. I predict that if the Bill does not go through some changes in Committee it will be absolutely carved up when it gets to the other place, because there are bits in it that we know will not survive that process. We could have avoided that by consensus. I am committed, and I am sure that my hon. Friend the Member for Halifax—
The Chair
Order. The right hon. Gentleman will forgive me for interrupting him twice. We are simply discussing whether the Committee sits this afternoon. A wider debate regarding the way in which the Bill has been considered may be important, and I am glad to have heard what he has to say. None the less, perhaps we should return to the question of whether we should sit this afternoon.
Mr Jones
It is important that we have time to do that. We lose two sittings today and are supposed to finish next Tuesday. That also depends on when a new Minister is appointed. I assume the Cabinet will be done tomorrow, and I understand that there is a debate about whether the post of Security Minister will be a Cabinet appointment, so it might be made today or tomorrow. However, if it is not done by late tomorrow, that basically means Thursday for the Minister—whoever he or she is—to read themselves into the Bill. As I say, it is not just a small Bill, so it will be quite a task. I suspect, therefore, that we will get to Thursday and Thursday will be lost, which leaves us with one day next week.
There are some major issues about ensuring not only proper scrutiny of the Bill, but time for certain of the amendments tabled by me and others to be heard. One day next week will not be sufficient. I am looking to the Whip for an indication of whether the Government, if we lose today and potentially Thursday, will add an extra day next week. That would at least ensure that we have the number of sittings we were promised, although if we lose Thursday as well, we would need two extra days.
Again, I do not understand why the Minister is not present. As my hon. Friend the Member for Garston and Halesowen said—
Mr Jones
Halewood, sorry; I am getting mixed up. I do not know who I have insulted most—Members for the west midlands or Members for Merseyside.
The Minister is still in post, so why is he not here this morning? To be fair to him, the hon. Member for Stevenage picked the Bill up at a difficult time and worked hard to master the detail. His civil servants must have been pulling their hair out about some of the questions. I have known him for many years: he will not take everything as fed in front of him, but will ask questions. The civil servants might be relieved to get rid of him. But that is not the point. If he is still in post, as we are led to believe, why is he not in Committee this morning?
It is important for us to consider this Bill. I just hope that we will get back on track, because the other thing that is needed quickly—whoever the new Minister is—is early engagement on this type of Bill with the Opposition, to see what we can get through uncontroversially and what areas need changing. Lo and behold, some parts of the Bill might then need changing yet again. The Government will have to do something that I do not ever agree with, which happened when we were in government and increasingly with this Government: leave major changes to the Lords.
The Lords has somehow become the great oracle that listens to everything and changes things that we cannot spot; the only reason why things are not changed here is that successive Governments have got into the habit of railroading things through here and making concessions there. That diminishes the House of Commons and does not lead to proper and good scrutiny. It is not a failure of a Government to admit in a House of Commons Committee that there are problems in a Bill and to change them. Unfortunately, it is seen as such, so it is left to their lordships’ House to change things. With that, I shall resume my seat.
Jess Phillips (Birmingham, Yardley) (Lab)
It is a good job that the Bill is not about anything important. I say that to start, because it reminds me of going to the Department for Education with a headteacher from my constituency. As he walked out, he said, “Thank God they aren’t in charge of anything important!” What the Committee is discussing today—what we should be discussing—is deeply important. Instead, we are discussing adjournments, different rules of the House of Commons and whether we should have this debate. Something else worries me.
I give massive credit to the Security Minister, who not only picked up the detail very quickly but quickly built relationships with members across the Committee to ensure that the right scrutiny was going on and that people felt they were being given information. I give credit to him for that, as he picked up the Bill at a very late stage.
Apart from the two other times when the Minister was replaced on this Committee, I have never been in a situation where I am debating this sort of motion, so I ask the Chair for some guidance. Is the Whip—my sympathies go out to him—who is taking the Minister’s seat required to respond to our questions?
The Chair
The motion is simply that the Committee will not sit this afternoon at 2 o’clock. Therefore, the Whip responsible may or may not reply to the Committee, at his own discretion.
Jess Phillips
I think he is a man of honour, so I will fire out the questions anyway. On whether we should go ahead and whether the Minister could be found somewhere in this building, where I am certain that he is, and pick up his very capable and able management of the Bill as he has done throughout, the fundamental question is: what faith are we meant to have that, on this very detailed and far-reaching—in some places, too far-reaching—Bill, the person who arrives on Thursday morning, who may have just been given their job, will be across that detail? Will they be able to answer my questions, as the Minister did and I hope the Whip will in his stead? What hope is there that a new Minister will be able to answer the intricate questions that, certainly, I have about issues largely in part 3?
It feels like giving in to say that we should not carry on examining the Bill, in all honesty, but we will return on Thursday as a lesser Committee. That is, in essence, what will happen, unless—I do not know because anything could happen these days: perhaps one of the civil servants who wrote the Bill will become the Security Minister, having been put in the House of Lords. They might stay in post for three months and resign afterwards. Stranger things have happened—in fact, that has happened.
Would we tolerate what has happened today from any of the services that we are debating? If they said, “Sorry, the head of counter-terrorism police has been dealing with a case and we’re just going to give it to Alan. He’s in court this morning and he’s picking up the case, but he doesn’t have any of the details”, we would not tolerate that. Yet that is what we are being asked to tolerate. This is very important legislation. It is greatly regrettable that it has been so poorly managed from beginning to end.
Scott Mann
I have listened intently to the points made from the Opposition Benches. My first port of call after this will be the Chief Whip’s office to discuss the arrangements for the programming of the Bill and the sittings that we currently have. That is what I will do after I have sat down, and I hope we can now adjourn.
The Chair
There can be no Division on this motion. If any Committee member were to object, the motion would lapse and the Committee would sit this afternoon at 2 o’ clock.
National Security Bill (Eleventh sitting)
Thursday 8th September 2022
(2 years, 2 months ago)
Public Bill CommitteesRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 8 September 2022 - (8 Sep 2022)
Mr Kevan Jones (North Durham) (Lab)
On a point of order, Ms Ali. I bring good news to the Committee: yesterday, I met the hon. Member for Stevenage (Stephen McPartland), who is alive and well. We asked why he did not attend the Committee, but we have not yet had an explanation from the Government. From what he told me, I understand that the reason why he was told to stay away was that he would not move part 3 of the Bill.
Related to that, however, we also raised the issue of losing a day last Tuesday because the Government insisted on adjourning the Committee. Has any thought been given to an extra day next week—if we need it—to complete the Bill’s proper scrutiny?
Maria Eagle (Garston and Halewood) (Lab)
Further to that point of order, Ms Ali. On both occasions that the Committee met on Tuesday, although only for a short time and without being able to make any progress on the Bill, I asked the Minister in charge, the Government Whip, for an explanation of why the former Minister had not turned up to the Committee. Had he engaged in dereliction of his duty—he said he would stay in post until the new appointment and then did not turn up—or had he been asked to stay away? My right hon. Friend put forward—we would call this hearsay in the courts—an explanation that he heard from the hon. Gentleman in question, but I had asked the Whip to tell us. I think the Committee deserves to hear why that happened. Will one of the Ministers tell us what the Government’s explanation is? It has been requested since Tuesday.
Stewart Hosie (Dundee East) (SNP)
Further to that point of order, Ms Ali. The right hon. Member for North Durham made the request for additional time. Given how much is yet to be done, in particular the most contentious new clauses—contentious in the minds of some perhaps—especially relating to the public interest defence, which may take substantial time to deal with fully, will proper consideration be given to replacing at least the day lost earlier this week?
The Minister for Security (Tom Tugendhat)
This is the first time that I have spoken on behalf of Her Majesty’s Government. It is an enormous privilege to be here. I realise that I enter this process—this lion’s den—at a moment when other lions have been through the Bill a few times before—there are an awful lot of Christians in this Committee and only one lion.
Before I say anything further, I pay enormous tribute to the Bill team, who have been phenomenal. The very fact that this has continued at all in such a professional way—
Tom Tugendhat
It has. That is because they have held it together and been a phenomenal asset to the Home Office. I am grateful to them.
On the various points that have been made, the hon. Member—
Tom Tugendhat
My apologies: the right hon. Gentleman. He is quite right. He asked some questions, as did the hon. Member for Garston and Halewood, or the right hon. Member for Garston and Halewood—
Tom Tugendhat
I will endeavour to find out what the reason is. You will understand, Ms Ali, that I was not appraised of this situation. I have spent rather a long time reading the Bill in the past 36 hours and not so much time asking about the movements of former Ministers.
On the point made by the right hon. Members for North Durham and for Dundee East about time, I will endeavour to do what I can to ensure that we have time available. Let us see how we go today. If time is needed, I will talk to the Whips team about it.
The Chair
The Minister has addressed the key points. I have nothing further to add in response to the point of order, so we will now begin our proceedings.
Clause 41
Variation of measures
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider the following:
Clauses 42 to 44 stand part.
That schedule 6 be the Sixth schedule to the Bill.
Tom Tugendhat
As the comparable sections in the terrorism prevention and investigation measures legislation make clear, clauses 41 to 44 are technical elements that improve the regime and make it work in practice. Clause 41 mirrors TPIMs by making provision for the measures imposed to be varied while they are in force. That will allow changes to be made to the restrictions where necessary, in response to changes in the individual’s personal or family circumstances or to the assessment of the risk they pose. Those provisions will be important in ensuring that the regime is able to respond dynamically and flexibly to changing circumstances, and that the individual is able to live as normal a life as is possible without posing a threat to the British people.
The provisions will also be important to securing the effective operational management of state threats prevention and investigation measures. Critically, the underlying requirement that the measures imposed must always be necessary and proportionate remains, and that is explicitly the case for any variation that has the effect of strengthening the measures imposed.
Holly Lynch (Halifax) (Lab)
It is a pleasure to serve under you as Chair once again, Ms Ali. They say a week is a long time in politics: never has that been truer than this week. I am very pleased to see the Minister in his place, but—for the second time over the course of this Committee—not quite as pleased as the hon. Member for North Cornwall that he once again has a Minister in place. I welcome the Minister to his role; as others have said, he is the fourth Minister we have had over the course of this Bill. We welcome the opportunity to continue to work together, now that we can make some vital progress on this really important piece of legislation. I also look forward to working with him on this policy area beyond just the legislation that is in front of us.
Turning to the detail of this group of clauses, clause 41 makes provision for the measures imposed under a part 2 notice to be varied in a number of different circumstances, as the Minister has outlined. Subsection (2) makes it possible for the Secretary of State to vary a relocation measure in a part 2 notice if considered necessary
“for reasons connected with the efficient and effective use of resources in relation to the individual”.
We are satisfied with those measures, and recognise the necessity of the remaining provisions in the clause.
Clause 42 provides a power for the Secretary of State to revoke a part 2 notice at any time by serving a revocation notice, whether or not in response to a request by the individual. The Secretary of State may exercise that power where they consider it is no longer necessary for the part 2 notice and the measures imposed under it to remain in force. The explanatory notes say that
“although the measures may no longer be necessary at the time that the Part 2 notice is revoked (for example because the individual has been detained in prison), they may subsequently become necessary again (when the same individual is released from prison, perhaps following an unsuccessful prosecution for a criminal offence).”
As I have said before, the assumed prosecution rate for state threats in the Home Office impact assessment is just 33%, so I am concerned that we might need that level of flexibility, depending on the circumstances.
Subsection (6)(a) of the clause also provides a power for the Secretary of State to revive for a period of a year a notice that has previously expired without being extended, without the need for evidence of new state threat activity. Surely if a person continues to be a threat, the notice should not be allowed to expire; alternatively, if the notice has been allowed to expire because the person is no longer deemed a threat, reviving a notice without any new information surely could not be justified. On that basis, I would be keen to hear any further rationale for the provisions in subsection (6)(a).
When considering the revocation of part 2 notices, it is also worth considering what Jonathan Hall QC described as the “TPIM Catch-22” in his annual report on the terrorism equivalent of these part 2 measures:
“On the one hand, in order to test whether an individual would revert to terrorism-related activity in the absence of TPIM measures, there may be no alternative but to reduce or remove measures; for example, by allowing an individual to associate or move more freely.
“On the other hand, association and movement measures have been imposed precisely to counter the risk of terrorist-related activity. In the absence of evidence of risk reduction, to do so might put members of the public at risk of harm.”
It is not easy to step down from STPIMs once they have been imposed and there is a clock ticking on the restrictions imposed on a suspect, so what efforts are we making to establish best practice on this, so that clauses 41 and 42 can be deployed as effectively as possible?
Clauses 43 and 44, also in this group, make provision for circumstances in which a part 2 notice is “quashed” or directed to be revoked as a result of court proceedings, and schedule 6 rightly provides other circumstances in which an individual who is convicted of an offence under clause 50 has a right of appeal against that conviction.
Other than the points we have raised, we are satisfied that these measures strike an appropriate balance.
Stewart Hosie
I welcome the Minister to his place.
In this group, clause 41 allows for the variation of STPIMs, either on application by the individual on whom it has been served or by the Secretary of State, when certain circumstances apply. Most of the clauses in this group seem to make sense, but there is some slightly odd wording. I know the Minister described these measures as “technical” and said that they would improve provision, but will he give some clarity?
Clause 41(1)(c) provides the power to vary, which is available if necessary
“for purposes connected with preventing or restricting the individual’s involvement in foreign power threat activity.”
Why is that? The words “purposes connected with” appear to be a slightly odd formulation. Why is the requirement not simply to prevent or restrict involvement in “threat activity”?
That same question arises in relation to clause 41(2)(a), but in that paragraph what is meant by allowing a new relocation measure to be invoked when
“necessary for reasons connected with the efficient and effective use of resources in relation to the individual”?
What does that actually mean? The Minister described these provisions as “dynamic” and “efficient”. Are we saying that people may be moved for a second time simply to save money? The explanatory notes suggest that is the case, so I seek reassurance that such a provision will not be used unless genuinely necessary.
Clause 42 allows for the revocation of notices, including on application, but it does not appear to restrict the number or frequency of revocation applications. It also allows the Secretary of State to make a “revival notice” in regard to a part 2 notice that has expired or been revoked. It protects against expired notices already extended to the maximum limit, but it seems to leave open the possibility of revoking a four times extended part 2 notice and then reviving it, despite the time limit. That seems to be expressly permitted in clause 42(7)(b), although clause 42(9) appears to stop that. Will the Minister confirm that revival notices cannot be used to try to circumvent the absolute maximum of five years and that clause 42(9) will prevent that happening?
Turning briefly to schedule 6, which covers circumstances in which a person has been convicted of breaching a part 2 notice but the notice or extension is “quashed” so that the offence would not have been committed had it been quashed earlier. There are some very tight timescales in this schedule. For example:
“An appeal under this Schedule to the Court of Appeal against a conviction on indictment in England and Wales or Northern Ireland…may not be brought after the end of the period of 28 days beginning with the day on which the right of appeal arises”.
The same 28 days is used in relation to
“an appeal under this Schedule to the High Court of Justiciary”—
the Scottish High Court of Appeal—
“against a conviction on indictment in Scotland”.
There is a 21-day deadline on
“an appeal under this Schedule to the Crown Court against a summary conviction in England and Wales”.
There is a 14-day time limit on
“an appeal under this Schedule to the Sheriff Appeal Court against a summary conviction in Scotland”.
Some of these timescales, particularly the 14 day one, are very tight and it may be very tricky to know precisely when the clock starts ticking, as that depends on when a different clock has run out.
We may be slightly over-cautious. However, it appears ridiculous if people are left with convictions for breaching what would have been illegal orders. Would it not be more sensible in those circumstances, to avoid people having to go to appeal courts of one sort or another in short timescale, simply to automatically quash them? Why is there a time limit on the ability to appeal in any circumstance?
Tom Tugendhat
Let me answer some of the questions that have just come up. The hon. Member for Halifax and the right hon. Member for East Dunbartonshire, if I am correct—
Tom Tugendhat
Forgive me; the right hon. Member for Dundee East. They have raised some interesting points. The first is on the notice to be revived without new evidence of a lapse. The reason for that variation is to allow for prison sentencing. Should an individual find themselves being sentenced for a crime in the middle of an STPIM, that allows the STPIM to be paused for the purpose of imprisonment and revived afterwards, without having to go through the whole process again. The purpose is practical, rather than that of having a massive legal effect. Therefore, I believe it is entirely proportionate with the requirements of security.
Stewart Hosie
That seems a slightly illogical formulation. If the prison sentence is substantially longer than the maximum the STPIM could provide for, it seems preposterous that the remainder of the STPIM’s time would be added to the end of a sentence once it was fully discharged. That does not appear to be fully thought through.
Tom Tugendhat
Perhaps the hon. Member will appreciate that not everybody who spends time in prison will do so for the offence for which the STPIM might have been applied. It is perfectly possible that somebody might spend six months in prison for something completely unconnected—a driving offence, a minor theft, or whatever—and therefore a pause would be entirely in keeping with that. The STPIM is about controlling different people’s ability to move and communicate, in which circumstances prison would simply not be a relevant application because the prison sentence effectively supersedes the controls that would have been put in place. In that sense, it is merely a way of recognising that, in certain circumstances, different applications would apply.
Clause 39 requires police to keep under review criminal investigations. STPIMs are a civil measure to protect against national security threats when a criminal prosecution is not possible. They are not overlapping; they are compatible and, indeed, complementary.
Question put and agreed to.
Clause 41 accordingly ordered to stand part of the Bill.
Clauses 42 to 44 ordered to stand part of the Bill.
Schedule 6 agreed to.
Clause 45
Appeals
Question proposed, That the clause stand part of the Bill.
Tom Tugendhat
The clause set out the rights of appeal of a person subject to an STPIM notice and the function of the court on considering such an appeal. Those rights of appeal are in addition to the automatic review of each case and ensure that the individual subject to a notice is able to appeal against all relevant decisions taken by the Secretary of State using the powers contained in the Bill—for example, to extend or revive a notice, to vary the measures or to refuse an application for measures to be varied.
In determining an appeal brought under the clause, the court must apply judicial review principles. That is a particularly intense level of scrutiny and will ensure that the Secretary of State’s decisions are subject to independent consideration. Clause 45 makes clear the powers of the court on considering an appeal, which include to quash the extension or revival of the notice or the measures within, or to give directions to the Secretary of State for the revocation of the notice or in relation to the variation of the measures specified in the notice. As I have said already, a key feature of the Bill is the extensive and multi-layered approach to judicial oversight, which will ensure that the courts can be involved at every stage of the process, and that every decision of the Secretary of State can be reviewed by the judiciary and can be overturned if the court so decides.
To recap, there is an initial permission stage before measures are imposed. There is then the automatic full review of the decision to impose measures, and there are the extensive rights of appeal contained in the clause. Taken together, those provide important safeguards.
Holly Lynch
I am grateful to the Minister for that explanation. It is absolutely right that clause 45 sets out those rights to appeal. I have nothing further to add at this stage, but we will come back to oversight when we discuss later amendments and new clauses.
Stewart Hosie
Clause 45 includes the important power to appeal to the court against the decision to review or revive a part 2 notice; against variations, or the refusal of them; against unlimited revocation applications; and in relation to permission applications. As the Minister said, the function is to review the decision, and the court must apply the principles applicable on an application for judicial review.
That sounds fine—so far, so good—but why is there no right to appeal against a clause 35 permission to impose STPIM decisions, as made clear in clause 47? Is it because it is expected that other procedures will have the same effect, for example an application to revoke, or is this an attempt to limit in statute the ability of those subject to STPIMs having access to court to appeal in those circumstances?
Mr Jones
I warmly welcome the Minister to his position. He and I go back a long way: when I was a Minister in the Ministry of Defence, he was a bright, fresh young officer, and I think we both have fond memories of our time working together. One of the dangers he faces is being appointed to a position that he knows a lot about. That is always a downer for any Minister and strikes fear into the civil service. I wish him well, and he will do a good job.
Throughout the entire Bill, there should be an ability for the individual to have recourse to appeal. That is not because I am somehow soft on terrorism or on the individuals we are dealing with. It is because we must have a system whereby, when the state takes hard measures to limit someone’s freedom, they need the counterbalance of the ability to appeal. That is why I welcome the measures. My problem with the Bill is that, although this measure is present in this part of the Bill, there are no safeguards in other parts of the Bill. Those types of appeal mechanisms balance state power and the individual.
I have two specific points on the process, which I support. How will the appeals be done in the court? Some of the information that the Secretary of State will rely on will be highly classified, so how will the process work? It will mean the disclosure of some information that we would not want disclosed in open court. I shall not rehearse the arguments on part 3, but it is clear that, if part 3 is retained, the individual will not have recourse to legal aid for an appeal. I am opposed to that. That is not because I am on the side of individuals who wish us harm, but we must ensure that we have a system that is robust in ensuring that justice is done, and people must not be arbitrarily detained or subject to those restrictions if they clearly have legitimate arguments against what the state is trying to apply.
Tom Tugendhat
Before I come to the right hon. Member for Dundee East’s words, I will just address the very generous tribute from the right hon. Member for North Durham. I remember that I used to call him sir; he never called me sir, and he still will not. I do not feel special in that; I do not think he has ever called anyone sir in his life. It was very kind of him.
On the question raised by the right hon. Member for Dundee East, clause 38 means that there has to be a review wherever a STPIM notice is imposed, which is in clause 35. The individual can attend the automatic review. I will come on to that element, because as the right hon. Member for North Durham rightly says, there is likely to be material that is extremely sensitive. That is why the procedure relates to what is already established with special advocates. The right hon. Member knows much more about Special Immigration Appeals Commission hearings, and the various ways in which advocates can have access to information that is relevant to a court but is not then shared with somebody for whom that would not be conducive. That is the way that the proceedings will work, and I think that provides the right balance between disclosure, justice and protection.
Question put and agreed to.
Clause 45 accordingly ordered to stand part of the Bill.
Clause 46
Jurisdiction in relation to decisions under this part
Question proposed, That the clause stand part of the Bill.
Tom Tugendhat
Members will be pleased that this is very brief. Clause 46 makes an important but largely technical provision. The purpose is to provide absolute clarity that the High Court is the appropriate forum for judicial proceedings arising from decisions relation to STPIMs, or in Scotland, the Outer House of the Court of Session. That is important given that such proceedings may rely on closed material, which we will come on to next.
Question put and agreed to.
Clause 46 accordingly ordered to stand part of the Bill.
Clause 47
Proceedings relating to measures
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider that schedule 7 be the Seventh schedule to the Bill.
Tom Tugendhat
Clause 47, and schedule 7, to which the clause gives effect, make further provision for court proceedings in relation to decisions taken under the Bill. I will spend slightly longer on those measures, given the important issue raised by some of the key aspects of those provisions.
Subsection (1) makes clear that an appeal against a court decision in STPIM proceedings may only be brought on a point of law. That limitation is appropriate. The court of first instance has the expertise in fact finding for national security determinations. It has developed expertise and a body of knowledge in an experienced judiciary who hear national security cases. That means it is right that the court of first instance, which has significant expertise, has the final determination on points of fact.
In such cases, it is therefore right to limit the right of appeal to a point of law, as higher courts will not have available the national security information or expertise to make a fair determination on the facts. The approach is reflected from the provisions in the Terrorism Prevention and Investigation Measures Act 2011, and the Special Immigration Appeals Commission.
Schedule 7 makes further provision relating to court proceedings under the Bill, including, in particular, powers to make rules of court about various matters. Critically for the operation of the scheme, the rules will make provision that court proceedings in relation to STPIMs will operate with both open and closed elements given the sensitivity of the evidence that will be a key component of why an individual cannot be prosecuted and why the use of a STPIM is necessary. It would fundamentally undermine the scheme if closed proceedings, where sensitive intelligence and national security arguments can be made, were not available. The individual, and his or her chosen legal representatives, can be present at the open hearings, and see all the material used in those hearings, but they cannot be present at the closed part of the proceedings or see the closed material.
Holly Lynch
I am grateful to the Minister for that introduction to clause 47 and schedule 7. I am particularly interested in what he had to say on special advocates and I will perhaps come on to that.
Schedule 7 introduces provisions relating to prevention and investigation measures and proceedings, as we have already heard. As outlined in the explanatory memorandum, paragraph 2 will take into account closed elements of proceedings where sensitive material is not disclosed as it would be contrary to the interests of the UK’s national security to do so, with paragraph 3 setting out the rules for the court on disclosure. In previous exchanges, we have examined the balance that needs to be struck on both these issues, so we expect the commitments to both transparency and national security to be weighed delicately in each instance.
We certainly welcome the guarantee around article 6 of the European convention on human rights, which is set out in paragraph 5. Paragraph 10 provides for the appointment of a special advocate in relation to any closed proceedings. A special advocate attends all parts of the proceedings—both open and closed—and plays a key role in scrutinising material while acting on behalf of the individual subject to the proceedings. The explanatory notes say that part of the function of the special advocate is to ensure that the closed material is subject to independent scrutiny and adversarial challenge, including making submissions in closed session on whether the closed material should be disclosed to the individual.
I think that the Minister confirmed that the special advocate would be a barrister, but I could not find any detail within the Bill or the explanatory notes about how a special advocate would be appointed and what their experience and background would be expected to be in such circumstances, when they would be providing such a specialist function. I would be grateful if there was a commitment to ensuring that those things are clear in the Bill and the explanatory notes that accompany it.
Stewart Hosie
Schedule 7 empowers the court to make rules in relation to reviewing proceedings and onward appearance, and the rules of court must secure not only a proper review of decisions, but
“that disclosures of information are not made where they would be contrary to the public interest.”
We can have determinations without a hearing, without full reasons being given for a decision—the Minister described that—and, when sensitive information is to be laid, hearings without the accused. There is a duty of disclosure on the Secretary of State, but he or she can apply not to disclose certain information on the grounds that disclosure would be
“contrary to the public interest.”
That rule means that the Secretary of State might be able to ignore other requirements to disclose information. That is Kafkaesque.
The Minister, rightly, prayed in aid national security; he was absolutely right to do that. We can all understand that there could be circumstances where such rules would be necessary, but does the legislation describe those circumstances appropriately? The watchwords appear to be “public interest”, but is that not far too wide or far too vague? Given he prayed in aid national security, why do we not only allow the avoidance of disclosure on genuine national security crimes?
Mr Jones
I think the Minister has explained that. I take the point made by the right hon. Member for Dundee East, but as I said earlier on, I think the rules are a sensible safeguard in terms of what we need. Frankly, with no access to legal aid they are for the birds, because no one will be able to use them. We will come on to that debate later.
I want to ask the Minister about the issue of juveniles, which is an increasing problem for our security services. For example, the “Extreme Right-Wing Terrorism” report that we just produced in the Intelligence and Security Committee found that, increasingly, those individuals are young people—some as young as 15. If we are going to apply the rules in some possible circumstances to those individuals, what are the protections for them? If the Minister does not know the answer, I am quite happy for him to write to explain the situation. We are perhaps fixated on thinking that this is about Islamic terrorists and grown-ups, but certainly according to the ISC report, very sadly, in many cases those who are now coming before the courts are minors.
Tom Tugendhat
Let me quickly answer the question on who is the appropriate advocate. That is somebody appointed by the Attorney General under schedule 7(10)(1). The person has to be an appropriate law officer, so a barrister or a solicitor. That is how it is determined.
On the question of genuine national security, I understand the point made by the right hon. Member for Dundee East. He will understand that this is a matter of concern for many of us who are devoted, as he knows I am, to the application of the rule of law and the access to justice that this country and many countries in Europe have secured over the past century. That is vital to the provision and protection of liberty in our country. I appreciate his point and the right to a fair trial is essential.
However, it is simply the reality of life in our world that sometimes we need to frame that justice within certain provisions to allow it to be real, and not to be silenced by the inability to bring together evidence that would otherwise protect British people. That means that we have to find ways of balancing it. That is why these court proceedings, which are less than ideal and not the ones that we would like to see, are sadly necessary because of the security restrictions that apply.
On the point made by the right hon. Member for North Durham, he knows that I spent some time in the past few decades hunting people who sought to do our country harm, and he is absolutely right. Sadly, it was not always the people who we see on the various TV shows. Very often, it was people who came at it from a very different angle. I therefore appreciate his point; I will look into it and come back to him.
Question put and agreed to.
Clause 47 accordingly ordered to stand part of the Bill.
Schedule 7 agreed to.
Clause 48
Reports on exercise of powers under this part
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clause 49 stand part.
New clause 2—Reviews of Parts 1, 3 and 4
“(1) The operation of Parts 1, 3 and 4 of this Act must be reviewed by a person, or people, appointed by the Secretary of State.
(2) The operation of Part 3 must be reviewed by the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006.
(3) The operation of Parts 1 and 4 must be reviewed by either—
(a) the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006, or
(b) a different person appointed by the Secretary of State.
(4) Reviews under this section must be carried out in respect of—
(a) the 12-month period beginning with the day on which any section in this Part comes into force, and
(b) each subsequent 12-month period.
(5) Each review under subsection (1) must be completed as soon as reasonably practicable after the period to which it relates.
(6) The person or people mentioned in subsections (2) and (3) must send to the Secretary of State a report on the outcome of each review carried out under subsection (1) as soon as reasonably practicable after completion of the review.
(7) On receiving a report under subsection (6), the Secretary of State must lay a copy of it before Parliament.
(8) Section 36(6) of the Terrorism Act 2006 shall be read such that the ‘expenses’ and ‘allowances’ mentioned therein may include the discharge by the person or people of their functions under this section.”
Tom Tugendhat
Clause 48 requires the Secretary of State to report to Parliament every quarter on the exercise of her powers under this part of the Bill. The Committee will recognise the parallel to similar measures in the TPIM Act 2011. Although details of the operation of the system and of particular cases will necessarily be sensitive and cannot be disclosed publicly, the clause acts as an additional safeguard by welcoming public scrutiny of the use of the regime and powers, and offers reassurance that crucial information about the operation of the regime will be public and kept up to date. Crucially, that information will include the extent of the Secretary of State’s use of her powers and the number of cases in which measures are imposed. It will also include details of court judgments handed down in the relevant period that relate to the use of those powers.
Clause 49 requires the Secretary of State to appoint an independent reviewer to review the operation of part 2 annually. First, the reviewer is required to undertake a review of the operation of the STPIM regime as soon as is reasonably practical at the end of each year, and a report on the outcome of the review must be sent to the Secretary of State as soon as is reasonably practical after the review has been completed. Then, the Secretary of State is obliged to lay the report before Parliament. That replicates the approach in TPIMs, for which the annual reports have been an effective way of examining the Government’s use of their powers.
The independence of the Independent Reviewer of Terrorism Legislation, combined with their unrestricted access to Government papers and intelligence, has led to real insight and informed reports that have aided the functioning and development of the TPIM regime. Using the same approach for STPIMs will ensure similarly robust scrutiny. Omitting the clause would undermine the level of oversight and transparency of the regime. I hope the Committee agrees that the provision is important for the effective operation of STPIMs.
New clause 2, tabled by the hon. Member for Halifax, proposes commitments to review annually the operations of parts 1, 3 and 4 of the Bill. I thank the hon. Lady for tabling the new clause and I understand the intention behind it. Appropriate oversight of national security functions—particularly the use of intrusive powers—is important. A range of oversight mechanisms are in operation and govern both the UK’s intelligence agencies and the police, which are the primary bodies that will utilise the new powers in the Bill.
As I have just mentioned in addressing clause 49, the Government have made a commitment to an independent reviewer of part 2 of the Bill. Although there may well be merit in extending oversight of the legislation beyond part 2, careful consideration must be given to how that is done. In some cases, it could create an undesired overlap of duplication of responsibility. The Committee discussed that earlier—a little bit before my time—in the context of the hon. Lady’s proposal for an independent body to monitor disinformation. There are further examples of potential duplication, such as the powers in clause 22, which are already the responsibility of the Investigatory Powers Commissioner.
The new clause also proposes that part 3 of the Bill be reviewed by the Independent Reviewer of Terrorism Legislation. As the Committee knows, part 3 contains measures to freeze civil damages awarded to claimants who are seen as representing a real risk of using their award to fund acts of terror, and measures to restrict access to civil legal aid for convicted terrorists. As a result, it is already in the remit of the Independent Reviewer of Terrorism Legislation to review those measures. An explicit commitment to oversight of part 3 of the Bill is therefore unnecessary and would duplicate the existing discretion of the Independent Reviewer of Terrorism Legislation to review and report on terrorism-related legislation.
With those points in mind, the Government cannot accept new clause 2 at this stage. Although I fully appreciate the purpose behind the new clause, I ask the hon. Lady to withdraw it for now. The Government take oversight of the Bill seriously, and we will consider the best way to approach it. I will be in touch with her about that.
Holly Lynch
I am grateful for the way the Minister has approached the new clause. I accept entirely the volume of work he has had to do in the past 24 to 36 hours.
We feel quite strongly about some of the proposals we are advocating for in new clause 2. There is an acceptance of the real value of the work undertaken by the independent reviewers right across the agencies that work with this type of legislation. We think we are largely doing the Government a favour in putting these proposals forward.
Stewart Hosie
Clause 48 requires quarterly reports by the Secretary of State on the exercise of powers to impose, extend, vary, revoke or revive part 2 notices. Clause 49 requires an independent reviewer of this part—that is, the STPIMs. Annual reports are to be prepared and laid, and that is all good and well. The only issue we have is the scope of the clause 48 report, in that its requirement is
“the exercise of the powers”,
while the scope of the clause 49 review is about
“the operation of this Part”.
It is important that the review includes information about the workings of what I described as potentially Kafkaesque rules for reviews and appeals in schedule 7. I will be very brief, but new clause 2, in the name of the hon. Member for Halifax, which calls for a broader review requirement to cover parts 1, 3 and 4 of the Bill, does seem rather sensible.
Mr Jones
The amendment from my hon. Friend the Member for Halifax is, as I said earlier, part of a broader piece about ensuring that we get the balance right between giving our security services, agencies and people the powers that I personally support, and providing proper scrutiny for the individual and for the operation of the Bill. That is the thing that has been missing from the Bill. Knowing Sir Brian Leveson, the Investigatory Powers Commissioner, I know that system works well in terms of warrantry and so on. If we are going to give powers to our agencies to do their job rightly, we have to ensure that they are robust and reviewed as things change.
I know the Minister is only a day or a bit into his job, so he might not be able to accept an amendment today, but I think this aspect needs to be looked at throughout the Bill. It was certainly raised with his predecessor, though I cannot remember if it was his immediate predecessor or the one before that.
My other point is to do with this issue of laying before Parliament. I support that, but the report will be very anodyne in terms of what it can provide in public, so I might look to the Intelligence and Security Committee. I am not looking for work for that Committee, but it has the ability to access material that cannot, for obvious reasons, be put in the public domain. The Minister will soon learn about the battles going on at the moment with parts of the Cabinet Office, Home Office and various other agencies about our role and access to material. We already get, for example, the independent commissioner’s report, but we have an ongoing row about our access to the annex, which we had in the past but for some reason are now not allowed to have. Given the role of Parliament and for its reassurance, will the Minister consider the ISC having access to the information that cannot be put in the public domain? That would be helpful. I accept that some people think the ISC just agrees with everything the agencies do, but it is another review body that can give assurance to the public and Parliament that the powers are proportionate.
We know that once we implement the Bill, we will learn and powers will change. I am not against Brian Leveson, the independent tribunals and the Investigatory Powers Commissioner—they do a fantastic job. They have helpfully pointed to some of the lessons that need to be learned, for example, from the terrorist attacks in London and Manchester. The ability of parliamentarians at least to ask the questions and have access to the information that cannot be put in the public domain would be an added layer of scrutiny, allowing the public to know at least that we have a full spectrum to ensure that such things are done proportionately and are working effectively.
Tom Tugendhat
I thank hon. Members for the tone of this discussion. I appreciate that scrutiny is important. This is about protecting not just the rights of individuals, but the agencies that are carrying out such important work on our behalf. Their heroism and courage on operations need to be protected, so that the agencies are not later found in legal difficulty in areas where they have acted not only with integrity but with enormous courage. I therefore appreciate the tone.
Briefly, I will touch on the question of scrutiny and laying before the House. I will make an absolute commitment to bring forward reports as soon as possible. I appreciate that there have been a few issues of late, which may have delayed things. I assure the hon. Member for Halifax that I will do my best to ensure that those timelines are reduced and are as sharp as possible. I absolutely appreciate her point. The issue of being laid before both Houses is made absolutely clear in the publication.
To touch on the question of who the commissioner might be, that has not been resolved as yet. I appreciate the hon. Lady’s point and there is merit on both sides of the argument, but either way, there is huge merit in ensuring that whoever is doing TPIMs has a very close connection with whomever is doing STPIMs. Whether that is a newly appointed individual or the extension of a role, I am happy to ensure that they work closely together.
Holly Lynch
We have been probing that during the passage of the Bill. Because that role is so crucial to the oversight that needs to follow the rest of the provisions in the legislation, can the Minister, as an absolute minimum, confirm that that person will be in post and that that issue will have been resolved by the time the Bill is enacted, so that that is not an ongoing question that starts to run into the legislation being enacted?
Tom Tugendhat
The hon. Member will be aware that I have been in post for only a few hours, so I will be cautious about making commitments that I cannot keep, but I can assure her that I will do my absolute damnedest to make sure that they are in post, because I can see exactly the point that she makes and I appreciate it. As I say, this is about protecting the rights not just of those who are subject to the provisions but of those carrying out the protection of our state and our nation.
Question put and agreed to.
Clause 48 accordingly ordered to stand part of the Bill.
Clause 49 ordered to stand part of the Bill.
Clause 50
Offence
Question proposed, That the clause stand part of the Bill.
Tom Tugendhat
The clause provides for a criminal offence of breaching a measure specified in a part 2 notice without reasonable excuse. This echoes, as do many of the provisions, a similar provision in the TPIM regime, and includes cases in which a person has permission from the Secretary of State to contravene a measure and does not adhere to the terms or conditions of that permission. For the sake of enforceability, it is vital that a part 2 notice is reinforced with effective penalties if the subject does not comply. Hence the maximum penalty on conviction is a custodial sentence not exceeding five years, unless the travel measure is breached, in which case the maximum sentence is 10 years.
Holly Lynch
The clause provides for an offence of contravening without reasonable excuse any measure specified in a part 2 notice. That, again, mirrors section 23 of the Terrorism Prevention and Investigation Measures Act 2011. According to the Government’s most recent transparency report, in December 2020 the total number of individuals who had been served a notice since TPIMs were introduced in 2011 was 24, so compliance is relatively high. But so are the stakes when someone breaches the terms of such measures.
According to the “Statistics on the operation of police powers under the Terrorism Act 2000 and subsequent legislation” quarterly report from the Home Office, the number of people who have been prosecuted and convicted under section 23 of the TPIM Act, meaning that they contravened an order, is 10. Like TPIMs, the primary function of STPIMs is to be able to control and monitor those who represent a serious threat to our national security but cannot yet be prosecuted. We have been assured that the primary function of an STPIM is to be able to manage a person while an investigation into a part 1 offence is established, rather than simply creating a situation where a prosecutable breach is highly likely.
We note the particular focus on travel in clause 50, and that under subsection (2) an individual who travels without permission loses any reasonable excuse defence. Given that we anticipate that there might be a higher number of foreign nationals and dual nationals in this cohort due to the state threat nature of the offences, it is possible that we might have higher numbers of requests to attend overseas births and deaths of family members and loved ones among the cohort. However, the risk of permitting that travel, which might mean a return to a very hostile state that we fear is sponsoring the individual’s activity, presents a massive challenge. To ensure there are robust decision-making processes around those considerations and to have good reporting and a review of those elements of the clause would be welcome additions.
Stewart Hosie
As the Minister said, the clause creates a criminal offence of contravening without a reasonable excuse a measure in a part 2 notice, but there is no defence of reasonable excuse if the subject leaves the UK when they are restricted from doing so. In normal circumstances, a breach of a part 2 notice would leave the individual subject to five years’ imprisonment on indictment, or 12 months’ imprisonment on a summary conviction in Scotland, but that becomes nine years’ imprisonment on indictment for a breach of a travel measure.
I wish simply to get to the bottom of why some of the breaches of a part 2 notice appear to be disproportionately harsh. The Minister said that much of this provision mirrors the provisions of TPIMs; does this bit—the doubling of the tariff for a breach of a travel measure—mirror the TPIMs provisions? If it does, how often was such a penalty imposed for such a breach under the existing provisions?
Tom Tugendhat
It is quite clear that any order given must have consequences if it is disobeyed—I do not think anyone in this room would disagree with that—and it is important that the penalties for disobedience against a lawfully given order must be proportionate. The penalties are proportionate, and it is normal to have an increased penalty for an aggravated offence, whatever that may be. In the circumstances, travelling abroad would be considered an aggravation and therefore have a greater penalty attached. That is entirely appropriate, so it is entirely reasonable to have that increased sentence.
Question put and agreed to.
Clause 50 accordingly ordered to stand part of the Bill.
Clause 51
Powers of entry etc
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider that schedule 8 be the Eighth schedule to the Bill.
Tom Tugendhat
The clause gives effect to schedule 8, which provides the police with powers of search, entry, seizure and retention in a number of scenarios relating to STPIMs. For the sake of ease, I will cover the clause and the schedule together.
Before I go into the detail of the clause, I remind the Committee that STPIMs will be a tool of last resort. The Government will use every other tool at our disposal before resorting to such significant measures. Again, I remind the Committee that these measures mirror those in the TPIMs regime.
In order to effectively enforce the regime and check an individual is complying with the measures under their STPIM, the police will have the powers they need to enter premises, conduct necessary searches and seize and retain items as necessary. They will also be able to arrest the individual for a “breach of” offence if they fail to grant police access.
Schedule 8 provides powers to the police to enter and search premises without a warrant to locate an individual for the purpose of serving an STPIM notice or another specified notice on them; to search an individual or premises when serving an STPIM notice for the purpose of discovering anything that might breach any measures specified in the STPIM notice; to search premises on suspicion that an individual subject to an STPIM notice has absconded; and to search an individual subject to an STPIM notice for public safety purposes. It provides a power to police with a warrant to search an individual or premises to determine whether an individual is complying with the measures specified in the STPIM notice. There are also powers for a constable to seize and retain items found in the course of such searches.
I remind the Committee that the STPIM itself is kept under review and requires a court’s permission to impose the measure. That means that a court will have already agreed with the assessment of the Secretary of State that the individual meets the meet five conditions in clause 33, which the Committee has already agreed to. That means it is proportionate in terms of a national security determination for the police to be able to undertake the aforementioned activities without a warrant. The powers will be essential to managing and enforcing the measures imposed under STPIMs and, importantly, they provide the right balance between effective powers and safeguards for the rights of the individual.
Holly Lynch
I have a couple of queries on schedule 8, which provides powers of entry, search, seizure and retention in a number of scenarios relating to part 2 notices.
I have queried the use of the word “constable” in legislation before, but it seems to be standard. Paragraph 9(9) states:
“The warrant may be executed by any constable.”
Previous schedules specify certain ranks and specialisms, such as counter-terrorism officers, to undertake such duties. Are we satisfied that further stipulations on who may execute a warrant are not required?
Sub-paragraph (10) states that a warrant issued by a court to search the individual, the individual’s place of residence, or other premises specified by the warrant, expires after 28 days. That period feels a bit odd to me. We want officers to have the flexibility they need, but I cannot imagine a scenario in which they have grounds to apply for a warrant but then take more than 20 days after it is issued to execute it. I am grateful to counter-terrorism police for sharing a bit more about their operations and how these warrants are used, which has provided some reassurance on this front, but will the Minister confirm that a warrant cannot be executed more than once in the 28-day period?
Stewart Hosie
Clause 51 applies schedule 8, which makes provision about various powers of entry, search, seizure and retention—to enter and search premises for the purpose of personally serving, to search for items that breach the notice, and to search when there is a suspicion of absconding. A warrant is required to search people or premises for the purposes of determining whether an individual is complying with the measures specified in the notice, and the warrant is to be granted only if necessary.
However, some of the powers in paragraph 10 appear to be rather broad, allowing a person to be searched without a warrant to see whether they might be
“in possession of anything that could be used to threaten or harm any person”.
I am not quite sure what that means. Unlike in the case of other warrantless powers, there is no requirement even for suspicion that someone is likely to threaten or cause harm. What is the justification or the reason for that?
Paragraphs 11 and 12 contain very strong powers to retain certain items which are seized, with no time limit other than
“as long as is necessary in all the circumstances.”
There follows a non-exhaustive example of what could represent necessity, but necessary for what? Is there provision for a person to challenge the ongoing retention of property seized by police under these powers? Is there a model for this drafting that has been used elsewhere? If there is, and if a piece warrantless search and retention legislation exists, how frequently is such a measure used?
Tom Tugendhat
The hon. Member for Halifax asked about the use of the term “constable”. It is standard, and she will realise that mostly it will be counter-terrorist police who lead on STPIMs, and who the most appropriate person is will be reviewed by the operational commander. The use of the term “constable” and the equivalent ranks in other forces and relevant services is standard for these purposes.
The provision on when a warrant may be executed is operationally beneficial to those who may have reason to delay or have to wait for a window to open when action can be taken. I will not go into the potential operational requirements on any element, but clearly they will vary: in some circumstances, it will be appropriate to act immediately; in others, it may be necessary to wait.
The provision on retention for
“as long as is necessary”
is also standard, including in the Police and Criminal Evidence Act 1984. The Bill also contains provisions allowing people to apply to have property returned.
Question put and agreed to.
Clause 51 accordingly ordered to stand part of the Bill.
Schedule 8 agreed to.
Clause 52
Fingerprints and samples
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss that schedule 9 be the Ninth schedule to the Bill.
Tom Tugendhat
The clause will give effect to schedule 9, which makes provision for the taking and retention of biometric material from individuals subject to a part 2 notice. I will cover the clause with the schedule.
The biometric data retention provisions relating to state threats prevention and investigation measures are in line with those existing elsewhere in the statute book, including in TPIMs, which have been well established for more than 10 years. The schedule makes separate provisions for taking the fingerprints and samples of an individual subject to a specified prevention and investigation measure in England, Wales and Northern Ireland to that of Scotland. That ensures that provisions are in line with different police procedures and legislation.
constable may take biometric data, which could include physical data, from an individual subject to a part 2 notice. The individual will be informed of the reason for the fingerprints or sample being taken. Police can require an individual to attend a police station for the purpose of providing biometric data, and that material may be checked against other such material held under a variety of other powers. The schedule requires the destruction of relevant material, including fingerprints, DNA profiles or relevant physical data, unless there is a power to retain, which I shall come to.
The purpose of the provisions is to ensure the right balance between the protection of the public and individual civil liberties. Under paragraph (11), any samples taken from the individual must be destroyed as soon as a DNA profile has been derived from that sample or, if sooner, within six months of taking the sample. Paragraphs (8) and (9) contain powers to retain biometric data. Where there is no relevant previous conviction, fingerprints, DNA profiles and physical data may be retained for six months after the end of the relevant part 2 notice being in force.
Under paragraph (9), a national security determination can be made by a chief officer of police, enabling the police to retain for up to five years data relating to an individual who may pose an enduring national security threat. All national security determinations that can be reviewed must be reviewed by the biometrics commissioner, who has continued oversight of the retention and use of such data.
We recognise the importance of safeguarding individuals’ right to privacy, so paragraph (12) sets out the limitation of uses for any retained material taken from a person subject to a part 2 notice, which are in the interests of national security, for the purposes of investigation foreign power threat activity, for the purposes of a terrorism investigation, for the detection and prevention of crime, or in the interests of identification only.
Holly Lynch
I listened intently to the Minister. Schedule 9 makes provision for the taking and retention of fingerprints and non-intimate samples from individuals subject to a part 2 notice. Schedule 9, like schedule 3, is subject to several Government amendments. As the explanatory notes explain, fingerprints and non-intimate samples have the same meaning as that given in section 65 of PACE 1984. I would be grateful to the Minister for some clarity on that, which he may need to provide in writing. There is a lot going on in relation to biometrics in different parts of the Bill.
Paragraphs (6) to (11) make provision relating to the destruction and retention of material taken from individuals subject to a part 2 notice. The explanatory notes say that where an individual has no relevant previous convictions, fingerprints and DNA profiles may be kept for only six months after the part 2 notice ceases to be in force. Paragraph (11) goes on to state that, as provided in the Protection of Freedoms Act 2012, material taken under PACE, for example, or that is subject to the Terrorism Act 2000 or the Counter-Terrorism Act 2008, need not be destroyed if a chief office of police determines that it is necessary to retain that material for purposes of national security. Given that we are dealing almost exclusively with matters of national security in schedule 9, can we assume that the majority of biometric evidence taken from individuals subject to part 2 notices may be held indefinitely under this provision?
I am reliably informed that the biometric retention provisions in the Bill are designed to bring the powers into line with similar provisions in terrorism legislation. Schedule 9(8) deals with the retention of biometrics collected in the course of the service of a part 2 notice under the STPIM provisions. That provides us with a retention of six months prior to a national security determination being made, and is therefore in line with the provision under schedule 6 of the Terrorism Prevention and Investigation Measures Act 2011.
A separate provision for the retention of biometrics can be found in paragraph 22 of schedule 3. It provides for a retention period of three years for those detained under schedule 4 provisions, in line with biometrics collected under section 41 of the Terrorism Act 2000 and section 41 of the Counter-Terrorism Act 2008, which qualify terrorism offences.
Beyond the initial retention period, both provisions are capable of retention by way of a national security determination process. I have lost track—I do not know whether other Members have—of whether we are keeping biometrics for an initial six months, as schedule 9 seems to outline, or for three years, which is the case elsewhere in the Bill. I suspect the Minister is unable offer absolute clarity right now—although I have no doubt that the civil servants think it is absolutely crystal clear—but I would be grateful if he could outline, perhaps in writing, the rationale for the different provisions.
Government amendment 32 specifies that the chief constables of the Ministry of Defence police and the British Transport police, and the director general of the National Crime Agency, are added to paragraph 9(4) of schedule 9. The responsibilities of the Civil Nuclear Constabulary are different from those of other forces, but is the Minister certain that it does not need to be added to the list?
Stewart Hosie
I am aware that similar provisions were debated in relation to schedule 3, and concerns were raised then that the provisions may end up allowing the indefinite retention of the material of people who have accepted cautions—indeed, even youth cautions—meaning that they were never charged, never mind convicted. The Minister has not provided much of a justification for that, other than that he wants the legislation to mirror the provision in other Acts. He used the same argument in his introductory remarks.
That is not enough. Provisions on the ability to retain material indefinitely on whatever grounds must be justified in their own terms in this legislation. I know that the Minister is new to the job, so if he cannot do that now, he can write with that explanation, as the hon. Member for Halifax said. Notwithstanding the fact that we all want the maximum powers necessary to tackle the state threat and the terrorist threat, if his explanation is not compelling or convincing, the provisions will need to be revisited at a later stage.
Tom Tugendhat
I do appreciate that elements are being raised about which I will write to various Committee members, and I will follow up on areas that I have not covered in detail.
Although the operational use of biometrics remains the same across provisions, we are taking a different approach to the powers provided under STPIMs and the powers in schedule 3. That ensures the right balance and proportionality in tackling foreign state threat activity while protecting individuals’ right to privacy. Although there is the option to make a national security determination under both regimes, under our police powers the initial retention period is longer than for STPIMs to reflect the seriousness of an arrest made for suspected involvement in foreign power threat activity.
Following arrest for involvement in foreign power threat activity, an individual’s biometric data may be retained for three years, with the option of extending that, irrespective of whether there is no further action, or whether they are charged or acquitted. Certain national security offences under this Bill will be added to the list of qualifying offences in PACE to reflect the seriousness of the offence that justifies longer retention periods.
Question put and agreed to.
Clause 52 accordingly ordered to stand part of the Bill.
Schedule 9
Fingerprints and samples
Amendments made: 25, in schedule 9, page 133, line 1, leave out paragraph (f).
This amendment removes paragraph (f) from a list of provisions under which fingerprints, data and other samples may be taken. Paragraph (f) is not needed because its contents are already covered by paragraph (g).
Amendment 26, in schedule 9, page 133, line 9, at end insert—
“(ia) any of the fingerprints, data or samples obtained under paragraph 1 or 4 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011, or information derived from such a sample;”.
This amendment inserts a reference to the provisions of the Terrorism Prevention and Investigation Measures Act 2011 under which fingerprints, data or samples may be taken, so that fingerprints, data or samples obtained under paragraph 1 or 4 of Schedule 9 may be checked against fingerprints, data or samples taken under that Act.
Amendment 27, in schedule 9, page 133, line 13, leave out paragraph (k).
This amendment removes paragraph (k) from a list of provisions under which fingerprints, data and other samples may be taken. Paragraph (k) is not needed because its contents are already covered by paragraph (g).
Amendment 28, in schedule 9, page 133, line 30, after “paragraph 8” insert “, 8A”.
This amendment is consequential on Amendment 31.
Amendment 29, in schedule 9, page 134, line 4, at beginning insert—
“(Z1) This paragraph applies to paragraph 6 material taken from, or provided by, an individual who has no previous convictions or (in the case of England and Wales or Northern Ireland) only one exempt conviction.”
This amendment is consequential on Amendment 31.
Amendment 30, in schedule 9, page 134, line 4, leave out “Paragraph 6” and insert “The”.
This amendment is consequential on Amendment 29.
Amendment 31, in schedule 9, page 134, line 26, at end insert—
“8A (1) This paragraph applies to paragraph 6 material taken from, or provided by, an individual—
(a) who has been convicted of a recordable offence (other than a single exempt conviction) or of an offence in Scotland which is punishable by imprisonment, or
(b) who is so convicted before the end of the period within which the material may be retained by virtue of paragraph 8.
(2) The material may be retained indefinitely.
8B (1) For the purposes of paragraphs 8 and 8A an individual is to be treated as having been convicted of an offence if—
(a) in relation to a recordable offence in England and Wales or Northern Ireland—
(i) the individual has been given a caution or youth caution in respect of the offence which, at the time of the caution, the individual has admitted,
(ii) the individual has been found not guilty of the offence by reason of insanity, or
(iii) the individual has been found to be under a disability and to have done the act charged in respect of the offence,
(b) the individual, in relation to an offence in Scotland punishable by imprisonment, has accepted or has been deemed to accept—
(i) a conditional offer under section 302 of the Criminal Procedure (Scotland) Act 1995,
(ii) a compensation offer under section 302A of that Act,
(iii) a combined offer under section 302B of that Act, or
(iv) a work offer under section 303ZA of that Act,
(c) the individual, in relation to an offence in Scotland punishable by imprisonment, has been acquitted on account of the individual’s insanity at the time of the offence or (as the case may be) by virtue of section 51A of the Criminal Procedure (Scotland) Act 1995,
(d) a finding in respect of the individual has been made under section 55(2) of the Criminal Procedure (Scotland) Act 1995 in relation to an offence in Scotland punishable by imprisonment,
(e) the individual, having been given a fixed penalty notice under section 129(1) of the Antisocial Behaviour etc. (Scotland) Act 2004 in connection with an offence in Scotland punishable by imprisonment, has paid—
(i) the fixed penalty, or
(ii) (as the case may be) the sum which the individual is liable to pay by virtue of section 131(5) of that Act, or
(f) the individual, in relation to an offence in Scotland punishable by imprisonment, has been discharged absolutely by order under section 246(3) of the Criminal Procedure (Scotland) Act 1995.
(2) Paragraphs 8, 8A and this paragraph, so far as they relate to individuals convicted of an offence, have effect despite anything in the Rehabilitation of Offenders Act 1974 or the Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27)).
(3) But a person is not to be treated as having been convicted of an offence if that conviction is a disregarded conviction or caution by virtue of section 92 or 101A of the Protection of Freedoms Act 2012.
(4) For the purposes of paragraphs 8 and 8A—
(a) an individual has no previous convictions if the individual has not previously been convicted—
(i) in England and Wales or Northern Ireland of a recordable offence, or
(ii) in Scotland of an offence which is punishable by imprisonment, and
(b) if the individual has previously been convicted of a recordable offence in England and Wales or Northern Ireland, the conviction is exempt if it is in respect of a recordable offence, other than a qualifying offence, committed when the individual was aged under 18.
(5) In sub-paragraph (4) ‘qualifying offence’—
(a) in relation to a conviction in respect of a recordable offence committed in England and Wales, has the meaning given by section 65A of the Police and Criminal Evidence Act 1984, and
(b) in relation to a conviction in respect of a recordable offence committed in Northern Ireland, has the meaning given by Article 53A of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).
(6) For the purposes of sub-paragraph (4)—
(a) a person is to be treated as having previously been convicted in England and Wales of a recordable offence if—
(i) the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and
(ii) the act constituting the offence would constitute a recordable offence under the law of England and Wales if done there (whether or not it constituted such an offence when the person was convicted);
(b) a person is to be treated as having previously been convicted in Northern Ireland of a recordable offence if—
(i) the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and
(ii) the act constituting the offence would constitute a recordable offence under the law of Northern Ireland if done there (whether or not it constituted such an offence when the person was convicted);
(c) a person is to be treated as having previously been convicted in Scotland of an offence which is punishable by imprisonment if—
(i) the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and
(ii) the act constituting the offence would constitute an offence punishable by imprisonment under the law of Scotland if done there (whether or not it constituted such an offence when the person was convicted);
(d) the reference in sub-paragraph (4)(b) to a qualifying offence includes a reference to an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute a qualifying offence under the law of England and Wales if done there or (as the case may be) under the law of Northern Ireland if done there (whether or not it constituted such an offence when the person was convicted).
(7) For the purposes of paragraph 8, 8A or this paragraph—
(a) ‘offence’, in relation to any country or territory outside the United Kingdom, includes an act punishable under the law of that country or territory, however it is described;
(b) a person has in particular been convicted of an offence under the law of a country or territory outside the United Kingdom if—
(i) a court exercising jurisdiction under the law of that country or territory has made in respect of such an offence a finding equivalent to a finding that the person is not guilty by reason of insanity, or
(ii) such a court has made in respect of such an offence a finding equivalent to a finding that the person is under a disability and did the act charged against the person in respect of the offence.
(8) If an individual is convicted of more than one offence arising out of a single course of action, those convictions are to be treated as a single conviction for the purposes of calculating under paragraph 8 or 8A whether the individual has been convicted of one offence.”
This amendment and Amendment 36 make provision for the indefinite retention of fingerprints, data and other samples taken from a person who is or previously has been convicted of a specified offence.
Amendment 32, in schedule 9, page 134, line 40, at end insert—
“(d) the Chief Constable of the Ministry of Defence Police,
(e) the Chief Constable of the British Transport Police Force, or
(f) the Director General of the National Crime Agency.”
This amendment enables the Chief Constables of the Ministry of Defence Police and the British Transport Police Force and the Director General of the National Crime Agency to make a national security determination in relation to fingerprints, data and other samples.
Amendment 33, in schedule 9, page 135, line 32, after “8” insert “, 8A”.
This amendment is consequential on Amendment 31.
Amendment 34, in schedule 9, page 137, line 34, leave out paragraphs (h) to (j).
This amendment removes reference to the Royal Navy Police, the Royal Military Police and the Royal Air Force Police from the definition of “police force”. Those forces should not be included in that definition because members of those forces do not have the power to obtain fingerprints, data or other samples under Schedule 9.
Amendment 35, in schedule 9, page 137, leave out lines 38 to 40.
This amendment removes reference to the tri-service serious crime unit from the definition of “police force”. Members of that unit should not be included in that definition because they do not have the power to obtain fingerprints, data or other samples under Schedule 9.
Amendment 36, in schedule 9, page 137, line 40, at end insert—
“‘recordable offence’ has—
(a) in relation to a conviction in England and Wales, the meaning given by section 118(1) of the Police and Criminal Evidence Act 1984, and
(b) in relation to a conviction in Northern Ireland, the meaning given by Article 2(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));”.
See Amendment 31.
Amendment 37, in schedule 9, page 138, leave out lines 5 to 19 and insert—
“‘responsible chief officer of police’ means—
(a) in relation to fingerprints or samples taken by a constable of the Ministry of Defence Police, or a DNA profile derived from a sample so taken, the Chief Constable of the Ministry of Defence Police;
(b) in relation to fingerprints or samples taken by a constable of the British Transport Police Force, or a DNA profile derived from a sample so taken, the Chief Constable of the British Transport Police Force;
(c) otherwise—
(i) in relation to fingerprints or samples taken in England or Wales, or a DNA profile derived from a sample so taken, the chief officer of police for the relevant police area;
(ii) in relation to relevant physical data or samples taken or provided in Scotland, or a DNA profile derived from a sample so taken, the chief constable of the Police Service of Scotland;
(iii) in relation to fingerprints or samples taken in Northern Ireland, or a DNA profile derived from a sample so taken, the Chief Constable of the Police Service of Northern Ireland;”.
This amendment and Amendment 38 make provision identifying the responsible chief officer or police in relation to fingerprints or samples taken by a constable of the Ministry of Defence Police or the British Transport Police Force.
Amendment 38, in schedule 9, page 138, line 22, at end insert—
“(2) In the definition of ‘responsible chief officer of police’ in sub-paragraph (1), in paragraph (c)(i), ‘relevant police area’ means the police area—
(a) in which the material concerned was taken, or
(b) in the case of a DNA profile, in which the sample from which the DNA profile was derived was taken.”—(Tom Tugendhat.)
See Amendment 37.
Schedule 9, as amended, agreed to.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
National Security Bill (Twelfth sitting)
Thursday 8th September 2022
(2 years, 2 months ago)
Public Bill CommitteesRead Full debate National Security Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 8 September 2022 - (8 Sep 2022)
The Minister for Security (Tom Tugendhat)
Let me briefly say that we all pray for Her Majesty; it is an extraordinary moment. God save the Queen.
Clause 53 sets out how certain part 2 notices are to be served. A part 2 notice, an extension notice, a revival notice or a notice of a variation of the measures without consent must be served in person to the individual in order to have effect, whereas other notices may be served through the individual’s solicitor.
Schedule 5 contains a supporting power for the police to enter and search premises to find an individual for the purpose of serving a notice on them. This is so that the individual is informed in person and the implications of the notice can be explained to them.
Clause 53 also provides that when a subject is served the relevant notice they must be provided with a confirmation notice that sets out the period for which that notice will remain in force. This will give the individual certainty regarding the period of time for which the measures apply to them.
Holly Lynch (Halifax) (Lab)
Clause 53 states that a confirmation notice must be served on an individual who is served with a state threats prevention and investigation measure, or a revival notice or extension notice, setting out the period, including dates, for which the individual will be subject to the STPIM, unless it is quashed or revoked before its expiry.
We recognise the need for the clause, and it is right that there is a great deal of emphasis on serving the notice to an individual personally. There is, however, a distinct lack of detail in the Bill about who can serve a notice. Counter-terrorism police have again been very helpful in taking me through how such work might be undertaken operationally, but I put it to the Minister that it is not clear in the legislation that it would need to be a constable of a certain rank, or that it would need to be a constable. Other areas of the Bill do specify that.
It is not just a case of serving the notice: it is also the point at which a person is informed of the terms of the part 2 notice notice and presumably relocated and monitored to ensure their compliance with it. I wish to probe whether the provisions in clause 53 would benefit from being ever so slightly tightened up in that specific regard.
Stewart Hosie (Dundee East) (SNP)
The Minister has laid out clearly what clause 53 does. It sets out the requirements for notices to be served and for how long they are in force, and it makes it clear that the individual is not bound unless they have been personally served the notice. I have one question: although the list of different sorts of notices is very clear in the legislation, are individuals to be told in the documents with which they are served of their rights to challenge, seek a revocation or seek a variation of the notice served upon them?
Tom Tugendhat
I hope the right hon. Gentleman will forgive me, but I will have to write to him on that question. As for the question about the rank of the officer, a constable or any warranted officer is the answer.
Question put and agreed to.
Clause 53 accordingly ordered to stand part of the Bill.
Clause 54
Contracts
Holly Lynch
I beg to move amendment 67, in clause 54, page 38, line 29, at end insert—
“(2) Within three months of the passing of this Act, the Secretary of State must publish a statement setting out how the Secretary of State intends to exercise the power under this section. The statement must include an list of illustrative examples of the kinds of contracts or other arrangements this power relates to.”
Holly Lynch
Clause 54 makes me uncomfortable and requires some thorough consideration. Amendment 67 seeks to flesh out some of the detail as to what the clause means in reality.
The explanatory notes say:
“This clause grants the Secretary of State authority to purchase services in relation to any form of monitoring in connection with measures specified in Part 2 notices. This would include, for example, electronic monitoring of compliance with the residence requirement provided for in Schedule 4.”
Frankly, the Government have a somewhat chequered history in awarding contracts, and while I will not go through the back catalogue, it is against that backdrop that we ask for more detail before we sign off on this clause. Section 29 of the Terrorism Prevention and Investigation Measures Act 2011 includes the same provision, so I hope that the Minister is in a position to share with us how private companies have been involved in the monitoring of those subject to TPIMs, so that we can gain a clearer understanding of how that would be replicated with STPIMs.
I am looking for reassurance on two fronts. The first is that we are not using contractors who are vulnerable to hacking or other forms of cyber-attack. There will be marked differences between the cohort of people currently subject to a form of monitoring—and even those subject to TPIMs—compared with STPIMs, which stand to present different challenges, so what tech will be used for monitoring someone subject to a part 2 notice, and how do we ensure that we, but no one else, knows where that individual is? I am assuming, based on what little we are asked to go on in the clause and explanatory notes, that we could be talking about wearable technology or monitoring hardware and software. I suspect that at least some component parts will be made overseas, if not all of them.
We sought to establish where the ankle monitors that are currently used come from. With some help from the House of Commons Library, we found that in November 2017 the Ministry of Justice awarded a contract for the supply of electronic monitoring services, which includes software and hardware, to G4S, and it appears to have been extended, but we could not establish where they were purchased from or just how robust they are. How do the Government plan to address that concern operationally and ensure that there are no holes to be exploited in the technology itself? How do we write those protections and technical specifications into contracts under clause 54?
Secondly, we are dealing with particularly capable people, potentially with the support of entire nation states. I want to know that our security services and trained police officers are undertaking this monitoring work, rather than private contractors who stand to be overwhelmed if not equipped and trained adequately. I had a look at what happens currently. The National Audit Office’s recent report published in June 2022, called “Electronic monitoring: a progress update”, states on page 22 that G4S supplies tags and home monitoring equipment as part of HM Prison and Probation Service’s tower delivery model for its tagging transformation programme.
HMPPS is an agency of the Ministry of Justice and is responsible for tagging. The report explains that the tower contracting approach has four different suppliers, each responsible for a different element of the national programme: supplying and fitting tags to offenders; running a monitoring centre; providing underlying mapping data; and providing the communications network. HMPPS acts as an integrator to co-ordinate work across the four suppliers. Can the Minister confirm that that is the same model, which has a number of private contracts and moving parts, presumably with the exchange of a lot of information between those moving parts, that we use for monitoring those subject to TPIMs, and that it is therefore the same way in which we will monitor people subject to STPIMs?
I would greatly appreciate some clarification from the Minister on that, to ensure that our national security cannot be outsourced and that we have specialist and trained people from our dedicated services undertaking this really important monitoring, using technology that can withstand the threat of outside interference. Given the situation in which we find ourselves, I urge the Minister to consider the merits of amendment 67.
Tom Tugendhat
Clause 54 grants the Secretary of State authority to use third parties to assist in relation to any form of monitoring in connection with the measures specified in part 2 notices. As the hon. Member for Halifax rightly identified, the electronic monitoring of compliance with the residence measure, such as by entering into a contract with a third party to provide tagging services, is exactly the form of contract that is envisioned. In practice, the Government will ensure efficiency by aligning, where possible, with existing contracts, and therefore may use ones that are already set up for comparable provisions in law, such as TPIMs.
The intention of the amendment is to seek clarity about what types of contracts the Home Secretary might enter into in relation to STPIMs and how she intends to exercise the power. Though the Government do not feel that publishing further detail on any such contract is necessary, I absolutely assure the Committee that the clause is not designed to do anything to outsource intelligence services. Instead, it is a standard approach that we have with TPIMs, where in some instances it is necessary for the Government to outsource some services. An example of such is the contract for ankle monitoring services to which the hon. Lady referred. She will be aware of my own views on outsourcing technology to various states; she can be absolutely assured of my own interest in making sure I prosecute this.
Stewart Hosie
I understand perfectly well what the Minister is saying about the occasional need to outsource. I also understand why he would say that much of the contractual information should not be released. However, there are valid questions about the clause. What information would a third-party contracting company have about the subject? For example, would that company be told that the subject may not even have been convicted of committing a crime, but was the recipient of a state threats prevention and investigation measures order?
Tom Tugendhat
As the right hon. Member will be aware, in all such circumstances there will be a great variety, because what might be shared with somebody providing one service may not be the same as what is shared with another. It is also evident that the normal regulation on protecting privacy would apply where appropriate, and the Government would therefore abide with all due legal requirements. I cannot give a further commitment than that, for the obvious reason that the variety in which such contracting would apply is enormous. I can therefore only assure him that the existing previsions would endure.
Holly Lynch
I have listened carefully to what the Minister has said. He talked about the convenience of extending existing contracts; however, given the cohort of those who will be subject to STPIMs, that is the exact point that concerns me. We are talking about a volume of those who have committed more typical types of crime, but we need to think much more carefully about the types of technology, the software and the individuals involved in monitoring those subject to STPIMs.
Given the Minister’s reputation and understanding of the detail, and as he has already given me those assurances, I am willing to give him the benefit of the doubt that he will go back to officials and interrogate clause 54, so that he and I are satisfied that there are no vulnerabilities in that approach. I hope we can continue that conversation with the Minister. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 54 ordered to stand part of the Bill.
Clause 55
Legal aid in relation to Part 2 notices
Question proposed, That the clause stand part of the Bill.
Tom Tugendhat
I thank the hon. Member for Halifax; she can be assured that my commitment to protecting our security through electronic means, as through every other means, will endure.
Clause 55 will extend the scope of legal aid so that it will be available for state threats prevention and investigation measures. It will allow individuals to access legally aided advice and representation in relation to a part 2 notice, subject to means and merits tests. That replicates the position in the Terrorism Prevention and Investigation Measures Act 2011.
The measures are a civil order designed to protect and mitigate the risk to the public from individuals who pose a threat but cannot be prosecuted or, in the case of foreign nationals, deported. Legal aid will be made available in those cases due to the restrictive nature of the measures that an individual may be subject to. It is right that we balance robust investigation and prevention measures with the access to justice and judicial oversight that this House would demand.
Holly Lynch
As we have already heard, clause 55 inserts a new paragraph in schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2021, to enable individuals subject to part 2 notices to receive civil legal services in relation to those notices.
The Chair
Order. Will the shadow Minister speak up, for the benefit of colleagues at the back?
Holly Lynch
Thank you for that helpful observation, Chair; I will certainly will.
My hon. Friend the Member for Birmingham, Yardley will discuss part 3 of the Bill shortly. However, clause 55, which is in part 2, and clauses 62, 63 and 64, which are in part 3, pull in completely opposite directions in principle. Dare I say that it is almost as if they were produced by two different Government Departments that have not been speaking to each other?
Maria Eagle (Garston and Halewood) (Lab)
My hon. Friend is making an important point. Does she agree that the reasoning appears to be that this is such an intrusive and important provision, affecting people’s rights in such a potentially serious manner, that legal aid, subject to merit and means, ought to be available? Would that not also be an argument for getting rid of the whole of part 3 of the Bill?
Holly Lynch
My hon. Friend makes a really powerful point: there are very different principles evident in this element of part 2 compared to those in part 3. We will get into the details of part 3 shortly, but my hon. Friend is exactly right. Part 3 prevents civil legal aid from being available even to British children with any spent terror convictions, yet we are providing legal aid to those who we suspect of engaging in espionage on behalf of hostile foreign states. There is absolutely a powerful case for that, but my hon. Friend is right that that powerful case extends beyond the provisions in part 2 and should also be considered in relation to part 3.
There is a distinct lack of rationale and consistency in the proposals. When we continue into the debate on part 3, I would be grateful if the Minister could provide us with a greater understanding of why those differences occur in the Bill.
Tom Tugendhat
I will restrict myself to discussing clause 55 now rather than considering part 3, because clause 55 covers a particular use of legal aid, which is the use of legal aid in relation to the subject who may be under an STPIM notice. It is therefore a very particular application of legal aid. The question to which the hon. Lady refers, which I understand, is one that, as she knows, we have already discussed, and I look forward to having further discussions with her on it because it does raise questions.
Question put and agreed to.
Clause 55 accordingly ordered to stand part of the Bill.
Clause 56
Interpretation etc
Question proposed, That the clause stand part of the Bill.
Tom Tugendhat
Clause 56 gives the meaning of numerous terms used throughout this part of the Bill. Subsection (2) sets out that the Secretary of State can consider evidence that was relied upon for the original part 2 notice when assessing whether to continue with measures or to impose new measures on a subject. This will be alongside evidence of engagement in
“new foreign power threat activity”,
where relevant for a new notice. This ensures that the Secretary of State is able to consider all the relevant information that may imply a pattern of behaviour. It does not weaken what we discussed when we considered clause 33: evidence of
“new foreign power threat activity”
is required if a further part 2 notice is to be applied after five years.
Subsection (3) provides that
“if a Part 2 notice is revived under section 42(6)”
when considering whether there is
“new foreign power threat activity”,
which could allow for a new STPIM after five years, that new activity must take place at some point after the original imposition of the measures and not necessarily after the revival.
Stewart Hosie
I want to raise one issue in relation to clause 56(5), which relates to a provision in cases in which the Secretary of State does not bother to respond to an application to vary or revoke a part 2 notice. That is treated as a decision not to vary, but from when? Given the importance of the tight timescales within which to lodge appeals, in respect of a decision not to vary when the Secretary of State chooses not to respond, does the clock start ticking when the application is sent to the Secretary of State, when it is received at the ministerial office or when the Secretary of State takes a decision not to respond? When does the clock start ticking to allow subsequent action in the courts to be taken if the Secretary of State simply chooses not to respond and that is taken to mean a thing?
Tom Tugendhat
The clock does not start ticking until the notice is enforced. At that point, the timing begins.
Question put and agreed to.
Clause 56 accordingly ordered to stand part of the Bill.
Clause 57
National security proceedings
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 59, in clause 58, page 42, line 2, at end insert—
“(2A) If the court concludes following its consideration under subsection (2) that the claimant has not committed wrongdoing involving—
(a) the commission of a terrorism offence, or
(b) other involvement in terrorism-related activity,
subsection (3) does not apply.”
Clauses 58 to 60 stand part.
Tom Tugendhat
Under the Bill, courts can formally be required to consider whether to reduce or withhold damages awarded when they find for the claimant in a national security claim where the claimant’s own wrongdoing of a terrorist nature should be taken into account. I will set out the detail of the reforms when I speak to clauses 58 and 59.
On clause 57, it is important to set out the types of cases in which the powers that would be exercised in clauses 58 and 59 would apply, and those in which they would be excluded from applying. The clause establishes that the reforms to reduce damages would apply only in cases that relate to national security proceedings. Those are cases in which one of the parties in the proceedings has presented evidence or made submissions to the court on a matter of national security. That particularly applies to specified types of claims—for example, those involving the use of investigative powers or surveillance, or the activities of the UK’s intelligence services, and cases relating to terrorism-related activity in the UK or overseas. However, the legislation excludes claims brought under the Human Rights Act 1998. The clause specifies that the reforms apply only to claims that are brought against the Crown, which reflects the fact that this cohort of cases is aimed at actions brought against our national security services.
Clause 58 details the measures under which courts can be formally required to consider whether to reduce or withhold damages awarded when the court finds for the claimant in a national security claim, but the claimant’s wrongdoing of a terrorist nature should be taken into account. This measure is aimed at those cases where a claimant, often based overseas, makes a claim against UK security services that is based on, or related to, the claimant’s own involvement in terrorist activity. Although courts already have discretion over the amount of damages to award, they can in theory make a declaration on a finding of fact outcome with no award. In civil tort cases, however, this approach is very rarely taken. In such cases, the courts follow a regular pattern by seeking to establish liability, calculate compensation and award damages. The Bill would go further by requiring courts to consider reducing or removing damages in exceptional cases. These are cases involving matters of national security in which the claimant’s case relates to their involvement in terrorism—for example, to personal injury sustained in the course of such activities—where a claim is then made against UK security services.
It is important to note that the Bill does not fetter the court’s discretion; judges will still be able to determine cases fairly, independently and objectively. However, we think it is appropriate in these cases that they consider the claimant’s conduct as well as the state’s. Here, as in the companion measures on damages freezing and forfeiture, the Government have an overriding duty of public protection and the safety of society. The measures will reduce the prospect of large sums in damages being paid to people associated with terrorism, who may use those resources to fund acts of terror.
In addressing amendment 59, I have spoken about the duty imposed on the court to consider, in the circumstances of the case and on the evidence presented, whether it would be appropriate for the claimant’s damages award to be reduced, including to nil. The key word there is “consider”. The legislation is not fettering the court’s discretion. Judges will assess whether, on the balance of probabilities, the factors set out in subsection (2) are made out, and if they are, whether a reduction in damages is appropriate. If the court is satisfied, it will assess what an appropriate reduction in damages should be. In making that assessment, the court will receive submissions from both the security services and claimant, and there will be a right of appeal. The proceedings will be able to rely on the closed material procedures where necessary, to ensure that there is a fair trial and that the evidence is tested. It is also important to note that the claimant will have a right of appeal against the decision of the court.
Amendment 59, tabled by the hon. Member for Birmingham, Yardley, seeks to make it explicit in the Bill that the court will not be required to consider reducing damages when the claimant has not been involved in the commission of terrorist offences or other terrorist-related activity. The Government’s intention is not for this reform to apply in national security cases where a claimant had no involvement in wrongdoing of a terrorist nature; nor is it contemplated that the security services would make an application for this duty to be exercised by the court in such cases. The Government will seek to introduce an amendment to clarify this point in the Bill once consultations with parliamentary counsel have concluded. In such case, I ask the hon. Member to withdraw her amendment, and I will be happy to discuss the issue with her in advance of the Government tabling its proposed amendment.
Clause 59 provides some supplemental procedural requirements, including safeguards, for the Crown’s application for the court to exercise its duty under clause 58. As I have outlined, the measure is aimed at those cases where a claimant, often based overseas, makes a claim against the UK security services that is related to that claimant’s involvement in terrorist activity. Clause 59 supports and supplements clause 58 by setting out the essential requirements of an application made under that clause. The procedural and evidential requirements are set out, as well as the grounds on which the court may refuse an application. We are confident that our measures provide a reasonable, proper and proportionate balance between the right to access justice, and the need to protect national security and to properly deploy the resources devoted to it. The reforms will have a deterrent effect on litigation, so that the UK is no longer seen as such a soft touch for litigation of this nature.
Finally, clause 60 is designed to ensure that interpretation of the legislation by the courts and others will be consistent with terms defined and understood in existing statutes that concern national security, and in measures to combat terrorism. As such, the clause defines relevant terms used in the Bill, such as “terrorism offence” and “intelligence service”. That ensures that there is no inconsistency or ambiguity in the wider legal framework, and that the Bill complements existing legislation. The clause clarifies the relatively narrow cohort of cases at which these reforms are aimed, which are those brought against the Crown on matters of national security, in which a claimant has had some involvement with terrorist activities or offences.
Jess Phillips (Birmingham, Yardley) (Lab)
I have heard what the Minister said. The Committee is finding common cause on these matters, as we do on much of the Bill. This is in no way a criticism of him, his speech or what he is offering, but it is a shame that there has been no Justice Ministers on this Bill. Frankly, part 3 of the Bill is far more concerned with justice measures than it is with home affairs in the classic sense. I have felt for some of the many Home Office Ministers who have been in front of us during this Committee in the role of Security Minister; they have had to justify things that did not relate to their Department.
My problem with part 3 more generally—then I will come on to my amendment—and this was clear from the evidence sessions, some four Ministers ago, concerns the nature of deterrents. As we go through the Bill and look over each acronym—we have all learned them like a second language by now—we are seeking to protect and secure our nation. Nobody in this room has any greater claim to do that than anybody else. That is all we seek to do. The trouble with much of part 3—evidence on this has been presented to us—is that it potentially reverses that. Parts of it are of concern for the prevention of terrorism. That is a fundamental line that needs to be drawn. Labour certainly wishes the Government, with their new slew of Ministers, to go back and investigate whether prevention is at the very heart of what is being suggested in part 3 more generally.
Mr Kevan Jones (North Durham) (Lab)
My hon. Friend makes a good point. Sadly, over the past 12 years, legal aid has been cut back in this country. It is now a tax on the innocent, in my view. Would she agree that, while people find legal aid for potential terrorists abhorrent, there is a long list of other people that the public might want to withdraw legal aid from? That could include rapists, paedophiles, murderers—you name it. The core point is that those individuals need to go before a court. That is not just for those individuals, but for the potential victims, so that we can ensure that the truth comes out and justice is served.
Jess Phillips
I agree 100%. For much of my career, I have been painted as being very one-sided on such matters, but I know that justice has been properly served to the victims I have worked with in my life by a justice system that is properly resourced.
I have seen the degradation of legal aid harm victims’ processes in court. It holds things up and, in lots of cases—certainly in the civil courts, which is what part 3 is largely about—it has caused a perverse situation whereby perpetrators are able to cross-examine victims, as neither has access to any advocacy because neither qualified for legal aid. There is therefore the perverse situation that victims of domestic abuse or rape can, in family court, be cross-examined by their rapist. There is potential for that same unintended consequence as a result of what is being proposed in the Bill. I say that it is an unintended consequence; I think that the will to do what has been put in the Bill comes from a decent, if somewhat misguided, place.
Mr Jones
I am not sure that I agree with my hon. Friend. The problem with the Bill, as she suggests, is that we have a Home Office Minister, and an MOJ shadow operation in the back. The lifting of that shadow, via the dismissal of the right hon. Member for Esher and Walton (Dominic Raab), might help the process and ensure that we get a Bill that is at least functional and does everything we want it to do.
Jess Phillips
Throughout this Committee, a lot of people have been called on to comment on what is going on internally on the Government Benches. I may be less qualified than others, but I suspect that what my right hon. Friend says about the right hon. Member for Esher and Walton may well be true. I wish him the best of luck on the Back Benches.
I will move on to the amendment. I have heard what the Minister has graciously said about the Bill not intending to come in the way of people who are caught up in acts of terrorism. However, its drafting leaves that open. I also hear what he says about proposing further amendments in this space.
Amendment 59 seeks to protect innocent bystanders, or even victims of crime, from being excluded from seeking damages for harm caused by the state. The Bill provides for a duty on the court, in cases where evidence is related to the intelligence services, to consider reducing damages that could be paid in a claim against the state. Potentially, the whole amount can be denied. While we of course support the concept that public money via damages should not be used to fund terrorism, the drafting of the clause is incredibly broad. The potential consequences of such loose and opaque language are disturbing and must be taken seriously if we are not to undermine the values we seek to uphold with this legislation.
I will demonstrate the issues—as I am sure nobody here will be surprised to hear this—through a gendered lens. In the discourse on security and terrorism, we commonly forget about women. In the assessment, analysis and debate, the impact and experiences of women do not often play a central role. I will use the platform I have to unpack the issues through consideration of how they will affect a victim of gendered violence.
Earlier this year, a case hit the headlines. The BBC claimed that an MI5 informant—I shall call him X—used his status to abuse his partner. I will share just a few of the details from the investigation. Beth—not her real name—a British national, met the MI5 informant online. As time passed, she became aware that he collected weapons, and he made her watch terrorist videos of violence. She realised he was a misogynist and extremist. Beth claimed he sexually assaulted her, was abusive and coercive, and used his position in the British security forces to terrorise her. She said:
“He had complete control. I was a shadow of who I am now,”
and:
“There was so much psychological terror from him to me, that ultimately culminated in me having a breakdown, because I was so afraid of everything—because of how he’d made me think, the people that he was involved with, and the people who he worked for.”
Beth says X told her he worked as a covert human intelligence source, infiltrating extremist networks. Beth claimed he told her that his status meant she could not report his behaviour:
“It meant that I couldn’t speak out about any of his behaviour towards me, any of the violence I went through, sexual or physical, because he had men in high places who always had his back, who would intervene and who would actively kill me, if I spoke out”.
In a video filmed on Beth’s phone, X threatens to kill her, and attacks her with a machete. She is screaming as the video cuts out. A few hours later, Beth says he tried to cut her throat. X was arrested and charged, but the case was dropped, and the BBC claims its investigation uncovered serious issues with the police response to this incident. That is an entirely different speech for an entirely different day. Heartbreakingly, Beth had a mental breakdown and was hospitalised.
Another previous partner—we will call her Ruth—says that X also abused and terrorised her. He threatened her life and that of her child:
“He said he would be able to kill me and my daughter, too, and then put our bodies somewhere and no one would ever know who I am.”
Ruth was unable to speak due to trauma and was also admitted to hospital. She said:
“I was psychologically broken, really broken”.
There are many issues to discuss around this case, regarding how the state and intelligence services should balance the need to safeguard individuals and the need for informants who infiltrate the darkest circles of society. What I want to outline, however, is the horrendous, hellish experience of those two women at the hands of this man X: the trauma, the violence, the abuse, the isolation, and how the man exploited his position to terrorise those women, who had done nothing wrong. Under the clause, if those women had sought damages for harm caused by the state, those damages could have been limited, or reduced to zero.
Sally-Ann Hart (Hastings and Rye) (Con)
Does the hon. Lady agree that it is not the state doing harm, but the individual?
Jess Phillips
There is almost certainly always going to be an ideological difference between the hon. Lady and me on personal responsibility and the responsibility of the state. It is of course the individual doing harm, but it is the state that intervenes to protect the parties, or the state that allows cases to be closed. The idea that the state does not have a responsibility for the human rights of a victim of crime such as this when it comes to how they are treated when they try to interact with the state is, I am afraid, for the birds. Almost every single rape victim I have ever met—I have met thousands—tells me that the initial trauma they were put through is almost nothing compared with the trauma of going through any particular state system.
The provisions of the clause, as it stands, mean that if the women had sought damages for harm, those damages would be limited, potentially, to zero. These are completely innocent bystanders, victims of crimes in which the intelligence services and their power were weaponised to abuse and control them. These women could be denied redress even if wrongdoing by the state was proven. This case, where a man was videoed attacking a woman with a machete, was then closed. Even if it were found and proven that the state was responsible, the woman would still not have a claim. The current drafting does not require that the matter over which damages are sought is directly related to terrorist activity.
I have used this case—a covert human intelligence source case—as an example, but the concerns apply to many other situations and many people whose actions will have had nothing to do with criminal activity. That cannot be right. The provisions are simply too broadly drawn.
The amendment would mean that the limitations to seeking damages apply only to those who have committed wrongdoing involving terrorism. I have made my feelings clear about part 3 of the Bill, but this is simply an amendment to make sure that innocent people definitely do not fall within the scope of the provisions when they are caught up in a terrible situation, which I am very glad the Minister has recognised. The Bill must include this constraint.
There are other broad, loose elements in the Bill that are concerning. I raise them now and urge clarification from the Minister. Seeking damages is a tool to hold the state accountable. The clauses apply only when courts have already found the UK Government liable for wrongdoing. How are the Government going to ensure the provisions in these clauses are not used to allow the Government to evade being held accountable for their actions?
The current drafting seems to suggest that, if there is any evidence related to national security or the intelligence services, the damages for harm could be reduced or erased. The Law Commission has highlighted that that could create a perverse situation where the state could introduce pointless or insignificant national security evidence in order to avoid paying damages under the provisions in the Bill. How will the Government safeguard against that situation? It is a perfectly reasonable to want to have safeguards against that situation in place.
Reprieve has argued that clauses 57 to 60 could limit the ability of victims of torture to seek legal redress for harm done. The state could claim, for example, that in becoming complicit in torture or abuse, the UK was seeking to prevent or limit some other risk of harm, and so reduce or erase damages for a claimant.
Clause 57 rightly excludes from the definition of “national security proceedings” any claims under the Human Rights Act 1998. Our concern is the breadth of the clauses. They potentially enable the state to avoid paying out for UK complicity in torture and abuse under UK civil law. Most survivors of torture seek redress through ordinary civil claims. I will not go into details because it is sub judice, but the case of Jagtar Singh Johal, which was debated in the House yesterday, springs to mind.
We seek reassurance that the clauses will not be used to evade accountability and redress for complicity in abuse. Furthermore, the involvement of the intelligence services in other countries is covered by the Bill, but how do the Government intend to ensure that conduct is legal and ethical under UK law? What safeguards exist around that?
Many concerns and questions remain about the drafting of this part of the Bill, and we urge that our amendment be included in it. We will seek to vote on this issue at the next Commons stage of the Bill’s passage should we not be satisfied, but I have heard the Minister’s words and I thank him.
Maria Eagle
I endorse what my hon. Friend has just said from the Front Bench regarding the breadth of some of these provisions, but before the Minister replies I want to put another point to him. There is going to be a question about the necessity of the provisions, and whether or not they give a court any real, additional power beyond what it already inherently has.
There is a general requirement that judges would apply in any case to those coming before the court and seeking redress, which is that they have to come with clean hands. If any court has a case before it where some ne’er do well is trying to take advantage of court proceedings to get damages for something that they then intend to use for nefarious purposes, it is perfectly normal for that court, under its inherent jurisdiction and the rules of equity, to take into account, when deciding damages, whether or not the applicant has come to the court with clean hands.
Mr Jones
Does my hon. Friend agree that what tends to get the headlines in newspapers is when people bring claims in these kinds of cases? Some of the cases seem quite horrific and brazen, but what never gets reported is that they are usually thrown out, because, as my hon. Friend has outlined, the courts already have powers to do so. The fact that someone has the ability to bring a case does not necessarily mean that it is going to be successful.
Maria Eagle
Indeed. Certainly, my experience of the courts is that judges are not daft: if they have somebody arguing a case before them and seeking damages who has been a very badly behaved individual, that person is less likely to get damages in the first place, and to the extent that they get any damages, they are likely to be exceedingly small—probably not enough to cover the costs they have incurred in bringing the case. Where those cases have been legally aided, zero damages would certainly be an option in most of them.
As such, I wonder whether any of these provisions are actually necessary. They are setting out requirements for judges, telling them what they must do in all cases and creating extra procedures, but they do not go an awful lot further than the inherent jurisdiction of the court under the general rules of equity. As I say, judges are not daft: they know what their powers are, and they tend to apply them.
My other concern regarding these provisions is that, if they stay in the Bill and ossify into court procedures that have to be undertaken in each case, there will be a slippery slope. This legislation addresses instances where especially badly behaved people are coming before a court, seeking damages that they intend to use for nefarious purposes. In this particular case, it is terrorism-related offences, but what about gangsters? What about murderers? We can all think of other dodgy characters who could go to court without clean hands, seeking damages to further their nefarious behaviours.
Once all these procedures are set in aspic, in statute, it is very easy for draftsmen—well, I am not having a go at parliamentary draftsmen, who work very hard. It is easy for the next outraged junior Minister, clearly not from the Home Office but from some other Department, to say at some point in the next couple of years, “We will use those provisions that were in the National Security Bill.” We may see a slippery slope, where these provisions are extended to other nefarious characters who might decide to go before the courts seeking damages. All the while, judges have an inherent jurisdiction and can make their own decisions. I am really not sure that the measures are at all necessary, and while the Minister is looking at some of these things, I invite him to think about removing them entirely. In any event, even if he decides that these unnecessary measures will remain in the Bill, they are certainly too broad.
Mr Jones
There is lots in the Bill on which there is cross-party agreement. We want to achieve a situation whereby law enforcement, our agencies and others have maximum powers to stop the real threat out there from those who wish to do us harm. Clause 57, and the ones on legal aid, which we will come to next, seem to have been plonked into the Bill as headline-grabbing measures—“We will do this because it will look as though we’re tough on terrorists.” I do not think they add anything to the ability of our security services to do their work; nor do they ensure that our courts deal with such cases effectively, as my hon. Friend the Member for Garston and Halewood has outlined.
My hon. Friend the Member for Birmingham, Yardley mentioned a case. I will not refer to it in detail—my hon. Friend the Member for Garston and Halewood and I are members of the ISC, which has looked at it in detail—but it comes back to the checks and balances point that I made this morning, and not just in terms of security. When the state does something that leads to a wrong being committed against a citizen, there needs to be a redress mechanism, and I share the concern of my hon. Friend the Member for Garston and Halewood that the provision will be extended to other areas. The measures will get a nice headline for the right hon. Member for Esher and Walton, who clearly wants to be seen as tough on terrorism, but I am not sure that, in practice, they represent anything of the sort.
Increasingly—and this is a slippery slope of which politicians need to be wary— we in this country react to newspaper headlines about what the courts do, such as “They have got X, Y or Z wrong.” Is the justice system or the jury system perfect? No, they are not, but they are robust. As my hon. Friend has just said, judges know in most cases when someone is pursuing a claim that is not grounded—they are experienced. I believe that we should leave that to courts and judges to decide.
When a newspaper rings up to say, “This judge has just done X, Y and Z. Isn’t this terrible?”, I always urge colleagues to dig into it because in most cases, the headline is completely different from the facts of the case. Without hearing the facts of the case in detail, making an instant judgment is difficult. I do not accept that our judges and judiciary are somehow woolly liberals who are prepared to turn a blind eye to justice; they are robust individuals who want not only to uphold the law, but to ensure that they get the right balance between the rights of the state and the rights of the citizen, as I mentioned earlier.
I accept that the Minister cannot accept the amendments today and that he perhaps does not want to carve out this piece of the Bill now, but discussion needs to be had on this—we will come to the next bit in a minute. If it does not get carved out here, when it goes to the other place, which is full of legal experts and people with a lifetime and huge experience in this area, it will get sliced to pieces. It is not just bad drafting; it is Ministers trying to put provisions in Bills for political purposes, rather than because they make common sense. As I said the other day, what irritates me is that, if we are going to take the provision out, we should do so in this House rather than allow it to go to the House of Lords. It will not survive that process, and we need to be honest about that. It is far better that we do it, and actually do our job, which is scrutinising legislation.
I said the other day, when the Minister was not here, that there is something that has built up over the last 21 years that I have been in the House: Ministers take it as a slight if a provision gets dropped when a Bill goes through the Commons, as though that is a weakness of the system. No, it is not: it is proper scrutiny. With a certain amount of co-operation, much of the Bill could go straight through, but measures such as this cannot, unfortunately.
Tom Tugendhat
First, I thank the hon. Member for Birmingham, Yardley for her comments. I appreciate the tone with which she approached this matter, and the intent with which she seeks to amend the Bill. She also heard my comments, and my commitment to listen more closely. There are slight differences—important differences—between terrorism and other crimes: one is a direct attack on the state, and a betrayal of the very protections that the state affords to everyone, whereas other crimes are by their nature of a different nature. That is not an absolute, and I appreciate that that raises different elements, but it is worth noting.
It is also important to remember that we have already instructed parliamentary counsel to prepare a redraft of part of the Bill, to make it narrowly drawn and to capture only those involved in terrorism. I appreciate the points that the hon. Lady made. I would argue that, as I mentioned, courts do not generally consider reducing damages in these cases, and we are not telling them to do so but inviting them to consider doing so. Courts are still independent, and I appreciate her point.
Tom Tugendhat
The point of this House is to indicate opinion as well. I do know two judges, under whose roofs I have lived, and both of them left me in absolutely no doubt as to who takes the decision. I appreciate the right hon. Gentleman’s point.
As I said in my opening speech on the clause, the courts when awarding civil tort damages will only very rarely exercise their right to limit them. That is why we believe it is right to require the courts to consider doing so, even if they then do not do so. I hope that answers the questions at this stage, and I repeat my commitment to engage in further conversation with members of the Committee.
Jess Phillips
Given the Minister’s words and the offer to work together, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put and agreed to.
Clause 57 accordingly ordered to stand part of the Bill.
Clauses 58 to 60 ordered to stand part of the Bill.
Clause 61
Damages at risk of being used for the purposes of terrorism
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 58, in schedule 10, page 140, line 12, leave out
“there is a real risk that”.
This amendment would ensure the court was satisfied on the balance of probabilities that damages were to be used for terrorism purposes before frozen funds could be forfeited.
That schedule 10 be the Tenth schedule to the Bill.
Tom Tugendhat
The Bill contains measures that will enable a Minister to apply freezing and forfeiture orders where they assess that there is a real risk of the damages awarded being used to fund acts of terror. That will be done only at the request of law enforcement or security services, but I am sure that the whole House, and the Committee, will appreciate the importance of avoiding accidentally enabling those acts against us. The measure is designed to meet the Government’s overriding policy objective of protecting the public and society. We believe it is important, fair and proportionate that damages can be frozen at source, at the point of award, where there is a real risk of their being used to support terrorism.
Maria Eagle
Can the Minister tell us whether these provisions have been based on some existing case, or cases, where the Government think this has happened and needs to be stopped, or are they just being made in anticipation of the unlikely circumstances in which damages are used in the way these provision seek to prevent? Are there existing cases the Government are concerned about?
Tom Tugendhat
The hon. Lady asks a fair question. This is a plan for the future or rather a concern over the future, rather than provisions based on existing cases. It is the Government, I hope, doing a responsible thing and looking forward, which is, I hope, what we would expect them to do.
Let me give an example. When making their application, the security services will provide evidence of the claimant’s involvement in terrorist activity and relevant associations, together with their risk assessment of the likelihood of the claimant’s using the money to fund terror activities.
Mr Jones
I like the idea of the Government being able to look into the future. We have established that there are no cases so far, so what are the limitations of the existing legislation on the statute books? What is the difference that explains why we need this provision? I ask because I am never in favour of putting on the statute book things that are already covered by an existing freezing order, provisions on proceeds of crime, or anything else.
Tom Tugendhat
The right hon. Member will know that I am going to write to him about that, because he raises some interesting questions. I will come back to him.
At the freezing stage, the court is looking at essentially the immediate term, given that a freezing order lasts for two years, so the court will want to be satisfied that the claimant’s involvement in terrorism is current and is such that an award of damages is at real risk of being used at once, or within a short timescale, for terrorist purposes. However, the court has the comfort of knowing that the money is only frozen. It may be given to the claimant at a future date if the security services assess the risk as having abated sufficiently, or if the court hearing a later application overturns this.
At the forfeiture stage, the stakes are much higher: the claimant’s award would be permanently withheld. The court knows that the evidence of risk will need to justify that greater intervention. Evidence of entrenchment, of a markedly poor outlook, and that, given their activities, they are always likely to represent a risk will no doubt be uppermost in a court’s mind in a way they may not be for a freezing order. Questions of alternatives to forfeiture such as periodical payments to care providers in order to remove that risk will no doubt also come to the fore. But, where the strength of the evidence cannot be avoided and points to that risk, it is right that the money is forfeited. The court will also be aware that a forfeiture order interferes with property rights under the European convention on human rights and it will need to know that interference is proportionate to the risks, in the context of the need to protect the public.
It is important to note that the Bill does not fetter a court’s discretion in considering whether the risk has been proven. For the finality of the forfeiture application, the court will be able to require the Government to meet the evidentiary burden that it considers to be commensurate to it. The claimant will therefore have a total of three chances to fully challenge in court the evidence that the Government present, before forfeiture can occur. That test does not therefore reflect a low standard; instead, it reflects the right standard.
There are already terrorist freezing provisions, but the process is complicated and the compensation is not frozen at source. As I have said, and to further reassure the Committee, this measure includes provision that a court will have discretion to award part of the damages. This is an equitable measure designed to ensure that a court may award a sum to cover, say, legal expenses or essential care costs in the circumstances of an individual case. We trust our courts and judges to make these assessments while being mindful of the context of public protection. I ask the right hon. Member for Dundee East to withdraw the amendment and I will be communicating with the right hon. Member for North Durham again as well.
Stewart Hosie
I thank the Minister for his remarks on clause 61 and schedule 10. He said that these were about concern for the future. I think we are all concerned about the future. He said that they were designed to tackle something that might happen in the future. I think we all are concerned about ensuring that nothing bad happens in future, but it appears from what the Minister has said that we are measuring risk on a very subjective basis—"real risk” is not a commonly used term.
Let me speak to amendment 58 to schedule 10. The schedule relates to civil proceedings where a Minister can apply to the court to freeze a possible award of damages if the Court is satisfied that there is a real risk of those damages being used for terrorist purposes. That, of course, is lower than the ordinary standard of proof and does not require the claimant to have even been convicted of a criminal offence. It requires only that there is a possibility that they might. Therefore, they will be deprived of any compensation for other matters that they are due. That is a very challenging provision. We clearly understand the policy intent, but what about other moneys than compensatory payments: earnings, pensions, savings, a lottery win or an inheritance? If this is about freezing cash because of a real risk that it may be used for terrorism, why do we need a specific provision for damages legally and properly awarded by a court after full consideration?
Stewart Hosie
My right hon. Friend is right that there is already legislation on terrorist financing. As the Minister pointed out in his opening remarks, there is already a way of freezing terrorist assets, but he said that it was complicated. If we are not just to do things properly and legally but to be seen to be doing them properly, legally and fairly, it may be worth going through those processes to do that.
Schedule 10 proposes, as the Minister said, a freezing order for two years under paragraph (1). Then, an extension is possible for four years under paragraph (2) and, even more drastically, the funds can be forfeited altogether. But the standard of proof in the Bill—the real risk—means no criminal conviction for anything. Even if the court were to think that damages would probably be used for legitimate purposes, but there was a real possibility that they might be used for something else, the damages could be frozen or forfeited entirely.
I can just about live with a general scheme—none of us is naive and none of us wants to see money from any source used to finance terrorism—but, surely, such a drastic step requires actual proof, at least on the balance of probability, that there is a risk of the funds being used for terrorism. That is precisely what the amendment, which removes reference to “real risk”, would achieve.
Jess Phillips
I want to speak to the amendment and to the desire of my hon. Friend the Member for Garston and Halewood, who is momentarily not in her place, to speak to a case, although the Minister said that the schedule was not based on any particular case.
The right hon. Member for Dundee East asked about other moneys, specifically a lottery win. Why should the schedule be just for damages? What if we thought somebody’s lottery win, for example, was going to be used? That seems outrageous and unlikely, except it happened to me. The only time I have ever had any personal relations with anti-terror police was when they turned up mob-handed to my office, because of threats to my life that I had received from inside a prison. The threats were jihadist in nature and largely about how the person in prison—obviously a risk factor, on the balance of probabilities—was working with people on the outside to kill me and my family. The terror police came and we undertook a case against the man.
It came to pass—through the process of convicting the man, who is now in prison for a term of another 10 years for the crime against me—that the reason why the police had such grave concerns, even though they were not sure whether he was part of a particular network or indeed working with anyone else, was that while on mental health day release, he had won the lottery and had access to quite substantial sums that could have been used in the commission of crimes against me while still in prison.
Mr Jones
I do not know whether my hon. Friend is aware of the international comparison with the gangster in Boston called Whitey Bulger. He was a notorious gangster whose unexplained wealth was explained by a lottery win, which was outside the jurisdiction of the courts in the United States.
Jess Phillips
That is brilliant. I am in good company with Chicago gangland—
Jess Phillips
With Boston bosses.
One of the risk factors in the case was that issue of a lottery win. There was a certain evidential threshold in the case that was easy to prove in court, because he was threatening to kill me! Please excuse me laughing—one has to laugh at such things, because life becomes ridiculous otherwise.
Why stop with damages? Why should we have a different rule? Nothing could be done in the case that I outlined. I think it is a one in 1.8 million chance of my case happening, so if we have no cases to base it on, I wonder why the focus is on this and not on the case that I outlined.
Mr Jones
The Ministry of Justice and the Home Office employ a wide variety of talents among the individuals whom they recruit, but I did not realise that they actually recruit fortune tellers. That is what we are into here. We have established that there have been no such cases. I am not aware—perhaps the Minister can provide some examples—of why the security services think this is a risk. If that does not exist, this is in the realms of predicting the future, and if there is one thing that we can all agree on—possibly everyone—it is that we cannot predict what happens in the future.
As my hon. Friend the Member for Birmingham, Yardley just said, why only the damages? There is already extensive legislation on the statute books to freeze proceeds of crime and bank accounts if they are to be used for criminal activities. What extra weapons will we give to the courts? I do not see anything that is not there at the moment.
As for using the measure—as opposed to freezing, for example, as I said to the right hon. Member for Dundee East—there is already legislation on the statute book to prevent someone from financing terrorism. In such a situation, what evidence would the Government or the state actually put before the courts? They cannot say simply, “We think he or she might use their proceeds for terrorist activity in future”; it has to be based on intelligence. Again, putting the evidence into court would still expose the state. I presume the existing process would be followed, but it would still mean that we might be putting intelligence in the courts that is not just historical, but actually live, in terms of things such as associations. I just think it is a very clumsy way of trying to proceed. We do not want any money, wherever it comes from, to be used for financing terrorism, but I do not understand where the proposal has come from in the first place. I would be interested if the Minister could find out, because I am also clear that we should not put measures on the statue book unless we have to.
Another point—it is quite amusing in one respect—is the idea that we can decide that an individual who is going to potentially fund terrorism is only going to get half or part of their settlement. I am reassured that the lawyers will be getting their fees, because it would be dreadful if they were having to go to food banks after not getting their pay from a case. However, the Minister then said that care costs and other things would be taken into account. How would the decision be made? Using care costs as an example, if a person gets a certain amount in damages, they might need them for a few years to come if their care costs are ongoing. So, we could not really cap where that is going to go, and that affects the individual’s ability to claim on the state for their care costs. This is a mess. It is one of the examples in the Bill where the odd thing is just thrown in that is not needed. If the Minister could demonstrate to me why this is so important to include in the Bill, I would back him 100%. However, I think that the measure is clumsy, that it will never be used, and that it will damage the reputation of this Bill, which some people have done a good enough job of doing as it is. The Minister certainly will not accept the amendment, but this is another issue that he might want to cogitate on, and decide whether it is worth the candle.
Tom Tugendhat
I welcome Committee members’ comments. I notice that Occam has many cousins in this place, and that his razor is very sharp. On that basis, I merely mention that the issue is with not just damages payments, but the enormous resource currently used in fighting such claims.
Tom Tugendhat
The right hon. Member and I will delight in having a conversation about this when I have written to him.
The reality is that this is looking at an identifiable risk, which is from court proceedings, rather than an unidentifiable risk, which is lottery winnings. I have put that on record and we will no doubt discuss this later. It is also worth making the case that the courts are experienced in calculating case costs and ongoing costs. I will leave it there.
Stewart Hosie
I am not sure that we are particularly enlightened by the Government’s response. I must say I share the scepticism of the right hon. Member for North Durham. How many times are the Government going to have to spend huge amounts of money to fight against somebody who has been awarded some damages on the grounds that they may then wish to use those damages to support terrorism? I am not dreadfully convinced by that argument.
I will not press the amendment, but given we are into the sphere of crystal balls, subjectivity and a judicial threshold that is far too low for this action, I would not be at all surprised if a similar amendment to this one sees the light of day at a later stage of the Bill.
Question put and agreed to.
Clause 61 accordingly ordered to stand part of the Bill.
Schedule 10 agreed to.
Clause 62
Legal aid for individuals convicted of terrorism offences
Jess Phillips
I beg to move amendment 61, in clause 62, page 44, line 21, leave out “F” and insert “G”.
This amendment is a paving amendment for Amendment 60.
The Chair
With this it will be convenient to discuss the following:
Amendment 60, in clause 62, page 45, line 3, at end insert—
“(7A) Condition G is met where the offender is seeking legal aid for the purposes of—
(a) pursuing a civil order, where the purpose of the order is to protect a victim of domestic abuse, or
(b) participating in family court proceedings, and where the offender is a victim of domestic abuse.”
Amendment 62, in clause 62, page 45, line 42, at end insert—
““domestic abuse” has the same meaning as in the Domestic Abuse Act 2021;”
This amendment provides a definition of “domestic abuse” for the purposes of Amendment 60.
Clause stand part.
Clauses 63 and 64 stand part.
Jess Phillips
The second element of part 3 of the Bill would prevent people with terrorism convictions from receiving civil legal aid—it is important to stress that it is civil, not criminal. Again, the breadth and consequences of such a broad-brush approach cause me some alarm. Our amendments would address some of those concerns.
Once again, I am looking at the issue through a gendered lens and considering the impact on domestic abuse victims and their children, who are directly referred to in my amendments—amendment 62 refers to the Domestic Abuse Act 2021. My right hon. Friend the Member for North Durham commented about things being dropped and changed in Committee and during Commons stages, and the passage of the 2021 Act was a good example of where that was done completely and utterly. Obviously, I still think that more things should have been included in that legislation, but what we sent to the other place was the work of everybody in Committee. My amendment 62 draws directly on the definition of domestic abuse contained in that Act.
The clause suggests that restrictions disallowing offenders from accessing civil legal aid will last for 30 years for adult offenders and 15 years for youth offenders, and will apply to any person convicted, irrelevant of the severity of the crime or the sentence imposed for the offence. Those restrictions apply to terrorists who commit the most heinous of mass murders, and also to those who participate in crimes that receive non-custodial sentences, such as encouraging terrorism, disseminating publications or downloading terror manuals. It is an automatic restriction—a court has no discretion to apply or revoke it in any circumstances. The restrictions do not require that the seeking of legal aid be related to the terrorist conviction of the claimant, or specify what the purpose of the civil proceedings might be. It is a blanket restriction covering any civil proceedings; it could be absolutely anything in the civil courts.
The disproportionate and oppressive nature of the drafting becomes stark when we place it in the context of the types of civil cases that legal aid can be needed for. People find themselves in civil proceedings and family court proceedings, and in need of legal aid support, for a multitude of reasons, with housing issues, debt problems and domestic abuse being just a few examples. It is a realm that not everyone may know much about, but anyone who has worked in domestic abuse for as long as I have realises the role that civil and family cases, and the courts, play in people’s lives and their ability to live in the free and safe society that the Government have claimed that they are trying to protect all the way throughout our consideration of the Bill.
For example, a victim of domestic abuse might need legal aid to help her to seek an injunction against her abuser. Non-molestation orders protect a victim or their child from being harmed or threatened by their abuser, while occupation orders decide who can live in a family home or enter the surrounding area. Such injunctions protect victims and children in particular. They protect women. They save women’s lives—huge improvements are needed in how they are served and upheld, but that is not an argument for today. Funnily enough, I noticed on BBC News today that the Government were heralding some of the changes in domestic violence protection orders in cases of domestic abuse, which are usually handed out in a civil environment, and how they were helping to prevent domestic abuse. That was this morning’s news. These injunctions are not some unnecessary add-on or bonus; they are legal measures that protect women from violence and are crucial for the type of society we desire to build and protect.
Jess Phillips
I am not sure he would agree with the Minister on many other things, but maybe we will get the two of you together. I am sorry to slag off my husband in here—although, actually, it is the perfect place, as he cannot do anything about it, can he?
This is incredibly naive. The reality is that anyone who has worked with female offenders, as I have for many years—this is why we ran their services out of Women’s Aid—recognises that the pathway to offending for the vast majority of women offenders is an abusive man.
So, yes, “Don’t be a terrorist,” is a great thing to say if your abuser is a terrorist. It is very easy to say that when the person who has complete and utter control over your every waking minute is also involved in something you do not necessarily agree with. For example, say that you made a phone call on his behalf. It is easy for everybody to sit and say, “I wouldn’t do that, because I am not a terrorist,” but we all might if we were terrorised. The fundamental thing we should all seek is to prevent that, and to prevent the idea that somebody might then fall into terrorism. The actions in the Bill mean it is much more likely that women in these cases will end up stuck with a terrorist making them be a terrorist, rather than being able to escape them.
There is a broader point to highlight about the connection between domestic abuse and terrorism, because of how commonly terrorists are also abusers in a domestic setting, and also because of female offender patterns, which I have already alluded to. Research carried out by the Home Office in 2021 showed more than a third of suspected extremists referred to the Government’s anti-radicalisation programme Prevent had experienced domestic violence. The police said that of 3,045 people referred to the scheme in 2019, 1,076 had a link to domestic abuse as an offender, victim or both. The male referrals were more likely to be offenders; the female referrals were more likely to be victims. As the national co-ordinator for Prevent, Detective Chief Superintendent Vicky Washington, said:
“This initial research has resulted in some statistically significant data which cannot, and should not, be ignored. Project Starlight has indicated a clear overrepresentation of domestic abuse experiences in the lives of those who are referred to us for safeguarding and support. It is absolutely vital that we use this information to shape what we do, and strengthen our response across all of policing, not just in counter terrorism.”
In short, tackling domestic abuse is critical to tackling terrorism. Any legislation, such as the current draft of this Bill, that undermines our ability to protect domestic abuse victims and stop domestic abuse perpetrators does nothing for the security of our country. Our amendments seek to address the breadth of the current drafting, and to tackle the issues and protect victims of domestic abuse.
I have two further points. Many people have raised concerns about the removal of legal aid. They argue that these clauses are counterproductive in protecting the public, due to the impact of effective rehabilitation. I have a deep concern for individuals who, years after a conviction and successful rehabilitation, find themselves in difficulty, facing homelessness, or are victims of abuse, or are in debt. Okay, if someone has been convicted of something to do with terrorism, they get what they deserve, but there are people working for organisations such as HOPE not hate who have completed rehabilitation pathways and who have then been used to protect the lives of people who work in this building, lest we forget. I have real worries that the blanket provision in the Bill over people who may very well have been rehabilitated could well stop them being able to get the support they might need to continue to be productive members of society. Does it help the rehabilitation, or does it create an environment where a person may make bad choices and cause harm?
As Jonathan Hall argued in the evidence session,
“I have certainly come across cases where the terrorist risk from the individual—the chance of their stabbing someone, for example—goes up if they are not taking their medication or if they are homeless.
My concern about the legal aid is that it will make it harder, for example, for a terrorist offender, maybe 10 years after they have been released and who is facing eviction, to get legal aid. That means that you might have less good decisions made…My real concern is people becoming homeless or falling into debt when they might otherwise be able to get legal assistance.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 11, Q19.]
If our primary driver is to protect the public and reduce risk, we must consider that point. The breadth of the Bill could undermine the very thing that it is trying to protect: a society where people do not live in fear of violence and danger.
Mr Jones
The media’s portrayal of legal aid is of giving out huge sums of money to the undeserving and those who are guilty of crimes, but we should start from the basis, as I always do, that people are innocent until proven guilty. The other motive for the Bill is clearly to get some headlines that say, “We are being tough on terrorists.” I will come on to some examples, especially the issue of under-18s, but the Bill does nothing of the sort.
There is also a more fundamental point: if someone is accused of a crime, we want to ensure that the facts are put before the court and that they are properly legally represented so that they can argue their case, and the Crown can argue its case against that evidence. At the end of the day, it is then up to the jury and the courts to decide whether that person is innocent or guilty, and the courts then decide on sentencing. That process is not just some woolly notion of a justice system that this country is proud of; it is actually fundamental to the victims. It is important that the victims of terrorism, or any crime, are assured that a person who is guilty is sentenced and gets the appropriate punishment.
When we talk about terrorists, we are talking about the appalling individuals who perpetrated the Manchester bombing or the London atrocities. As my hon. Friend the Member for Birmingham, Yardley has just said, that is not the spectrum we are talking about here, as the Bill sets a broader one.
I suggest people read the Intelligence and Security Committee’s report on extreme right-wing terrorism. In taking evidence for that, the most disturbing fact was that the people who are now being drawn to extreme right-wing terrorism are youngsters, some as young as 14 or 15. It is mainly online, but they are committing offences. There are quite a few—some have been reported publicly—who have been, rightly, imprisoned because they have met the threshold for the court to decide that they committed an offence.
Suppose a 15-year-old is found guilty of a terrorism offence. We are saying that, for the next 15 years, whatever they do—whether another terrorist-related incident or, as my hon. Friend the Member for Birmingham, Yardley said, a criminal case or a civil case such as eviction—they will be barred from access to legal aid. I might be unpopular for saying this, but legal aid helps the system of justice. The idea that it is doled out willy-nilly to everyone is absolute nonsense: it is hard to meet the thresholds that have been introduced over the last few years. Those thresholds have gone too far, because they are basically a tax on justice for a lot of innocent people. I do not understand where that comes from.
I come back to the point about youngsters and rehabilitation that my hon. Friend made. It is possible that there is a perception that there is an average terrorist. We know what a terrorist is: someone who carries out horrific bombings or activities. However, that is not the case with some of the other thresholds for terrorism offences. For some youngster—a 15-year-old, or someone even a bit older—who has been imprisoned for that type of terrorism, our aim surely is to work with them to get them out of that pathway. The legal aid measures will do nothing at all to help that rehabilitation process. I am sure that many people in the room made decisions when they were 15 that they would perhaps regret now. I am sure that the Minister was a perfect child, but people make mistakes, and they hold views that 15 years later they will not hold. The idea that we penalise those people for life is unacceptable.
The measures have been parachuted into the Bill, and I would like to know the rationale for including them in the Bill. They will not make the process very easy for the Crown, either. If someone cannot get legal aid, what are they going to do? Represent themselves? All that does is make the trial very expensive and not a good process for the victims who are watching.
The broader issue is that there are many people whom we—and, I am sure, the tabloids and others—do not like. We do not like murderers, paedophiles or rapists. If we apply the measures to terrorists, why not extend them to the other people we do not like? I am not proposing that we should. If we did, that is fine: the right hon. Member for Esher and Walton (Dominic Raab) might think that he will get a newspaper headline for being tough on terrorism. But it would make the situation worse. It would slow down the legal process; it would victimise people for many years. What we should be doing with those youngsters is working with them to try to get them away from some of the sick ideologies outlined in the right-wing extremism report from the ISC. We should get them back into society. Look at some of the best examples around the world of rehabilitation of terrorists or extremists—it is about rehabilitation, not punishment.
If someone has carried out an horrific terrorist attack and killed people, I am happy for them to stay in prison for the rest of their lives. I have no problem with that. However, there are those who are on the verge of doing that. It is worse these days because of the internet and social media, which is slowly corrupting some young minds; it leads them to hold ideologies and, in some cases, take steps that cause them to meet that terrorist threshold.
Tom Tugendhat
I appreciate enormously what right hon. and hon. Members opposite have said. As I have been familiarising myself with the detail of this Bill, I will be asking questions and engaging in conversation with colleagues from all parts of the House. I will absolutely be engaging with Opposition colleagues.
I am sure right hon. and hon. Members will appreciate it if I cover the clauses as they stand. Clause 62 will narrow the range of circumstances in which individuals convicted of specified terrorism offences can receive civil legal services. That includes individuals convicted of terrorism offences listed under schedule A1 to the Sentencing Code, where there is a minimum penalty of imprisonment for two years or more, as well as for offences where a judge has found a terrorism connection.
The restriction will apply to future applications for legal aid for individuals convicted of terrorism or terrorism-connected offences from 2001 onwards. The restriction will not affect ongoing cases.
Tom Tugendhat
My understanding will be clarified in a letter to the right hon. Gentleman very shortly, unless it is clarified in the moments to come.
Tom Tugendhat
I am assured that it is retrospective. I will, of course, be looking at this as part of the whole. [Interruption.] It is retrospective to 2001 for past offences. I will come back to the right hon. Gentleman on that.
The effect of the restriction is a suspension on accessing civil legal aid from the date of conviction. The restriction will last for 30 years for individuals convicted when aged 18 years old or over, and 15 years for individuals convicted when under 18. The restriction will not apply to individuals under 18 years old, but will take effect when they turn 18 and make a new application for civil legal aid.
As the clause is drafted, access to the exceptional case funding scheme will remain available for those subject to the restriction who can demonstrate that, without legal aid, there is a risk of a breach of their ECHR rights or their retained enforceable EU law rights. Applications for exceptional case funding are generally subject to means and merits tests.
Clause 63 ensures that—
Mr Jones
In effect, this measure is going to be useless, isn’t it? I would think that if, for example, someone with no means is subject to one of these orders, it would not take a great legal genius to argue in a court that it infringed their rights to a fair trial. Is it not therefore the case that, in most cases, they will get special legal aid anyway? It is a bit odd to implement a thing that might sound tough but, in practice, will end up with people getting legal aid anyway.
Tom Tugendhat
Occam is making his case. The right hon. Gentleman will be assured that I will respond in full, and in kind, as soon as we have had the opportunity to have this discussion among a slightly wider party of colleagues.
Clause 63 ensures that the correct data-sharing and data-processing powers are available to enforce the restriction on access to civil legal aid for those convicted of specified terrorism offences. To enforce the restriction effectively, we must be able to check that an individual has a relevant conviction that would prevent them from accessing funding. To do this, a legal gateway must exist within the legislation to use conviction data for the purposes of administering legal aid. The clause will allow the details of an individual’s conviction status to be requested from the director of legal aid casework and shared from a competent authority that holds the criminal conviction data. This data can be used only for the purpose of identifying whether an applicant for legal aid has been convicted of a specified terrorism offence, in order to determine whether the restriction will apply. Such information may include an individual’s name and date of birth, and the dates of any convictions.
Jess Phillips
The Minister has described the process, which, as with all Government processes, always works smoothly. Will they have to do that check on every single person who applies for legal aid?
Jess Phillips
It is going to be quite a slow process. The suggestion is that, for every single person who applies for legal aid in any civil remedy or order, we will start writing to a competent authority to get any previous terrorism convictions.
Tom Tugendhat
I will clarify the process for the hon. Lady. It is not that unreasonable, frankly—
Tom Tugendhat
Hang on a minute. It is not that unreasonable to check with competent authorities before various provisions are made. It is pretty standard, and this measure is another check. I appreciate the hon. Lady’s point, and I will come back to her with how this is done and how it is followed up.
Finally, clause 64 makes a minor amendment to clarify how civil legal aid is available for terrorism prevention and investigation measures proceedings. I want to make it clear that the clause will not change that fact. The clause seeks to reduce unnecessary complexity in the administration of the legal aid scheme, and it will ensure that all legal aid decisions for TPIMs are made under one paragraph of the statutory framework, rather than being funded under multiple paragraphs. The clause will also remove references to “control orders” in the legal aid legislation; control orders were the predecessors to TPIMs and have now been phased out.
Tom Tugendhat
I see the right hon. Gentleman’s point. We are going to move on, because he knows that we will be talking about this later.
I thank both the right hon. Gentleman and the hon. Member for Birmingham, Yardley for tabling their amendments, which seek to carve out an exception from the restriction where the case type involves domestic abuse. I recognise the strength of voice that the hon. Lady has brought to the scourge of domestic violence, and the voice that she has given to so many victims in the House. It is an enormous tribute to her that she is recognised around the country for it, and I certainly listen to her very carefully on this issue. I reassure her that I will be looking at not just the provisions in the clause but the amendment she has tabled. I will also be looking at the exceptional case funding scheme, and I will be discussing it. It is certainly true at the moment that 74% of applications to the ECF are granted, but she has already made the point that there is a hurdle before approaching the 74%. I accept that, and I will be looking at it. I will be taking it seriously. I ask her to withdraw the amendment ahead of future conversations.
Jess Phillips
I appreciate the tone that the Minister has taken, and I will withdraw the amendment with a view to see where we get before Report and Third Reading. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 62 ordered to stand part of the Bill.
Clauses 63 and 64 ordered to stand part of the Bill.
Clause 65
Minor and consequential amendments
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Government amendments 39 to 44.
That schedule 11 be the Eleventh schedule to the Bill.
Clause 66 stand part.
Government amendment 64, in clause 67, page 48, line 25, at end insert—
“(za) regulations under section (Requirement to register foreign activity arrangements);
(zb) regulations under section (Meaning of ‘political influence activity’);
(zc) regulations under section (General exemptions);”
This amendment provides that regulations made under the specified provisions are to be made using the affirmative procedure.
Amendment (a) to Government amendment 64, line 4, at end insert—
“(zd) regulations under section (Registration information);
(ze) regulations under section (Information notices);”
Government amendment 65.
Clauses 67 to 73 stand part.
Tom Tugendhat
Clause 65 introduces schedule 11, which makes minor and consequential amendments to other legislation. I will not dwell on paragraphs 1 to 3, which repeal the Official Secrets Acts 1911, 1920 and 1939, and which are no longer needed in the light of the Bill. I am aware that the Committee has already touched on paragraphs 4, 5, 7 and 8 when discussing the powers of arrest, detention and biometrics.
I will briefly speak about paragraph 6, which makes a necessary consequential amendment to the Official Secrets Act 1989. The 1989 Act already, and quite rightly, provides that it is an offence under the Act to make an onward disclosure of material obtained through an offence under section 1 of the Official Secrets Act 1911 —that is, espionage. The Bill replaces the reference to the 1911 Act provision, which has been repealed, with the relevant provisions in the Bill, which are designed to criminalise the same conduct. Other references to the 1911 and 1920 Acts have also been replaced with the relevant provisions in the Bill.
Turning to the Government amendments, the Police and Criminal Evidence Act 1984 contains a list of offences, referred to as “qualifying offences”, whereby when a person is arrested but not convicted of such an offence police have the option to retain biometric data such as fingerprints for three years. Qualifying offences currently include terrorism offences, murder, rape and kidnap. Schedule 11 of the Bill already amends the Police and Criminal Evidence Act to include the most serious offences in the Bill, such as obtaining or disclosing protected information and sabotage, in the list of qualifying offences, which also includes attempts or conspiracy to commit those offences.
Schedule 11 amends PACE to insert the most serious offences in the Bill under the heading of “National security-related qualifying offences”. Amendments 39 to 44 seek to add the offence of preparatory conduct in clause 15 to the list of qualifying offences, as well as to the definition of national security-related qualifying offences. As we have already discussed in Committee, malign actions by states have the potential to cause significant damage to the United Kingdom and its interests, and the preparatory conduct offence ensures that law enforcement can intervene at an early stage when preparatory activities are under way. I ask the Committee to support all the amendments.
Clause 66 provides a mechanism for the Secretary of State to make, via regulations, additional consequential amendments to other legislation where necessary. That will ensure that the legislative framework remains coherent. Clause 67 makes provision in relation to the powers to make regulations in the Bill, including specifying the parliamentary procedure applicable to specific provisions. The powers that, when exercised, will require regulations made under them to be subject to the affirmative procedure are specified in paragraph 6. These are regulations that make consequential amendments to primary legislation, and that require the use of, and bring into force, a code of practice on making video recordings of interviews of detained suspects under schedule 3.
Government amendments 64 and 65 are technical amendments relating to the foreign influence registration scheme. While I will briefly set out the practical effect of the amendments, I am mindful that the next Committee sitting will consider the substantive amendments—so we will touch on them then in greater detail—and the new clauses relating to the scheme. I therefore do not intend to cover the substance at this point.
Government amendment 64 provides that three powers to make regulations under the foreign influence registration scheme are to be subject to the affirmative procedure. The first is where a foreign power, part of a foreign power, or an entity subject to foreign power, is to be specified by the Secretary of State for the purposes of enhanced registration requirements. The second is where the Secretary of State wishes to make provision for further cases, in addition to several proposed exemptions, to which the registration requirements or prohibitions do not apply. The final power is where the Secretary of State wishes to specify a person exercising functions on behalf of the Crown for the purpose of extending provisions relating to registerable political influence activities to capture communications made to that person.
Holly Lynch
I am grateful to the Minister for that comprehensive run-through of the different elements within this part 4 grouping. I will speak to the collection of clauses and amendments, which encompass the remaining provisions in part 4. Clauses 65 and 66 give powers to the Government to consequentially amend legislation based on the content of the Bill. We spoke to the House of Commons Library in order to assure ourselves that this was a conventional allocation of powers, and did not go beyond what was necessary. I am grateful to the Library staff for their feedback.
Government amendment 64 provides that regulations made under the specified provisions for the foreign influence registration scheme, which we have not yet got to, are to be made using the affirmative procedure. It seems an odd arrangement that we are debating the process for the regulations without having first considered in detail the substance of those provisions. However, here we are. We will come to the FIRS provisions; despite how long the scheme has been in the pipeline, it is fair to say that a great deal of the detail of those measures is still to be determined—and is yet to be determined in regulation. It is right that they are subject to the affirmative procedure and to proper scrutiny when that detail has been worked through. We hear and understand that it may take some time yet, but it is an important point.
Further to Government amendment 64, there are two more provisions for regulations on registration information and information notices, which merit the same approach for the reasons I have just outlined. Our amendment to Government amendment 64 seeks to extend it only to ensure a consistent level of scrutiny of what will be serious new measures. It would allow the measures to be considered by hon. Members in Committee and would ensure that they deliver what is needed. On that basis, I ask the Minister to adopt our small, but entirely appropriate, change to Government amendment 64.
Tom Tugendhat
I am grateful for the hon. Lady’s point. I want to correct a comment that I made. I said the provisions apply to the Crown and this meant that Crown servants could not commit the offences. What I meant was they can commit the offences in the Bill, and that is the whole point of the regulation and this change to allow the freedom that is required.
Question put and agreed to.
Clause 65 accordingly ordered to stand part of the Bill.
Schedule 11
Minor and consequential amendments
Amendments made: 39, in schedule 11, page 141, line 29, after “offence” insert “under section 15 of the National Security Act 2022 or”.
This amendment inserts a reference to offences under clause 15 (preparatory conduct) into the definition of “national security-related qualifying offence”.
Amendment 40, in schedule 11, page 141, line 30, leave out
“the National Security Act 2022”
and insert “that Act”.
This amendment is consequential on Amendment 39.
Amendment 41, in schedule 11, page 142, line 8, after “offence” insert
“under section 15 of the National Security Act 2022 or”.
This amendment inserts a reference to offences under clause 15 (preparatory conduct) into the definition of “qualifying offence”.
Amendment 42, in schedule 11, page 142, line 8, leave out
“the National Security Act 2022”
and insert “that Act”.
This amendment is consequential on Amendment 41.
Amendment 43, in schedule 11, page 142, line 15, after “offence” insert
“under section 15 of the National Security Act 2022 or”.
This amendment inserts a reference to offences under clause 15 (preparatory conduct) into the definition of “qualifying offence”.
Amendment 44, in schedule 11, page 142, line 15, leave out
“the National Security Act 2022”
and insert “that Act”.—(Tom Tugendhat.)
This amendment is consequential on Amendment 43.
Schedule 11, as amended, agreed to.
Clause 66 ordered to stand part of the Bill.
Clause 67
Regulations
The Chair
Does the hon. Member for Halifax wish to move amendment (a) to Government amendment 64?
Holly Lynch
I will continue to engage with the Government on that issue, but I will not move the amendment.
Amendments made: 64, in clause 67, page 48, line 25, at end insert—
“(za) regulations under section (Requirement to register foreign activity arrangements);
(zb) regulations under section (Meaning of “political influence activity”);
(zc) regulations under section (General exemptions);”
This amendment provides that regulations made under the specified provisions are to be made using the affirmative procedure.
Amendment 65, in clause 67, page 49, line 2, at end insert—
“(11) If a draft of a statutory instrument containing regulations under section (Requirement to register foreign activity arrangements) would, apart from this subsection, be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it is to proceed in that House as if it were not such an instrument.”—(Tom Tugendhat.)
This amendment provides that regulations under NC11 are not to be treated as hybrid instruments.
Clause 67, as amended, ordered to stand part of the Bill.
Clauses 68 to 73 ordered the stand part of the Bill.
New Clause 7
Obtaining etc material benefits from a foreign intelligence service
(1) A person commits an offence if—
(a) the person—
(i) obtains, accepts or retains a material benefit which is not an excluded benefit, or
(ii) obtains or accepts the provision of such a benefit to another person,
(b) the benefit is or was provided by or on behalf of a foreign intelligence service, and
(c) the person knows, or ought reasonably to know, that the benefit is or was provided by or on behalf of a foreign intelligence service.
(2) A person commits an offence if—
(a) the person agrees to accept—
(i) a material benefit which is not an excluded benefit, or
(ii) the provision of such a benefit to another person,
(b) the benefit is to be provided by or on behalf of a foreign intelligence service, and
(c) the person knows, or ought reasonably to know, that the benefit is to be provided by or on behalf of a foreign intelligence service.
(3) Material benefits may include financial benefits, anything which has the potential to result in a financial benefit, and information.
(4) A material benefit is an excluded benefit if—
(a) it is provided as reasonable consideration for the provision of goods or services, and
(b) the provision of those goods or services does not constitute an offence.
(5) A benefit may be provided by or on behalf of a foreign intelligence service directly or indirectly (for example, it may be provided indirectly through one or more companies).
(6) Subsections (1) and (2) apply to conduct outside the United Kingdom, but apply to conduct taking place wholly outside the United Kingdom only if—
(a) the material benefit is or was, or is to be, provided in or from the United Kingdom, or
(b) in any case, the person engaging in the conduct—
(i) is a UK person, or
(ii) acts for or on behalf of, or holds office under, the Crown, or is in Crown employment (whether or not they engage in the conduct in that capacity).
(7) In proceedings for an offence under subsection (1) by virtue of retaining a benefit, it is a defence to show that the person had a reasonable excuse for retaining the benefit.
(8) In proceedings for an offence under subsection (1) or (2) it is a defence to show that the person engaged in the conduct in question—
(a) in compliance with a legal obligation under the law of the United Kingdom,
(b) in the case of a person having functions of a public nature under the law of the United Kingdom, for the purposes of those functions, or
(c) in accordance with an agreement or arrangement to which—
(i) the United Kingdom was a party, or
(ii) any person acting for or on behalf of, or holding office under, the Crown was (in that capacity) a party.
(9) A person is taken to have shown a matter mentioned in subsection (7) or (8) if—
(a) sufficient evidence of the matter is adduced to raise an issue with respect to it, and
(b) the contrary is not proved beyond reasonable doubt.
(10) A person who commits an offence under subsection (1) is liable on conviction on indictment to imprisonment for a term not exceeding 14 years or a fine (or both).
(11) A person who commits an offence under subsection (2) is liable on conviction on indictment to imprisonment for a term not exceeding 10 years or a fine (or both).
(12) The following terms have the same meaning as in section 3—
“financial benefit”;
“foreign intelligence service”;
the “law of the United Kingdom”;
“UK person”.”
Brought up, and read the First time.
Tom Tugendhat
I beg to move, That the clause be read a Second time.
The new clause contains two offences concerned with obtaining, accepting, agreeing to accept or retaining a material benefit from a foreign intelligence service. These offences add to the new toolkit for law enforcement and the intelligence agencies in responding to espionage activity.
FIS operations in the UK run contrary to our safety and interests. In order to operate successfully, a FIS needs to recruit, fund and support networks of agents to support their undeclared activity in the United Kingdom. One of the most important motivating factors that a FIS is able to deploy to recruit agents is financial inducement or the provision of benefits in kind. It is often the case—this is reflective of the tradecraft of such organisations—that only the money or other material benefits can be evidenced to a satisfactory criminal standard. The new offence will enable early intervention to prevent further harm from being caused and will further strengthen our ability to prevent FIS activity, building on clause 3.
The first offence, in subsection (1), concerns a person who obtains or accepts a material benefit for themselves or another person, or who retains a material benefit, from a FIS. That could involve obtaining or accepting legal or school fees intended for someone else’s benefit. Some benefits are excluded benefits, which I will come on to in a moment. That offence would attract a maximum penalty of 40 years.
The second offence, in subsection (2), concerns a person who agrees to accept a material benefit from a FIS for themselves or another person, which is not an excluded benefit. This offence, where no benefit is obtained, accepted or retained, would attract a maximum penalty of 10 years. For both offences, the benefit must also be provided by or on behalf of a FIS, and the person must know, or ought reasonably to know, that the benefit came from a FIS.
We must be alive to the tradecraft of foreign intelligence services and their ability to adapt and potentially overcome any narrow definitions in this area. Accordingly, we have drawn the meaning of “material benefit” wider than just financial benefit. Material benefit will include money and money’s worth, such as gifts. It will also capture wider benefits such as information, including information on a business arrangement, as well as anything that has the potential to result in a financial benefit. We have safeguards in place to ensure that legitimate activity is not brought into scope of the new clause.
Subsection (8) replicates the defences in clause 3, which means that a person does not commit an offence if they are complying with a legal obligation, conducting public functions or acting in accordance with an agreement to which the UK is a party. As with other offences in the Bill, Attorney General consent must be obtained before prosecution.
In addition to those protections, the new offences have an additional layer of protection in the form of the excluded benefit for those who have legitimate reason for receiving a material benefit—for example, because they provide services to diplomatic missions in the United Kingdom that are known to accommodate declared intelligence officers.
Under subsection (4), a benefit is an excluded benefit if it is provided as reasonable consideration for the provision of goods or services and the provision of goods and services does not constitute an offence. For example, a shopkeeper does not commit an offence by selling groceries to a person who happens to be a member of a FIS. Another example of the type of contact that is excluded through this exemption is a person who lives in Northern Ireland and works in the Republic of Ireland for the police force.
The effect of introducing the concept of an excluded benefit will mean that in cases where someone is believed to have committed an offence of obtaining a material benefit, the prosecution would need to prove beyond reasonable doubt that the benefit was not an excluded benefit.
In addition to the concept of an excluded benefit, we have made provision for a reasonable excuse defence in subsection (7), which relates only to the offence of retaining a benefit contrary to subsection (1). This has been done to allow people who, for example, may be unable to return a benefit and so are forced to retain it. It will also enable law enforcement and the intelligence agencies to target those people who do not have a legitimate reason for retaining such a benefit. Although, crucially, subsections (4), (7) and (8) allow us to take a wide range of legitimate activity out of scope, we have been careful to ensure that the offence captures all types of activity we are concerned about.
The definition of a FIS would include a police force or other body with intelligence functions, which is the same definition found in clause 3. As I said when I introduced that clause to the Committee, we have drawn it in that way because it is increasingly common for organisations and foreign Government agencies to undertake activity more traditionally associated with intelligence services.
Holly Lynch
Before I turn to the detail of new clause 7, I appreciate that the Minister is not responsible for some of these challenges, but throughout the process of the Bill there has been a great deal of support for seeing the detail of the legislation scheme that makes up the basis of most of these new Government clauses. We probed consistently and asked that we could see the detail of that as soon as possible, given that as we came into the presentation of the legislation prior to Second Reading, it was a key factor that the Government promised would be a component part of the Bill.
The Minister’s predecessor, the hon. Member for Stevenage, made a commitment that that would be added to the Bill before we returned from recess for the second Committee sittings of line-by-line scrutiny. Most of the Government new clauses were tabled just last week—I think they were tabled last Tuesday and published on Wednesday. In that sense, his predecessor upheld that commitment in principle but not in spirit.
The new clauses were tabled only last week and there is a great deal in them to get through. We certainly want to support these provisions, but there is a lot to interpret and understand, and we want to have the opportunity to engage with those who can make use of these provisions so that we can do our due diligence at this point. I am not being unreasonable and I am being kinder to the Minister than the Chair of the Intelligence and Security Committee, the right hon. Member for New Forest East (Dr Lewis), was to the Minister’s predecessor’s predecessor, the right hon. Member for East Hampshire (Damian Hinds), on Second Reading, but I want to put it on record that we may be forced to return to the Committee with more detail once we have had the opportunity to consider these provisions further.
Turning to the detail, as the Minister has said, Government new clause 7 creates new offences of obtaining, accepting, retaining and agreeing to accept a material benefit from a foreign intelligence service. The clause is explicit in referencing material benefits from a “foreign intelligence service”. In relatively recent instances finances have been traced back, not to intelligence agencies as such but to forms of Government Departments, such as the United Front Work Department, referred to by the Chinese Communist Party as one of its “magic weapons”. Are the definitions in this clause too narrow to capture those kinds of transactions?
Subsection (7) says:
“In proceedings for an offence under subsection (1) by virtue of retaining a benefit, it is a defence to show that the person had a reasonable excuse for retaining the benefit.”
Given just how tight the definitions in relation to this offence are as the Bill stands, referring exclusively to a foreign intelligence service, I am keen to understand what might constitute a “reasonable excuse” in that situation.
We have worked through the notion of and the thresholds of proof around the phrase “ought reasonably to know” in earlier proceedings of this Committee, which I appreciate the new Minister might not yet be across. In subsections (10) and (11), pretty serious custodial sentences are outlined, as the Minister said, for committing offences under subsections (1) and (2). So I would be grateful to learn what the fines would be for those offences.
A query was also put to me following a specific overseas case as to whether someone who is in receipt of benefits of a sexual nature could be prosecuted under this new clause. If someone were to offer sex in exchange for information in such a way that it could be proven that they knew or ought reasonably to have known the purpose of that activity, could that lead to a prosecution on the basis of the sex being a material benefit, in principle, under the Government’s new clause?
Mr Jones
I broadly welcome the new clause, because it is obviously another weapon in the armoury to counter foreign state interference, but I just want some clarification to be made in terms of the broad nature of what is actually being proposed.
One of the examples that I want to raise is the issue of academia. As my hon. Friend the Member for Halifax has already said, the United Front Workers Department of the Chinese Communist party is active across the globe and influencing academics and even legislators here in this country and in other countries, for example, Australia. So I just want some clarification about how someone would get caught under this measure.
As I say, one example is academia. I cannot remember who—I was trying to rack my brains to think of the name of the academic at Harvard University who I think is currently being prosecuted in the United States. It relates to the definition of “intelligence service”. We know that the Chinese Communist party does not work directly; it will work through front organisations. As I say, I am trying to think of the name of the academic in the US; it will come back to me in a minute.
However, let us suppose a British academic is approached by an entity in China or an individual based here, who then says to that academic, “Will you do some academic research? Will you write a paper for us?” And they give the academic money for that. There are examples of this happening, and I think that in the example from the United States, which is currently ongoing, the academic then received a retainer for providing research information for a Chinese university. I think there is evidence that suggests that that was a way in which the Chinese Communist party or the Chinese security services were funnelling money to academics.
I would be really interested to know how we will differentiate between the academic who quite clearly wants to do research, and co-operation with China. The benefit they get—for example, being paid for a visit to a conference, for an academic paper or for research—does not fall within the scope of this measure, because, to be fair to the academic, the source of the funding might not be clear—it might be clear in some cases, but not in all.
I can understand if, for example, the security services approach an academic and say, “Are you aware that your money for your paper is coming from x intelligence agency?”, and the academic says, “Oh well, I’m not bothered. I’ll keep on doing it.” That is fine. However I just want to know—and I think some guidance has to be given to academics.
The other example is a bit closer to home, which is my hon. Friend the Member for Brent North (Barry Gardiner), who received large amounts of money from a woman called Christine Lee. She made quite a substantial donation for him to run his office. I am still baffled as to the reason why, but still. It was proven later that that she was working on behalf of the Chinese Communist party and the Chinese Government. Would an individual like that—a Member of Parliament—be dragged into this, under the new clause?
Certainly, I am sure that most of us, if someone offered us half a million pounds, would actually want to know why we were getting it, but people make their own decisions. Would that be classed under this? There are clear examples of the Chinese in particular using academia as a cover for intelligence gathering and actually funding things that will obviously influence, such as stealing academic research. For example, if a paper is normally worth £1,000 and someone is getting £20,000 for it, does that mean that the rest is a bung and that they should really raise questions about it? I doubt many academics are going to be saying, “I am not worth £20,000”. It comes back to the point on this, which I would like some more information on. I am not against what is being proposed, but I think that it has some issues that will raise alarm bells in certain sections, and academia is certainly one of them.
Tom Tugendhat
I will pick up on the second set of points first, if the hon. Member for Halifax does not mind. I will pick up on those points because I am glad that it is not just me who is baffled at what the United Front thought it was gaining from this relationship. I think we are all equally mystified, but it appears that they had the resources not to care.
It does suggest, however, that we have to take this extremely seriously in all of our duties—not just when we talk about people outside this place, but when we talk about people inside this place because we have a particular responsibility to the service of our country and our communities. So I think that this needs to be looked at extremely carefully. I am not going to go into individual cases for various reasons, except to express surprise.
Mr Jones
It is wider than just that one case because, when the ISC did its Russia report, there was clear evidence of certain Members of the House of Lords, for example, being given posts as consultants and other things. Whether there is any proof that they were actually given by the intelligence services, I do not know, but it has certainly, in some cases, raised certain questions that ought to be asked.
Tom Tugendhat
The right hon. Gentleman is absolutely right that there are certain individuals in our society—some of whom, sadly, have seats in this Parliament—whose actions are questionable and demand further investigation. He can be absolutely assured that that is something that I take extremely seriously. He knows that I drafted a policy paper a long time ago on updating our Terrorism Acts. This debate is not about that, but there are various reasons why I took that seriously so many years ago and why I am very pleased to be doing this job. I accepted this job from the Prime Minister because this is a matter that I think is of enormous importance in the United Kingdom, particularly today. I will not go into the details of it, but he can be absolutely assured that I will be looking at it as soon as I have got my feet a little bit further under the desk, if he will forgive me.
These provisions, of course, do apply in various different ways, and he has highlighted some of the ways in which foreign intelligence services pay agents. Disproportionate or excessive payments can be considered in different ways, such as bribery. While the individual in question may of course claim that they were worth what they were paid, I think a reasonable benchmarking process would normally establish that they were, at best, surprised, if not actually encouraging the situation, which was not conducive to the safety of our country.
I am not, as I have said, going to go through individual cases, but this entire new clause refers to benefits in various different ways, such as to a benefit received through a business; it does not have to be direct. I am going to have to come back to the hon. Member for Halifax on her question about the nature of sexual inducements. I cannot answer that question now, but I will come back to her.
Mr Jones
I accept that the Minister has done a lot of work in this area. Would it be possible for Committee members to be briefed on the reason for this provision, but also how it will act in practice because, once it is implemented, guidance is going to have to be given to companies and to academia? I think just getting some understanding of how it would work in practice would reassure many of us in Opposition.
Tom Tugendhat
Personally, I commit, absolutely, to engaging with Committees, not just the right hon. Gentleman’s own. The Intelligence and Security Committee is an important one. This Committee is another one, of course, but the Business, Energy and Industrial Strategy Committee and various other Committees would, I am sure, have an interest in this area. I absolutely do commit to engaging to ensure that this clause is understood properly.
I would add, however, that to be a benefit in this area, and to be in scope of the offences, it would need to be a material benefit, so either money or money’s worth. Forgive me, I have received an answer. Before bringing a prosecution, a careful consideration of the nature of the benefit and the circumstances would be undertaken. A person has to know that they are obtaining a benefit from a foreign intelligence source, and there are several protections to avoid capturing legitimate activity. Legitimate activity, of course, as I said, refers to supporting an embassy that is in pursuit of its diplomatic functions or working with a police force, for example in the Republic of Ireland when an individual lives in Northern Ireland.
The hon. Member for Halifax also made points about the timing of this. I appreciate that entirely, and I entirely respect her position. We must ensure that this goes through with the consent of the House.
Mr Jones
The Minister is being very helpful, but could I clarify something? If, for example, somebody received a benefit from a university, but it was subsequently found that the money was coming from a foreign intelligence agency—or if someone did work for a company then found out that it had been involved—that person perhaps did not know that. Am I assuming that, as it is written, if they continued after they were made aware of it, then they would fall into scope? If they could actually say that they did not know about it, is that a defence?
Tom Tugendhat
The right hon. Gentleman is exactly right. The point of the defence of “reasonable” is that, in order for this to be an offence, the individual needs to be aware that the benefit is supplied by a foreign intelligence source. Therefore, so long as they are unaware of it, it is not an offence. When they become aware of it, it is an offence.
The last point that I wish to make is on the delays. I know that the hon. Member for Halifax will understand that the Ukrainian situation, and a certain change of Government office holders most recently, may have interrupted the provisions. However, on that note—
Holly Lynch
I am really grateful to the Minister. I appreciate that he is winding up. I think, if I have understood his response to my question about sex in exchange for information, that, for something to be a benefit, it would have to have a monetary value. Therefore, if there was an exchange of sex for information, that could not be prosecutable under this new clause.
I just wanted to say that because a case was brought to my attention. Partly because I am reluctant to gather any further information by typing the word “sex” into a search engine on the parliamentary estate—I am always incredibly reluctant to do that, for obvious reasons—I could not establish any further details about a specific case. Will the Minister undertake to have a look at that in a bit more detail, just to ensure that we have not missed anything through narrow definitions within this clause?
Tom Tugendhat
The hon. Lady can be absolutely assured that there is no way that I would like to leave out any form of inducement that a foreign intelligence service could use to entice somebody to commit a serious crime. Therefore, of course, I would be very happy to look into that.
The clause, as written, says:
“Material benefits may include financial benefits, anything which has the potential to result in a financial benefit, and information.”
Therefore, it is pretty broadly worded. I will talk to officials about how we could make it clearer if that is necessary, but I will certainly undertake to do that. Before I sit down, I will just say, God save the Queen.
Question put and agreed to.
New clause 7 accordingly read a Second time, and added to the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
National Security Bill (Thirteenth sitting)
Tuesday 18th October 2022
(2 years, 1 month ago)
Public Bill CommitteesRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 18 October 2022 - (18 Oct 2022)
The Chair
Welcome back to the consideration of the National Security Bill.
Ordered,
That the order of the Committee of 7 July be varied as follows—
1. In paragraph (1)(g), leave out “13 September” and insert “18 October”.
2. In paragraph (4), leave out “13 September” and insert “18 October”.—(Tom Tugendhat.)
Mr Kevan Jones (North Durham) (Lab)
On a point of order, Mr Gray. I welcome everyone back; it is very nice to see them. My point of order concerns the explanatory notes on foreign agent registration. It is customary that we have such notes at least before the Committee meets, but there do not appear to be any explanatory notes or a detailed impact assessment. I know some people think that Committees are just tick-box exercises, but they are not; we are allowed to scrutinise the Bill. Given that the foreign agent registration scheme has had a gestation period longer than that of an African elephant, there should have been time at least to make some explanatory notes.
The Chair
I am most grateful to the right hon. Gentleman for giving notice of his points of order—neither of those matters is a point of order. They are points of information, which the Minister will no doubt have heard, and will doubtless wish to act on during the course of the day. They are not matters for the Chair.
Mr Jones
Yes, it is definitely different. Mr Gray, you will remember that, when we were discussing clause 23, a commitment was given by this Minister or the last Minister—whoever it was. The Minister could not give the Committee details about why the agencies needed clause 23 because of the secret nature of that, and a commitment was given that the Intelligence and Security Committee would be given examples of why the clause was needed.
I am told that the examples were received late last week, yet a date has not been set for me to be briefed formally by the agencies. The reason being put around for that, I am told, is that the Chair of the ISC has made it difficult. I put on the record that that is not the case. We received them only last week, and I, and other members of this Committee who are not members of the ISC, have not yet been in a position to read those examples. If someone gives commitments, it is not good enough to have such delays.
The Chair
Although that is an important matter for the ISC and for this Committee, it is not a point of order. The Minister and others, however, will have heard the right hon. Gentleman’s point, and will no doubt take it into consideration in the future.
New Clause 8
Disclosure orders
“Schedule (Disclosure orders) makes provision for disclosure orders.”—(Tom Tugendhat.)
This new clause introduces the new Schedule inserted by NS1.
Brought up, and read the First time.
The Minister for Security (Tom Tugendhat)
I beg to move, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss Government new schedule 1—Disclosure orders.
Tom Tugendhat
Thank you very much for chairing this sitting, Mr Gray. It is a pleasure to be here under your chairmanship, and a great pleasure to introduce new clause 8 and new schedule 1, which introduce a suite of measures to allow law enforcement officers to apply to the courts for orders to gather information that will assist investigations into foreign power threat activity. As with the other police powers in the Bill, the Government have carefully considered relevant existing legislation, and looked to emulate it where it has proven effective in investigating other serious crimes. I will first speak more broadly about the need for the measures as a whole, before turning specifically to disclosure orders.
Most modern investigations include lines of inquiry into finances and other property, sometimes as a starting point and sometimes to enhance other leads. Financial investigations are often critical in developing evidence that is used in criminal proceedings where there is a financial element, by identifying and tracing criminal assets and uncovering the extent of criminal networks. Financial investigation has become increasingly important in criminal investigations in recent years.
In his recent letter to the Committee, the national lead for counter-terrorism policing, Matt Jukes, stated that it can be difficult for his officers to conduct effective investigations into state threats with the current powers and tools available, and that police would greatly benefit from the inclusion of financial investigative measures. The police have stated that these lines of inquiry are particularly important in state threats cases, where actors may be motivated by financial gain but also where they deploy sophisticated forms of tradecraft, meaning that their criminal conduct is even more difficult to uncover, disrupt and evidence than for other crimes. In many cases, financial and property investigations form an important part of establishing the link between the activity and the foreign power, particularly regarding investigations into obtaining material benefits from a foreign intelligence service.
Investigations into property and finances can take place in relation to any form of criminality, but Parliament has already recognised, in both terrorism legislation and the Proceeds of Crime Act 2002, that there are certain circumstances where it is appropriate for investigators to have access to broader investigatory powers. The Committee has also recognised, in particular during our debates on schedules 2 and 3, that state threats investigations are an area where it is appropriate for investigators to have access to enhanced powers. The addition of these new financial and property investigation powers in relation to foreign power threat activity will ensure that law enforcement has the tools it needs to effectively conduct state threats investigations, prevent and mitigate harmful activity and bring those responsible to justice.
The Committee will note that these new powers are available to National Crime Agency officers, reflecting the Government’s intention, as set out in the integrated review of defence and security, to ensure that the NCA has the capabilities that it needs and to pursue greater integration where there is an overlap between serious organised crime, terrorism and state threats.
I want to take this opportunity to inform the Committee that as we have finalised these provisions, we have identified other areas in the Bill where the drafting needs to be tailored to ensure that it is consistent regarding the availability of the powers to the NCA. These small amendments will be addressed on Report.
Turning to disclosure orders, as we have discussed in Committee, schedule 2 provides for a number of powers that law enforcement can use to obtain information in state threats investigations. Law enforcement investigators require disclosure orders for state threats investigations in order to access non-excluded material by compelling individuals or organisations to provide information to investigators. It is important to note that disclosure orders cannot compel someone to answer any question or provide information that is legally privileged, or to produce excluded material. Excluded material is defined under the Police and Criminal Evidence Act 1984 and includes personal records relating to physical or mental health obtained in the course of a trade or profession, human tissue held in confidence and taken for the purposes of diagnosis or medical treatment, and journalistic material held in confidence. If excluded material were required by investigators, a production order under schedule 2 would be required.
Much of the information that investigators seek under a disclosure order may be considered confidential in nature, such as payment details, but is not classed as excluded material. That may be required because the police have previously approached an organisation to ask for the non-excluded material to be provided, but the organisation has refused because it does not consider that it should disclose the information in the absence of a clear power of compulsion. It may be because the police are conducting a complex investigation involving several organisations that could require multiple requests for information over time. In such a scenario, which is likely to occur in state threats investigations, the police require a streamlined process whereby one order is available to cover separate requests for information from multiple organisations without creating an undue administrative burden on law enforcement, the courts or those who might receive such requests.
In the absence of a disclosure order, a schedule 2 production order, if applicable, would need to be made for every request for information, requiring a large amount of police resource as well as court time. Disclosure orders streamline this process and reduce the numbers of orders needed for requests for non-excluded material during an investigation. For example, if the police were conducting a state threats investigation into an individual and needed to access information from several airline companies regarding the suspect, the company may be willing to provide only basic customer information, such as the full name, without a formal court requirement. If the police required access to the suspect’s payment information used for a plane journey that is suspected of being related to state threat activity, the company may refuse to provide that information, even if investigators provided the company with reassurance that providing this information was in the interests of the prevention of crime. Executing a warrant on the company may be possible, but may not be an appropriate course of action by the police. In some cases, a production order under schedule 2 might be available, but that will not always be the case. Disclosure orders will provide a more proportionate and appropriate way of providing investigators with the information required.
In another example, the police may suspect that a person is purchasing a specialist piece of computer equipment to use in the commission of a state threats offence. The police suspect that the equipment has been purchased from one of a small number of possible companies. In that case, a single disclosure order could be sought, enabling the police to seek information from the companies in question, instead of the police needing to seek multiple production orders.
We recognise that these orders could enable the police to give a notice to a wide range of organisations. As such, senior authorisation is required within law enforcement before an application can be made to the courts. In addition to the requirement for senior authorisation, a disclosure can be made only in relation to an investigation into the identification of state threats property, which is defined as money or other property that could be used for the commission of foreign power threat activity, or the proceeds from such activity. This restriction to investigations into relevant property reflects the scope of the equivalent powers in terrorism and proceeds of crime legislation.
Furthermore, the judge must be satisfied that there are reasonable grounds for believing the information being sought would be of substantial value to the investigation, and for believing that it is in the public interest for the information to be provided, having regard to the benefit of the investigation. Disclosure orders provide for an effective and flexible means of obtaining information in a state threats investigation. Sitting alongside the powers of schedule 2, they would ensure that investigators have efficient and effective access to the information that they need to conduct their inquiries.
Holly Lynch (Halifax) (Lab)
It is always a pleasure to serve under your chairmanship, Mr Gray. I also welcome hon. Members back to the final day of the Committee. We welcome new schedules 1, 2 and 3, and hope that they will reflect the complex and evolving nature of state threats, and the significant technical and financial resources that provide the capability for sustained hostile activity.
For too long, our police and security services have had to use blunted tools in this regard, not designed to address adequately the challenges posed by modern day espionage. We are grateful to Counter Terrorism Policing for submitting written evidence to the Committee, and making its support for the new schedules 1, 2 and 3 very clear. Frankly, the Met provided far more in its written evidence on the rationale of these provisions than the explanatory notes accompanying the new schedules from the Government—a point made by my right hon. Friend the Member for North Durham.
The fairly non-existent explanatory notes are a constant challenge from this part of the Bill onwards, affecting later amendments, which is disappointing for all hon. Members trying to follow the detail closely. As the Minister said, Assistant Commissioner Matt Jukes said in his written evidence to the Committee:
“We have requested financial investigation powers to support our investigations in this space. To this end we have articulated a clear requirement to emulate various investigatory powers within the Terrorism Act which centre on financial investigations as well as examination of material which can be used for investigatory purposes. We are assured that these will be introduced by way of a forthcoming amendment. If so, this will further ensure that we have the tools required to successfully investigate and disrupt state threat activity.”
We welcome the new schedules, and now that the long overdue Economic Crime and Corporate Transparency Bill has been published, no doubt the new schedules are intended to work alongside some of the part 5 provisions in that legislation. Currently, terrorism disclosure orders can be made under schedule 5A of the Terrorism Act 2000. Counter Terrorism Policing has called for an explicit disclosure order for state threats, stating that it will help investigators benefit from a streamlined process, whereby one order is available to cover separate requests for information from multiple organisations, without the need to return to court. I want to push the Minister on oversight. I have made the case for an independent reviewer of all the new measures in the Bill. As those will be investigatory powers, will the Minister confirm that the investigatory powers commissioner will have responsibility for overseeing their use?
Turning to paragraphs 7 and 17 of new schedule 1, paragraph 7 outlines offences in relation to disclosure orders. Sub-paragraph (3) states that a person commits an offence if
“in purported compliance with a requirement imposed under a disclosure order, the person—
(a) makes a statement which the person knows to be false or misleading in a material particular, or
(b) recklessly makes a statement which is false or misleading in a material particular.”
By comparison, paragraph 17(1) states that a
“statement made by a person in response to a requirement imposed under a disclosure order may not be used in evidence against that person in criminal proceedings.”
I cannot quite square that off. I am keen to better understand why the information provided by a person under a disclosure order could not be used as evidence in criminal proceedings.
Before concluding, as I have said before, I accept that it is standard to refer to a police officer as “constable” in legislation, despite the fact that in doing so we are referring to police officers of any rank, not the rank of constable, which seems problematic. New schedule 1 is a prime example of where it gets messy. Paragraph 1(5) says that an appropriate officer for the purposes of these powers is either a constable or a National Crime Agency officer. It is not until paragraph 2(10) that the provision states that an appropriate officer must be a senior officer or authorised by a senior officer. Not until paragraph 9(4) does it confirm that “senior officer” must be a superintendent or above. Would it not be clearer to be explicit about the stipulated rank required to exercise certain powers at the earliest opportunity, instead of allowing for the ambiguity of the word “constable”? The last thing any of us want is for any ambiguity to be exploited by defence lawyers in the courts.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
It is a pleasure to serve under your chairmanship, Mr Gray. My apologies for missing the previous Committee sitting. I can now welcome the Minister to his place at this very interesting and challenging time. I do not doubt that we wish him well. We have a tricky job in Committee today. We are looking at fairly substantial new schedules and new clauses for the first time. It would be helpful to hear what the Minister has to say about them. On the whole, we are supportive of most of what we will be discussing today, but we will have to take away what the Minister says and consider it further. Ultimately, we reserve our position until the Bill reaches its final stages in the House of Commons.
The Minister has outlined a number of case studies and scenarios to illustrate how this new clause and new schedule would work. More of that information would be really helpful to understand what the Government are getting at. With that proviso in mind, we would say that new schedule 1 seems to provide the necessary powers to investigate foreign threat activity. The Minister referenced the fact that this was based on other provisions, which is interesting to know, but I two have two or three questions about precisely what statute and provisions these measures are modelled on. Some of them seem fairly unusual, so it would be useful to know where else they can be found in order to analyse how they work there.
The Minister provided some examples of how the new clause and schedule would work. The first question is how is it to be decided that property is
“likely to be used for the purposes of foreign power threat activity”
or proceeds of that? Is that essential analysis to be based on the nature of the property, or is more required, such as intelligence about who may have had ownership or possession or some other link to it? Again, the illustrations which the Minister gave during his introductory speech may answer that question. I will have to go away and have a think about that, but the more illustrations we can have, the better. Otherwise, his scheme seems pretty reasonable.
I have a couple of questions about some of the supplementary provisions. Is there not an issue with being able to ask questions that could lead to self-incriminating answers? I think the shadow Minister almost had the opposite concern from me. She asked why that would be protected from use in a criminal trial. My question is about whether the safeguard goes far enough. The Government are basically saying that someone can be asked a question that may lead to a self-incriminating answer. There are protections elsewhere in paragraphs 8 and 17 of the new schedule about the non-use of those statements, but is this formulation used in other legislation? It would be useful to have a specific reference to a provision in another Act of Parliament.
In a similar vein, what is the thinking around ensuring that disclosure orders have effect, despite restrictions in another enactment? That seems a very broad provision. Again, is that found elsewhere in another piece of legislation? What other Acts of Parliament are going to be impacted or undermined by this? Finally, part 2 includes the provisions in relation to Scotland and how these would be put into practice. I wanted to check that there has been consultation with the Scottish Government. The broad thrust of new schedule 1 seems fine, but there are one or two questions for the Minister.
Maria Eagle (Garston and Halewood) (Lab)
I have a minor point to raise with the Minister in respect of part of the supplementary provision in new schedule 2, which the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has referred to, about disclosure orders—
The Chair
Order. I am sorry to interrupt you, but we are discussing new schedule 1 rather than new schedule 2.
Maria Eagle
Sorry; it is in new schedule 1. That was my mistake, Mr Gray, and I apologise. I am not seeking to confuse proceedings any more; it is confusing enough to have to scrutinise the provision without an explanatory memorandum. That makes this kind of provision very difficult to scrutinise with any real sense. The point I wanted to make is about paragraph 3(4) of schedule 1, which says,
“A disclosure order has effect despite any restriction on the disclosure of information imposed by an enactment or otherwise.”
The words “by an enactment” seem to make it pretty clear that unless it excludes material, the provision is designed to enable the investigating authority to look at anything. Can the Minister give an example of what that aims to remedy? What lacuna is it aimed at preventing? We are talking about waving through a provision that allows a disclosure order to ignore another enactment, and that seems to me to be a large power.
The provision goes on to say, “or otherwise”, which is an absolute catch-all phrase. Can the Minister can explain why the provision is drafted so widely, as well as what kind of “otherwise” arrangement it seeks to get around and why? It seems to me to be extraordinarily wide. We might have seen the rationale for that in an explanatory memorandum, had there been one, but we do not have one to hand. Perhaps the Minister can tell us whether we will have an explanatory memorandum before the completion of the Commons stages of the Bill. I think that waving through extraordinarily wide arrangements is cause for concern if we are trying to scrutinise what the Government seek to do and why.
Tom Tugendhat
I thank hon. Members for their comments so far. I will first touch on the point that has been raised about the explanatory notes. I am told that it is normal procedure for that to be published before the Bill is introduced to the Lords—
Tom Tugendhat
I will be taking that up with officials later, and I will find out why that has been said.
Tom Tugendhat
The right hon. Gentleman knows that I would never do such a thing. In response to the provision on oversight, we discussed in the last sitting that we are looking at different forms of oversight. While that has not yet been clarified, I will engage with the hon. Member for Halifax to ensure that we have a form of oversight that works, be that from one of the existing oversight bodies or from another body. There are various different arguments, so I will come back to the hon. Member on that.
The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East asked what the measures were based on. The Bill is based on the Terrorism Act 2000, but we also looked at the Proceeds of Crime Act 2002. We sought consistency in the schedules by using the so-called TACT and the Proceeds of Crime Act as their basis. It is important to note that Police Scotland has been involved in this endeavour and is content. It has been a very important part of the conversation.
The hon. Member for Halifax asked where these orders could come from. Police need to compel individuals or organisations to answer questions. Because of the different natures of potential production orders, they may involve not just a single individual, but multiple sources; that is why I mentioned multiple companies. In this case, one may be following a particular individual but not be certain which airline they travelled on. Therefore, this could include either multiple companies that may have produced a good or a service, or multiple agencies that have supplied it. That is where it comes from.
Question put and agreed to.
New clause 8 accordingly read a Second time, and added to the Bill.
New Clause 9
Customer information orders
“Schedule (Customer information orders) makes provision for customer information orders.”—(Tom Tugendhat.)
This new clause introduces the new Schedule inserted by NS2.
Brought up, and read the First time.
The Chair
With this it will be convenient to consider Government new schedule 2—Customer information orders.
Tom Tugendhat
I beg to move, That the clause be read a Second time.
New clause 9 and schedule 2 seek to insert customer information orders into the Bill as part of the suite of investigatory measures. Those who engage in state threats activity are highly trained individuals who have knowledge of tradecraft that can obfuscate their identity and real intentions.
For example, the tradecraft could be used to conceal transactions by creating secret bank accounts under false identities, or accounts registered to different addresses, in order to send or receive money for conducting activity. The operational objective of a customer information order is to enable an investigator to identify accounts and other account information in relation to state threats investigations. For example, this could be where a foreign agent is paying others to conduct state threats activity in the United Kingdom and police need to identify where the agent’s account is held, or it could be where a suspect is using a covert account under a false identity to receive funds to use for the purposes of state threats activity.
The customer information order is therefore intended for use as a tool of discovery during an investigation, often in the early stages. Once accounts have been identified through a customer information order, they could, where appropriate, be subject to further monitoring or investigation through a schedule 2 production order or an account monitoring order. Without customer information orders, accounts used by those conducting state threats activity may go unidentified, reducing investigative opportunities and, in turn, the ability for law enforcement to disrupt harmful activity and bring offenders to justice. We recognise that such orders could potentially require any financial institution to provide information about relevant customers. As such, senior authorisation is required within law enforcement before an application can be made to the courts.
We expect that, in practice, the powers will be used by police and NCA officers who have received relevant financial investigator training, and we are continuing to work with the police and NCA on creating the relevant guidance. Again, we have modelled the provisions on the terrorism equivalent and the measures used in the Proceeds of Crime Act 2002, and the consistency of these processes will ensure that law enforcement officers can make the most effective use of the powers. As I have set out, the customer information orders are another important investigative tool, opening new lines of inquiry and ensuring that law enforcement can run effective state threats investigations.
Holly Lynch
New clause 9 and new schedule 2 establish customer information orders, which authorise the police and NCA officers to obtain customer information from financial institutions. In its written submission to the Committee, for which we are all grateful, Counter Terrorism Policing has welcomed the provision, stating that it will
“enable investigators to identify accounts in relation to state threat investigations, or where an individual is using a covert account under a false identity to receive funds to use for the purposes of state threats.”
As the Minister outlined, the tool has been available to law enforcement for terrorism investigations thanks to schedule 6 to the Terrorism Act 2000, and it has been available for criminal investigations through the Proceeds of Crime Act. However, according to Counter Terrorism Policing, it has not been possible to use either Act in relation to state threats investigations, so we welcome the provision. It prompts the question of why we have not addressed this issue sooner.
Subsection (2) states that the judge may grant the order if they are satisfied that
“the order is sought for the purposes of an investigation into foreign power activity”,
and that
“the order will enhance the effectiveness of the investigation.”
We have spoken a lot about the value of an independent reviewer, and I welcome the substance of the Minister’s comments. It is worth keeping under review the threshold of a judge being satisfied that the order is sought for the purposes of investigation into foreign power activity. We cannot use these orders without good cause, but if we need them to be able to find evidence of foreign power activity, will investigators be able to satisfy a judge prior to that? It will be interesting to see how many applications are granted and rejected once we start to work with the orders. Aside from those points, I am happy with new schedule 2.
Stuart C. McDonald
I will make a couple of brief points. The broad thrust of the new schedule and the intention behind it seem absolutely fine, but I am interested in the tests that must be satisfied before an order is made. Under the previous schedule on disclosure orders, the judge has to be satisfied that there are reasonable grounds for suspicion, that there is substantial value in the information gained under the order and that the order would be in the public interest.
In contrast, here in new schedule 2, the judge has to be satisfied only that the order is sought for the purposes of an investigation and that it will enhance the effectiveness of that investigation. That seems a pretty low bar to allowing this pretty invasive procedure to be gone through. Why that choice of language? I guess it is modelled on the provisions that have been mentioned. I have probably not been as diligent as the shadow Minister has in doing my homework and tracking through the previous bits of legislation, and I will now do that. The information gained under these orders could be pretty intrusive, so we need to ensure we are not giving carte blanche to all sorts of intrusive investigations. I am a little bit concerned about the low level of test, compared with the test for disclosure orders.
My second, brief point is that paragraph 4 of the new schedule suggests that the person whose records are about to be trawled through can seek to vary or discharge the order. It is not clear to me how they would go about doing that, given that I suspect most orders will be made without any notice, and they can even be made by a judge in chambers. What assurance can we have that people will be able to challenge this potentially intrusive investigation?
Tom Tugendhat
The question as to why we have not addressed this sooner is a fair one. The UK’s investigation legislation is complex, as the hon. Member for Halifax knows only too well from the homework she has obviously done for our sittings. For example, in the Proceeds of Crime Act there are more than seven investigatory orders used in criminal and civil investigations. The consideration that has gone into this has naturally been complex, and it has required a lot of time and input. This Bill, as she knows very well, has been some years—and, indeed, some Ministers—in the making.
Tom Tugendhat
Let us see. The fact that there are no recorded uses of the information orders in TACT demonstrates how sparing the use of these provisions will be.
Question put and agreed to.
New clause 9 accordingly read a Second time, and added to the Bill.
New Clause 10
Account monitoring orders
‘Schedule (Account monitoring orders) makes provision for account monitoring orders’.—(Tom Tugendhat.)
Brought up, and read the First time.
The Chair
With this it will be convenient to consider Government new schedule 3—Account monitoring orders.
Tom Tugendhat
I beg to move, That the clause be read a Second time.
I turn to new clause 10 and schedule 3—
Tom Tugendhat
My apologies; I meant new schedule 3. New clause 10 and new schedule 3 provide for account monitoring orders for certain investigations into state threats. Police need to be able to obtain information relating to accounts held by a suspect in real time in order to identify and act on disruptive opportunities related to state threats activity. An account monitoring order will require a financial institution to provide specified information in relation to an account—for example, details of all transactions passing through the account—for a specified period not exceeding 90 days.
Holly Lynch
In our debates on new schedules 1 and 2, we have been through arguments similar to those that apply to new schedule 3. Once again, CT Policing states that these account monitoring orders will provide:
“investigators with real-time information that can be used to react quickly and intervene if necessary, potentially stopping the state threat activity from taking place.”
Of course, that is enormously welcome. I draw the Minister’s attention to one small matter, concerning the use of the word “constable”. For account monitoring orders, new schedule 3 stipulates that an appropriate officer is a constable or an officer of the NCA under paragraph 1(3). When we get to interpretation, paragraph 7(2) states:
“‘Appropriate officer’ has the meaning given by paragraph 1(3)”,
which refers us back to the word “constable” with no stipulation about rank whatsoever. That is very different from the requirements in new schedules 1 and 2, which stipulate that the officer needs to be a senior officer, meaning a superintendent or above. Is this an oversight? Should the officer be a senior officer, in line with new schedules 1 and 2, or can a police officer of any rank apply for an account monitoring order?
Mr Jones
These are sensible proposals to give our law enforcement agencies the powers they require, but I would like clarification about definitions. The Minister referred to a bank, and it is clear that this is about monitoring bank accounts. The explanatory statement, expansive as it is—I think it is one line—says:
“These orders may require financial institutions to provide specified information relating to accounts.”
I want to clarify the definition of financial institution. If we go back 20 or 30 years, it was quite clear: we had bank accounts and financial products. Today, though, there is a complex environment of organisations that work and deal with financial accounts. For example, Bitcoin is now traded between organisations, some of which are covered by the Financial Conduct Authority and others not. I am trying to get some understanding of how widely this will go.
The other issue is about bank accounts that are not in the UK. I am particularly thinking about bank accounts in the overseas territories, and what happens there. We need clarification about the remit. The measure might work very simply with banks and other financial institutions, but in an ever-changing world we have a lot of organisations that deal with people’s “accounts” where they are not regulated.
Tom Tugendhat
The hon. Member for Halifax asks again about the term “constable”. She is right to ask, but that is not an oversight; it is accurate. There are different levels at which different officers are allowed to warrant things. As she rightly identifies, “constable” is the generic term, and then at various points different ranks of officer are required for different levels of authority. That is in line with the TACT powers. This area of authorisation is considered less intrusive, and that is why a lower-ranking officer is allowed to ask for it.
On financial institutions, the right hon. Member for North Durham identified that banking has changed somewhat since he and I had post office accounts in the early—I will leave that there. Schedule 3 uses the same definition as that used in paragraph 6 of schedule 6 of the Terrorism Act 2000; it is designed to align. The definition of financial institution in the Proceeds of Crime Act 2002 can be found in paragraph 1 of schedule 9. Account monitoring orders can be used as part of a broader set of purposes, such as civil recovery, and they are applicable to a broader range of financial institutions. Such breadth is unnecessary in respect of state threats, which is why that is slightly narrower, but the definition is there.
Obviously, these powers cannot be used to compel institutions overseas, so we are asking for co-operation from police forces.
Mr Jones
I appreciate that in terms of overseas bank accounts, but there has been a lot of controversy about individual using overseas territories. If the Minister does not know the answer, he can write to the Committee to clarify the point. I just want to see how far these orders could go in terms of their effect.
Tom Tugendhat
The right hon. Gentleman knows very well that overseas territories come under slightly different jurisdictions, whether they are Crown dependencies or overseas territories. It depends on the jurisdiction, but I will be happy to write to him.
Question put and agreed to.
New clause 10 accordingly read a Second time, and added to the Bill.
New Clause 11
Requirement to register foreign activity arrangements
‘(1) A person (“P”) who makes a foreign activity arrangement must register the arrangement with the Secretary of State before the end of the period of 10 days beginning with the day on which P makes the arrangement’
(2) A “foreign activity arrangement” is an arrangement with a specified person pursuant to which the specified person directs P—
(a) to carry out activities in the United Kingdom, or
(b) to arrange for activities to be carried out in the United Kingdom.
(3) “Specified person” means—
(a) a foreign power specified by the Secretary of State in regulations;
(b) a person, other than a foreign power, specified by the Secretary of State in regulations.
(4) The regulations may specify a person other than a foreign power only if—
(a) the person is not an individual, and
(b) the Secretary of State reasonably believes the person is controlled by a foreign power.
(5) A person is controlled by a foreign power if—
(a) the foreign power holds, directly or indirectly, more than 25% of the shares in the person,
(b) the foreign power holds, directly or indirectly, more than 25% of the voting rights in the person,
(c) the foreign power holds, directly or indirectly, the right to appoint or remove an officer of the person, or
(d) the foreign power has the right to direct or control the person’s activities (in whole or in part).
(6) In subsection (5) “officer”—
(a) in relation to a body corporate, means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity;
(b) in relation to a partnership, means a partner or person purporting to act as a partner;
(c) in relation to an unincorporated association other than a partnership, means a person who is concerned in the management or control of the association or purports to act in the capacity of a person so concerned.
(7) The Secretary of State may make regulations specifying a foreign power or a person other than a foreign power only if the Secretary of State considers it reasonably necessary to do so to protect the safety or interests of the United Kingdom.
(8) The requirement in subsection (1) does not apply to a foreign power.
(9) Regulations specifying a foreign power or a person other than a foreign power may provide for subsection (1) to apply, with modifications specified in the regulations, in relation to a foreign activity arrangement made with the specified person before the regulations come into force.
(10) A person who fails to comply with subsection (1) commits an offence if the person—
(a) knows, or
(b) ought reasonably to know,
that the arrangement in question is a foreign activity arrangement.’—(Tom Tugendhat.)
NC11 to NC28 require certain arrangements with, and activities of, foreign powers and foreign persons to be registered. They are intended to form a new Part 2A, referred to in explanatory statements as the registration scheme. This new clause requires registration of arrangements with specified persons to carry out activities in the UK.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss the following:
Government new clause 12—Offence of carrying out activities under an unregistered foreign activity arrangement.
Government new clause 13—Requirement to register activities of specified persons.
Tom Tugendhat
New clauses 11, 12 and 13 are the first of a series of amendments relating to the foreign influence registration scheme announced by the Home Secretary on Second Reading. I will come to the new clauses shortly, but first I want to make some introductory remarks about the scheme itself.
In the 2020 Russia report of the Intelligence and Security Committee, it was recommended that future counter-state threats legislation should address the issue of those acting on behalf of a foreign power and seeking to obfuscate their links or relationship. The director general of MI5 strongly emphasised the importance of legislating to ensure that those acting covertly could be pursued through criminal means to make the operating environment harder for those who intend to disguise or obfuscate who they are acting for. The ISC’s report identified the need for stronger transparency legislation, akin to that in place in the United States—namely, the Foreign Agents Registration Act 1938, known as FARA.
FARA requires any person, regardless of nationality, to disclose to the Department of Justice where they represent the interests of foreign powers in a political or quasi-political capacity, as described by the report. It is a disclosure requirement that applies far beyond a situation in which a person acts for a foreign intelligence service, extending to activities undertaken for foreign powers as well as other entities and individuals.
Only four years ago, the Australian Parliament passed its contemporary equivalent to FARA, the Foreign Influence Transparency Scheme Act 2018. The Australian scheme requires the registration of political influence activities undertaken for, or on behalf of, a foreign power or other individuals or entities subject to foreign power control. Both schemes contain a range of exemptions, offences and enforcement powers to further shape and support enforcement of the scheme. Although not like-for-like schemes, they share the principle of tackling covert influence through greater transparency.
There is evidence of the value of these schemes. A submission from the Australian Attorney-General’s Department to an ongoing review of FITS, which commenced in August last year, describes the behavioural changes that it has seen as a result of the scheme’s implementation: some organisations and individuals have adopted better transparency practices, while others have seemingly ceased activities that would be registrable. Enforcement of the US’s FARA has increased in recent years. That has also resulted in behavioural change, as well as prosecutions for non-compliance, including of one very high-ranking former military officer.
I am delighted to be before the Committee today to talk through the proposed UK scheme. This is an important piece in our package of measures and is the area of legislation that calls on sectors to play their part in making it difficult for foreign powers to operate covertly in the United Kingdom. Similar to the position with the precedents that I have just described, its overarching aim is to deter foreign power use of covert arrangements, activities and proxies by requiring greater transparency around certain activities that they direct, as well as where those activities are directed or carried out by entities established overseas or subject to foreign power control.
Put simply, where a foreign state deploys its influence in the UK, either directly or through third parties, that will now be subject to registration and more transparent. I must stress that the scheme’s requirements are not identical to those of the United States and Australian schemes. Although we have worked with our US and Australian colleagues to understand the lessons learned from implementation of their schemes, our scheme’s requirements reflect our own experience and the threats that we face.
The overarching aim of the scheme is to be delivered through two separate objectives and requirements. The first is to strengthen the resilience of the United Kingdom’s political system against covert foreign influence. Openness and transparency are vital to the functioning of our democracy. Where covert influence is deployed by foreign powers, directly or through third parties, it undermines the integrity of our politics and institutions. The scheme will therefore require the registration of political influence activities where they are to be undertaken within the United Kingdom at the direction of any foreign power or foreign entity, or by a foreign entity itself. I will refer to these obligations as the “primary registration requirements”.
Certain registered information will be made available to the public via a scheme website, similar to the position with the schemes of our Australian and US partners. This requirement is deliberately state and sector agnostic, as the source of foreign influence should be transparent no matter where it originates or manifests. The only exceptions, which I will come to, are where exemptions are necessary to protect existing obligations.
The second objective is to provide greater assurance around the activities of specified foreign powers or entities. The scheme contains a power to specify a foreign power, part of a foreign power, or an entity—such as a company or organisation—subject to foreign power control, where the Secretary of State considers it necessary to protect the safety or interests of the United Kingdom. It would require a person acting within the United Kingdom at the direction of a specified power or entity to register with the scheme. It would also require a specified entity to register activities to be undertaken within the UK with the scheme. I will refer to this as the “enhanced registration requirement”. Its use will be limited and subject to parliamentary approval.
These requirements will apply to certain arrangements and activities, regardless of the nationality of those carrying out the activity, and will be enforced through a range of offences and penalties, as well as powers to request information.
I also want to tell the Committee about the scheme’s exemptions, which are as follows.
Stewart Hosie (Dundee East) (SNP)
Before the Minister tells us about the exemptions, it would be helpful to know how the enhanced registration—let us call it tier 2 —will actually work. So far, we are in the dark. The basic registration seems eminently sensible, but what will the procedure be to specify a country, entity or person to whom enhanced registration will apply? How will it work? We need to know that before we find out who might not be expected to register in that way.
Tom Tugendhat
The right hon. Gentleman will see that I have a number of pages of text that I will be coming to. If he will forgive me, I will explain all these elements as we get to them.
The scheme’s exemptions are as follows: individuals to whom privileges and immunities apply in international law, as provided by, for example, the Vienna convention on diplomatic and consular relations; legal services, as well as information subject to legal professional privilege; domestic and international news publishers, including confidential journalistic material and sources; and arrangements to which the UK Government are party.
The scheme has also been designed to uphold the letter and spirit of the Belfast/Good Friday agreement. To that end, any arrangement with Ireland, or with a body incorporated or associated under the laws of Ireland, will be exempt from registration, as are activities to be carried out by such entities. That will avoid interference with the rights of citizens of Northern Ireland who identify as Irish, as well as the activities of cross-border entities and institutions.
I want to close my opening remarks—that is right; we are just starting—by mentioning George Brandis, the former Attorney General for Australia who was responsible for passing the Australian scheme. He was recently reported as commenting on the announcement of the UK scheme:
“This ought not to be in the cockpit of political controversy in the U.K. It ought to be something, because it is necessary for the protection of the national interest, that commands bipartisan support.”
That is certainly the sentiment that I have taken from Second Reading and our deliberations in Committee so far, and I look forward to working with all sides to ensure the requirements are effective and proportionate.
With that, I turn to the group of new clauses relating to the enhanced registration requirement. Each of the new clauses is substantive and so, after setting out the benefits of the enhanced requirement, I will take each in turn. The enhanced registration requirement will provide greater scrutiny of the activities of specified foreign powers or entities while deterring the use of covert arrangements. I describe it as “enhanced” because it creates wider requirements to register than the primary registration requirement, which we will come to later. That is proportionate to the aim of this part of the scheme: to provide greater assurance around the activities of specified foreign powers or entities.
The enhanced registration requirement will provide three principal benefits. First, it will provide the Government and the public with a greater understanding of the scale and extent of activity being undertaken for specified foreign powers and entities within the United Kingdom. Secondly, the offences and penalties for non-compliance will increase the risks to those who seek to engage in covert activities for foreign powers, either directly or through specified entities. Finally, the requirement offers potential for earlier disruption of state threats activity, where there is evidence of a covert arrangement between a person and a specified foreign power or entity but it is not yet feasible to bring charges for a more serious state threats offence.
Tom Tugendhat
I will, very briefly, but the right hon. Gentleman may find that the point is covered—
Mr Jones
If the Minister wants to come here and just read his speech to us, that is fine, but that is not what scrutiny is. I am fully supportive of the proposals under tier 1, but I find it difficult to understand how tier 2 will work in practice. Putting countries or companies on the list will cause huge diplomatic incidents. Let us say we put Huawei on the list, for example; I am sure there would be fallout from that. As well-meaning as tier 2 is, practically, I do not think it will ever be used.
Tom Tugendhat
The right hon. Gentleman and I have had many debates on the nature of different foreign influence in the seven years that I have been here. We have discussed many different companies and countries in various ways. I know he shares my absolute passion for protecting the United Kingdom from foreign influence and knows the difficulty that that causes in diplomatic areas. He appreciates better than almost anyone how difficult it is sometimes to match the economic needs and requirements of the United Kingdom with the need to protect ourselves from foreign influence. He is right that this will cause difficulty. There is no getting around the fact that making a decision on the enhanced tier will have diplomatic repercussions. But the reality is that if we do not make those decisions, the implications for our economy and domestic security will be very high.
The right hon. Gentleman is absolutely right that there are companies that some of us have stood up to and made a point of identifying as actors for a foreign state—he mentions Huawei; there are others—and which are in many ways difficult examples. I am not going to say whether Huawei would or would not be subject to the enhanced tier, as we have not looked at any determinations on that, but it is quite clear that there are some countries—Russia is a good example today—that would absolutely require the enhanced tier. Different elements of Russian business would no doubt fall within it.
Mr Jones
Yes, but the Minister knows that there are many countries in the world that, although they are not comparable with Russia, would also cause economic harm but are not in the higher tier. Would it not be better to have a broader scheme that mirrored tier 1, with tight definitions of what needs to be registered, and apply it to all countries? We would then give ourselves protection and avoid the diplomatic pitfalls every time we wanted to follow this process.
Tom Tugendhat
People have to register under tier 1 anyway. That will be a public scheme that already identifies many areas. Tier 2 will make sure that there is an enhanced aspect that allows us to be clear what exactly is going on, rather than relying on a general identification. That is an important distinction.
Maria Eagle
Is my understanding correct that tier 1 is about capturing arrangements and activity undertaken for the purpose of influencing a political event or decision, but that the second tier will capture all other behaviour beyond political influencing, such as acting as a foreign intelligence officer? Is it correct that the scheme as set out at present is aimed at making everyone apply at the lowest level—the political influencing level—but that only more serious incidents will be dealt with by designating individual countries or companies? We are going to immediately run into the difficulty of upsetting diplomatically any person, company or country that is designated for more serious activity.
Tom Tugendhat
The hon. Lady is not noted for her shyness. I am surprised that she feels that the diplomatic repercussions of designating a company or country should dissuade the UK Government from defending themselves. I know she does not think that, and I know the right hon. Member for North Durham does not think that.
The different schedules identify the different natures of influence being used. As the hon. Lady rightly identifies, schedule 1 is about political influence. As I think we all appreciate in this House, that should be public. Those who seek to influence anyone in this House or anyone else by political means, whether through lobbying or in different ways, should identify on whose behalf they are doing so. I do not think that is a very contentious provision.
Tom Tugendhat
I am glad to see the hon. Lady nodding. The second point is the enhanced scheme. That is where influence may come in different ways, where co-operation and interaction with different businesses that pose a particular and distinct threat may be required. That is why—we will come to this later—the political register will be public and the second register will be private, but the identification of those who are required to be registered will of course have to be public and there will be a political and a diplomatic decision that will go with that.
Mr Jones
I sympathise with what the Government are trying to do, and I think my hon. Friend the Member for Garston and Halewood does too, but I am never in favour of putting things on the statute book that look tough but that, frankly, will never be used. There must be a more direct way of doing this—a broader measure that applies to all countries, which is then used against relevant countries. My fear is that the measure as it is written at the moment looks tough but will not be usable.
Tom Tugendhat
The right hon. Gentleman raises a fair point, but I simply do not believe that if he were in my position, he would not use the powers. I would use them, and I am sure he would use them in a situation where they were required. I know that he has never shrunk from a fight or diplomatic argument, but I think that this is important. The problem is that if the enhanced power were to be used for every nation, the volume of data produced would be enormous and the imposition on companies would be huge.
Mr Jones
I agree with the Minister, but he has a problem. He and I have dealt with the Foreign Office and other diplomatic entities over many years: he knows that the pressure that the power will come under, and the competing arguments against security, will make it unusable.
Tom Tugendhat
I do not accept that, so I think we will have to end this discussion with an agreement to disagree.
Tom Tugendhat
Indeed. But I entirely respect the right hon. Gentleman’s position, and I do understand the point he is making.
New clause 11 will require Ministers—specifically, the Secretary of State—to be willing to engage in a strong discussion with other Departments that rely on investment or, indeed, diplomatic leverage. Yes, I am afraid that is a balance that the Government have to make; the right hon. Gentleman is absolutely right to identify it, but I simply do not accept that that means the power will not be used. It is true that the power will be constrained, but that does not mean that it will be unused—Ministers who see the threats before them will be willing to use the powers that they have. We will no doubt continue this discussion later.
New clause 11 will provide three principal benefits. The first is that it will provide the Government and public with a greater understanding of the scale and extent of activity being undertaken for specified foreign powers and entities within the United Kingdom.
Stewart Hosie
The Minister explained just a few moments ago that the tier 1 registrations would be public but the tier 2 enhanced registrations would be private. I am not sure how he can argue that the tier 2 enhanced registration would give the public much more confidence if it is a secret.
Tom Tugendhat
The nature of the registration will not be a secret, but who has had to register will be kept private at the moment. I am already keeping this matter under discussion, so I am glad that the hon. Gentleman sympathises with my concerns. He and I are fully aware that journalism is a very powerful force in many of these areas.
Mr Jones
This baffles me, as it does the hon. Member for Dundee East. Tier 2 registration will not be private, will it? The order will have to be moved to put them on the list in the first place. Everyone will know, so what is the problem with providing transparency? I do not think you can have two tiers with different levels of transparency.
Tom Tugendhat
Let me clarify. Whoever is identified as being on the enhanced tier will be identified publicly. It is those companies that may be co-operating; at the moment, there is a discussion as to whether that should be public or private. The reason for that discussion is that some companies will be co-operating and we may feel that we wish to see that co-operation continue, even though we wish to have the compliance and registration so that we know who is doing what. The argument is that the Government should have the ability to have that information.
Tom Tugendhat
Forgive me, but I think the right hon. Gentleman has got this slightly the wrong way round. By definition, the company that would be identified would be a foreign company, not a UK company.
Mr Jones
Yes, but if I headed a French company—I am not suggesting that we use this power against the French for one minute—and had shareholders, surely I would have to tell them, and report at board meetings, that I had been on the list. It will get out anyway, so what is the point of keeping it quiet?
Tom Tugendhat
We are clearly speaking at cross purposes. The state that is on the enhanced register would be public. The company would be public. Those UK companies that are registering may not be. The right hon. Gentleman has it the wrong way round.
Tom Tugendhat
Okay. I am going to carry on, but I am very happy to continue this discussion on a later occasion.
New clause 11 will provide three principal benefits. First, it will give the Government and the public greater understanding of the scale and extent of the activity. Secondly, the offences and penalties for non-compliance will increase the risk to those who seek to engage in covert activities for foreign powers, either directly or through specified entities. Finally, it offers potential for earlier disruption of state threat activity where there is evidence of a covert arrangement between a person and specified foreign power or entity but it is not yet feasible to bring charges for a more serious state threat offence.
I want to be clear that we expect use of the enhanced registration requirement to be limited. It is an additional tool of assurance to bolster the package of measures within the wider Bill. The power to specify a foreign power or entity will be available to the Secretary of State when the Secretary of State considers it reasonably necessary to do so to protect the safety or interests of the United Kingdom. It will be subject to the affirmative procedure.
It is also vital to stress that the use of this requirement should not be taken to imply that every national of a specified foreign power or person associated with a specified foreign entity is to be mistrusted. The message here is quite the opposite: any person who complies with the obligation to declare an arrangement with a specified foreign power or entity is contributing to the safety and security of the United Kingdom by being open and transparent about that arrangement.
Although I am sure that members of the Committee will be keen to understand which foreign powers will be in scope of the enhanced registration requirement, I am sure they appreciate that it would be premature—if not damaging—to make undertakings on that at this stage. The Government will decide when the scheme is ready to be brought into force. For now, I will cover each amendment.
New clause 11 is the requirement to register foreign activity arrangements. A foreign activity arrangement is where activity is to be carried out, or arranged to be carried out, within the United Kingdom at the direction of a specified foreign power, part of a foreign power or an entity subject to foreign power control. The requirements could apply to any activities, but subsection (9) provides for this to be modified through regulations where necessary.
I wish to bring four key points to Members’ attention. First, I want to reflect on what we mean by a person required to register in this context under subsection (1). A person can be an individual, regardless of their nationality, or an entity. However, if a company or organisation is being directed by a foreign power or entity, the company or organisation would be responsible for registering the arrangement, not its individual employees.
We will shortly discuss new clause 13, which includes a requirement for specified entities to register their own activities. That is important because it makes clear our intention that an employee of a specified entity cannot be considered as being in a registrable arrangement with that entity. The approach was taken in response to sector feedback during our public consultation as a means of reducing the potential registration burden on companies and other organisations that may have many employees all engaged in the same activities.
Importantly, subsection (8) clarifies that there is no requirement for a foreign power itself to register. The scheme intends to increase assurance and transparency of activities being carried out for a foreign power where the involvement of that power might otherwise not be apparent.
Stewart Hosie
In new clause 11(1), “A person (‘P’)” might, as the Minister said, be an individual, an entity or a business. This is not at all clear. Is this the UK individual, entity or business or is it the overseas individual, entity or business that is directing a UK citizen? Is it a combination of the two?
Tom Tugendhat
Let me be completely clear, because subsection (8) makes it completely clear: there is no requirement for a foreign power itself to register. We cannot compel foreign powers or entities to register; this is a compulsion on UK entities or individuals.
The scheme intends to increase assurance and transparency to activities being carried out for a foreign power, where the involvement of that foreign power might otherwise not be apparent. As such, we would not expect other Governments to register with the scheme in respect of activity that they themselves are undertaking. As the later “interpretation” clause will make clear, that includes any person acting in the capacity of an office holder, employee or other member of staff of the foreign power, or a person whom the Secretary of State reasonably considers to be exercising such functions.
This scheme has been designed to avoid interference with our obligations under international law regarding the diplomatic and consular relations between countries, as well as the need to protect routine Government-to-Government engagement—the official visits of officials, military and other agencies of a state, for example.
Secondly, subsection (2) sets out the definition of “arrangement”, which requires there to be direction from a specified foreign power or entity to a person. That element of direction is important because it envisages a power relationship between the specified foreign power or entity and the person. The specified foreign power or entity has told the person to carry out the activity, or arranged for it to be carried out. While in practice it is entirely likely for a direction to be delivered in the language of a request, the context of the relationship between the specified foreign power or entity and the person being directed will ultimately determine whether it falls within scope.
Stuart C. McDonald
What happens if an intermediary is involved? What if a designated state power says to someone locally, “You arrange for these activities”, rather than saying to someone in the United Kingdom, “I want you to undertake these activities”? That falls within the terms of the new clause. That intermediary then instructs people in the United Kingdom to undertake activities. Does that not mean there is a gap in the clause and that people in the UK undertaking those activities would not have to register anything? It would be almost impossible to enforce against that intermediary requirement to register. Is there not a potential problem there?
Tom Tugendhat
My understanding is that—in fact, I will come back to that when I sum up, because the hon. Gentleman has raised an interesting point.
We consider a power relationship to include, for example, where the specified foreign power or entity has formally contracted a person’s support for an activity, or where it is paying a person to deliver a service. It could also include a situation where a specified entity is making a request of its subsidiary—again, the direction might be in the language of a request, but the power relationship would make it a direction. Where such formal structures are not established, a direction should include where a person is requested to act, but through the promise of compensation or coercion—for example, future payment, benefit or favourable treatment.
To be clear, though, it would not be enough for a specified foreign power or entity to simply provide funding in support of an activity—through subsidy or donation, for example. Nor could a generic request from a specified foreign power or entity be considered a “direction”—a request made through a public communication to a large distribution or mailing list, for example.
A power relationship, whether formal or informal, is necessary to ensure that unilateral activity on the part of the person is not within scope and nor is activity that is part of a collaboration and absent a power relationship. We shall set out in guidance what we intend by a direction so that it is clear to the public and to the courts what arrangements are registrable.
An arrangement also captures where a person is to arrange for activity to be carried out at the direction of a specified foreign power or entity, as well as where the person is to carry out the activity themselves. That is to ensure that a person in a direct arrangement with a specified foreign power or entity cannot avoid registration by simply contracting out the activity to a third party, creating a degree of separation between the specified foreign power or entity and the ultimate person who will carry out the activity.
Thirdly, I turn to the definition of “control”, where a specified entity is said to be subject to foreign power control. It is important that we capture the commonly used practice of foreign powers channelling state threat activity through private entities. To capture this effectively we have defined “control” under subsection (5) as being where a foreign power holds, be it directly or indirectly, more than 25% of the shares or voting rights of the entity, or the foreign power can appoint or remove officers of the entity.
Control can also be demonstrated where the foreign power has the right to direct or control the entity’s activities, allowing the Secretary of State flexibility if foreign powers exercise other significant forms of control that fall below those thresholds. The more than 25% threshold is in line with existing legislation on substantial control over an entity.
Mr Jones
I appreciate that it is difficult to identify control, but how would we get around the situation of a Russian oligarch who is clearly under the influence of the Kremlin, but whose company is owned through myriad different offshore companies? Would it have to be proven that the ultimate beneficiary was that individual to fall under this legislation? Those people, and even states, are very clever and hide who ultimately controls that company.
Tom Tugendhat
The right hon. Gentleman is identifying a problem that we have had with foreign ownership of companies for a very long time. That is why the Economic Crime and Corporate Transparency Bill is very important, because the ownership of companies is something that has been a challenge and he is correct to identify it. This Bill addresses certain elements of that control, but he is right that it does not address the totality, although it provides an important brick in the wall that we are building. That is why the Economic Crime and Corporate Transparency Bill and the companies registration are important.
Mr Jones
So, really, what we are enacting in this legislation will have to be dovetailed with the Economic Crime and Corporate Transparency Bill. The issue around Scottish limited partnerships has been quite controversial. Is the Minister saying that when the two come together, they will form the toolkit to tackle these individuals?
Tom Tugendhat
The right hon. Gentleman knows that there is not a single tool to deal with every task. The Bill will certainly help with a lot of things that already exist; the Economic Crime and Corporate Transparency Bill will add to it, and no doubt, in future years, different Governments will add further tools.
May I finally come to my fourth point? [Interruption.] I hear the hon. Member for Birmingham, Yardley chuntering. I will briefly summarise the procedural element of the new clause. The requirement is to register a foreign activity arrangement within 10 days of its being made, or otherwise before the activity is carried out. That is important because it may not be obvious to the Government under whose direction the person is acting. The prior registration of arrangements offers some opportunity for the Government to be informed before an activity pursuant to a foreign activity arrangement takes place. It also offers an opportunity to enforce the requirements of the scheme prior to an attempt to carry out covert influence activity.
Subsection (10) makes clear that an offence is committed if a person fails to comply with the requirement to register, and knows—or ought reasonably to know—that the arrangement is a foreign activity arrangement We will discuss the proposed range of offences shortly.
The offences relating to the other part of the scheme—where the registration of political influence activities are concerned—come with a higher bar for the prosecution to meet. Given the likely attention that the measure will receive if a foreign power, part of a foreign power or an entity subject to foreign power control is specified through regulations under subsections (3) and (4), a person should not be capable of avoiding prosecution by claiming they were unaware of the requirement to register. That said, we are mindful that a person who is unwittingly acting for a specified foreign power or entity should not be criminalised. That is why the test is such: a person can be prosecuted only if they ought reasonably to know that they were acting for a specified foreign power or entity.
New clause 12 makes it an offence to carry out activities, or arrange for an activity to be carried out, in the UK pursuant to a foreign activity arrangement that has not been registered. The requirement to register a foreign activity arrangement, which is an arrangement with a specified foreign power, part of a foreign power or entity subject to foreign power, applies to the person who is party to that arrangement—in such a case, that is the person directed by the specified person.
In practice, many other people could be involved in the activity or activities pursuant to that arrangement. For example, if the person party to an arrangement with a specified foreign power is a company, multiple employees could be all engaged in registerable activities within the UK under the arrangement. While I have already explained that the responsibility for registration would rest with the company in this example, and that that is necessary to avoid the burden of each individual employee being required to register separately, the effect of the new clause is to make it an offence to carry out an activity, or arrange for the activity to be carried out, pursuant to a registerable arrangement that has not been registered.
There are two main justifications for the offence. First, it will reduce the likelihood that activities pursuant to an unregistered arrangement with a specified person will be carried out, supporting the overall aims of the scheme. It makes it clear that all individuals have a role to play in ensuring that the requirements of the scheme have been complied with. Where there is doubt that an organisation or company has registered its arrangement with a specified person, it is a good outcome if its employees take necessary steps to clarify that their registerable activities are covered by registration.
Mr Jones
How does the Minister define “foreign power control”? What would be the evidential test? I have heard him argue, for example, that all Chinese companies are ultimately under the control of the Chinese Communist party. Is that the evidential test? Or to take the Russian example, would the evidential test be a company being owned by an oligarch who is close to Putin? Clearly, if the Chinese Communist party wants to control a Chinese company, it can. Would that be the threshold at which a company would be caught by the measures?
Tom Tugendhat
The right hon. Gentleman is right to ask. Control over an entity means 25% of a shareholding—that is one thing that we have already identified—or it could also be formal mechanisms within the company, including voting power or other forms of control. Some foreign powers enact legislation to oblige entities to comply with their security services or intelligence agencies—the right hon. Gentleman knows what I am referring to—giving them a right to exercise an element of control over those entities outside formal governance structures.
Stewart Hosie
Further to the point made by the right hon. Member for North Durham, the control criteria could be indirect control of more than quarter of the stock, indirect control of more than a quarter of the voting rights, or an indirect ability to appoint or remove an officer of the entity. That is dreadfully subjective. Unless the criteria are really nailed down, people could absolutely fall foul of the measures without knowing that they are being controlled in any way.
Tom Tugendhat
I do not think that is the case. The hon. Gentleman should realise that foreign control of any kind is under the general provision of the so-called ordinary provision, while the enhanced provision would be specifically identified, so individuals required to register under the enhanced provision would be aware that they are contracting within an organisation or entity that falls under it. All those contracting with a foreign entity will know that they have to register under the ordinary provision, so the legislation covers both cases.
Mr Jones
That does not clear things up for me. I have mentioned China. I am sure if I googled long enough I would find a speech that the Minister has given where he suggests that all Chinese companies are controlled by the Chinese Government, if they wish to have foreign influence. There is clear, direct evidence about doing business in Russia—it is not the law, but there is coercion regarding the individuals around Putin. If we are saying that the Chinese Communist party can control most companies, is the Minister saying that all those companies will have to register?
Tom Tugendhat
The right hon. Gentleman knows very well that what we express in private and what we say from the Dispatch Box cannot always be absolutely aligned. I am not going to identify every single Chinese company in one go. He knows that there are different elements of control. The Companies Act 2006 sets out the nature of those different elements.
Mr Jones
I am sure the Minister will get some China hawks on the Back Benches of the Conservative party arguing that all Chinese companies should have to be registered under the scheme. I think the measure needs some clarification before it goes any further. There are also certain individuals that the Minister’s party has taken money off who very clearly have connections with the Kremlin and who control companies in this country through front people; the ownership is actually individuals who we would not want to be associated with.
Tom Tugendhat
The right hon. Gentleman knows very well my own views on foreign influence on political parties. Sadly, we have seen such influence in all political parties, where parties or members of political parties have unwisely, sometimes rashly and often extremely foolishly, taken money off Chinese, Russian or other individuals. That is completely wrong and I know he and I share complete revulsion at it. I am very glad that we are sorting some of that situation out. It is a problem that the whole of the United Kingdom and many other political parties around the world have to face. We need to deal with it, and that is what the Bill is doing.
New clause 13 is the second aspect of the enhanced registration requirement. It will require the registration of activities to be carried out within the United Kingdom by a specified person. The first aspect of the enhanced measure, which we dealt with earlier, was the registration of arrangements with a specified person. Although arrangements are important, we recognise that activities within the United Kingdom will be carried out by the specified person themselves and not just those they direct. I should be clear: “specified person” in the context of the requirement can only be a specified entity subject to the foreign power control. I have already explained that foreign powers themselves are not required to register under the foreign influence registration scheme. We are therefore proposing that the specified entity subject to foreign power control, for example a company or organisation, be required to register its activities within the United Kingdom before they are carried out. An offence would be committed where the specified entity had failed to register its activity and it knew or ought reasonably to know that the activity in question was not registered.
To ensure that the requirement is practical and proportionate, the requirement to register is to be fulfilled by the entity and not its individual employees. Although we recognise that an employee is also capable of being directed by its employer to engage in the same registerable activities, we considered it disproportionate to require each individual to register in such a scenario. There would also be practical difficulties, not just in administration but also in consistency. If each individual employee were required to register the same activity, that increases the likelihood that the information provided is materially different and possibly even contradictory.
Finally, hon. Members may wonder why, compared with the requirement to register an arrangement, there is no 10-day period within which the registration must be made. The requirement to register an arrangement within such a period is necessary, as it may not be immediately clear that a person is acting at the direction of a specified person, as the person receiving the direction is separate to the specified person directing the activity. Where the specified person—the entity subject to foreign power control—is acting itself, it should already be clear and it is therefore enough that the registration takes place before the activities are carried out.
I want to finish my remarks by reiterating that if we did not include that requirement there would be a clear gap. A person who is separate from the specified entity, for example a different organisation, would be required to register an arrangement that involves being directed to act in the United Kingdom, but there would be no requirement for the specified entity itself to register its own activities. Leaving such a gap would not make sense in the context of countering state threats. I also want to stress again that we intend the use of the enhanced measure to be limited. It is there as an additional tool of assurance and its use will be subject to parliamentary approval through affirmative procedure. I ask the Committee to support the clauses.
The Chair
Before we move on to the debate, may I raise a matter to the Committee that has been brought to my attention? The 1922 Committee elections for Select Committees happen at 2 o’clock this afternoon, which is an obvious clash with the meeting of this Committee. I understand that it would be possible for the Minister to move an amendment to the sitting time this afternoon to 2.15, if he wished to do so. Any objection from any member of the Committee would of course make that fall. Before we enter a discussion—although I would rather not discuss it too long—would the Minister be prepared to move that the Committee should sit at 2.15?
Tom Tugendhat
I would be prepared to move that, if the Committee were supportive.
Maria Eagle
Would it be possible to extend the sitting by 15 minutes, so that no time is lost? If we were to do that, I would have no objection.
The Chair
If the Minister so moves, it would be a question of starting 15 minutes later and ending 15 minutes later this evening.
Ordered, That the Committee shall meet at 2.15 pm until no later than 5.15 pm.—(Tom Tugendhat.)
Holly Lynch
I have listened very carefully to everything the Minister has said. I will speak to all of the new clauses in the group, which is the first of several additions to the Bill concerning the foreign influence registration scheme, as well as raising some more general issues which will need ironing out about the scheme as we move into this section of the Bill. First, I assure our Australian friends that beyond making sure that we have provided our scrutiny and ensured that the registration scheme does everything that we need it to do, we are very much in support of the introduction of it.
I appreciate that the Minister is not responsible for the publishing of the provisions after Committee stage has already started, but I am going to have to come back to the issue of explanatory notes. To assist the Minister, I suspect that the feedback he has had from his officials is that it would appear we only get a technical explanatory statement when an amendment is published on the amendment paper. The more complex explanations are in the explanatory notes published alongside the Bill. I expect that that is the way it has happened in the past, in anticipation of Governments not tabling substantial additions to pieces of legislation so late in the Commons scrutiny process. That may be the feedback he has had from his officials. However, so important are the types of explanations and examples that we are asking for, I do not think that there would be anything out of order if those examples were provided to Members of the Committee directly, or that anything prevents that.
Holly Lynch
My right hon. Friend is quite right. Let me turn to the explanatory notes provided with the Bill as examples, for instance. If person A is contacted by person B to organise activity X, those examples are on page 14, 16, 17, 18 and so on, to try to add some colour and operational understanding of part 1. We have then got nothing to accompany an outline in real-world terms of how so many of these provisions about the foreign influence registration scheme, which is complicated, for the reasons that hon. Members have already outlined, would work in effect. I just put it on the record that that has been a real frustration for Committee members and is disappointing. We understand from officials that efforts will be made to correct it by the time the Bill gets to the Lords, but that is of no use to us, so let me gently suggest that some of those examples be provided before we get to Report, which I know would be enormously welcome.
Stuart C. McDonald
We are now turning to some of the most important provisions in the Bill. I do not think anybody here would argue that we do not need some sort of foreign influence registration scheme. The question for us today is, is this the right scheme? This debate gives us a lot of food for thought, and we will have to go away and think about it further. We have had the benefit of some very useful meetings with officials, for which I am extremely grateful.
I understand the thinking behind the two-tier system, with a broad primary political tier followed by a narrower but all-encompassing enhanced one. Obviously, the Minister is right about political transparency being essential and something we all support. It is the enhanced tier and how it would operate that challenges Members slightly more. Designating states or organisations for the enhanced tier will clearly be an incredibly serious issue, with profound implications for everyone impacted, as well as the diplomatic challenges highlighted by Members.
Many of the questions raised are ones that I would have asked, so for the moment I want to focus on the question I posed in my intervention, which is about precisely how this would work in circumstances where there are various intermediaries. Again, the hon. Member for Halifax made a very valid point: this could be helped by real-world case studies and examples, otherwise we are just using our imagination to try to come up with examples of how this will apply in practice, and my imagination is probably not up to the task. However, I will try to give a fairly mundane example of where this legislation might have implications.
A specified Government or institution in country X decides that they want a sympathetic professor or tech boss in the UK to try to corral some experts in a particular industry into an association or team, with the purpose of providing regular updates on developments in said industry in the United Kingdom. They might have longer-term goals for how they could use that information and these people. That seems exactly the type of situation that the clause is aimed at. At the stage that the professor or tech boss is tasked with putting together this team on behalf of Government X, he is under an obligation to register that arrangement, as I understand it. That then enables people to keep an eye on that activity, if it is thought necessary, in an attempt to stop anything untoward happening before it is too late. If he does not register, that obviously raises a big red flag, perhaps if the security services are aware of some of his other activities.
That all seems pretty straightforward. The problem is what happens if that professor or tech boss is not situated in the United Kingdom but is in country X? There seems little prospect of enforcing these rules against him in country X if he does not register the arrangement. If I have interpreted it correctly, the new clause does not put any obligation on the people in the UK who are undertaking the activity to register the arrangement. That seems to be a potential gap, because that seems a far more likely scenario than a simple instruction straight from a specified Government or company to people in the United Kingdom saying, “You do this”. There will always be intermediaries involved, and that potentially sets up a problem.
I appreciate that there will be issues with what the state of knowledge of the persons in the UK who are doing this via the intermediary might be. Other parts of the Bill, including new clause 11 itself, refer to a person who
“knows, or ought reasonably to know”.
That formulation might be used to fill the gap—if I have interpreted the measures correctly and there is a gap. Basically, my point is that if persons further down the line know full well that they will be asked to do activities for Government X—albeit via an intermediary—perhaps that obligation should be placed on them.
It is not clear how the criteria specified in new clause 12 would amount to an offence. Clearly, the intermediary would be committing an offence for arranging various activities without having registered them, but they are away in country X, so there is no chance of our enforcing the law against him or her. Are industry experts in the UK who have been corralled into the organisation by that intermediary committing an offence by undertaking activities that the intermediary has not registered? That comes down to the question of whether they are acting
“pursuant to a foreign activity arrangement”,
but it is not clear that they are. A little more clarity on that would be useful. Would it depend, for example, on their state of knowledge?
The Minister suggested that new clause 13 could close a gap, but it does not apply to Governments for a start, so it does not fill the hole that we are talking about. If it is not a Government who have been specified but another company, there are questions about whether that company would bother to comply with the measures and about how the measures would be enforced anyway.
More profound concerns about the enhanced tier, including the diplomatic issues and what impacts the measures might have on research and collaboration, have been raised by organisations such as Universities UK. The Government may well say, “That’s something we have to weigh in the balance, and if it is required for the security of the United Kingdom, tough—so be it.” However, there is provision for regulations to tailor precisely the list of activities that could be exempted on a country-by-country basis, and I would be interested to know the Government’s thinking on that.
What will be the process leading up to a decision to take this very serious step of designating either a foreign Government or another institution? I guess that there would have to be significant consultation about that—or would there? Would the list of activities that have to be registered be tailored depending on the country, or will the list be for everything?
Mr Jones
The Minister said that he was delighted to bring the new clauses to the Committee. I think it is disappointing that we did not have sight of them on Second Reading. It is not as if the Government have not had time to come up with the scheme. In 2020, we on the Intelligence and Security Committee reported that the United States have had a system since 1939 and that the Australians brought in their legislation in 2018. I am delighted that we have it, but it has taken too long, and I am surprised that, even at this stage, we are still scrabbling around on the detail.
One thing that concerns me a little is that Committee stage has become a tick-box exercise. We should be able to scrutinise the proposals in detail. Most of the provision will be introduced as secondary legislation, so even when the Bill receives Royal Assent, we will not have the detail of how it will operate in practice. I say gently to the Minister that we should have more detail before the Bill reaches Report and the other place, where it will quite clearly be torn to shreds because of the outstanding issues.
The Minister referred to the former high commissioner of Australia, who said that he hoped the provisions had cross-party support. That is the problem with the way the Government have approached this entire Bill. I am not suggesting for a minute that the Minister would, but other people try to score political points by saying that one party is more concerned about national security. Certainly, my hon. Friend the Member for Halifax, my party and I have known for many years that we would not do anything that would weaken our national security. We want to enhance it. There have been missed opportunities throughout the Bill. I know that is not the Minister’s fault, because the succession of Ministers has not helped. I hope that with current things happening, we do not get another Minister before the Bill reaches its final stages.
Mr Jones
I am sorry; it is an odd quote. That will be the test for tier 1: to make sure that it is publicly available and people know it and can see. That has worked in both those systems.
I have real problems with the secondary tier. I understand what the Government are trying to do, but they are making it very complicated. I worry that we are putting in provisions that will not be helpful in practice. It goes beyond political influence, for which I think there is a need. One example is acting as a foreign intelligence officer. Those arrangements need inquiry, but we are left not really knowing, because a lot of that will be looked at in secondary legislation, and it does not apply to all countries. That will create some problems. I have already mentioned the diplomatic problems when a country is added to that list.
When I met officials yesterday I used the analogy of being put on the naughty step: there is no real understanding of what criteria would be used to do that. I have no problem with the Minister’s robustness in using this measure, but because it is getting into economics and other areas, there will be huge problems with pressures from the Department for Business, Energy and Industrial Strategy, the Foreign and Commonwealth Office and others. I would like to understand what a country would have to do to get on the naughty step.
On named countries, I am sure the Minister will not mention the exact countries today, but once the Bill secures Royal Assent, are there any countries that will automatically be added? I am sure no one will be surprised to see North Korea on it. The more problematic country is China, on which I know the Minister has strong views. That will create some problems. I am struggling to understand which countries will end up on this tier.
How will the list work in practice? If the Minister were to put a country that is hostile to us on this list, that is one thing, but what happens if the relationship with that country changes? The example I gave to officials was Iraq. During the Iran-Iraq war, it was our ally. When it invaded Kuwait, it was certainly not our ally. What would be threshold to take someone off that tier? What is the practical way in which that will be done?
Holly Lynch
My right hon. Friend is making a powerful case for doing things slightly differently. In the conversations we have had with officials, one of the issues we have worked through is, if our relationship changes with a country at quite a pace, how quickly could we make additions to that enhanced tier to reflect that? Some of the feedback was that it could take a number of weeks, if not months, to address that through the enhanced tier. Is that another area of consideration that we would like to get a grip on?
Mr Jones
My hon. Friend makes an interesting point. That is why I do not think the provision will be used in practice. That is the problem and, as I have said, I am never in favour of putting such provisions on the statute book. A more narrowly defined set of criteria applied to all countries would be better than the complicated system that we have here.
The other point is about transparency. Clearly, the public record for tier 1 will be there—it is published. Why the second tier should be done differently, I do not know. The information is going to get out anyway. It is not going to be a great surprise if a company is on this list. If I was running a company and was suddenly put on the register, I would not tell people that—I would not tell the investors and shareholders. I do not understand why the Government are treating the second tier differently from the first tier.
Tom Tugendhat
May I interrupt with a point of fact? Any company that is designated under the highest tier will be public by definition. That element will be public. It is the UK element that is having to register. The right hon. Gentleman gave an example of a completely spurious French company, which would of course never be on the enhanced list, as we are such good allies with the French. That company would be publicly declared. That is not the bit that is being kept out of the publication. It is the UK element registering it.
Mr Jones
Why not include the UK company? I do not understand why there are different levels in the two schemes.
I support the measure—when we did the Russia report, the right hon. Member for Dundee East and I were very clear that there was a gap, where international partners had provisions and we did not, so this is welcome. I just think that the Government are making it unnecessarily complicated.
I press a final point about secondary legislation. More information about how the measures are going to work in practice before the Bill gains Royal Assent would help the process.
Maria Eagle
I endorse what my right hon. Friend has just said about the complexity of the proposed scheme, which concerns me as well. I very much favour our having a scheme, and I think we should have had one sooner. It is a shame that we were not able to see on Second Reading what was being proposed, because we could have had some of these debates at an earlier stage, when there was still a chance to make changes.
I have a concern about the two tiers being different. It is confusing and complex—much more confusing and complex than it needs be. It might have been more effective to have one tier applying to all countries, and a broader range of covert activity specified as having to be registrable. That might have then meant we would have needed more exclusions, but it would have had the benefit of being simple, straightforward, transparent, all on a level and more obvious, both to those to whom it applies and to those who wish to see the benefit of being able to consult the publicly available information, from a transparency point of view.
It is hard to understand the need for this level of complexity, particularly when it comes to the second tier. Why is the registration of harmful activity outside political influencing, some of which is worse than political influencing, only registrable when a foreign power is set out in the secondary legislation? What we are doing is putting an additional burden on the Government. The Security Minister might always be up for registering the right companies and organisations and countries, but he has got to persuade the whole Government. Other Departments have their own interests and their own work to pursue, which could be made much more difficult by designating in this manner. We seem to be setting ourselves a barrier that might be quite hard to overcome. The eventual outcome of the discussions within Government might not be in accordance with the best security interests. I am not talking about this particular Minister or this particular Government, but there are always competing issues and concerns.
Ordered, That the debate be now adjourned.—(Miss Sarah Dines.)
National Security Bill (Fourteenth sitting)
Tuesday 18th October 2022
(2 years, 1 month ago)
Public Bill CommitteesRead Full debate National Security Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 18 October 2022 - (18 Oct 2022)
The Chair
I remind the Committee that with this we are discussing the following:
Government new clause 12—Offence of carrying out activities under an unregistered foreign activity arrangement.
Government new clause 13—Requirement to register activities of specified persons.
Maria Eagle (Garston and Halewood) (Lab)
As we adjourned this morning, I was expressing concern about the complexity of the two-tier scheme embodied in the new clauses. I was suggesting that it might be more effective to have one tier that applied to all countries and a broad range of covert activity, rather than this two-tier arrangement, which is more difficult to understand and which presents more barriers to the Government of the day, and to the Minister in particular, in designating those who ought to be covered by the secondary tier, which the Minister referred to as the enhanced tier. It might be more sensible to have a simpler but more extensive scheme that does not require lots of extra Government activity and inter-departmental negotiations between the Security Minister and other Ministers who are looking at relations with foreign countries and companies through a different lens. That was my basic point.
It is difficult to understand why, unlike comparable schemes in Australia and the US scheme, there are two tiers, and why the registration of harmful activity outside of political influencing—some of which is more serious—applies only where the foreign power has been designated by the Government. If it is not designated, or while the Minister is desperately trying to persuade other bits of Whitehall that it ought to be, such activity could go on unimpeded by these arrangements and the necessity for registration. That will have a consequent, knock-on effect on the transparency that should be gained, which is supposed to be one of the purposes of the scheme. If we cannot get something registered because there is no agreement in Government, we will not get the additional transparency that is supposed to be one of the major benefits of the foreign influence registration scheme.
I am questioning the entire underpinning of the way in which the scheme has been designed. I am certainly not convinced that it is better than a simpler but broader arrangement. That was the essential point that I wanted to make. I do not wish to repeat every point that my right hon. Friend the Member for North Durham or the shadow Minister, my hon. Friend the Member for Halifax, have made. However, I believe that the scheme, as set out in the new clauses, is too complicated and could be simpler, and that, were it simpler, it would be more effective.
The Minister for Security (Tom Tugendhat)
I pay tribute to the hon. Member for Garston and Halewood and the right hon. Member for North Durham for the tone with which they have approached the debate. I appreciate their comments and those of the shadow Minister, who has made similar points. They have made them in the spirit of openness, proper debate and trying to improve what they see, correctly, as a Bill that will keep our country safe. I am grateful to them for that.
I will go through some of the points that have been made. First, the right hon. Member for North Durham asked about the purpose. Part of the objective of registering under the scheme is to highlight and to be clear. This is not a sanction. The very fact that a scheme exists for foreign companies that trade with British companies does not in any way mean that it is a sanction. The intention is to bring transparency to relationships that might otherwise lie hidden. It is intended not as a punishment, but merely to promote openness.
The requirement to register an arrangement within 10 days is made so that the person acting on behalf of the Government, or the individual, makes that clear at that point or within a reasonable period of time. I am happy to hear arguments for a slightly longer or less long period, but I think 10 days is a reasonable period for a registration to be made. Again, that is not supposed to be a sanction or an obstacle, but it is merely supposed to be a way of achieving transparency. It is not really supposed to be stopping the entire process, but merely supposed to be enabling people to know what is going on. If there was a requirement, and if it was a sanction, that would be different and the process would have to stop immediately. That is not what this is about.
Holly Lynch
Of course, and I am grateful. May I bring the Minister’s attention to an example that I have had a chance to look at, and which has broken today? Up to 30 former UK military pilots are thought to have gone to train members of China’s People’s Liberation Army. They have been offered lucrative packages of up to £237,000 for their expertise in training Chinese pilots. Actually, a Ministry of Defence spokesperson has said that they are attempting to disrupt that activity
“while the new National Security Bill will create additional tools to tackle contemporary security challenges—including this one.”
Just looking at that example of where presumably some of those involved in headhunting might need to register that activity—
Holly Lynch
There is a need to try to put a stop to some of this activity, and I just wonder what the relationship is between the visibility and the need to stop it.
Tom Tugendhat
As the hon. Lady will know very well, I share her deep concern at this information, which was reported just this morning. First, may I say that there are already many different clauses in the Bill that are designed to make sure that individuals should not be co-operating with those who may be trying to steal secrets or to gain from secret information. It is possible, although I have not got the details of the case, that similar sorts of cases may be covered under other clauses in order to prevent the acquisition of information. The foreign agents element—the foreign influence element—would also come to play, but it is not the only element in the Bill that would come into play. It is absolutely correct that we do need the Bill in order to prevent such actions, which at the moment are more loosely defined, and therefore possible. The foreign influence element is not the only element, but I appreciate the spirit in which the hon. Lady has entered the discussion.
If I may, I will speed up a little.
Tom Tugendhat
You are very welcome, Mr Gray.
Subsections (3) and (4) of new clause 11 make it clear that a specified person can be a foreign power or an entity that is not an individual. Parliamentary drafters use that terminology for the legislation, but detailed guidance will be prepared so that it is clear to the public and businesses who is included.
I will follow up on other questions in writing, if I may, because a whole load of questions were put before lunch and I think many of us have forgotten which elements they related to. I will therefore conclude my remarks.
Question put and agreed to.
New clause 11 accordingly read a Second time, and added to the Bill.
New Clause 12
Offence of carrying out activities under an unregistered foreign activity arrangement
“(1) A person commits an offence if—
(a) the person carries out an activity, or arranges for an activity to be carried out, in the United Kingdom pursuant to a foreign activity arrangement required to be registered under section (Requirement to register foreign activity arrangements)(1),
(b) the arrangement is not registered, and
(c) the person knows, or ought reasonably to know, that they are acting under the direction of a specified person.
(2) Subsection (1) does not apply to a foreign power.”—(Tom Tugendhat.)
This new clause makes it an offence to carry out activities under a foreign activity arrangement that should be, but is not, registered.
Brought up, read the First and Second time, and added to the Bill.
New Clause 13
Requirement to register activities of specified persons
“(1) A specified person must not carry out activities in the United Kingdom unless the activities are registered with the Secretary of State.
(2) The prohibition in subsection (1) does not apply to a foreign power.
(3) A person who breaches the prohibition in subsection (1) commits an offence if the person—
(a) knows, or
(b) ought reasonably to know,
that the activity in question is not registered.”—(Tom Tugendhat.)
This new clause requires registration of activities carried out in the UK by a specified person.
Brought up, read the First and Second time, and added to the Bill.
New Clause 14
Requirement to register foreign influence arrangements
“(1) A person who makes a foreign influence arrangement must register the arrangement with the Secretary of State before the end of the period of 10 days beginning with the day on which the person makes the arrangement.
(2) A ‘foreign influence arrangement’ is an arrangement with a foreign principal pursuant to which the foreign principal directs the person—
(a) to carry out political influence activities in the United Kingdom, or
(b) to arrange for such activities to be carried out in the United Kingdom.
(3) ‘Foreign principal’ means—
(a) a foreign power,
(b) a body incorporated under the law of a country or territory outside the United Kingdom, or
(c) an unincorporated association formed under the law of a country or territory outside the United Kingdom, other than an association of persons where each person is a United Kingdom national,
but does not include a person within subsection (4).
(4) Those persons are—
(a) a specified person;
(b) a body incorporated under the law of the Republic of Ireland, or an unincorporated association formed under the law of the Republic of Ireland;
(c) an international organisation.
(5) The requirement in subsection (1) does not apply to a foreign power.
(6) The requirement in subsection (1) does not apply to—
(a) a recognised news publisher, or
(b) a person who makes a foreign influence arrangement with a recognised news publisher where the purpose, or one of the purposes, of the arrangement is the publication of news-related material.
(7) Subsection (1) applies in relation to a foreign influence arrangement made before the day on which this section comes into force as if, for the words from ‘10’ to the end, there were substituted ‘3 months beginning with the day on which this section comes into force.’
(8) A person who fails to comply with subsection (1) commits an offence if the person knows that the arrangement in question is a foreign influence arrangement.
(9) In this section—
‘international organisation’ means a person (other than an individual) which—
(a) is governed by international law,
(b) is set up by, or on the basis of, an agreement between two or more countries, or
(c) is recognised under an agreement between two or more countries and is specified by the Secretary of State in regulations;
‘news-related material’ and ‘publish’ have the meaning given by section 50(5) of the Online Safety Act 2022;
‘recognised news publisher’ has the meaning given by section 50 of the Online Safety Act 2022 but as if, in subsection (2)(e) of that section, ‘in the United Kingdom’ were omitted;
(10) Regulations under subsection (9) may specify a person or a description of persons.”—(Tom Tugendhat.
This new clause requires registration of arrangements with foreign principals to carry out political influence activities in the UK. Political influence activities are defined in NC15.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss the following:
Government new clause 15—Meaning of “political influence activity”.
Government new clause 16—Offence of carrying out political influence activities pursuant to unregistered foreign influence arrangement.
Government new clause 17—Requirement to register political influence activities of foreign principals.
Tom Tugendhat
New clauses 14 to 17 relate to the primary registration requirement, which is the requirement for political influence activities to be registered where they are either to be carried out, or arranged to be carried out, in the United Kingdom at the direction of a foreign principal, or to be carried out by a foreign principal.
Before I get into the effect of these new clauses, I want to be clear and up front that the UK is welcoming of open and transparent engagement from foreign Governments and entities. Governments around the world, including the UK, should seek to advance their interests through the lobbying and influencing of other states—after all, that is what diplomacy is. Where this is conducted openly and transparently, it is welcome and plays a vital part in our democracy and public debate, as well as being essential to international relations and civil society.
The primary registration requirements under this scheme will play a critical role in encouraging that openness and transparency, while simultaneously deterring foreign powers that wish to pursue their aims covertly through the use of agents and proxies. It can only be right that the UK public and our democratic institutions are protected from covert influence and are better informed as to the scale and extent of foreign influence in our political affairs. Again, each of the new clauses is substantive so, as with the previous group, I will take each in turn.
New clause 14(1) requires a person to register with the scheme where they are in an arrangement with a foreign principal to carry out political influence activities within the UK, or where the person is to arrange for such activities to be carried out. The person must register within 10 days of the arrangement being made. I covered several relevant points of detail in my speech on the equivalent provision under the enhanced registration scheme relating to foreign activity arrangements, which we have already discussed today. I will not repeat those explanations, but will instead focus on key points of difference.
First, subsections (5) and (6) clarify who is not “a person” for the purpose of defining a foreign influence arrangement and who the requirement does not apply to. I have already explained, in our discussion on the previous group of new clauses, why a foreign power is not required to register, and the same principle applies here. In addition, the requirement to register does not apply to a recognised news publisher or a person who makes a foreign influence arrangement with a recognised news publisher where the purpose, or one of the purposes, of the arrangement is the publication of news-related material. The practical effect of this aspect of the new clause is to ensure that domestic and foreign news publishers cannot be in a registerable arrangement with a foreign principal, and nor can a person—for example, a freelancer—where the foreign principal is a recognised news publisher and the arrangement concerns the publication of news-related material.
I mentioned in my opening remarks on FIRS that these requirements are deliberately state and sector agnostic, and that it is the responsibility of all sectors to demonstrate transparency and accountability, but with exceptions for where existing obligations apply. This is one such example. We have a proud tradition in this country of upholding the freedom of the press. Indeed, it is our obligation to ensure that journalists are empowered to carry out their legitimate activity independent of state involvement. We do not consider it appropriate to replicate this safeguard for the enhanced measure. Unlike the primary registration requirement, specifying an entity for the enhanced assurance measure will be reserved for where the Government have determined that a greater level of scrutiny is needed to protect the safety or interests of the UK. As such, we do not consider it appropriate to replicate this safeguard for the enhanced measure.
Secondly, the clauses use different terminology from the enhanced registration requirement. The definition of arrangement requires there to be direction from a “foreign principal”, rather than a specified foreign power or entity subject to foreign power control, as is the case under the enhanced registration requirement. The definition of “foreign principal” in subsection (3) includes
“a foreign power…a body incorporated under the law of a country or territory outside the United Kingdom, or…an unincorporated association formed under the law of a country or territory outside the United Kingdom.”
I will not dwell on why the requirement applies to a foreign power, as that should be obvious. Instead, I want to address the importance of this definition capturing any foreign entity rather than those subject to foreign power control, as it is perhaps one of the most complex areas of this scheme.
We know that foreign powers deploy their influence through seemingly private or independent entities. This can be achieved through formal links with such entities, which may include shares, subsidies or financing, voting rights, or through other obligations to collaborate with the state. It can also be achieved through informal links, such as understandings or verbal agreements. There are also entities that are ostensibly private, yet nonetheless act to further a foreign power’s interests.
It is our intention to apply the registration requirements to all of those types of entity by requiring foreign influence arrangements to be registrable where made with any foreign entity. This is the approach taken by the Foreign Agents Registration Act in the United States, and it was the ambition of Australia’s foreign influence transparency scheme before its parliamentary passage. The Australian scheme’s definition of “foreign principal” was amended by its Parliament to require a formal connection between an entity and a foreign Government for activity to be carried out on its behalf to be registrable. Such a connection would need to meet technical criteria of ownership or control, or a formal obligation to act in accordance with the directions or wishes of the foreign Government.
Maria Eagle
New clause 14(9) includes definitions that refer to “the Online Safety Act 2022”, but that is a Bill, not an Act, and it is not on the statute book, is it?
Maria Eagle
Is it correct for this Bill to make reference to another Bill as being an Act of Parliament when it is not?
Tom Tugendhat
It is not entirely unheard of to make reference to other legislation that is going through at the moment. Should there be issues, then there may be obstacles, but—
Mr Kevan Jones (North Durham) (Lab)
The Minister needs to clarify—he can do so in writing, if he wants—whether that Bill is going through. It has been stayed, has it not? It has been pulled, so it will not even go forward. Therefore, I think we need some clarification.
Tom Tugendhat
That is simply not correct. It is going forward. [Interruption.] I commit to writing to hon. Members should there be any changes, but the Bill is still going forward.
New clause 15 defines “political influence activity” for the purposes of the scheme’s primary registration requirements. This relates to new clause 14, which we have just considered, as well as the other new clauses in this group. The overarching aim of the definitions in this new clause is to ensure that activities are registrable if they intend to affect political decision making, proceedings and those with the right to engage in UK electoral processes. I will break that down into four points: three points governing the relevant activities, which include lobbying, public communications and disbursements; and one covering the intended purpose.
Lobbying, for the purpose of this scheme, is defined under proposed new subsection (2)(a) as “making any communication to” a listed person. Capturing “any communication” is important in this context, as we do not want to provide an easy way for those engaged in state act threat activity to avoid the requirement to register by adopting a different means of communication. The listed persons include His Majesty’s Government and devolved Ministers; Members of the legislature; officers, trustees or agents of a registered political party; candidates at national, devolved or local elections; and senior officials or special advisers. We recognise that there are existing rules and regulations to ensure transparency and accountability around such activity. They include the provisions of the Lobbying Act 2014, as well as codes of conduct for those listed, including Ministers, officials, special advisers and Members of the legislature.
The foreign influence registration scheme will offer an extra layer of protection against those seeking to engage in covert lobbying for foreign powers directly, or indirectly through other foreign entities. These offences and penalties reflect that. They will require people to be transparent about who they are acting for, and will inform the public of the nature and scale of foreign influence in UK’s political affairs.
The persons listed in this new clause have been identified as those most likely to be of use to foreign powers in effecting change in our political system or proceedings. The primary registration requirement under FIRS will not only hold those persons to high standards while they are in public office or service, or engaging in our proceedings and elections, but will seek to protect them from those who would seek to influence them covertly. Of course, it may be necessary to amend the list and adapt it in the light of the trends and behaviours we see; that is why we propose including an ability to amend the list by regulations, so that the scheme is future-proofed against emerging threats.I remind hon. Members that for lobbying to be in scope of the scheme, it must be at the direction of a foreign principal, and must be for a political purpose. It is hoped that that constraint will ensure that the scheme delivers its objectives without unnecessarily bringing a wider range of activities within scope.
Public communications activity is registerable under proposed new subsection (2)(b) where it is not already reasonably clear that it is made at the direction of a foreign principal. This applies to the dissemination, or production for publication, of information, a document or other article. The ability to mobilise public opinion can be a powerful means of engaging with our political system and effecting change. The intention behind this limb of activity is to ensure that the public are aware of who is behind a communication that may influence the way they exercise their rights in this country, or the way they engage with our political system. It is to guard against those who seek to manipulate public opinion for the benefit of foreign powers and to the detriment of UK interests and security.
I emphasise, however, that a public communication is registerable only where it is not already reasonably clear that it is made at the direction of a foreign principal. Where a foreign principal is itself undertaking the activity—we will come to that shortly—that would already be clear to the public. A foreign charity making a public communication in its own name would not need to be registered. However, where a foreign charity directs a public relations firm to make the public communication, that firm would have a choice: either it makes it reasonably clear through the communication that it has been directed to make that communication by the foreign charity, or it registers that arrangement with the scheme.
Providing this choice offers a practical option to prevent all public communications for foreign principals from needing to be registered. By its very nature, a communication to the public is visible to the public; it therefore achieves the transparency aims of the scheme, so long as it is clear who it is for. We do not think that same rationale applies to the lobbying and disbursement limbs of political influence activities, which are naturally less visible to the public.
Thirdly, I will address disbursement activity. Under proposed new subsection (2)(c), this includes
“distributing money, goods or services to UK persons”,
and “UK persons” is defined in the Bill as including
“(a) a United Kingdom national;
(b) a body incorporated under the law of a part of the United Kingdom;
(c) an unincorporated association formed under the law of a part of the United Kingdom.”
As with public communications, targeted incentives can be a key method of deploying influence—for example, through the provision of money or hospitality.
The intention behind this limb of activity is to ensure that the public have greater visibility of how that influence is deployed by foreign principals. Under electoral law, political donations from or on behalf of individuals not on the electoral register, such as foreign donors, are prohibited, but the disbursement of money, goods and services to mobilise sections of the public for a particular cause is not. The definition of “political influence activity” in this scheme is cast more widely than the scope of electoral law.
For example, if a foreign principal was to distribute funds to organisations in the UK with the intention of influencing a Government decision, that would be covered by the foreign influence registration scheme. If foreign principals make or direct such disbursements that are not regulated by electoral law, with the intention of affecting the way in which a UK person exercises their democratic rights or how they engage with the UK political system, the Government are of the view that such activity should be transparent. That is to strengthen our resilience against those who seek to manipulate or mobilise the public for the benefit of foreign powers and to the detriment of the United Kingdom’s interest and security.
Finally, there is the purpose of the activity that makes it registerable. Whether the activity is lobbying, a public communication or disbursement, the purpose, or one of the purposes, of it must be to influence a matter or person listed in proposed new subsection (3). Those matters and persons include: the conduct of a UK election or referendum; a decision of the UK Government or Ministers in the devolved Administrations; the proceedings of Parliament or the devolved Administrations; the proceedings of a registered UK political party; or a Member of Parliament or the devolved Administrations.
The list is intended to limit the circumstances in which registration is required to circumstances in which there is an intention to influence UK political decision making, proceedings and those with the right to engage in UK electoral processes. The list is sufficiently broad to capture all the areas that we think require greater scrutiny, while maintaining proportionality. The measures should give the Government and the public greater clarity on the scale and extent of foreign influence in our political and governmental processes, while strengthening their resilience against covert foreign influence.
New clause 16 is the corresponding offence for the primary registration requirement to that which we discussed in the previous group of new clauses relating to the enhanced registration requirement in new clause 12. I will not repeat all the points I made earlier. New clause 16 makes it an offence to carry out a political influence activity, or to arrange for it to be carried out, pursuant to a registerable foreign influence arrangement that has not been registered. The main difference between this offence and that under the enhanced registration requirement is that this would require a person to know that they are acting pursuant to an arrangement that is not registered. As I explained earlier, we have deliberately created a higher bar for prosecution compared with the enhanced measure. It would need to be evidenced that a person knew an arrangement was unregistered and yet continued to carry out the activity.
New clause 17 is the corresponding registration requirement to that which we discussed in the previous group of new clauses relating to the enhanced registration requirement in new clause 13. Again, I will not repeat all the points I made earlier. New clause 17 requires foreign principals to register their political influence activities that are to be carried out in the UK. This prevents there being an obvious gap in the requirement to register, and will support the scheme’s objective of strengthening the resilience of the UK political system against covert influence. As with the enhanced registration requirement, foreign powers would not be expected to register under FIRS, so this requirement will apply only to a foreign entity that is to undertake political influence activities within the UK. The requirement will also not apply to a recognised news publisher for the same reasons that they are not required to register a foreign influence arrangement.
An offence would be committed if the foreign entity fails to register their political influence activities, and they know that the activity in question is not registered. Again, as I explained earlier, we have deliberately created a higher bar for prosecution, compared to the enhanced measure. I ask the Committee to support these new clauses.
Holly Lynch
I thank the Minister for giving us a comprehensive understanding of this group of new clauses. Before I talk about them, it is crucial that we have clarity on the outstanding issue of when an arrangement has been registered, because new clause 12 creates an offence of undertaking such activity before it has been registered. I put on record that the Minister was not able to respond to that point and said that he would follow up in writing.
It feels as though there has been a surge in hostile states seeking to infiltrate our political discourse. They are prepared to allow years for their efforts to bear fruit, in an attempt either to align our values with theirs or to sow division and polarisation across our country. That has become more salient following Russia’s abhorrent invasion of Ukraine.
Only days ago, a report from a German newspaper stated that the Federal Office for the Protection of the Constitution is looking into the case of two civil servants who
“are involved with energy supply in key positions”
and are suspected of having Kremlin links, and I think a further and even more serious report from Germany has just broken. The allegation is that these individuals were advocates of Russian gas and highly supportive of Nord Stream 2. If confirmed, this case would represent exactly the type of security breach we have to protect ourselves against. Without wanting to repeating myself, there is just a single line in new clause 15 on the meaning of “political influence activity” by way of explanatory note. It is a crucial but operationally complex area.
I want to pull out subsection (6) of new clause 14, which explicitly states that the requirement to register a foreign influence arrangement does not apply to “a recognised news publisher” or
“a person who makes a foreign influence arrangement with a recognised news publisher where the purpose, or one of the purposes, of the arrangement is the publication of news-related material.”
Many civil liberties organisations and the National Union of Journalists have expressed concern over the need to ensure press freedom in relation to this Bill. That is absolutely right, and the Minister quite rightly put his strength of feeling about that on the record. But how do we protect ourselves and ensure transparency when blatant mouthpieces for hostile states present as news outlets, or when someone on the payroll of a hostile state seeks to place their pro-regime opinion pieces or articles in mainstream media? We have had assurances from officials that there are circumstances in which people in such situations may still have to register, and I would be grateful for clarity from the Minister on that.
Further to a point that my hon. and right hon. Friends have made, we gave one of the Minister’s predecessors some grief in discussion on Government amendment 9, which meant that this Bill would amend the “Online Safety Act 2022” by making online interference a priority offence. That was certainly a very welcome measure, but we said at the time that it was presumptuous to amend an Act when it was still a Bill in the Commons. Members might remember that the Online Safety Bill was on the Floor of the House while we debated it in this Bill Committee, so not to have made the change directly in the Online Safety Bill was somewhat cack-handed.
In subsection (9)(c) of new clause 14, we are referred once again to the “Online Safety Act 2022” for definitions. As things stand—I heard the Minister’s comments—what has happened to the Online Safety Bill is a bit of a mystery, and it seems to have been paused indefinitely. The last time it saw the light of day was that day in the Chamber, when we were in this Bill Committee. Can the Minister confirm that we will see that Bill again, and that the definitions in these new clauses will remain unchanged? Can he confirm that he is committed to ensuring that there is a future for making disinformation a priority offence, whether in that Bill or this? He will be aware that there are national security considerations in the Online Safety Bill that are of interest to him and to me, so we have an interest in ensuring that that Bill emerges once again.
Maria Eagle
Does my hon. Friend agree that for this clause to be accurate in referring to the “Online Safety Act 2022”, that Bill, which seems to have disappeared for now, has to have Royal Assent by the end of the year?
Holly Lynch
My hon. Friend is absolutely right. We thought that that was quite an aspiration at the time, but now it is looking even more unlikely. I just make the point to the Minister that that needs consideration to make sure we do not lose the definitions, or something more substantial under Government amendment 9.
Government new clause 15 defines “political influence activity” for the purposes of the new registration scheme. Members will be aware of the Security Service interference alert sent from MI5 to MPs and peers back in January regarding Christine Lee. The alert stated that Lee knowingly engaged in political interference activities on behalf of the United Front Work Department of the Chinese Communist party. The warning read that the UFWD was seeking to covertly interfere in UK politics by establishing links with established and aspiring parliamentarians across the political spectrum and cultivating relationships with influential figures. Can the Minister confirm that such conduct would need to be registered under these new clauses?
Proposed new subsection 3(a) states that
“the conduct of an election or referendum in the United Kingdom”
falls under the criteria of political influence activity. This is a welcome inclusion and reflects the evidence provided to the Committee by several of the expert witnesses we heard from at the start, which feels like a lifetime ago—it was certainly four Chancellors ago! One of the expert witnesses was former deputy national security adviser Paddy McGuinness. He stated,
“Vladimir Putin’s intent, which is to have us off balance—is that if the Russians do hack into a political party’s servers and mess about within them, and maybe mess with the data or interfere, or if they play games with a technology platform that people rely on for information and put out information, and we decide as a result that we cannot trust a referendum or an election, they succeed. That is success for them, so I think what really matters in this space is the ability to measure the impact that state activity has on the democratic process we are looking at, and…that there is bright transparency so we know who is doing what.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 24, Q48.]
We welcome the fact that the registration scheme will go some way toward addressing these concerns, but I want to again make the case for new clause 3, because the Minister was not here for that debate. His predecessor gave us a commitment to look further at it. Alongside this new clause, new clause 3 would provide for an annual review on disinformation, with particular consideration of interference in elections. That would help with the transparency and awareness piece that needs to sit alongside the provisions. In a similar spirit, we want to tighten Government new clause 15 with our new clause 29 on the registration of former members of intelligence services, and with new clause 5 on ministerial conduct when meeting with representatives of foreign intelligence services. We will come to those.
I would be grateful for clarity on when we can expect the new clauses to come into effect, as we are hearing that it might be some time. Will we seek to backdate them to capture political influence activity already in motion? I think I heard the Minister say that he could not yet say when the measures would come into effect, and essentially the Government would not be rushed on that matter. I asked the relevant agencies the same question, and the working assumption seems to be that we will not backdate the requirements. I ask the Minister to consider looking at that again. Surely we stand to miss much political influence activity that is already under way—not even necessarily activity that has started and come to an end, but conduct that may have started some time ago. We would create a loophole whereby people could claim, as a cover for failing to register, that the activity predated the introduction of the scheme, whether or not it actually did, and could thus commit an offence under new clause 16.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I do not want to repeat anything the shadow Minister said, but I have a couple of short points. I am supportive of the goal of the political tier, though I am somewhat struggling with the design of the scheme. In debate on new clause 11, I asked questions about how the provisions would apply when intermediaries were used. It would be useful if the Minister could write on that, as I do not think we got an answer to that in his summing-up speech. The same concerns arise here. We have a lot of information to go away and take on board, but I am struggling to understand how these measures will apply in all sorts of situations. Lots of case examples will be essential if we are to get to the bottom of how this is going to work.
A simple example would be a case where an international NGO incorporated in another European country had a sister NGO in the United Kingdom. Both have employees of their own, some here and some in Europe. Both have Members, some here and some in Europe. How do all these provisions and this scheme apply to them if they have a month of action? An international NGO may take part in some direct engagement, so it would have to register that. What if it encourages its sister NGO to do that? What if either of them contact their members? The Minister has reassured us that employees would not have to register anything individually. It is not absolutely clear which part of the Bill makes that clear; it would be useful to know that.
I presume, as well, that members who are urged by an international NGO to email their MPs will not have to register any sort of activity like that. Again, it would be useful to know precisely where that is made clear in the Bill. Although I dare say we would all be quite happy not to have quite so many emails prompted by NGOs, equally, I do not think any of us would want them to have to register their schemes under the Bill. It would really be useful if we could get a handle on how the legislation will apply to these typical sorts of situations.
Tom Tugendhat
I want to start by addressing the point about disinformation, which is also about fake journalism. Hon. Members are absolutely right that that is a point that needs to be addressed by the Online Safety Bill, which I am sure is coming back—although I am but a Minister, so what would I know? I hope very much that it will. I accept that there may be a need for a drafting adjustment from “2022” to “2023”. I certainly anticipate that acts that are fundamentally propaganda activities rather than acts by journalists need to be covered by the Online Safety Bill.
It is also worth saying that any journalist who is not acting as a journalist but is instead acting as a lobbyist—some people do have dual roles—could perfectly legitimately not be covered as a journalist, but be covered as a lobbyist for certain elements of their activity. That is also important.
The applicable registration requirements will apply to arrangements that have already been entered into, but where the activity has not yet been commenced or completed. It will not be post-dated, as it were, but it will go from today forward, and therefore activities ongoing from the moment the Bill comes into force will be covered.
It is worth saying that the scheme will be introduced through regulations once the Bill has received Royal Assent. That will be done with the appropriate administrative and investigative resources that have been established. Existing arrangements will need to be registered within three months from the initial off.
It is also worth pointing out that although the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and I may sometimes share frustration about the volume of emails, neither of us would seek to silence legitimate campaigning by organisations. That is covered by the “public” element. If it is a public campaign—a campaign general to everyone and therefore not targeted at any one particular individual or asking one particular individual to act—it is not covered. It is already public, by definition, because we know who is doing it and who is paying for it.
Question put and agreed to.
New clause 14 accordingly read a Second time, and added to the Bill.
New Clause 15
Meaning of “political influence activity”
‘(1) An activity is a “political influence activity” if—
(a) it is within subsection (2), and
(b) the purpose, or one of the purposes, for which it is carried out is the purpose of influencing a matter or person within subsection (3).
(2) The activities within this subsection are—
(a) making any communication to—
(i) a Minister of the Crown, a Northern Ireland Minister, a Scottish Minister or a Welsh Minister,
(ii) a Member of either House of Parliament, the Northern Ireland Assembly, the Scottish Parliament or Senedd Cymru, or an employee or other member of staff of such a Member,
(iii) an officer, trustee or agent of a UK registered political party or a member of such a party who exercises executive functions on behalf of the party,
(iv) a candidate at an election for a relevant elective office or a relevant Scottish elective office,
(v) a senior official or a special adviser, or
(vi) a person within a description of persons exercising functions on behalf of the Crown which is specified in regulations made by the Secretary of State;
(b) making a public communication, except where it is reasonably clear from the communication that it is made at the direction of the foreign principal;
(c) distributing money, goods or services to UK persons.
(3) The matters and persons within this subsection are—
(a) the conduct of an election or referendum in the United Kingdom,
(b) a decision of the government of the United Kingdom, a Northern Ireland Minister or Northern Ireland Department, the Scottish Ministers or the Welsh Ministers,
(c) the proceedings of either House of Parliament, the Northern Ireland Assembly, the Scottish Parliament or Senedd Cymru,
(d) the proceedings of a UK registered political party, or
(e) a Member of either House of Parliament, the Northern Ireland Assembly, the Scottish Parliament or Senedd Cymru.
(4) For the purposes of subsection (2)(b) a person makes a public communication if the person—
(a) publishes or disseminates information, a document or other article, or
(b) produces information, a document or other article for publication or dissemination.
(5) In this section—
“Northern Ireland Minister” includes the First Minister and the deputy First Minister;
“relevant elective office” and “relevant Scottish elective office” have the same meanings as in section 37 of the Elections Act 2022;
“senior official” means a member of the Senior Civil Service or a member of the Senior Management Structure of His Majesty’s Diplomatic Service;
“special adviser” means a person who serves the government in a position in the civil service of the State and whose appointment to that position meets the requirements applicable to that position set out in section 15(1) of the Constitutional Reform and Governance Act 2010;
“UK person” has the same meaning as in section 2;
“UK registered political party” means a political party registered under Part 2 of the Political Parties, Elections and Referendums Act 2000;
“Welsh minister” includes the First Minister, the Counsel General to the Welsh Government and a Deputy Welsh Minister.’—(Tom Tugendhat.)
This new clause defines “political influence activity” for the purposes of the new registration scheme.
Brought up, read the First and Second time, and added to the Bill.
New Clause 16
Offence of carrying out political influence activities pursuant to unregistered foreign influence arrangement
“(1) A person commits an offence if—
(a) the person carries out a political influence activity in the United Kingdom pursuant to a foreign influence arrangement required to be registered under section (Requirement to register foreign influence arrangements) (1),
(b) the arrangement is not registered, and
(c) the person knows that the arrangement is not registered.
(2) Subsection (1) does not apply to—
(a) a foreign power;
(b) a recognised news publisher;
(c) a person within section (Requirement to register foreign influence arrangements)(6)(b).”—(Tom Tugendhat.)
This new clause makes it an offence to carry out political influence activities under a foreign activity arrangement that should be, but is not, registered.
Brought up, read the First and Second time, and added to the Bill.
New Clause 17
Requirement to register political influence activities of foreign principals
“(1) A foreign principal must not carry out political influence activities in the United Kingdom unless the activities are registered with the Secretary of State.
(2) The prohibition in subsection (1) does not apply to—
(a) a foreign power;
(b) a recognised news publisher;
(c) a person within section (Requirement to register foreign influence arrangements)(6)(b).
(3) A person who breaches the prohibition in subsection (1) commits an offence if the person knows that the activity in question is not registered.”—(Tom Tugendhat.)
This new clause requires registration of political influence activities carried out by a foreign principal.
Brought up, read the First and Second time, and added to the Bill.
New Clause 18
General exemptions
‘(1) The registration requirements do not apply—
(a) in relation to an arrangement that is a UK arrangement;
(b) to the extent that an arrangement relates to the provision of legal services.
(2) The prohibitions do not apply—
(a) to activities carried out in accordance with a UK arrangement or a UK agreement;
(b) to the provision of legal services.
(3) A “UK arrangement” or “UK agreement” is an arrangement or agreement to which—
(a) the United Kingdom is a party, or
(b) any person acting for or on behalf of, or holding office under, the Crown is (in that capacity) a party.
(4) The registration requirement in section (Requirement to register foreign activity arrangements)(1) does not apply to the extent that the arrangement relates to the provision of goods or services which are reasonably necessary to support the efficient functioning of—
(a) a diplomatic mission,
(b) a consular post, or
(c) the permanent mission to a UK-based international organisation of a country which is a member of the organisation,
(for example, the provision of catering or maintenance services).
(5) The registration requirements do not apply to persons who—
(a) are members of the family of a principal person forming part of the principal person’s household, and
(b) make a foreign activity arrangement or a foreign influence arrangement pursuant to an activity carried out by the principal person in that capacity.
(6) The prohibition in section (Requirement to register political influence activities of foreign principals) does not apply to persons who—
(a) are members of the family of a principal person forming part of the principal person’s household, and
(b) carry out an activity pursuant to an activity carried out by the principal person in that capacity.
(7) For the purposes of subsections (5) and (6)—
(a) “principal person” means a person who is a member of staff of—
(i) a diplomatic mission,
(ii) a consular post, or
(iii) the permanent mission to a UK-based international organisation of a country which is a member of the organisation;
(b) the members of the family of a principal person forming part of the principal person’s household include a person who is living with the principal person as their partner in an enduring family relationship.
(8) “Member of staff”—
(a) in the case of a diplomatic mission, means a member of the mission within the meaning given by Article 1 of the Vienna Convention on Diplomatic Relations (set out in Schedule 1 to the Diplomatic Privileges Act 1964);
(b) in the case of a consular post, means a member of the consular post within the meaning given by Article 1 of the Vienna Convention on Consular Relations (set out in Schedule 1 to the Consular Relations Act 1968).
(9) The Secretary of State may by regulations make provision for further cases to which the registration requirements or the prohibitions do not apply.
(10) In this section—
“consular post” has the meaning given by Article 1 of the Vienna Convention on Consular Relations (set out in Schedule 1 to the Consular Relations Act 1968);
“diplomatic mission” is to be read in accordance with the Vienna Convention on Diplomatic Relations done at Vienna on 18 April 1961;
“legal services” has the meaning given by section 8(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;
“the prohibitions” means the prohibitions in sections (Requirement to register activities of specified persons) and (Requirement to register political influence activities of foreign principals);
“the registration requirements” means the requirements in sections (Requirement to register foreign activity arrangements)(1) and (Requirement to register foreign influence arrangements)(1);
“UK-based international organisation” means an international organisation which has its headquarters in the United Kingdom and on which privileges and immunities have been conferred under section 1 of the International Organisations Act 1968.’—(Tom Tugendhat.)
This new clause creates exemptions to the registration requirements in NC11 and NC14 and the prohibitions in NC13 and NC16.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss the following:
Government new clause 19—Registration information.
Government new clause 20—Information notices.
Government new clause 21—Confidential material.
Government new clause 25—Publication and copying of information.
Government new clause 28—Interpretation.
Tom Tugendhat
This group relates to scheme exemptions; the power for the Secretary of State to set what information needs to be registered with the scheme; the power for the Secretary of State to issue notices requesting information from registrants and those believed to be in scope of the requirements; provisions protecting confidential material from disclosure; the power for the Secretary of State to make regulations about the publication or copying of information provided through registration; and definitions for terms used in relation to FIRS. The majority of the new clauses in this group are substantive, so, as with the previous two groups, I will take each new clause in turn.
Stewart Hosie
The Minister has just described subsection (6) of new clause 19, which states:
“A person who fails to comply with subsection (3) commits an offence if, as a result of the failure, the information provided…is misleading, false or deceptive in a material way.”
That is absolutely correct. New clause 22, however, contains a range of offences that are committed if someone provides information that is “false, inaccurate or misleading”. Is there a reason why we have “deception” in new clause 19 but “inaccurate” elsewhere? Is there a different burden of proof for deception and inaccuracy?
Tom Tugendhat
If the right hon. Gentleman will forgive me, I will come to that in a moment.
New clause 20 provides the Secretary of State with the ability to give a notice to a person who has registered with FIRS, or who should have registered with FIRS but has not. On receipt of an information notice, the person will be required to provide the information requested within the specified timeframe. Failure do so without a reasonable excuse will be an offence. Receiving an information notice does not mean that an individual is guilty of a FIRS offence or that they are engaged in wrongdoing. It is, fundamentally, a tool to provide reassurance that individuals are meeting their registration requirements.
Stuart C. McDonald
I have a question about the new clause, and it may save the Minister from having to make a speech. With power, unlike with other notice powers, there seems to be virtually no limit on the nature of information that can be requested. There is no judicial oversight or right to challenge. It seems to be an incredibly broadly drafted power, and I do not understand why.
Tom Tugendhat
The hon. Member for Halifax has raised the question of oversight on various occasions and I have already committed to discussing it with her, so I will come back to that point. As for the nature of the information required, that will depend on the nature of the business. It is broad, as the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East correctly identified.
Where a person is suspected of committing a FIRS offence, the information gathered as a result of these notices can be used to support the investigation and prosecution of a FIRS offence. New clause 21 makes provisions clarifying that a person does not have to disclose any information that is protected by legal professional privilege or confidential journalistic material, or that would require them to identify or confirm a source of journalistic information.
Legal professional privilege, commonly referred to as LPP, or as confidentiality of communications in Scotland, is a fundamental tenet of UK law and protects those seeking legal advice and representation in the UK. It ensures that material such as communications between clients and their lawyers—and, in some circumstances, third parties—is protected from disclosure. LPP does not arise where a lawyer’s assistance has been sought to further a crime or fraud. Any disclosure requirement in FIRS that could have the effect of breaching LPP would fundamentally infringe the rights of individuals to receive confidential legal advice, where that advice is not for the purposes of enabling a crime, and their rights to a fair hearing.
There is also legal precedent for protecting against the disclosure of confidential journalistic material or sources of journalistic information, unless the power to require disclosure has been subject to prior or immediate after-the-event judicial or other independent or impartial scrutiny. The Government consider that protections for such material should also be included in FIRS to ensure adequate protections for journalists and their sources. The protections will apply even if a journalist or a recognised news publisher has to register under the enhanced tier of the scheme. The Government propose this new clause to ensure that FIRS upholds the rule of law and fair access to justice. It will ensure that there is adequate protection for confidential journalistic material and information related to journalistic sources.
New clause 25 allows the Secretary of State to make regulations about the publication or copying of information provided through registration. The ability to publicise certain information registered with the scheme is vital to delivering the aims of FIRS, by ensuring that the influence of foreign powers and entities is open and transparent. We intend to publish information registered under the primary or enhanced requirements that relates to the carrying out of political influence activities. The regulation-making powers also provide the flexibility to publish information registered about a wider range of activity under the enhanced requirements.
As I said earlier, however, that is to be determined alongside the decision to specify a foreign power or entity subject to a foreign power or control. Ensuring information can be publicised where it relates to the carrying out of political influence activities will help to strengthen the resilience of the UK political system against covert foreign influence. After all, sunlight is the best disinfectant. Not only will this ensure that the UK public are better informed of the scale and extent of foreign influence in our political affairs, but it will put a person actively seeking to avoid being transparent in a difficult position. Either they comply with the scheme’s requirements and expose their arrangements or activities, or they face potential enforcement action.
The information published will be limited to what is necessary to achieve the transparency aims of the scheme: for example, the name of the registrant, which could be an individual or an entity; the foreign power or principal for which political influence activities are to be carried out; or the nature and duration of such activity. Subsection (2) would allow the Secretary of State to specify or describe information or material that is not to be published. That is likely to include a situation where publishing the information would threaten the interests of national security, put an individual’s safety at risk or risk disclosure of commercially sensitive information.
Subsection (1)(b) would allow the Secretary of State to make provision for the copying of information provided through registration. It an important provision that will ensure data can be managed by the scheme management unit and shared with other enforcement agencies when necessary. As already mentioned, data will be managed in accordance with the Data Protection Act 2018 and GDPR. As with other parts of the registration scheme, we consider it appropriate for this level of detail to be outlined through regulations, which will also provide the Government with the flexibility to adapt should there be a need to make changes to what information is to be provided in order to meet the objectives of the scheme.
New clause 28 provides the definitions relevant to the registration scheme requirements. As we have discussed these terms in detail in relation to the requirements to which they apply, I do not consider that further examination is needed.
In my opening remarks, I explained that any arrangement with the Republic of Ireland or with a body incorporated or association under the laws of Ireland will be exempt from registration, as are activities to be carried out by such entities. This, again, ensures that the letter and spirit of the Belfast/Good Friday accord are protected, by avoiding interference with the right of citizens in Northern Ireland to identify as Irish. To achieve that in the drafting, subsection (2) clarifies that the Republic of Ireland is not to be considered a foreign power for the purposes of FIRS.
Holly Lynch
There is an awful lot in this group that is still to be determined in regulations, which is always a shame because it does not allow for the same scrutiny as when we consider everything as a package.
Government new clause 18 creates exemptions to the registration requirements laid out in the previous clauses. There is merit to each of those exemptions, but my concern is that we are creating a grey area, particularly when a person engages in both exempt activity and registrable activity. For example, I note that in subsection (4), we do not require those who support the functioning of a diplomatic mission or consular post to register. However, we know that we have potential weaknesses here following the case of one of our own British embassy security staff, who was arrested and charged in Germany with spying for Russia under the Official Secrets Act 1911; it is good to know that that legislation is not totally out of date. That raises the question: do we go as far as we need to on the networks surrounding the vital work of embassies, and can we ensure that an exemption by role does not automatically exempt activity that we would certainly want to know about?
I have had the opportunity to discuss with officials my mixed views about the complete exemption of family members of a principal person under subsections (5) and (6) of new clause 18. While it is right to create a distinction between those we are interested in and their family members, I worry that if we are explicit about this in legislation, we are presenting them as perfect potential spies to the regimes that their principal family member is associated with, bearing in mind that we are dealing with some fairly unscrupulous hostile states.
In new clause 19, again, we are waiting for a great deal more information to be set out in regulation. Under subsection (3), where there is a material change to any information already registered, the Secretary of State has to be notified within 14 days of the material change’s coming into effect. Why 14 days after? Why not in advance of the material change, as is the case in other clauses—for example, within 10 days of the agreement being made when first registering?
Subsection (6) states that a person commits an offence if
“the information provided to the Secretary of State in relation to the registered arrangement or registered activity is misleading, false or deceptive in a material way.”
To come back to my earlier point, who will be undertaking those investigations? We are presumably creating a whole range of new responsibilities here, so who will lead that work, and will they have the corresponding resources?
Government new clause 20 permits the Secretary of State to give a notice to a person to provide information in connection with arrangements or activities registrable under the registration scheme. Subsection (3) states that the Secretary of State may permit an information notice
“requiring the person to whom it is given to supply the information specified in the notice.”
I have no doubt that information notices will be a powerful tool, but there is still a lot to be specified in the new clause.
The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East made a good point about oversight. I want to push the Minister on what means the public will have to query or raise concerns about an arrangement. If someone is aware of an arrangement that has either not been registered or not registered in full, what mechanism is there for them to raise that with the Home Office?
One of the examples that we discussed yesterday with officials was if a journalist writes an article that appears to be a blatant sales pitch for a hostile state. It would probably take an information notice to get to the bottom of whether it was commissioned by a hostile state, but how would a member of the public raise such a query? How would an employee of a company who is growing increasingly concerned about the nature of a joint project that they are working on raise those concerns with the Home Office? Currently, the mechanism is lacking from the provisions. I would be grateful to hear how the Minister intends to address that concern.
Government new clause 25 allows the Secretary of State to make regulations in relation to the publication and copying of information provided to the Secretary of State under the registration provisions. What really worries me about the registration scheme is that submissions will be made to the Home Office and they will go into some sort of electronic black hole and never see the light of day. We will not properly assess the arrangements or activities to see whether we are worried about them, and we will not publish them for months because we do not have the right back office resources to do so.
Any MP who has casework with the Home Office on almost any front—from visas to asylum and the national referral mechanism—will have experienced a similar service, despite, I have no doubt, the best efforts of civil servants. Can the Minister confirm that the register will be kept up to date in relative real time, and that it will be published online, which I think is what he said in his opening remarks? Can he also suggest a target turnaround time between registration and publication, which I am sure would be welcome and would set an early standard for what people can expect from the scheme?
Stuart C. McDonald
I will briefly emphasise how incredibly broadly and dangerously drafted new clause 20 is. All sorts of organisations will fall within the scope of the provisions; it could be a local business or a UK non-governmental organisation. Unless I am missing something, under the clause they can be asked by the Secretary of State in an information notice for virtually any information that she fancies helping herself to, with virtually no restriction whatsoever.
The new clause does not even require a link to some sort of ongoing investigation. There is no court oversight of the nature of the request, and there is absolutely no mechanism to challenge or appeal against any sort of information notice. If someone has been handed an absurd information notice and they refuse to comply with it, they can end up being prosecuted. As it stands, new clause 20 seems to be incredibly difficult and should be revisited.
Tom Tugendhat
I will come to the point made by the right hon. Member for Dundee East. He is absolutely right. Forgive me—that is a drafting error, which we will look at and tidy up.
On diplomatic staff, the hon. Member for Halifax makes a fair point. This is, however, diplomatic staff and their spouses acting in an official capacity—when they are conducting duties on behalf of their nation, and on behalf of the mission that they are sent to support. It is not supposed to be a blanket exemption; it is merely when they are acting in their role.
Who will manage the unit? A scheme management unit is expected to sit within the Home Office—that is, at least, the current plan—which will administer the scheme. It is unlikely that every registration will need to be scrutinised. More likely, the register will be a resource for public scrutiny. That is where the right hon. Member for North Durham, who is not currently present, was absolutely right: sunlight is the best disinfectant, and indeed disinfectant is the best sunlight.
Jess Phillips (Birmingham, Yardley) (Lab)
I am sure that the Minister has heard, just as I have, about cuts to Government Department budgets. This being a new additional spend, I wonder whether there has been any assessment of the cost of it, and whether he thinks the cost of it will survive.
Tom Tugendhat
As with the whole Bill, the way to think about it is as a public register, and because it is a public register the scrutiny will be provided, no doubt, by our friends in His Majesty’s press corps, who will look through every detail, as they look through every detail of the Register of Members’ Financial Interests and ensure that they keep us on our toes. They will no doubt do the same for businesses.
I will have a look at the question of the 14 days as opposed to 10. I am not quite sure why there is that difference, so I will come back to the hon. Member for Halifax on that, and with further details on the management of the scheme.
Question put and agreed to.
New clause 18 accordingly read a Second time, and added to the Bill.
New Clause 19
Registration information
“(1) The Secretary of State may by regulations make provision about the information a person is required to provide to the Secretary of State when registering—
(a) a foreign activity arrangement under section (Requirement to register foreign activity arrangements),
(b) an activity under section (Requirement to register activities of specified persons),
(c) a foreign influence arrangement under section (Requirement to register foreign influence arrangements), or
(d) a political influence activity under section (Requirement to register political influence activities of foreign principals).
(2) Regulations under subsection (1) may, in particular, require the person to provide information about any arrangements made by the person pursuant to the arrangement or activity which is required to be registered.
(3) Where there is a material change to any information provided to the Secretary of State under this section or section (Information notices) in relation to a registered arrangement or a registered activity, the person who registered the arrangement or activity must inform the Secretary of State of the change before the end of the period of 14 days beginning with the day on which the change takes effect.
(4) The Secretary of State—
(a) may by regulations make provision about the information to be provided to the Secretary of State under subsection (3),
(b) may issue guidance about what may or may not constitute a material change.
(5) The provision which may be made by regulations under this section includes provision about the form in which information is to be provided.
(6) A person who fails to comply with subsection (3) commits an offence if, as a result of the failure, the information provided to the Secretary of State in relation to the registered arrangement or registered activity is misleading, false or deceptive in a material way.”—(Tom Tugendhat.)
This new clause provides for the information to be provided when registering arrangements and activities under the registration scheme.
Brought up, read the First and Second time, and added to the Bill.
New Clause 20
Information notices
“(1) The Secretary of State may give an information notice to—
(a) a person who is a party to a foreign activity arrangement registered under section (Requirement to register foreign activity arrangements);
(b) a person who is a party to a foreign activity arrangement which is required to be, but is not, registered under that section;
(c) a person who has registered activities under section (Requirement to register activities of specified persons);
(d) a person the Secretary of State reasonably believes to be carrying out an activity in breach of the prohibition in that section.
(2) The Secretary of State may give an information notice to—
(a) a person who is a party to a foreign influence arrangement registered under section (Requirement to register foreign influence arrangements);
(b) a person who is a party to a foreign influence arrangement which is required to be, but is not, registered under that section;
(c) a person who has registered activities under section (Requirement to register political influence activities of foreign principals);
(d) a person the Secretary of State reasonably believes to be carrying out a political influence activity in breach of the prohibition in that section.
(3) An information notice is a notice requiring the person to whom it is given to supply the information specified in the notice.
(4) An information notice must—
(a) specify the form in which the information must be supplied, and
(b) specify the date by which the information must be supplied.
(5) Where an information notice has been given to a person, the Secretary of State may cancel it by giving written notice to that effect to the person.
(6) The Secretary of State may by regulations make provision about—
(a) the minimum period between the date on which an information notice is given and the date specified under subsection (4)(b);
(b) other matters which may be specified in an information notice;
(c) the cancellation of information notices.
(7) A person commits an offence if, without reasonable excuse, the person fails to comply with an information notice.
(8) The Secretary of State may not give an information notice to a foreign power.”—(Tom Tugendhat.)
This new clause permits the Secretary of State to give a notice to a person to provide information in connection with arrangements or activities registrable under the registration scheme.
Brought up, read the First and Second time, and added to the Bill.
New Clause 21
Confidential material
“(1) Nothing in this Part is to be taken to require any person to disclose any information that the person is entitled to refuse to disclose in legal proceedings on grounds of legal professional privilege (in Scotland, confidentiality of communications).
(2) Nothing in this Part is to be taken to require any person to disclose confidential journalistic material or to identify or confirm a source of journalistic information.
(3) In this section—
“confidential journalistic material” has the same meaning as in section 264 of the Investigatory Powers Act 2016;
“source of journalistic information” has the same meaning as in section 263 of that Act.”—(Tom Tugendhat.)
This new clause ensures that the obligations in connection with the registration scheme do not affect legal professional privilege or require the disclosure of confidential journalistic material.
Brought up, read the First and Second time, and added to the Bill.
New Clause 22
Offence of providing false information
“(1) A person commits an offence if—
(a) the person provides information to the Secretary of State under section (Registration information) or (Information notices) in connection with a foreign activity arrangement, and
(b) the information is false, inaccurate or misleading in a material way.
(2) A person commits an offence if—
(a) the person provides information to the Secretary of State under section (Registration information) or (Information notices) in connection with an activity which is required to be registered under section (Requirement to register activities of specified persons), and
(b) the information is false, inaccurate or misleading in a material way.
(3) A person commits an offence if—
(a) the person provides information to the Secretary of State under section (Registration information) or (Information notices) in connection with a foreign influence arrangement,
(b) the information is false, inaccurate or misleading in a material way, and
(c) the person knows, or ought reasonably to know, that the information is false, inaccurate or misleading in a material way.
(4) A person commits an offence if—
(a) the person provides information to the Secretary of State under section (Registration information) or (Information notices) in connection with a political influence activity which is required to be registered under section (Requirement to register political influence activities of foreign principals),
(b) the information is false, inaccurate or misleading in a material way, and
(c) the person knows, or ought reasonably to know, that the information is false, inaccurate or misleading in a material way.”—(Tom Tugendhat.)
This new clause creates offences of providing false or misleading information in connection with the registration scheme.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss Government new clause 23—Offence of carrying out activities under arrangements tainted by false information.
Tom Tugendhat
I turn to new clauses 22 and 23, which relate to the offence of providing false information and of carrying out activities under arrangements tainted by false information.
New clause 22 would create offences for where a registrant provides false or misleading information under the primary registration requirement or the enhanced registration requirement, or in response to an information notice. These offences are important to reduce the risk that the person is able to appear as if they have complied with the obligations under the scheme through the provision of false or misleading information. The delivery of the scheme’s objectives is undermined if a registrant is able to provide false or misleading information through registration or in response to an information notice without consequence. We should expect that those who seek to obfuscate their arrangements and activities will attempt to that, and we must be able to respond.
Such offences are not new or novel—indeed, they are common to requirements that place a positive obligation on members of the public to provide information. As with other offences we have considered, those that relate to the primary registration requirement have a higher bar for the prosecution to meet: that the registrant knows or ought reasonably to know that the information is false, inaccurate or misleading in a material way. By comparison, offences of the provision of false information in relation to the enhanced measure are to be strict liability. It should not be acceptable that such information is provided in relation to activity carried out for a specified foreign power or entity.
New clause 23 creates offences for carrying out activities under a registrable arrangement where false or misleading information has been provided in connection with the arrangement. I have already explained that the requirement to register an arrangement under the primary or enhanced registration requirements falls on the person who has made an arrangement with the specified foreign power or entity, or foreign principal.
We have also discussed the possibility that the registration of an arrangement could be made with false or misleading information: for example, where a person wants to appear as if they have complied with their registration obligations but is actively trying to conceal the true nature of their arrangements or activities.
These additional offences are important because they will allow for enforcement action to be taken against those who are acting pursuant to a falsely registered arrangement and are either complicit or in a position where they ought reasonably to know that the arrangement has been registered. As I explained in relation to the offences for carrying out activity pursuant to an unregistered arrangement, this will reduce the likelihood that unregistered activity is carried out, as well as providing a means of disrupting all levels of an organisation that has been identified as engaged in a covert arrangement or activity.
I want to reassure hon. Members that where an individual could not reasonably know that the information registered relating to the arrangement is false or misleading, they will not be prosecuted. It will be up to the courts to decide on a case-by-case basis whether someone charged with an offence ought reasonably to have known about the false information. I commend the new clause to the Committee.
Holly Lynch
It is right that new clauses 22 and 23 set out new offences that are created as a means of promoting compliance with the registration scheme. On that basis, we are satisfied that new offences are in order.
Question put and agreed to.
New clause 22 accordingly read a Second time, and added to the Bill.
New Clause 23
Offence of carrying out activities under arrangements tainted by false information
“(1) A person commits an offence if—
(a) the person carries out an activity in the United Kingdom pursuant to a foreign activity arrangement required to be registered under section (Requirement to register foreign activity arrangements)(1),
(b) information provided to the Secretary of State under section (Registration information) or (Information notices) in connection with the arrangement, whether by the person or by another person, is false, inaccurate or misleading in a material way, and
(c) the person knows, or ought reasonably to know, that the facts are as mentioned in paragraph (b).
(2) A person commits an offence if—
(a) the person carries out a political influence activity in the United Kingdom pursuant to a political influence arrangement required to be registered under section (Requirement to register foreign influence arrangements) (1),
(b) information provided to the Secretary of State under section (Registration information) or (Information notices) in connection with the arrangement, whether by the person or by another person, is false, inaccurate or misleading in a material way, and
(c) the person knows, or ought reasonably to know, that the facts are as mentioned in paragraph (b).
(3) Subsections (1) and (2) do not apply to a foreign power.
(4) Subsection (2) does not apply to—
(a) a recognised news publisher;
(b) a person within section (Requirement to register foreign influence arrangements)(6)(b).”.—(Tom Tugendhat.)
This new clause creates offences of carrying on activities under a registrable arrangement where false of misleading information has been provided in connection with the arrangement.
Brought up, read the First and Second time, and added to the Bill.
New Clause 24
Offences: penalties
“(1) A person who commits a foreign activity offence is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine (or both);
(b) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or to a fine (or both);
(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum (or both);
(d) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or both).
(2) “Foreign activity offence” means—
(a) an offence under section (Requirement to register foreign activity arrangements)(10);
(b) an offence under section (Offence of carrying out activities under an unregistered foreign activity arrangement);
(c) an offence under section (Requirement to register activities of specified persons)(3);
(d) an offence under section (Registration information)(6) committed in relation to a foreign activity arrangement registered under section (Requirement to register foreign activity arrangements) or an activity registered under section (Requirement to register activities of specified persons);
(e) an offence under section (Information notices)(7) committed in relation to an information notice given under section (Information notices)(1);
(f) an offence under section (Offence of providing false information)(1) or (2);
(g) an offence under section (Offence of carrying out activities under arrangements tainted by false information)(1).
(3) A person who commits a foreign influence offence is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine (or both);
(b) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or to a fine (or both);
(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum (or both);
(d) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or both).
(4) “Foreign influence offence” means—
(a) an offence under section (Requirement to register foreign influence arrangements)(8);
(b) an offence under section (Offence of carrying out political influence activities pursuant to unregistered foreign influence arrangement);
(c) an offence under section (Requirement to register political influence activities of foreign principals)(3);
(d) an offence under section (Registration information)(6) committed in relation to a foreign influence arrangement registered under section (Requirement to register foreign influence arrangements) or a political influence activity registered under section (Requirement to register political influence activities of foreign principals);
(e) an offence under section (Information notices)(7) committed in relation to an information notice given under section (Information notices)(2);
(f) an offence under section (Offence of providing false information)(3) or (4);
(g) an offence under section (Offence of carrying out activities under arrangements tainted by false information)(2).”.—(Tom Tugendhat.)
This new clause sets out the penalties for the offences created under the registration scheme.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss:
Government new clause 26—Offences: supplementary provision.
Tom Tugendhat
New clauses 24 and 26 deal with the penalties and supplementary provisions for the offences under the scheme. I start by reminding the Committee of one of the scheme’s aims: to deter foreign power use of covert arrangements, activities and proxies.
FIRS will play an important role in countering state threats. It is therefore important that the scheme should have penalties that reflect the seriousness of non-compliance within that context. The new clause makes provision for two separate maximum penalties for the two parts of the scheme. It is proposed that any offence committed under the primary registration requirement should be capable of attracting a custodial penalty of up to two years on indictment, or a fine; that is compared with an offence committed under the enhanced registration requirement, which we propose should be capable of attracting a custodial penalty of up to five years on indictment, or a fine.
The availability of a custodial penalty is a necessary reflection of the seriousness of seeking to hide or obfuscate influence or activity in the United Kingdom directed by foreign powers or entities. The penalty must be taken seriously by those engaged in the state threats activity that we are trying to counter; that would be unlikely if, for example, we were to impose only financial penalties. The offences under the enhanced measure would be capable of a higher maximum custodial penalty. This distinction is to reflect the seriousness of hiding or obfuscating arrangements and activities, carried out on behalf of foreign powers or entities, that the Secretary of State has identified as being necessary to specify in order to protect the safety or interests of the United Kingdom. I have covered the issue to some extent through my earlier explanations about the differing thresholds for offences.
I will not spend long speaking to new clause 26, given that it extends the application of clauses 28 and 29 to the offences under this part and mirrors the approach taken to exclude the public from legal proceedings in clause 31—clauses that have all been debated by the Committee already.
The new clause has several functions. First, it extends the application of clause 28 to this part so that the officers of bodies corporate and other bodies may be held liable for offences committed by those bodies. Given that a body corporate or other bodies can make either a foreign activity arrangement or foreign influence arrangement, it is crucial for the enforceability of the scheme that these bodies and their officers can be held liable should they breach the conditions set out under these provisions.
Secondly, the new clause extends the application of clause 29 to an offence under this part that is capable of being committed outside the UK. In the context of FIRS, that relates to where a foreign activity or foreign influence arrangement has been made outside the UK but has not been registered within the 10-day period. Although the activity pursuant to the arrangement must take place in the UK, the offence for failing to register can therefore be committed overseas. We have already debated the necessity of this in respect of the new clauses relating to the registration of arrangements.
Finally, this provision grants the court the power to exclude the public from proceedings for offences under this part, where necessary in the interests of national security; it is important to be clear, however, that this does not apply to the passing of a sentence. Excluding the public from proceedings might be necessary in circumstances where the Crown needs to adduce sensitive evidence as part of the prosecution—evidence that may be harmful to national security if shared more widely with the public.
For example, if a person provided false information in connection with an activity that is required to be registered in relation to a foreign influence arrangement, it might be necessary to rely on sensitive evidence to demonstrate why that information was considered to be false and what the person’s actual activities included. The provision would ensure that such sensitive evidence could be examined without the public being present. The decision to exclude the public would be made by the court, not the prosecution, and it is important to note that the power does not grant the use of closed material proceedings.
Holly Lynch
Government new clause 24 lays out the penalties for offences committed under the registration scheme. Subsection (1) states that a person who commits a foreign activity offence is liable on conviction or indictment to a maximum five years of imprisonment. Subsection (3) states that a person who is found to have committed a foreign influence offence is liable to a maximum two years of imprisonment. My hon. Friend the Member for Garston and Halewood raised this point yesterday with officials: why the marked difference in sentencing between the different strands of activity?
Subsection (1) of Government new clause 26 states that officers of bodies corporate may be held liable for offences committed by those bodies in relation to the registration scheme. That is a welcome measure that will ensure that corporate officers and organisations will remain accountable to the registration scheme. Like the inclusion of body corporate offences in part 1 of the Bill, it reflects the seriousness with which UK businesses must treat the provisions.
Subsection (3) provides that the public may be excluded from proceedings for an offence under part 1. As the Minister said, we discussed at previous stages of the Bill that it is right to have that option where matters prejudicial to the UK’s national security may need to be cited for prosecution. However, we stress that it is a power that should be exercised only when necessary.
Tom Tugendhat
The difference between the tariffs is purely down to the different importance of a general registration and an enhanced registration.
Question put and agreed to.
New clause 24 accordingly read a Second time, and added to the Bill.
New Clause 25
Publication and copying of information
“(1) The Secretary of State may by regulations make provision about—
(a) publication of information provided to the Secretary of State under this Part;
(b) copying of information provided to the Secretary of State under this Part.
(2) The power under subsection (1) includes in particular power to make provision about a description of information or material which is not to be published.”—(Tom Tugendhat.)
This new clause allows the Secretary of State to make regulations in relation to the publication and copying of information provided to the Secretary of State under the registration provisions.
Brought up, read the First and Second time, and added to the Bill.
New Clause 26
Offences: supplementary provision
“(1) Section 28 (offences by body corporate etc) applies in relation to offences under this Part as it applies in relation to offences under Part 1.
(2) Section 29(1) and (3) to (5) (offences committed outside the United Kingdom) applies in relation to offences under this Part as it applies in relation to offences under Part 1.
(3) If it is necessary in the interests of national security, a court may exclude the public from any part of proceedings for an offence under this Part, except for the passing of sentence.”—(Tom Tugendhat.)
This new clause provides that officers of bodies corporate and other bodies may be held liable for offences committed by those bodies, that offences may be committed outside the United Kingdom, and that a court may exclude the public from proceedings for offences.
Brought up, read the First and Second time, and added to the Bill.
New Clause 27
Annual report
“(1) The Secretary of State must, as soon as is practicable after the end of each relevant period—
(a) prepare a report in relation to that period, and
(b) lay a copy of the report before Parliament.
(2) The report must provide details of—
(a) the total number of arrangements registered with the Secretary of State under section (Requirement to register foreign activity arrangements) or (Requirement to register foreign influence arrangements),
(b) the number of arrangements registered with the Secretary of State under section (Requirement to register foreign activity arrangements) or (Requirement to register foreign influence arrangements) during the relevant period,
(c) the total number of specified persons and foreign principals who have registered activities with the Secretary of State under section (Requirement to register activities of specified persons) or (Requirement to register foreign influence activities of foreign principals),
(d) the number of specified persons and foreign principals who have registered activities with the Secretary of State under section (Requirement to register activities of specified persons) or (Requirement to register foreign influence activities of foreign principals) during the relevant period,
(e) the number of information notices issued under section (Information notices) during the relevant period,
(f) the number of persons charged with an offence under this Part during the relevant period, and
(g) the number of persons convicted of an offence under this Part during the relevant period.
(3) ‘Relevant period’ means—
(a) the period of 12 months beginning with the day on which this section comes into force, and
(b) each subsequent period of 12 months.”—(Tom Tugendhat.)
This new Clause requires the Secretary of State to provide an annual report to Parliament on matters relating to the registration scheme.
Brought up, and read the First time.
Tom Tugendhat
I beg to move, That the clause be read a Second time.
New clause 27 requires the Secretary of State to prepare and publish an annual report to Parliament on the operation of FIRS. I have already spoken about the importance of transparency. Indeed, transparency is essential to the functioning not only of our democracy but of our entire state. The hon. Member for Halifax raised that issue on numerous occasions, and I have committed to working with her. The commitment to publish information about the scheme’s operation will help to ensure that the UK public is more informed about the scale and extent of foreign influence in our political affairs, as well as activity being undertaken for specified foreign powers or entities.
The information that the Secretary of State would be required to provide is as follows: the total number of foreign activity and foreign influence arrangements registered with the Secretary of State; the number of foreign activity and foreign influence arrangements registered with the Secretary of State over the previous year; the total number of specified persons and foreign principals who have registered activities with the Secretary of State; the number of specified persons and foreign principals who have registered activities with the Secretary of State over the previous year; the number of information notices issued over the previous year; the number of persons charged with a FIRS-related offence over the previous year; and the number of persons convicted of a FIRS-related offence over the previous year. The new clause acts as a safeguard by inviting parliamentary and public scrutiny of the operation of FIRS.
Holly Lynch
I thank the Minister for that explanation. We very much welcome new clause 27. My understanding is that the different elements of the scheme could come into effect at different times. Will the Minister confirm that if, for example, the requirement to register foreign influence arrangements becomes operational before the requirement to register foreign activity arrangements, or vice versa, the annual report will be due a year from the start date of the specific scheme, not a year after both parts of the scheme come into effect?
Tom Tugendhat
Yes, there is no question but that it should be according to when the first part of the scheme comes into effect, not when the whole scheme is done.
Maria Eagle
Briefly, I welcome the provisions for an annual report to give information to Parliament. I wonder whether the Minister might consider extending the requirements, when it comes to those who are charged and convicted, to include a need to make it clear which countries they come from, to give an overall view on the extent to which there are difficulties with particular places?
Tom Tugendhat
I take that point in the spirit in which it was made. I think that makes sense, but it should be possible to refer back through the registrations. If registrations have not been made, I take her point entirely.
Question put and agreed to.
New clause 27 accordingly read a Second time, and added to the Bill.
New Clause 28
Interpretation
‘(1) In this Part—
“foreign activity arrangement” has the meaning given by section (Requirement to register foreign activity arrangements);
“foreign influence arrangement” has the meaning given by section (Requirement to register foreign influence arrangements);
“foreign power” has the same meaning as in Part 1 (see section 25), subject to subsection (2);
“foreign principal” has the meaning given by section (Requirement to register foreign influence arrangements);
“political influence activity” has the meaning given by section (Meaning of “political influence activity”);
“recognised news publisher” has the meaning given by section (Requirement to register foreign influence arrangements);
“registered activity” means an activity registered with the Secretary of State under section (Requirement to register activities of specified persons) or (Requirement to register political influence activities of foreign principals);
“registered arrangement” means an arrangement registered with the Secretary of State under section (Requirement to register foreign activity arrangements) or (Requirement to register foreign influence arrangements);
“specified person” has the meaning given by section (Requirement to register foreign activity arrangements).
(2) For the purposes of this Part references in section 25 to a foreign State, or a foreign country or territory, do not include the Republic of Ireland.
(3) Any provision of this Part which does not apply in relation to a person (“P”) does not apply in relation to—
(a) a person who holds office in or under, or is an employee or other member of staff of, P (acting in that capacity);
(b) a person whom the Secretary of State reasonably considers to be exercising functions on behalf of P as if they are a person who holds office in or under, or as if they are an employee or other member of staff of, P (acting in that capacity).’ —(Tom Tugendhat.)
This new clause contains definitions relevant to the registration scheme.
Brought up, read the First and Second time, and added to the Bill.
New Clause 4
Proceedings relating to safety or interests of the United Kingdom
“(1) This section applies where a court is considering proceedings under Part 1 of this Act, where the proceedings involve the safety or interests of the United Kingdom.
(2) In proceedings to which this section applies, the court must take account of how the interests of the Secretary of State or of the Government of the United Kingdom may differ from the interests of the United Kingdom, in order to satisfy itself that the interests of the United Kingdom have been appropriately identified and considered.”—(Holly Lynch.)
Brought up, and read the First time.
Holly Lynch
I beg to move, That the clause be read a Second time.
New clause 4 is an attempt to make a clear distinction between what is in the Government’s interest and what is in the national interest, so that the two cannot be conflated. There are a number of new offences created under part 1 of the Bill, and a key condition running throughout those offences is that a person knows, or ought reasonably to know, that their conduct is prejudicial to the safety or interests of the United Kingdom. There are other conditions that must be met, with the foreign power condition perhaps being the most substantial.
The aim of new clause 4 is to ensure that a court considering proceedings in relation to part 1 offences must take account of how the interests of the Secretary of State, or the Government of the United Kingdom, may be slightly separate from the interests of the United Kingdom, in order to satisfy itself that the interests of the United Kingdom have been appropriately identified and considered. Members will recognise that there is already a difference between the safety of the United Kingdom and the interests of the United Kingdom, with the new offences encompassing both. I suspect there will be a great deal of consensus on safety, but to explicitly define and agree on interests I imagine would be much harder.
We worked through various examples as part of the deliberations on part 1 offences. One such example was whether, if the Government faced deliberate disruption enacting policy they deemed to be in the national interest, that would be enough to meet the threshold? If, for example, a deportation flight—the stuff of the Home Secretary’s dreams—was prevented from taking off because of protesters, would that be enough to meet the prejudicial to the national interest threshold? The Government might wish to argue that case, although it would be far from compromising national security.
We got some assurances from the Minister’s predecessor that national security laws would not transgress into conduct that may be irritating for the Government but lawful, or into prosecuting other criminal offences by treating them as unduly having national security implications. Beyond the specifics of the new offences created by the Bill, we also believe that new clause 4 would establish in principle the distinction between the Government’s political interests and the country’s national security.
I am explicit that the new clause, alongside new clause 5 and new clause 29, have at least in part been shaped by the meeting that we now have confirmation took place between the former Prime Minister, the right hon. Member for Uxbridge and South Ruislip (Boris Johnson), when he was Foreign Secretary, and former KGB officer Alexander Lebedev, at the height of the Salisbury poisoning. It is worth remembering that we did not have confirmation of that meeting when the Bill Committee first started, and the right hon. Member was still the Prime Minister. I do not know if that is an indication of how quickly things move in politics or of how long this Bill Committee has been going on for. However, it is the sort of example that warrants the separating out of Government and individual Minister’s political interests and national security interests. It has become too easy to suggest that answers could not be provided on that matter and others for security reasons, when actually getting to the bottom of what had gone on was very much in the national interest. It may not have been in the Government’s political interest, but that is the distinction that is important to put on a proper statutory footing.
Stuart C. McDonald
I support the objective of the new clause. When we were debating some of the offences in part 1, the SNP tabled various amendments to try to make it clear that the national interest and the interests of the Government are not necessarily the same thing—often, they are not the same thing at all. It appears that judicial authority says that, in essence, it is for the Government to decide what the national interest is; that does not really assist the position. Whether or not this new clause is the answer is something we will have to revisit again, but I express sympathy with the intention behind it.
Tom Tugendhat
I welcome the spirit with which the hon. Member for Halifax has entered into this discussion, and I appreciate her points. Making illegal those matters that irritate Ministers of the Crown would certainly make my life at home significantly quieter, as it would silence my children. Sadly, I think that trying to make case law for my family would be problematic.
It is certainly true that there is a difference between the interests of Ministers and the interests of an individual Minister, whether that be an ordinary Minister or a Prime Minister, and national security. Case law in the United Kingdom already recognises that in considering any prosecution in relation to offences to which the provisions regarding prejudice to the safety of the interests of the UK apply. The UK courts already consider the nature and risk to the safety and interests of the UK. Case law already makes clear that
“the safety or interests of the United Kingdom”
should be interpreted as the objects of state policy determined by the Crown on the advice of Ministers. That is notably different from protecting the particular interests of those in office.
Again, I appreciate the spirit with which the hon. Lady has entered into the conversation, but the provisions in part 1 to which the safety or interests test applies are measures that disrupt and respond to serious national security threats, such as those from espionage, sabotage and threats to the UK’s most sensitive sites. As I am sure hon. Members will agree, it is right that appropriate conditions—such as the test of whether conduct is carried out for, on behalf of, or with the intention to benefit a foreign power—are in place to limit the scope of the offences to the types of harmful activity we are targeting.
The combination of the conditions we apply to measures in the Bill mean that not only are the offences themselves proportionate, but an appropriately high bar has to be met to bring a prosecution. These conditions take us firmly outside the realm of merely leaking embarrassing or unauthorised disclosures, or indeed whistleblowing or domestic political opposition. The Law Commission shared that sentiment in the evidence it gave to the Committee—of course I was not present, but given her reference to the length of time in politics I am sure she will understand that.
Individuals and groups might not agree with Government policy, but it still represents the policy that the Government have been elected to carry out, so disclosing protected information from a foreign power can never be the right response to that. It would not be appropriate for the courts to second guess the merits of Government policy in this way. On the basis that the courts are well able to judge the difference between national interest and personal interest, I hope that the hon. Member will withdraw the amendment.
Holly Lynch
I suspect the Minister understands the points I am making and is sympathetic to what I am trying to get at. I put him on notice that, where I think there is information that could and should be in the public domain and I meet barriers relating to national security reasons preventing it from being in the public domain, I will be a thorn in his side every step of the way. With that veiled threat—
Holly Lynch
I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 5
Ministerial conduct
“(1) This section applies in relation to any Minister of the Crown who engages with, or intends to engage with, or ought reasonably to know that they are about to engage with, a person who is a part of a foreign intelligence service.
(2) A Minister of the Crown may only engage with such a person if either of the following conditions are met—
(a) a senior civil servant is formally present at or party to the engagement, and a formal record of the engagement has been made by the senior civil servant; or
(b) a senior civil servant is not formally present at or party to the engagement, and a formal record of the engagement has not been made by a senior civil servant, but the written consent of the Prime Minister has been sought by the Minister of the Crown, and has been granted and formally recorded in writing.
(3) In this section ‘engagement’ includes meeting in person or via electronic means, and corresponding in writing or via electronic means.”—(Holly Lynch.)
Brought up, and read the First time.
Holly Lynch
I beg to move, That the clause be read a Second time.
New clause 5 is similar to the previous new clause and would mean that a Minister of the Crown may only engage with a person who is a part of a foreign intelligence service if either a senior civil servant is formally present at or party to the engagement, and a formal record of the engagement has been made by the senior civil servant; or a senior civil servant is not formally present at or party to the engagement, and a formal record of the engagement has not been made by a senior civil servant, but the written consent of the Prime Minister has been sought by the Minister of the Crown, and has been granted and formally recorded in writing. That would apply both to meetings in person and via electronic means. It would apply to any Minister of the Crown who engages with, or intends to engage with, or ought reasonably to know that they are about to engage with, a person who is a part of a foreign intelligence service. Failure to follow these rules should be a resignation matter.
The measures proposed throughout the Bill promise an extensive overhaul in establishing what constitutes meeting with and assisting a foreign power threat, including new offences and regimes covering almost all aspects of society. It is entirely right that we also consider the role of Ministers. I am afraid that, once again, the need for such a provision was born out of the conduct of the right hon. Member for Uxbridge and South Ruislip when he was the Foreign Secretary. However, there are other examples.
The right hon. Gentleman confirmed to the Liaison Committee that he met with former KGB officer Alexander Lebedev without officials and without permission at the height of the Salisbury poisoning back in 2018. To set the scene, that was immediately after the then Foreign Secretary had attended a meeting of NATO Foreign Ministers at NATO headquarters in Brussels to discuss the collective response to Russia’s use of Novichok on UK soil. In advance of that meeting, NATO Secretary-General Jens Stoltenberg outlined that Russia would be the first item on the agenda, after what he said were several years of Moscow’s “pattern of dangerous behaviour”, confirming, as the Prime Minister had already done, that:
“It is also highly likely that Russia was behind the nerve agent attack in Salisbury.”
That NATO meeting was on 27 April 2018.
The Foreign Secretary went straight from that NATO meeting to Palazzo Terranova in Italy for a weekend-long party hosted by Evgeny Lebedev, now Lord Lebedev. There he met with Evgeny Lebedev’s father, Alexander Lebedev, an ex-KGB officer. The Foreign Secretary attended the party with no security and no officials, despite his position being deemed to require round-the-clock protection from the Metropolitan police. There is a brief entry of ministerial interests on the Foreign Office website, where he declared an “overnight stay” at the party on 28 April, which is the only official record in existence.
While the Foreign Secretary was partying with Lord Lebedev and his father, the ex-KGB officer, the Novichok was still waiting to be found in a bin seven miles north of Salisbury. It was found by Charlie Rowley on 30 June, who survived his exposure to the Novichok. However, his partner, Dawn Sturgess, did not, having sprayed it directly on to her skin, believing it to be perfume.
In September 2018, the Prime Minister returned to update the House of Commons to confirm that, based on a body of intelligence, the Government had concluded that the two individuals named by the police and the Crown Prosecution Service were officers from the Russian military intelligence service, the GRU. The right hon. Member for Uxbridge and South Ruislip followed up in writing to the Liaison Committee in his letter dated 21 July 2022, saying:
“As far as I am aware, no Government business was discussed”
at that encounter with Alexander Lebedev. Needless to say, that one line presented far more questions than answers.
We have decided to keep the definition tight to someone who is a member of a foreign intelligence service. Committee members might point out that, in this particular scenario, given that Alexander Lebedev would describe himself as a former KGB officer, the right hon. Member for Uxbridge and South Ruislip would not necessarily be covered by the new clause. However, this new clause, new clause 4 and new clause 29 would work in combination to ensure that the gap in procedure exposed by the meeting I have just outlined would be closed down.
It is right to ensure that the Government and officials act with accountability and transparency. The new clause does not prevent such meetings taking place; it only formalises expectations around how any such encounter should be managed. The Government may argue that it is not necessary, as similar expectations are already provided for by the ministerial code, but the ministerial code was very much degraded in recent months, and was in effect when the meeting that I outlined took place, so there is very much a case for tighter measures.
The public have a right to expect the highest possible standards from their Government officials, in both their public and private lives. The new clause will ensure that Government officials adhere to strict clearance systems when dealing with the intelligence services of hostile foreign states. I hope the Government will welcome this opportunity to tighten standards and will support new clause 5.
Tom Tugendhat
I welcome the spirit in which the new clause was tabled. I understand the points made by the hon. Member for Halifax. As she knows very well, Ministers are already expected to uphold the ministerial code. I am not going to seek to defend the Administration of the right hon. Member for Uxbridge and South Ruislip; as the hon. Lady will know, we had our disagreements at that time, when I was chairing the Foreign Affairs Committee, and I put them on the record. Indeed, I attended the Liaison Committee hearing to which she referred.
It is important to look at where we are today and to recognise that the re-issuing of the ministerial code in May this year, which included proportionate sanctions, should be taken into account. It is also worth pointing out that the Bill already includes several measures to counter hostile activity, including updated espionage offences for disclosing or providing access to protected information and offences for engaging in preparatory conduct relating to espionage. That could just be a simple meeting and a cup of coffee.
In clause 3, the Bill also seeks to criminalise activity whereby a person either engages in conduct that they intend will materially assist a foreign intelligence service or knows or reasonably ought to know that conduct that they are engaged in is of a kind that it is reasonably possible may materially assist a foreign intelligence service. As the former head of GCHQ put it, this is all about making sure that others cannot construct a haystack in which to find a needle. It means that, for the first time, it will be a criminal offence to be a covert foreign agent and engage in activity that assists a foreign intelligence service.
To be clear to the Committee, the offences would capture Ministers of the Crown if they engaged in conduct that falls outside their official functions or capacity as a Minister. Moreover, ministerial conduct is principally a matter for the ministerial code and there are already transparency measures in place for Ministers of the Crown to formally record their engagements with external parties and declare any gifts and hospitality. If a Minister is with an external organisation or individual and finds themselves discussing official business without an official present—for example, at a social occasion—any significant content should be passed back to the Department as soon as possible after the event.
Although it would not be appropriate to comment on security or intelligence matters, what I can say is that Ministers are made fully aware of their responsibility to safeguard national security, including in respect of the standards of conduct expected of Ministers and how they discharge their duties in maintaining the security of Government business, as set out in the ministerial code. Although the new clause may seek to provide further accountability and propriety, it would not be appropriate to create new, separate provisions.
Overall, I consider that the existing mechanisms that are already in place to increase transparency around foreign influence in the UK political and governmental system, as well as the measures already in the Bill aimed at tackling and responding to the malign nature of seeking to assist a foreign intelligence service, are sufficient. I ask the hon. Member for Halifax to withdraw the new clause, although I recognise the pattern of actions that brought her to table it.
Holly Lynch
The Minister has gone through the pre-existing frameworks that should have prevented such a meeting from taking place, and suggests that those should be enough. Unfortunately, the example I gave shows that they were not enough. We still do not have all the answers we would like about what was discussed and what the nature of that engagement was, and the clarity that would satisfy us that there were no breaches of national security as part of that interaction. The Minister is right that all that should have been enough, but it was not in those circumstances, and as far as we can tell there were no real consequences in real time of that having taken place.
I have made my case strongly; however, as the Minister has put his personal views on the record and given his assurance that he understands the points I made and will continue to bear them in mind as we look at some of the protections in the round, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 6
Defences
“(1) In any proceedings for an offence under section 2 of this Act or section 5 of the Official Secrets Act 1989, it shall be a defence—
(a) that the disclosure in question was in the public interest, and
(b) the manner of the disclosure was also in the public interest.
(2) Whether a disclosure was in the public interest shall be determined having regard to—
(a) the subject matter of the disclosure,
(b) the harm caused by the disclosure, and
(c) any other relevant feature of the disclosure.
(3) Whether the manner of disclosure was in the public interest shall be determined having regard to—
(a) whether the disclosure has been made in good faith,
(b) if the disclosure relates to alleged misconduct, whether the individual reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,
(c) whether the disclosure is made for the purposes of personal gain,
(d) the availability of any other effective authorised procedures for making the disclosure and whether those procedures were exercised, and
(e) whether, in all the circumstances of the case, it is reasonable for the disclosure to have been made in the relevant manner.”—(Mr Jones.)
This new clause introduces a public interest defence to the new disclosure offence created by clause 2, and the section 5 disclosure offence in the Official Secrets Act 1989. The proposed defence is modelled on the public interest defence in the Public Interest Disclosure Act 1998.
Brought up, and read the First time.
Mr Jones
I beg to move, That the clause be read a Second time.
It will come as no surprise to the Committee that I am not moving the new clause as some bleeding-heart liberal, and I would certainly do nothing to undermine the security of our country. However, as can be seen from the names put to the new clause, it has cross-party support throughout the House, including on the Government Benches.
The new clause even has support in the Cabinet, from the Secretary of State for Wales, the right hon. and learned Member for South Swindon (Sir Robert Buckland), the former Justice Secretary. While he was off the Cabinet carousel—the system at the moment—he was clear in arguing for why we need a public interest defence. To quote from the opening paragraph of his article on “ConservativeHome” in December 2021:
“The principle of open government is too often seen as an issue for the left, but I firmly believe that it is profoundly Conservative to believe that transparent administration is what should lead to higher standards, greater efficiency and better value for taxpayers’ money. As Conservatives, we believe that the State should be our servant, not our master.”
I could not agree more.
Such a measure as this is long overdue. There are basically three arguments against it, which I have deduced over the past few months since I tabled the new clause: first, it will be too difficult, which is the obvious one that always comes out; secondly, if we are in favour of it, we will open the floodgates to leaks and will be a leakers’ charter; and finally, it will make it difficult for our security forces, because evidence would have to be put into court to defend such actions, even though that has to happen now anyway. In a minute, I will come on to reasons why that argument is nonsense.
In its 2015 report, the Law Commission argued for a public interest defence. Are there strong reasons why there should be criminalisation of the leaking information under the Official Secrets Act 1989? Yes, there are, but I would also strongly argue that there has to be a defence in the public interest where someone is disclosing serious wrongdoing in Government—that individual needs to be able to have recourse to that defence in the courts. The problem I have is that if we do nothing—which seems to be the Government’s approach—what we will have, which is what we have already, is leaving it up to juries. I would sooner have the defence outlined in law, so that people can use it and so that it is impossible for certain other people to use it.
The Law Commission said in its report,
“we cannot be certain that the current legislative scheme”
in the 1989 Act, which does not provide for a public interest defence,
“affords adequate protection to Article 10 rights under the ECHR.”
That is the right to freedom of speech. We have a recommendation from the Law Commission and we have the opportunity to act on it in this Bill. It seems that, like lots of things in the Bill, it has been put on a pile on somebody’s desk of things that are too hard to manage. It is a missed opportunity.
The other side to it is that the defence would act as a safety valve. I have said in earlier sittings that the Bill is a missed opportunity to reform the 1989 Act, and I am still bemused to know whether the Bill and that Act will work alongside one another. The 1989 Act is outdated: it does not recognise modern technology, as the Intelligence and Security Committee outlined in its Russia report in 2020. It also fails to protect the individual in cases in which they know of wrongdoing and release it into the public domain because they feel there is no other course of action.
We then come to how we define the defence. I am not suggesting that what I have put in the new clause is ideal, but the argument “It is far too difficult and we could never do this”—which is what certain individuals have said to me—is not right. If we look at what is already in law—employment law, I hasten to add—we see that there is a definition in the Public Interest Disclosure Act 1998. Can we cut and paste that definition? No, I do not think we can, but it certainly provides a template. It is a piece of employment law that prevents whistleblowers from being negatively treated or unfairly dismissed when reporting concerns. That is a starting point.
There are other aspects we could look at in terms of a definition. The subject matter of the disclosure will obviously have to be part of it, as will the seriousness of the misconduct exposed. We must consider the harm caused by the disclosure and the proportionality in that respect, as well as whether the disclosure was made in good faith. Certainly, if someone just dumped a load of data into the public domain, we could argue that that was not done in good faith and would not meet the test at all.
We must consider whether the disclosure is made for the purpose of personal gain. If someone is selling something, that certainly would not meet the criteria. There are factors such as whether the extent of the disclosure is no more than responsible and necessary for the purpose of exposing the relevant conduct, and whether the individual reasonably believes that the information disclosed and any allegations it contains are true. There is the availability of any other effective authorised proceedings; if there are no other ways to do it, that would be a defence. Lastly, we must consider whether in all circumstances and cases it is reasonable to disclose, as well as the manner in which the information was disclosed.
The Law Commission recommended another safety value, which is something I am open to, but it seems that the Government completely ignored that. The issue will not go away—that is the point. We want to protect our security services; I am sorry, but having done jury service myself I would not leave it to a jury to decide what the arguments are. At least if we had this defence, people could argue the legal points and use it as a defence. It is supported by many lawyers, by the right hon. and learned Member for South Swindon and by many newspaper editors. That is why I have moved the new clause.
My other two points are about the argument that if we cross this Rubicon, somehow the floodgates will open and there will be a green light for everyone to release information. There is no evidence of that at all. In Australia, New Zealand and Canada, where they have a similar public interest defence, there is no evidence that its use is increasing. The other argument that has been put to me is that introducing the defence would allow people like Julian Assange to use it as a defence, but that is absolute nonsense. The new clause would actually make the Bill Assange-proof, because anyone who data dumped could not use the public interest defence.
Finally, there is an argument that I find remarkable. I do not know where it has come from, but the argument is that if we put a public interest defence into law, we will somehow have a situation whereby the security services will have to disclose things in court. My response is that if there is a data dump or somebody is prosecuted under the Official Secrets Act, we still have to go to court, but we have closed hearings, which protect sensitive sources. I honestly do not understand why this has just been left off. I think it has been left in the “hard to do” pile and some people think, “Do we really want to upset the status quo?” We need to get the balance right between protecting our national secrets, which I would certainly argue we should, and allowing a legitimate balance between the powers of the state. That would perhaps not be a problem under the usual conventions, but in the previous debate my hon. Friend the Member for Halifax clearly demonstrated that we have a Government who seem to ignore every convention.
It is in that spirit that I move the new clause. I know that U-turns are in fashion at the moment among the current Government, and I wish and hope that if the Minister—with a new set of eyes on this matter—cannot agree to the new clause today, he will at least look at how we can incorporate a public interest defence into the Bill.
Holly Lynch
I thank my right hon. Friend for tabling new clause 6, and I thank you, Mr Gray, and Ms Ali for allowing a debate on its merits.
As my right hon. Friend has outlined, the new clause seeks to add a public interest defence to the new disclosure offence created by clause 2 and to the section 5 disclosure offence in the Official Secrets Act 1989. There is of course an undeniable requirement to protect from public disclosure information that, if revealed, could be harmful to our national security. However, for the security services to be able to function as they should within a democracy, they rely on the trust of the British people and their elected representatives, with enough transparency and oversight to make accountability a real part of their work.
As has been mentioned, three of our four Five Eyes partners already have a mechanism that provides a public interest defence with regard to disclosures of this nature. It is also well documented—this is a point made on Second Reading—that, as a country, we have increasingly asked juries to make their own determinations on public interest defences when considering judicial proceedings. We have seen that result in varied outcomes, with a great deal of discretion afforded to jury members in the absence of a clear legislative framework for them to start from.
We might also make the case that, in the event that someone feels they have an obligation to share information but there is no agreed and structured route through which to do that, the absence of an alternative whistleblowing procedure leaves them with limited options, often resulting in a decision to go public and take their chances in the courts.
The Law Commission examined all this in its incredibly detailed 2020 “Protection of Official Data” report—specifically, in chapter 8—and we are grateful to the authors of that report for their evidence at the start of the Committee stage. With the commission having engaged with a significant number of stakeholders, its report is clear in its recommendation to have a public interest defence.
The report’s authors deal with the complexities head on, saying:
“The public interest in national security and the public interest in transparent, accountable government are often in conflict. While, no doubt, public accountability can ensure that government is protecting national security, the relationship between security and accountability is nonetheless one of tension.”
They go on to say:
“Our concern in this part of the Report is to reconcile these competing interests (so far as possible). It is to propose a legal model that ensures that the price of protecting national security is not to undermine the rule of law (and vice versa). We are concerned to ensure that those with evidence of wrongdoing in Government do not feel that they must commit a serious criminal offence and take the law into their own hands, risking both the national security, and people's lives, in order to have that evidence properly investigated.”
Tom Tugendhat
I am conscious that another Minister is on their feet and a vote may be imminent so, if I may, I will whizz through my response.
Many people have looked at the public interest defence. Although there are differences of opinion, I would be happy to immediately assure the right hon. Member for North Durham that I will accompany him to a meeting with senior officials that he has requested in the past, but which has not yet happened. I will make sure that happens very soon; it is important that he hears the explanations of others and not just ministerial colleagues. I will make sure that happens imminently, because this is an important element. I appreciate the tone with which he has approached the issue; he is trying to be serious and sober in his reflection of the defence of those who are trying to do their best for our country but may indeed be doing harm as well.
I am not a believer argument in the floodgates argument—I do not believe that is a correct assessment of what could happen. It is, however, true that even a single release of some of this information could be extremely damaging to the national interest, as he is aware and would no doubt wish to avoid. I am very happy to have this conversation further and to cover various other issues.
It is also worth noting that other countries have a public interest defence, and we looked at them and the legislation. When considering reform, we looked particularly at the Five Eyes countries, but it is important to recognise the UK context in wider circumstances, so it would not be right to assume that a public interest defence that works for others is exactly the same as for this instance. I appreciate the right hon. Gentleman’s points, but I ask, on that basis, that he withdraw the clause and that we engage in further conversation.
Mr Jones
I thank the Minister. This issue is not going to go away, so we need to have further discussions. The Law Commission’s recommendations seem to have been ignored, and I think engagement with them would be useful before the passage of the Bill is complete. With the undertaking I have been given, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
The Chair
Before we move on, I should say that if we have a Division, or several Divisions, the Committee will be suspended for 15 minutes for the first one and 10 minutes for subsequent ones. If the discussion goes beyond 5.15 pm, which is of course our cut-off time, there will be no further time for debate thereafter, but we must return here for the decisions to be made whenever the Divisions are over.
New Clause 29
Registration of former employees of foreign security services
“(1) A former employee of a security or intelligence service of a foreign power who is present in the United Kingdom for more than 2 months must register their presence with the Secretary of State.
(2) The Secretary of State may by regulations make provision about the information a person is required to provide to the Secretary of State when registering under this section.
(3) Failure to register as required by subsection (1) is an offence.
(4) A person commits an offence if, without reasonable excuse, the person fails to provide information required by virtue of subsection (2).
(5) A person commits an offence if—
(a) the person provides information to the Secretary of State by virtue of subsection (2),
(b) the information is false, inaccurate or misleading in a material way, and
(c) the person knows, or ought reasonably to know, that the information is false, inaccurate or misleading in a material way.
(6) An offence under this section is a foreign influence offence under section (Offences: penalties).”—(Holly Lynch.)
Brought up, and read the First time.
Holly Lynch
I beg to move, That the clause be read a Second time.
On considering the foreign influence registration scheme and its intended use, we felt that there was room to go further in relation to former employees of the intelligence services of other nations. New clause 29 will require all former employees of a security or intelligence service of a foreign power who are present in the United Kingdom for more than two months to register their presence with the Secretary of State. The Secretary of State has the discretion of making provisions by regulations about what information is required. We know that we are dealing with countries that are tasking their people to engage in a multitude of influence activities, from the loud and overt to the barely seen and covert, and everything in between.
Turning specifically to oligarchs and that culture, we have seen some individuals establish themselves almost as London celebrities. They are incredibly wealthy, and for some their status is built partly on the back of having been a former employee of an intelligence service. They make that clear as part of their persona, and it is the “former” bit that gives them a degree of cover. They have the connections and insight to be an interesting and potentially helpful ally to some of our politicians and decision makers, especially if they are incredibly wealthy, as so many oligarchs are, yet are deemed to be arm’s length enough for there to be the confidence for those relationships to grow largely unabated.
The notion of systemic opposition in Russia in particular provides for a degree of criticism of Putin and his regime as a means of occupying the space where actual opposition should be, and once again provides a degree of cover for those oligarchs overseas who engage in some criticism—enough to satisfy those they need to satisfy that they are indeed critics—before later mounting staunch defences of their former regimes when necessary. In addition to the FIRS framework set out in the Government’s new clauses, this is another intended layer of transparency, aimed precisely at those people, to put on a formal footing both those who are open about their previous work and those we may not otherwise know about.
We have discussed that those engaged in espionage are often not typical in any way. They will have received training, and will be incredibly capable and resourceful. Even those who have truly moved away from careers in the intelligence services will not lose overnight the ability to exercise those skills. I take on board that those working for security services have the right to a life after those careers; however, given that there are regimes known to pressurise, blackmail, or force co-operation from their people, even if they have truly walked away from that environment, there would be merit in the Secretary of State knowing where those vulnerabilities lie. I hope that the Minister will see the merit in this addition to the foreign influence registration scheme and adopt new clause 29.
Tom Tugendhat
I note the proposed new clause, and I hope that the hon. Member for Halifax will take my response in the way I intend it. Either foreign intelligence agents are already declared, in which case they are actively engaged in conversations with our intelligence services, or they are undeclared, in which case asking them to register may be something that we can hope for, but would be unlikely. I understand the intention behind the new clause, although I question whether it is proportionate, given that we are already trying to get anybody who is connected to a foreign agent to be registered. I feel that it may be more hopeful and aspirational than a realistic attempt to change other people’s actions.
Holly Lynch
The Minister absolutely understands the point that I was making. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Schedule 1
Disclosure orders
Part 1
England and Wales and Northern Ireland
Introductory
1 (1) This Part of this Schedule applies in England and Wales and Northern Ireland.
(2) “Relevant investigation” means an investigation into the identification of relevant property or its movement or use.
(3) “Relevant property” means—
(a) money or other property which is likely to be used for the purposes of foreign power threat activity, or
(b) proceeds of involvement in foreign power threat activity.
(4) The reference to proceeds of involvement in foreign power threat activity includes a reference to any money, other property or benefit in money’s worth, which wholly or partly, and directly or indirectly, represents the proceeds of the involvement (including payments or rewards in connection with the involvement).
(5) “Appropriate officer” means—
(a) a constable, or
(b) a National Crime Agency officer.
Disclosure orders
2 (1) An appropriate officer may apply to a judge for a disclosure order.
(2) The application must state that a person or property specified in the application is subject to a relevant investigation and the order is sought for the purposes of the investigation.
(3) The judge may grant the application if satisfied that conditions 1 to 3 are met.
(4) Condition 1 is that there are reasonable grounds for suspecting that the property specified in the application is relevant property.
(5) Condition 2 is that there are reasonable grounds for believing that information which may be provided in compliance with a requirement imposed under the order is likely to be of substantial value, whether by itself or with other information, to the investigation.
(6) Condition 3 is that there are reasonable grounds for believing that it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.
(7) A disclosure order is an order authorising an appropriate officer to give to any person the officer considers has relevant information notice in writing requiring the person to do any or all of the following with respect to any matter relevant to the investigation—
(a) answer questions, either at a time specified in the notice or at once, at a place so specified;
(b) provide information specified in the notice, by a time and in a manner so specified;
(c) produce documents, or documents of a description, specified in the notice, either at or by a time so specified or at once, and in a manner so specified.
(8) “Relevant information” means information (whether or not contained in a document) which the appropriate officer considers to be relevant to the investigation.
(9) A person is not bound to comply with a requirement imposed by a notice given under a disclosure order unless evidence of authority to give the notice is produced.
(10) An appropriate officer may not make an application under this paragraph unless the officer is a senior officer or is authorised to do so by a senior officer.
Supplementary provision
3 (1) A disclosure order does not confer the right to require a person—
(a) to answer any question,
(b) to provide any information, or
(c) to produce any document or other material,
which the person would be entitled to refuse to answer, provide or produce on grounds of legal professional privilege in proceedings in the High Court.
(2) But a lawyer may be required to provide the name and address of a client.
(3) A disclosure order does not confer the right to require a person to produce excluded material.
(4) A disclosure order has effect despite any restriction on the disclosure of information imposed by an enactment or otherwise.
(5) An appropriate officer may take copies of any documents produced in compliance with a requirement to produce them imposed under a disclosure order.
(6) The documents may be retained for so long as it is necessary to retain them (as opposed to a copy of them) in connection with the investigation for the purposes of which the order was made.
(7) But if an appropriate officer has reasonable grounds for believing that—
(a) the documents may need to be produced for the purposes of any legal proceedings, and
(b) they might otherwise be unavailable for those purposes,
they may be retained until the proceedings are concluded.
(8) An appropriate officer may retain documents under sub-paragraph (7) only if the officer is a senior officer or is authorised to do so by a senior officer.
Applications
4 An application for a disclosure order may be made without notice to a judge in chambers.
Discharge or variation
5 (1) An application to discharge or vary a disclosure order may be made to the Crown Court by—
(a) the person who applied for the order;
(b) any person affected by the order.
(2) If the application for the disclosure order was made by a constable, an application to discharge or vary the order may be made by a different constable.
(3) If the application for the disclosure order was made by a National Crime Agency officer, an application to discharge or vary the order may be made by a different National Crime Agency officer.
(4) An appropriate officer may not make an application to discharge or vary a disclosure order unless the officer is a senior officer or is authorised to do so by a senior officer.
(5) The Crown Court may—
(a) discharge the order;
(b) vary the order.
Rules of court
6 Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to disclosure orders.
Offences
7 (1) A person commits an offence if without reasonable excuse the person fails to comply with a requirement imposed under a disclosure order.
(2) A person guilty of an offence under sub-paragraph (1) is liable—
(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the maximum term for summary offences or a fine (or both);
(b) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).
(3) A person commits an offence if, in purported compliance with a requirement imposed under a disclosure order, the person—
(a) makes a statement which the person knows to be false or misleading in a material particular, or
(b) recklessly makes a statement which is false or misleading in a material particular.
(4) A person guilty of an offence under sub-paragraph (3) is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both);
(b) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);
(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both).
Statements
8 (1) A statement made by a person in response to a requirement imposed under a disclosure order may not be used in evidence against that person in criminal proceedings.
(2) Sub-paragraph (1) does not apply on a prosecution for—
(a) an offence under paragraph 7(3),
(b) an offence under section 5 of the Perjury Act 1911 or Article 10 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/1714 (N.I. 19)) (false statements), or
(c) some other offence where, in giving evidence, the person makes a statement inconsistent with the statement mentioned in sub-paragraph (1).
(3) A statement may not be used against a person by virtue of sub-paragraph (2)(c) unless—
(a) evidence relating to it is adduced, or
(b) a question relating to it is asked,
by or on behalf of the person in the proceedings arising out of the prosecution.
Interpretation
9 (1) This paragraph applies for the interpretation of this Part of this Schedule.
(2) “Disclosure order” has the meaning given by paragraph 2.
(3) “Judge” means—
(a) in relation to England and Wales, a judge entitled to exercise the jurisdiction of the Crown Court;
(b) in relation to Northern Ireland, a judge of the Crown Court.
(4) “Senior officer” means—
(a) a constable of at least the rank of superintendent;
(b) the Director General of the National Crime Agency or any other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose.
(5) “Document” means anything in which information of any description is recorded.
(6) “Excluded material”—
(a) in relation to England and Wales, has the same meaning as in the Police and Criminal Evidence Act 1984;
(b) in relation to Northern Ireland, has the same meaning as in the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).
(7) The terms defined in paragraph 1 have the meanings given in that paragraph.
Part 2
Scotland
Introductory
10 (1) This Part of this Schedule applies in Scotland.
(2) In this Part of this Schedule “relevant investigation” and “relevant property” have the same meaning as in Part 1 of this Schedule.
Disclosure orders
11 (1) The Lord Advocate may apply to the High Court of Justiciary for a disclosure order.
(2) The application must state that a person or property specified in the application is subject to a relevant investigation and the order is sought for the purposes of the investigation.
(3) The court may grant the application if satisfied that conditions 1 to 3 are met.
(4) Condition 1 is that there are reasonable grounds for suspecting that the property specified in the application is relevant property.
(5) Condition 2 is that there are reasonable grounds for believing that information which may be provided in compliance with a requirement imposed under the order is likely to be of substantial value, whether by itself or with other information, to the investigation.
(6) Condition 3 is that there are reasonable grounds for believing that it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.
(7) A disclosure order is an order authorising the Lord Advocate to give to any person the Lord Advocate considers has relevant information notice in writing requiring the person to do any or all of the following with respect to any matter relevant to the investigation—
(a) answer questions, either at a time specified in the notice or at once, at a place so specified;
(b) provide information specified in the notice, by a time and in a manner so specified;
(c) produce documents, or documents of a description, specified in the notice, either at or by a time so specified or at once, and in a manner so specified.
(8) “Relevant information” means information (whether or not contained in a document) which the Lord Advocate considers to be relevant to the investigation.
(9) A person is not bound to comply with a requirement imposed by a notice given under a disclosure order unless evidence of authority to give the notice is produced.
Supplementary provision
12 (1) A disclosure order does not confer the right to require a person—
(a) to answer any question,
(b) to provide any information, or
(c) to produce any document,
which the person would be entitled to refuse to answer, provide or produce in legal proceedings on grounds of confidentiality of communications.
(2) A disclosure order has effect despite any obligation as to secrecy or other restriction on the disclosure of information imposed by an enactment or otherwise.
(3) The Lord Advocate may take copies of any documents produced in compliance with a requirement to produce them imposed under a disclosure order.
(4) The documents may be retained for so long as it is necessary to retain them (as opposed to a copy of them) in connection with the investigation for the purposes of which the order was made.
(5) But if the Lord Advocate has reasonable grounds for believing that—
(a) the documents may need to be produced for the purposes of any legal proceedings, and
(b) they might otherwise be unavailable for those purposes,
they may be retained until the proceedings are concluded.
Applications
13 An application for a disclosure order may be made without notice to a judge of the High Court of Justiciary.
Discharge or variation
14 (1) An application to discharge or vary a disclosure order may be made to the High Court of Justiciary by—
(a) the Lord Advocate;
(b) any person affected by the order.
(2) The High Court of Justiciary may—
(a) discharge the order;
(b) vary the order.
Rules of court
15 (1) Provision may be made in rules of court as to the discharge and variation of disclosure orders.
(2) Rules of court are, without prejudice to section 305 of the Criminal Procedure (Scotland) Act 1995, to be made by act of adjournal.
Offences
16 (1) A person commits an offence if without reasonable excuse the person fails to comply with a requirement imposed under a disclosure order.
(2) A person guilty of an offence under sub-paragraph (1) is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).
(3) A person commits an offence if, in purported compliance with a requirement imposed under a disclosure order, the person—
(a) makes a statement which the person knows to be false or misleading in a material particular, or
(b) recklessly makes a statement which is false or misleading in a material particular.
(4) A person guilty of an offence under sub-paragraph (3) is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both);
(b) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both).
Statements
17 (1) A statement made by a person in response to a requirement imposed under a disclosure order may not be used in evidence against that person in criminal proceedings.
(2) Sub-paragraph (1) does not apply on a prosecution for—
(a) an offence under paragraph 16(3),
(b) perjury, or
(c) some other offence where, in giving evidence, the person makes a statement inconsistent with the statement mentioned in sub-paragraph (1).
(3) A statement may not be used against a person by virtue of sub-paragraph (2)(c) unless—
(a) evidence relating to it is adduced, or
(b) a question relating to it is asked,
by or on behalf of the person in the proceedings arising out of the prosecution.
Interpretation
18 (1) This paragraph applies for the interpretation of this Part of this Schedule.
(2) “Disclosure order” has the meaning given by paragraph 11.
(3) “Document” means anything in which information of any description is recorded.”—(Tom Tugendhat.)
This new Schedule provides for disclosure orders to be made. These orders authorise constables and NCA officers (the Lord Advocate in Scotland) to require information for the purpose of relevant investigations as defined in paragraph 1 of the Schedule.
Brought up, read the First and Second time, and added to the Bill.
New Schedule 2
Customer information orders
1 (1) An appropriate officer may apply to a judge for a customer information order.
(2) The judge may grant the application if satisfied that—
(a) the order is sought for the purposes of an investigation into foreign power threat activity, and
(b) the order will enhance the effectiveness of the investigation.
(3) “Appropriate officer” means—
(a) in relation to England and Wales or Northern Ireland, a constable or a National Crime Agency officer;
(b) in relation to Scotland, the procurator fiscal.
(4) The application must state that—
(a) a person specified in the application is subject to an investigation within sub-paragraph (2)(a) and the order is sought for the purposes of the investigation;
(b) the order is sought against the financial institution or financial institutions specified in the application.
(5) The application may specify—
(a) all financial institutions,
(b) a particular description, or particular descriptions, of financial institutions, or
(c) a particular financial institution or particular financial institutions.
(6) A customer information order is an order authorising an appropriate officer to give to a financial institution covered by the application notice in writing requiring it to provide any customer information it has relating to the person specified in the application.
(7) The financial institution must provide the information at or by the time, and in a manner, specified in the notice.
(8) A financial institution is not bound to comply with a requirement imposed by a notice given under a customer information order unless evidence of authority to give the notice is produced.
(9) An appropriate officer may not make an application under this paragraph unless the officer is a senior officer or is authorised to do so by a senior officer.
(10) Sub-paragraph (9) does not apply in relation to Scotland.
Supplementary provision
2 A customer information order has effect despite any obligation as to secrecy or other restriction on the disclosure of information imposed by an enactment or otherwise.
Applications
3 An application for a customer information order may be made without notice to a judge in chambers.
Discharge or variation
4 (1) An application to discharge or vary a customer information order may be made to the court by—
(a) the person who applied for the order;
(b) any person affected by the order.
(2) If the application for the customer information order was made by a constable, an application to discharge or vary the order may be made by a different constable.
(3) If the application for the customer information order was made by a National Crime Agency officer, an application to discharge or vary the order may be made by a different National Crime Agency officer.
(4) An appropriate officer may not make an application under this paragraph unless the officer is a senior officer or is authorised to do so by a senior officer.
(5) Sub-paragraph (4) does not apply in relation to Scotland.
(6) The court may—
(a) discharge the order;
(b) vary the order.
Rules of court
5 (1) Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to customer information orders.
(2) In Scotland rules of court are, without prejudice to section 305 of the Criminal Procedure (Scotland) Act 1995, to be made by act of adjournal.
Offences
6 (1) A person commits an offence if without reasonable excuse the person fails to comply with a requirement imposed under a customer information order.
(2) A person guilty of an offence under sub-paragraph (1) is liable—
(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the maximum term for summary offences or a fine (or both);
(b) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both);
(c) on summary conviction in Scotland, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).
Statements
7 (1) A statement made by a person in response to a requirement imposed under a customer information order may not be used in evidence against them in criminal proceedings.
(2) Sub-paragraph (1) does not apply on a prosecution for an offence where, in giving evidence, the person makes a statement inconsistent with the statement mentioned in sub-paragraph (1).
(3) A statement may not be used against a person by virtue of sub-paragraph (2) unless—
(a) evidence relating to it is adduced, or
(b) a question relating to it is asked,
by or on behalf of the person in the proceedings arising out of the prosecution.
Interpretation
8 (1) This paragraph applies for the interpretation of this Schedule.
(2) “Appropriate officer” has the meaning given by paragraph 1(3).
(3) “The court” means—
(a) in relation to England and Wales or Northern Ireland, the Crown Court;
(b) in relation to Scotland, the sheriff.
(4) “Customer information”—
(a) in relation to England and Wales or Northern Ireland, has the meaning given by section 364 of the Proceeds of Crime Act 2002;
(b) in relation to Scotland, has the meaning given by section 398 of that Act.
(5) “Financial institution” has the same meaning as in Schedule 6 to the Terrorism Act 2000 (see paragraph 6 of that Schedule).
(6) “Judge” means—
(a) in relation to England and Wales, a judge entitled to exercise the jurisdiction of the Crown Court;
(b) in relation to Northern Ireland, a judge of the Crown Court;
(c) in relation to Scotland, the sheriff.
(7) “Senior officer” means—
(a) a constable of at least the rank of superintendent;
(b) the Director General of the National Crime Agency or any other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose.”—(Tom Tugendhat.)
This new Schedule provides for customer information orders to be made. These orders authorise constables and NCA officers (the procurator fiscal in Scotland) to obtain customer information from financial institutions.
Brought up, read the First and Second time, and added to the Bill.
New Schedule 3
Account monitoring orders
1 (1) An appropriate officer may apply to a judge for an account monitoring order.
(2) The judge may grant the application if satisfied that—
(a) the order is sought for the purposes of an investigation into foreign power threat activity, and
(b) the order will enhance the effectiveness of the investigation.
(3) “Appropriate officer” means—
(a) in relation to England and Wales or Northern Ireland, a constable or a National Crime Agency officer;
(b) in relation to Scotland, the procurator fiscal.
(4) The application must state that the order is sought against the financial institution specified in the application in relation to information which—
(a) relates to an account or accounts held at the institution by the person specified in the application (whether solely or jointly with another), and
(b) is of the description so specified.
(5) The application may specify information relating to—
(a) all accounts held by the person specified in the application at the financial institution so specified,
(b) a particular description, or particular descriptions, of accounts so held, or
(c) a particular account, or particular accounts, so held.
(6) An account monitoring order is an order that the financial institution specified in the application must—
(a) for the period specified in the order,
(b) in the manner so specified,
(c) at or by the time or times so specified, and
(d) at the place or places so specified,
provide information of the description specified in the application to an appropriate officer.
(7) The period stated in an account monitoring order must not exceed the period of 90 days beginning with the day on which the order is made.
Applications
2 An application for an account monitoring order may be made without notice to a judge in chambers.
Discharge or variation
3 (1) An application to discharge or vary an account monitoring order may be made to the court by—
(a) the person who applied for the order;
(b) any person affected by the order.
(2) If the application for the account monitoring order was made by a constable, an application to discharge or vary the order may be made by a different constable.
(3) If the application for the account monitoring order was made by a National Crime Agency officer, an application to discharge or vary the order may be made by a different National Crime Agency officer.
(4) The court may—
(a) discharge the order;
(b) vary the order.
Rules of court
4 (1) Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to account monitoring orders.
(2) In Scotland rules of court are, without prejudice to section 305 of the Criminal Procedure (Scotland) Act 1995, to be made by act of adjournal.
Effect of orders
5 (1) In England and Wales and Northern Ireland, an account monitoring order has effect as if it were an order of the court.
(2) An account monitoring order has effect in spite of any obligation as to secrecy or other restriction on the disclosure of information imposed by an enactment or otherwise.
Statements
6 (1) A statement made by a person in response to an account monitoring order may not be used in evidence against them in criminal proceedings.
(2) But sub-paragraph (1) does not apply—
(a) in the case of proceedings for contempt of court;
(b) on a prosecution for an offence where, in giving evidence, the person makes a statement inconsistent with the statement mentioned in sub-paragraph (1).
(3) A statement may not be used against a person by virtue of sub-paragraph (2)(b) unless—
(a) evidence relating to it is adduced, or
(b) a question relating to it is asked,
by or on behalf of the person in the proceedings arising out of the prosecution.
Interpretation
7 (1) This paragraph applies for the interpretation of this Schedule.
(2) “Appropriate officer” has the meaning given by paragraph 1(3).
(3) “The court” means—
(a) in relation to England and Wales or Northern Ireland, the Crown Court;
(b) in relation to Scotland, the sheriff.
(4) “Financial institution” has the same meaning as in Schedule 6 to the Terrorism Act 2000 (see paragraph 6 of that Schedule).
(5) “Judge” means—
(a) in relation to England and Wales, a judge entitled to exercise the jurisdiction of the Crown Court;
(b) in relation to Northern Ireland, a judge of the Crown Court;
(c) in relation to Scotland, the sheriff.”—(Tom Tugendhat.)
This new Schedule provides for account monitoring orders to be made. These orders may require financial institutions to provide specified information relating to accounts.
Brought up, read the First and Second time, and added to the Bill.
Tom Tugendhat
I beg to move amendment 66, Title, line 3, after “2007;” insert
“for the registration of certain arrangements with, and activities of, specified persons and foreign principals;”
This amendment amends the long title to add a reference to the registration scheme.
Tom Tugendhat
This is a simple change in the title of the Bill and I hope that everyone can support it.
Amendment 66 agreed to.
The Chair
Order. No, no—we have not finished yet. Hang on.
Question proposed, That the Chair do report the Bill, as amended, to the House.
Holly Lynch
I am so grateful for your guidance, Mr Gray. I want to put on the record my thanks to some of those who have supported the Committee’s deliberations and made our scrutiny possible. I thank the Clerks—Bradley Albrow in particular has been utterly unflappable, often in the face of absolute chaos. He has been a massive help to me and, I am sure, to many other Members, and I thank him for his services.
I also thank Home Office officials and the UK intelligence community, who, I think all Members will agree, have been transparent and engaged in this process, ensuring that we are—given the subject matter—as informed as we can be. I have met several members of the security services over the course of the Bill Committee; funnily enough, I do not have full names for any of them. I thank MI5 director general Ken McCallum and his team for all their support. I also thank Detective Superintendent Darren Hassard and Commander Richard Smith from counter-terrorism policing for their insight on provisions relating to their work, as well as Professor Thom Brookes and senior lecturer and retired police office Owen West for their invaluable assistance. May I also thank my incredibly dedicated parliamentary assistant, Jamie Welham?
I have been very ably assisted by my fellow shadow Front-Bench colleagues as well as by Labour Back Benchers, and I am eternally grateful to them. As we reach Report, I look forward to following up with the Minister on the detail of exactly what has been promised.
Tom Tugendhat
May I thank the shadow Minister, the Member for Halifax—she has been of tremendous assistance to me in the very unusual position that I have found myself in—as well as Opposition Members? I also thank enormously my hon. Friends, who have been extraordinarily generous supporters at times when I have been quite literally learning on the job.
I also thank the Clerks—particularly Chris, who was my first Clerk on the Foreign Affairs Committee, which brought me right back home—Home Office officials, the intelligence community, with whom it is such a pleasure to work again, and of course all those who have contributed to the Bill, including you, Mr Gray. Thank you very much indeed.
The Chair
I will ensure that those thanks are passed on.
Question put and agreed to.
Bill, as amended, to be reported.
National Security Bill
Wednesday 16th November 2022
(2 years ago)
Commons ChamberRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 16 November 2022 - large print - (16 Nov 2022)
17:57 - The House divided: - Ayes: 211 / Noes: 283 - Question accordingly negatived.
18:11 - The House divided: - Ayes: 212 / Noes: 283 - Question accordingly negatived.
18:27 - The House divided: - Ayes: 56 / Noes: 282 - Question accordingly negatived.
18:39 - The House divided: - Ayes: 275 / Noes: 209 - Question accordingly agreed to.
The Minister for Security (Tom Tugendhat)
I beg to move, That the clause be read a Second time.
Mr Deputy Speaker (Mr Nigel Evans)
With this it will be convenient to discuss the following:
New clause 1—Offence of failing to declare participation in arrangement required to be registered.—
“(1) A person who carries out an activity, or arranges for an activity to be carried out, in the United Kingdom pursuant to—
(a) a foreign activity arrangement required to be registered under section 61(1), or
(b) a foreign influence arrangement required to be registered under section 64(1)
must declare that they are party to the arrangement, when making a communication to those in section 65(2)(a)(i) to (vi).
(2) A person who breaches the requirement in subsection (1) commits an offence.”
This new clause makes it an offence for a person to engage in activity pursuant to a foreign activity or foreign influence arrangement which is required to be registered, if the person does not declare that they are party to the arrangement when communicating with those in section 65(2)(a)(i) to (vi).
New clause 2—ffence of carrying out activities under a foreign activity arrangements: Disqualification from Parliament—
“(1) A person who is a Member of the House of Commons or the House of Lords commits an offence if—
(a) the person carries out an activity, or arranges for an activity to be carried out, in the United Kingdom pursuant to a foreign activity arrangement, and
(b) the persons knows, or ought reasonably to know, that they are acting under the direction of a specified person.
(2) A person who is found guilty of an offence under subsection (1), and is a Member of the House of Commons, is disqualified from membership of the House of Commons.
(3) A person who is found guilty of an offence under subsection (1), and is a Member of the House of Lords, is disqualified from sitting or voting in the House of Lords, and sitting or voting in a committee of the House of Lords or a joint committee of both Houses.
(4) In this section, “foreign activity arrangement” has the same meaning as in section 61(2).”
This new clause would automatically disbar Members of the House of Commons and Lords who are found guilty of engaging in an activity pursuant to a foreign activity arrangement, where the person knows, or ought reasonably to know, that they are acting under the direction of a specified person.
New clause 3—Reviews of Parts 1, 4 and 5—
‘(1) The operation of Parts 1, 4 and 5 of this Act must be reviewed by a person, or people, appointed by the Secretary of State.
(2) The operation of Part 4 must be reviewed by the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006.
(3) The operation of Parts 1 and 5 must be reviewed by either—
(a) the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006, or
(b) a different person appointed by the Secretary of State.
(4) Reviews under this section must be carried out in respect of—
(a) the 12-month period beginning with the day on which any section in this Part comes into force, and
(b) each subsequent 12-month period.
(5) Each review under subsection (1) must be completed as soon as reasonably practicable after the period to which it relates.
(6) The person or people mentioned in subsections (2) and (3) must send to the Secretary of State a report on the outcome of each review carried out under subsection (1) as soon as reasonably practicable after completion of the review.
(7) On receiving a report under subsection (6), the Secretary of State must lay a copy of it before Parliament.
(8) Section 36(6) of the Terrorism Act 2006 shall be read such that the “expenses” and “allowances” mentioned therein may include the discharge by the person or people of their functions under this section.’
New clause 4—Reporting on disinformation originating from foreign powers—
“(1) The Secretary of State must appoint a person or body to review the extent of disinformation originating from foreign powers which presents a threat, or potential threat, to national security.
(2) A review under subsection (1) must include an assessment of the extent of foreign interference in elections.
(3) A review under subsection (1) may include—
(a) examining the number and scale of offences committed, and estimating the number and scale of instances where an offence is suspected to have been committed, under—
(i) section 13, where Condition C is met, and
(ii) section 14,
and,
(b) any other matters the person or body considers relevant to the matters mentioned in subsections (1) and (2).
(4) The person or body appointed under subsection (1) may be the Intelligence and Security Committee of Parliament, or another person or body the Secretary of State considers appropriate.
(5) A review must be carried out under this section in respect of—
(a) the 12-month period beginning with the day on which section 13 comes into force, and
(b) each subsequent 12-month period.
(6) Each review under this section must be completed as soon as reasonably practicable after the period to which it relates.
(7) The person or body must send to the Secretary of State a report on the outcome of each review carried out under this section as soon as reasonably practicable after completion of the review.
(8) On receiving a report under subsection (7), the Secretary of State must lay a copy of it before Parliament.
(9) The Secretary of State may pay to the person or body—
(a) expenses incurred in carrying out the functions of the reviewer under this section, and
(b) such allowances as the Secretary of State determines, except where financial provision is already made to the person or body for the discharge of the person or body’s functions, of which this section may form part.”
New clause 5—Proceedings relating to safety or interests of the United Kingdom—
“(1) This section applies where a court is considering proceedings under Part 1 of this Act, where the proceedings involve the safety or interests of the United Kingdom.
(2) In proceedings to which this section applies, the court must take account of how the interests of the Secretary of State or of the Government of the United Kingdom may differ from the interests of the United Kingdom, in order to satisfy itself that the interests of the United Kingdom have been appropriately identified and considered.”
New clause 6—Ministerial conduct—
“(1) This section applies in relation to any Minister of the Crown who engages with, or intends to engage with, or ought reasonably to know that they are about to engage with, a person who is a part of a foreign intelligence service.
(2) A Minister of the Crown may only engage with such a person if either of the following conditions are met—
(a) a senior civil servant is formally present at or party to the engagement, and a formal record of the engagement has been made by the senior civil servant; or
(b) a senior civil servant is not formally present at or party to the engagement, and a formal record of the engagement has not been made by a senior civil servant, but the written consent of the Prime Minister has been sought by the Minister of the Crown, and has been granted and formally recorded in writing.
(3) In this section “engagement” includes meeting in person or via electronic means, and corresponding in writing or via electronic means.”
New clause 7—Requirement to inform public of prohibited places—
“The Secretary of State must by regulations make provision so as to ensure that the public are given sufficient notice—
(a) that a location is a prohibited place within the meaning of section 7;
(b) of the circumstances in which an offence may be committed under sections 4 to 6 in respect of that prohibited place.”
This new clause would place an obligation on the Secretary of State to make regulations providing for the public to be given notice of prohibited places and the conduct which would amount to a criminal offence in relation to them.
New clause 11—Home Office review of the Tier 1 (Investor) visa scheme—
“Within two weeks of the passage of this Act, the Secretary of State must publish any findings of the Home Office review of the Tier 1 (Investor) visa scheme which relate to foreign influence activity.”
New clause 12—Report on actions taken in response to the ISC report on Russia—
“Within six months of the passage of this Act, the Secretary of State must lay before Parliament a report on the effect of the action taken by the Government in response to the recommendations of the report of the Intelligence and Security Committee of Parliament on Russia (HC 632 of Session 2019–21).”
New clause 13—Ministerial appointments: official advice—
“(1) The Cabinet Secretary must publish a memorandum in respect of any ministerial appointments made by the Prime Minister, where advice or concerns were communicated to the Prime Minister by civil servants that the appointment may be counter to the safety or interests of the United Kingdom.
(2) A memorandum under this section must set out that advice or concerns were communicated to the Prime Minister by civil servants, and in respect of which ministerial appointments.
(3) A memorandum under this section may not include details of the advice or concerns, where the Cabinet Secretary considers that inclusion of those details may be prejudicial to the safety or interests of the United Kingdom.”
New clause 14—Report requirement: Protecting democratic institutions and processes—
“(1) The Secretary of State must lay before Parliament a report, as soon as practicable after the end of—
(a) the period of 12 months beginning with the day on which this Act is passed, and
(b) every subsequent 12-month period,
on his assessment of the impact sections 13 and 14 of this Act have had on protecting the integrity of the UK’s democratic processes.
(2) In this section “democratic processes” includes local democracy.”
Amendment 116, in clause 1, page 1, line 10, after “safety or” insert “critical”.
This amendment seeks to clarify the tests to be met before the offence of obtaining or disclosing protected information is committed.
Amendment 17, page 1, line 15, after “article” insert “with a Government Security Classification of Secret or Top Secret”.
This amendment would confine the offence of obtaining or disclosing protected information to information that has been classified as secret or top secret (rather than to all information access to which is restricted in any way).
Amendment 18, in clause 2, page 2, line 18, at end insert “(ca) the person’s conduct is prejudicial to the safety or interests of the United Kingdom, and”.
This amendment would narrow the scope of the offence of obtaining or disclosing trade secrets so that it applies only to trade secrets that would prejudice the safety or interests of the UK.
Amendment 117, page 3, line 1 , after “national” insert “, a UK resident, or a person in the employment of a UK person as defined in paragraphs (b) or (c)”.
Government amendments 40 to 42.
Amendment 19, in clause 3, page 3, line 32, after “Kingdom” insert “which are prejudicial to the safety or interests of the United Kingdom”.
This amendment would narrow the scope of the offence of assisting a foreign intelligence service in respect of activities within the UK so that it applies only to assistance that would prejudice the safety or interests of the UK (rather than to assistance of any kind).
Government amendment 43.
Amendment 119, page 4, line 7, at end insert—
“(aa) with the knowledge and consent of the UK security and intelligence services,”.
This amendment would clarify that activities undertaken with the knowledge and consent of the UK security and intelligence services would not constitute a criminal offence under this clause alone.
Amendment 120, in clause 4, page 5, line 17, at end insert—
“(7) No offence is committed under (1) if the conduct is for the purposes of protest, unless the conduct is prejudicial to the safety of the United Kingdom.”.
This amendment would restrict the circumstances in which access to a prohibited place for the purposes of protest would amount to an offence under this clause.
Amendment 20, in clause 5, page 5, line 25, at end insert—
“(ba) the conduct is prejudicial to the safety or interests of the United Kingdom,”.
This amendment would confine the offence of unauthorised entry etc to a prohibited place so that it applies only to entry etc that is prejudicial to the safety or interests of the UK.
Amendment 133, page 5, line 33, leave out “includes” and insert “may, depending on the circumstances, include”.
This amendment would mean taking a photograph or other recording of a prohibited place was not automatically a criminal offence of inspecting that place, but would depend on the circumstances.
Amendment 21, in clause 6, page 6, line 17, leave out paragraph (c).
This amendment would remove the power of the police to order a person to leave an area “adjacent to” a prohibited place.
Amendment 22, page 6, line 28, after “(2)” insert “, (a)”.
This amendment is consequential on Amendment 23.
Amendment 23, page 6, line 30, after “Kingdom” insert “, and (b) without prior authorisation by an officer of at least the rank of Inspector, unless obtaining that authorisation is not reasonably practicable”.
This amendment would impose a requirement that a police officer obtains authorisation from a more senior officer before exercising powers under clause 6.
Amendment 24, page 6, line 32 at end insert “which was necessary to protect the safety or interests of the United Kingdom and proportionate to that aim.”
This amendment would narrow the offence of failing to comply with an order made by a police constable in relation to a prohibited place so that it applies only to an order that was necessary and proportionate to protecting the safety or interests of the UK.
Amendment 25, in clause 7, page 6, line 37, after “means” insert “a place, entry to which could pose a risk to the safety or interests of the United Kingdom, and which is”
This amendment would narrow the definition of prohibited place so that it applies only to locations relevant to the safety and interests of the United Kingdom (rather than any Ministry of Defence land).
Government amendments 44 and 45.
Amendment 121, in clause 8, page 8, line 21, leave out “or interests”.
This amendment would restrict the power to designate additional prohibited places by regulation to where it was necessary to protect the safety of the United Kingdom.
Amendment 26, in clause 11, page 10, line 8, leave out paragraph (c).
Government amendments 46 and 47.
Amendment 14, page 20, line 35, leave out clause 27
Government amendments 48 and 49.
Amendment 124, in clause 28, page 21, line 23, at end insert—
“(2A) However, the conduct in question, or a course of conduct of which it forms part, is not to be treated as carried out for or on behalf of a foreign power if financial or other assistance of a foreign power under (2)(c) is provided otherwise than specifically for the conduct or course of conduct.”
This amendment ensures that organisations that receive funding from foreign powers are not guilty of offences under this act if that funding was not for the conduct or course of conduct that would otherwise amount to the offence.
Amendment 30, in clause 30, page 22, line 40, leave out paragraph (c).
This amendment would narrow the definition of foreign power threat activity to remove giving support and assistance (including that unrelated to espionage activity) to a person known or believed to be involved in offences under the Bill (but would retain conduct which facilitates or is intended to facilitate such offending).
Government amendment 50.
Amendment 118, in clause 31, page 23, line 25, at end insert—
““critical interests of the United Kingdom” include security and intelligence, defence, international relations, law and order, public health and economic interests;”.
This amendment seeks to clarify the tests to be met before the offence of obtaining or disclosing protected information is committed.
Amendment 125, in clause 37, page 26, line 25, leave out “reasonably believes” and insert “believes on the balance of probabilities”.
This amendment would apply the usual civil standard of proof in relation to decision to impose Prevention and Investigation Measures.
Amendment 126, in clause 38, page 27, line 35, leave out “four” and insert “two”.
This amendment would mean the Secretary of State could seek to extend a part 2 notice on two occasions rather than four.
Amendment 31, in clause 43, page 30, line 21, leave out from beginning to “before” in line 22 and insert “The chief officer of the appropriate police force must confirm to the Secretary of State that the condition in subsection (2) is satisfied before”.
This amendment, together with amendments 16 to 18, would require the Secretary of State to receive confirmation from the police that prosecution is not realistic before imposing a PIM, rather than requiring only a consultation on the subject.
Amendment 33, page 30, line 28, leave out “The matter is whether there is” and insert “The condition is that there is not”.
Amendment 34, page 31, line 14, leave out “responding to consultation” and insert “providing confirmation”.
Amendment 32, page 31, line 26, leave out “(1) or”.
Amendment 35, in clause 53, page 38, line 13, leave out “this Part” and insert “Part 1 and Part 2”.
This amendment would extend the review function of the Independent Reviewer to cover Part 1 of the Bill in addition to Part 2.
Amendment 3, in clause 58, page 41, line 8, at end insert—
“(2) Within three months of the passing of this Act, the Secretary of State must publish a statement setting out how the Secretary of State intends to exercise the power under this section. The statement must include a list of illustrative examples of the kinds of contracts or other arrangements this power relates to.”
Government amendments 61 and 62.
Amendment 130, in clause 61, page 43, line 19, after “P” insert “, whether directly or through intermediaries”.
This amendment would make clear that those making a foreign activity arrangement via intermediaries, would be required to register the arrangement.
Government motion to transfer subsection (2) of clause 61.
Government amendments 63 to 65.
Government motion to divide clause 61.
Government amendments 66 to 74.
Government motion to transfer subsection (2) of clause 64.
Government amendments 75 to 83.
Government motion to divide clause 64.
Government amendments 84 to 94.
Amendment 15, in clause 68, page 48, line 20, leave out paragraph (b).
Amendment 16, page 48, line 25, leave out paragraph (b).
Government amendments 95 to 101.
Amendment 131, in clause 70, page 51, line 10, at end insert—
“(3A) The information required of the person to whom an information notice is given must be limited to information the Secretary of State deems reasonably necessary to ensure the person is complying with the requirements of this Part.”
This amendment would place restrictions on the type of information the Secretary of State can require under clause 70.
Government amendments 102 to 108.
Amendment 1, in clause 75, page 53, line 39, at end insert—
“(h) an offence under section [Offence of failing to declare participation in arrangement required to be registered] committed in relation to a foreign activity arrangement required to be registered under section 61(1).”.
This amendment is consequential on NC1.
Government amendment 109.
Amendment 2, page 54, line 23, at end insert—
“(h) an offence under section [Offence of failing to declare participation in arrangement required to be registered] committed in relation to a foreign influence arrangement required to be registered under section 64(1) .”.
This amendment is consequential on NC1.
Government amendments 110 to 112.
Amendment 8, Page 56, line 4, leave out Clause 79.
Amendment 9, Page 56, line 26, leave out Clause 80.
Amendment 36, in clause 80, page 56, line 31, at end insert—
“(ba) the court is satisfied that any damages awarded to the claimant in those proceedings are likely to be used for the purposes of terrorism,”.
This amendment would remove the duty on the court to consider reducing damages in clause 58, unless the court considered the damages were likely to be used for the purposes of terrorism.
Government amendments 51 to 53.
Amendment 37, page 57, line 18, at end insert “or which it would award under section 8 of that Act had the claim been brought under it.”.
This amendment would prevent the reduction of damages in claims that could have been brought as a human rights claim under the HRA 1998 but were in fact brought on other grounds.
Amendment 10, page 57, line 30, leave out clause 81.
Amendment 11, page 58, line 5, leave out clause 82.
Amendment 12, Page 59, line 10, leave out clause 83.
Amendment 38, Page 59, line 14, leave out clause 84.
This amendment, together with Amendment 39, would remove the proposed limits on access to legal aid for persons with a conviction for a terrorism offence and the consequential power to make information requests related to those limits.
Amendment 5, in clause 84, page 59, line 29, leave out “F” and insert “G”.
Amendment 6, page 60, line 11, at end insert—
“(7A) Condition G is met where the offender is seeking legal aid for the purposes of—
(a) pursuing a civil order, where the purpose of the order is to protect a victim of domestic abuse, or
(b) participating in family court proceedings, and where the offender is a victim of domestic abuse.”.
Amendment 7, page 61, line 6, at end insert—
“”domestic abuse” has the same meaning as in the Domestic Abuse Act 2021;”
Amendment 39, page 61, line 15, leave out clause 85.
See explanatory statement for Amendment 38.
Government amendment 113.
Government new schedule 1—Control of a person by a foreign power.
Government new schedule 2—Exemptions.
Amendment 128, schedule 3, page 88, line 31, leave out sub-paragraph (4).
This amendment would prevent a disclosure order from having effect where disclosure is protected by an enactment.
Amendment 129, schedule 4, page 94, line 29, leave out sub-sub-paragraph (b), and insert—
“(b) there are reasonable grounds for believing that information which may be provided in compliance with a requirement imposed under the order is likely to be of substantial value, whether by itself or with other information, to the investigation; and
(c) there are reasonable grounds for believing that it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.”
This amendment would require the court to be satisfied of the same tests for customer information notices as set out in relation to disclosure orders in Schedule 3.
Government amendment 54.
Amendment 4, schedule 6, page 100, line 19, at end insert—
“(1A) A place designated by the Secretary of State under sub-paragraph (1) must be subject to an independent inspection by—
(a) Her Majesty’s Inspectorate of Constabulary, or
(b) a different person or body appointed by the Secretary of State.”.
Government amendment 55.
Amendment 27, page 104, line 12, leave out sub-paragraphs (4) and (5).
This amendment would prevent it being permissible to delay informing a named person of an individual’s detention under clause 21, or that individual consulting a solicitor, for the purposes of asset recovery.
Amendment 123, page 112, line 13, leave out from “if” to the end of line 20, and insert “the person has previously been convicted of an offence under this Act.”
This amendment would restrict the circumstances in which fingerprints and samples from someone detained under clause 25 could be retained indefinitely, instead of the usual 3 years under paragraph 20(5) of Schedule 2.
Government amendments 56 and 57.
Amendment 28, page 124, line 13, leave out sub-sub-paragraphs (b) and (c).
This amendment would prevent it being permissible to postpone reviews of detention without warrant on the basis that the review officer is unavailable or, for any other reason, the review is not practicable.
Amendment 127, schedule 7, page 144, line 17, leave out paragraph 12.
This amendment would remove the power for the Secretary of State to impose participation in polygraph sessions as part of provisions in relation to Prevention and Investigation Measures.
Government amendments 58 and 59.
Amendment 13, page 175, line 1, leave out Schedule 13.
Amendment 132, schedule 13, page 176, line 29, leave out “there is a real risk that”.
This amendment would ensure the court was satisfied on the balance of probabilities that damages were to be used for terrorism purposes before frozen funds could be forfeited entirely.
Government amendment 60.
Tom Tugendhat
It is a pleasure to stand before the House today to introduce not just new clause 9, but many other new clauses that I and many others in this House have argued for at different times and in different places.
Tom Tugendhat
Plus a few others. So it is a great pleasure to be here today.
May I also place on record my enormous thanks to two right hon. Members—the hon. Member for Garston and Halewood (Maria Eagle) will smile as I say this—who have done so much to get us to this position today? I refer to my right hon. Friends the Members for East Hampshire (Damian Hinds) and for Stevenage (Stephen McPartland), who have been extremely generous with their time and thoughts, including in private with me as well, in making sure that I am able to answer as many of her questions as I can, although somehow she has exceeded even their magisterial intellect. I am grateful that they have got us to this place, because this Bill is essential for the future defence of our nation.
The reason for that is because, of course, the world has changed. The reality is that national security in this country has changed and evolved in recent years, and the Darwinian challenge between the hunter and the hunted has led us to a position where we need to update not just our techniques, which can be done in private, but sadly our laws, which rightly must be debated in public.
I think we all agree with the core aims of the Bill. The first is to give our law enforcement and intelligence agencies the tools they need to tackle harmful activities in the United Kingdom carried out by, or on behalf of, foreign powers. However, to do that we also need to increase the transparency around those who seek to influence the politics and institutions of the United Kingdom through the foreign influence registration scheme. That is a very welcome addition. I know that many Members here, including those who have been on the Foreign Affairs Committee for the past five years, have called for it at various different points. The Bill has, at its heart, the protection of the national security of this great country that we all serve.
Tom Tugendhat
On that, I will give way—not for the last time, I am sure—to the right hon. Member.
Mr Kevan Jones
The Minister talks about Darwinian change, but evolution takes a long time. Many things in the Bill have been kicking around for at least six or seven years, and that includes the issue around the foreign influence registration scheme, which was only put in the Bill at Committee stage after it was omitted on Second Reading; even now, there are amendments to it. Is the Minister satisfied that the Bill—in terms of the major changes that it will achieve—will fulfil its purpose and that it has been properly scrutinised in this House?
Tom Tugendhat
What I am so pleased about with this Bill is that it introduces so many ideas that the right hon. Gentleman and I have discussed in private over many years when I was in a similar position to him—scrutinising a Government. The Bill introduces some of those ideas that, yes, he is right to say, seem to have been introduced quickly, but the reality, as he knows very well, is that they have been discussed slowly. Many aspects of the Bill not only date six or seven years into the past, but update aspects that date a lot further back. Sadly, some of our national security legislation is better placed to hunt those who would send secret notes on pigeons back to Germany than to hunt those sending secret messages through the internet. This is updating quite a lot of laws that date all the way back to the first world war. I am very glad that we are doing it, and I am very glad that the right hon. Gentleman’s scrutiny in the Bill Committee has been so rigorous and so onerous.
Sir John Hayes (South Holland and The Deepings) (Con)
My right hon. Friend is right that this is an important step. In particular, he is right about the foreign influence registration scheme, which has long been called for, including by the Intelligence and Security Committee, of which I am a member. He will also know that, because we have yet to discuss that in any detail, there may be confusion about the primary and secondary tiers—in other words, those things that are designated as being of more profound importance than these other things. Would it be helpful if he were to write to the ISC, setting out how he thinks they would work in practice, given that we understand that the secondary tier will be introduced by secondary legislation?
Tom Tugendhat
My right hon. Friend is right. I would be very happy to write to him. I can summarise it now by saying that the primary tier is that connected to political activity. Anybody from any foreign country who wishes to influence this House, this Parliament, any Members here, or indeed any political outcome, would be looking at the primary tier. That is the basic level, and it involves a registration on a website so that we can all know who has taken payment for what—which piper has been paid and by whom.
The enhanced registration is different and requires registration for a wider range of activities, but those depend on the specific foreign power and, indeed, the entity or operation within it. That is a different matter, and that will be down to the Secretary of State looking at what is reasonably necessary in order to protect the safety and interests of the United Kingdom—that is the enhanced tier, as we are calling it. That is the summary, but I will be happy to write to the ISC.
Chris Bryant
The Minister said that once somebody has registered on a website, we will all be able to see it. That may be true if we knew that that was where we had to look to check whether somebody coming in through the door, sending us a letter or inviting us to dinner as an MP was actually somebody who was working for a foreign power. Would it not be far more sensible, once somebody has registered, to require them to declare to any Minister, MP or Member of the House of Lords that that is what they were doing, so that there is a degree of protection for this House?
Tom Tugendhat
The hon. Member makes a very good point: there are many areas in which the individual concerned should certainly be doing the responsible thing and advertising it. The basis of this has to be a balance, so requiring people to register is, I think, a very good start. We need to take forward some of the recommendations that the hon. Member has made and the thoughts he has expressed, because he is absolutely right that transparency in all things is important.
Stewart Hosie (Dundee East) (SNP)
The Minister has accurately described what the two different tiers of the FIRS scheme will do, but it is difficult to understand why the registration of harmful activity outside of political influencing, such as covertly acting as an intelligence officer, only applies to a foreign power that is set out in secondary legislation. Surely, if that activity is wrong, it is wrong whether the country is on an as-yet-undefined list or not.
Tom Tugendhat
I think the right hon. Member will find that espionage is illegal in the United Kingdom, whoever is carrying it out.
Dr Lewis
The Minister is very forbearing, and I am glad of the opportunity to warmly congratulate him on his appointment and thank him for the positive way in which he has been reaching out to the ISC.
On the question of the second tier, there appears to be some sort of discrimination between countries that are friendly and those that are hostile, and—unless I misunderstand the Bill—only the hostile ones are going to appear in the secondary designation. If that is the case, could it not lead to some anomalous situations when diplomatic relations improve with a country, so we take it off the second tier, or they worsen and we put it on? There is bound to be a time lag in that sort of thing, so how practical is the second tier scheme as it is currently constituted?
Tom Tugendhat
My right hon. Friend makes a valid point. The challenge that we have, as he knows very well, is how we balance the responsibility to inform and how wide we go. I have spoken about this issue with my right hon. Friend in the past, and his judgment on this is something I have always valued, so it has always been very important to me that we share a view on it. However, I think we all agree that where a foreign power is seeking to influence our political life in the broadest sense, we should know about it, whoever is exercising that influence.
I take my right hon. Friend’s point about enhanced registration. Sadly, there is inherently a delay between the way that life changes and the response of Government —that is the reality of existence—but it is important for us to recognise that some countries and entities do require enhanced awareness. That is why it is important for us to have an extra tier.
Maria Eagle (Garston and Halewood) (Lab)
Will the Minister give way on that point?
Maria Eagle
I am grateful to the Minister for giving way. He has talked about the challenges and the enhanced part of the scheme. Will it not be a challenge to use the scheme in practice, because he has to put the country concerned into secondary legislation? Is that not going to be diplomatically very difficult to do? Is the reality not that the complex way in which the Government have set out the scheme, with little scrutiny possible from either this Chamber or Committees, means that in practice it is not going to be used at all?
Tom Tugendhat
I think the hon. Lady knows me well enough to know that, having been sanctioned by three countries now, it is unlikely that I will be reticent in identifying those that I think are threats to the United Kingdom.
Tom Tugendhat
I am very confident that others will also be bold on His Majesty’s behalf. Whoever is fortunate enough to be representing His Majesty in the Home Office will be able to conduct those offices in the good fashion that people expect. [Interruption.] I will move on.
The core of the Bill is, of course, national security and our intelligence services, building on the work they have done to enable us to grow in confidence and prosperity. They have provided the security apparatus that allows freedom beneath and around it. That is an extraordinary luxury and a blessing that this country has been able to enjoy for many years and generations because of the courage and intellect of so many people. They require tools to conduct those tasks, and I am delighted that the Bill will sharpen some of those tools.
Mr Kevan Jones
As my hon. Friend the Member for Garston and Halewood (Maria Eagle) said, we had four Ministers in the Bill Committee. Yes, the Minister has listened, but nothing in the Bill has changed. It is still a mess, and that goes back to the fundamental point about not including the Security Service Act 1989 in the reform that is needed. Let me tell the Minister now: the lack of scrutiny in this House means that the Bill will be absolutely torn to shreds in the other place.
Tom Tugendhat
The right hon. Gentleman will not be surprised to hear that we disagree on that element, but it has been a great pleasure to work on the Bill with him and with many others in the Chamber, and to hear their comments and criticisms. There are many other supplementary areas that I would like to work on in different places at different times, but the Bill answers the essential need that we have now, which is to update our national security legislation to keep the country safe and defend our people, and to ensure that those who have the courage, integrity and wisdom to keep us all safe have the tools at their disposal to do so.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
Order. We have already had four points of order, and we have limited time, so I ask Members to please be mindful of the length of their contributions so that we can get as many people in as we possibly can.
Holly Lynch (Halifax) (Lab)
It is a pleasure to be back in the Chamber at the Report stage of this hugely important piece of legislation. Bill Committee colleagues will join me in saying that it was not straightforward, for all the reasons that were highlighted in the multiple points of order. The Committee had no less than four Ministers and three Government Whips, and was forced to adjourn twice. Since Second Reading, the Bill has been the responsibility of three different Home Secretaries in—remarkably—the Governments of three different Prime Ministers.
We got off to a shaky start on the first day of the Bill Committee when the Whip, the hon. Member for North Cornwall (Scott Mann), who I am pleased has joined us this afternoon, was asked to act up as a Minister only minutes before the start. On one day, the Committee had to be adjourned because the second Minister was missing in action—the circumstances are still a mystery to this day. It was something of a relief, then, when the current Minister took office and we could turn to the serious detail of scrutinising and delivering long overdue and incredibly necessary national security legislation.
As we have said before, many of the new measures in the Bill have been born out of recommendations in the Intelligence and Security Committee’s 2020 Russia report and in the Law Commission’s “Protection of Official Data” report. With those solid foundations, we have been keen to work with Government to move the legislation forward and close the gaps in our defences. That could not be more timely in the light of stark warnings given by the director general of MI5 today, including about the fact that there have been at least 10 attempts to kidnap or even kill UK-based critics of the Iranian regime since January of this year.
That is not to say that we do not have some outstanding concerns about the detail of the provisions. In speaking to all the amendments grouped with new clause 9, I turn first to amendment 14, which was tabled by the right hon. Member for Haltemprice and Howden (Mr Davis) and my hon. Friend the Member for Barnsley Central (Dan Jarvis). I will spend some time discussing the detail of this amendment, because it is so important.
The original clause 23—now clause 27—was a big focus for hon. Members on both sides of the House on Second Reading. Crucially, it did not have the support of Opposition members of the Intelligence and Security Committee, which has statutory responsibility for oversight of the UK intelligence community. We will always look to work with the intelligence services to find solutions to any barriers they face in undertaking their invaluable work to keep the UK safe. As things stand, however, we have been unable to get an operational understanding of why the clause is necessary.
The security services have told me directly why they believe that they need clause 27. They say that schedule 4 to the Serious Crime Act 2007 allows for a risk of liability to individuals conducting their proper functions on behalf of the UK intelligence community, and that an offence can arise when support—for example, intelligence shared in good faith—later makes a small or indirect contribution to unlawful activity by an international partner. The security services are keen to convey that their caution in this regard is having an operational impact, which requires resolution. We are sympathetic to that view; we recognise that for perhaps quite junior members of staff to face that burden of potential liability when carrying out their proper functions under instruction does not feel quite right. However, we have sought throughout the process to find a way through that does not involve what feels like gold-plating of exemptions for the security services, which could erode entirely appropriate safeguards and due diligence when considering the risks and consequences of sharing information with partners.
As the Minister knows, there is a reasonableness defence under section 50 of the Serious Crime Act, which recognises that there may be occasions when it can be shown that an individual’s actions were justified in the circumstances. Of course, a prosecution would also have to be deemed to be in the public interest. On further probing of these defences, it seems that it is not the case that the reasonableness defence is not strong enough; rather, it is untested, as no such case has been brought. We do not believe that the fact that an apparently robust defence is untested makes a strong enough case for the proposals in clause 27. We hope that properly authorised activity to protect national security should and would be interpreted as reasonable.
We have sought legal advice, including from a King’s counsel who undertakes a great deal of work in the Investigatory Powers Tribunal, and engaged with a range of stakeholders who feel genuinely involved in this space. Given that we already have section 7 of the Intelligence Services Act 1994, which allows the Secretary of State to give immunity from civil or criminal liability for pre-authorised crimes abroad, why do we need the changes proposed in clause 27? Crucially, the existing scheme requires the UK intelligence community to secure permission in advance from the Secretary of State, requiring the Secretary of State’s personal approval, with safeguards in the decision-making process and oversight by the Investigatory Powers Commissioner, who is a senior judge. None of those safeguards are present in clause 27; it simply removes the relevant criminal liability. There would be no need to go to a Minister for approval; there would be no warrant for the Investigatory Powers Commissioner to consider.
Thirdly—the Minister and I have debated this—the Bill as drafted diminishes the role of a Minister in decision-making and accountability structures. Ministers will no longer need to make the difficult judgement, reviewed by the Investigatory Powers Commissioner, of whether to grant an authorisation under section 7 of the Intelligence Services Act. The Government have been keen to stress their commitment to the Fulford principles—“The Principles relating to the detention and interviewing of detainees overseas and the passing and receipt of intelligence relating to detainees”, making it clear that:
“The UK Government does not participate in, solicit, encourage or condone unlawful killing, the use of torture or cruel, inhuman or degrading treatment…or extraordinary rendition. In no circumstance will UK personnel ever take action amounting to torture, unlawful killing, extraordinary rendition, or CIDT.”
However, those commitments are not on the face of the Bill.
With the understanding that there will be operational elements to these provisions, the details of which have not been and cannot be shared, we have pushed for engagement with the ISC, which is entirely the right place for those operational examples to be considered further. Were ISC members to be convinced of the case for clause 27, we might be in a different place. On that basis, we cannot support clause 27 and will vote for it to be deleted by amendment 14.
On a similar point, although we welcome much of the Bill, it is right that any provisions that include new and substantial powers are constantly evaluated for their efficacy and proportionality. Clause 53 recognises that.
Sir John Hayes
Efficacy and proportionality are the twin guarantees that underpin all security legislation and activity, as the hon. Lady is aware, but if anything, clause 13, for example, should go further than it currently does. She will know that that clause is built on the idea of intention—that people must intend to do harm—but people should know that they are likely to do harm if they act recklessly, and the Bill could be expanded in that direction. There is an unholy trinity of anarchists, liberals and Bolsheviks who oppose all legislation of this kind, but if anything, this legislation should be warmly welcomed and go further than it does.
Holly Lynch
I am grateful for the intervention. The points that I am about to make about the value and role of an independent reviewer of this legislation relate to how, if some of the thresholds are not in the right place, such a reviewer can not only be both a check and a balance on the powers but make recommendations for going further in the legislation if we find that there is an operational case for doing so. That is the sensible and constructive point that the right hon. Gentleman knows I am making.
Clause 53 recognises the need for evaluation but deems only part 2 of the Bill to be necessary for review by an independent reviewer and fails to be explicit about who that independent reviewer will be. The Minister has been unable to confirm who will perform this oversight function, which we believe is integral to finding the appropriate balance of powers and freedoms. The scrutiny of terrorism legislation provided by Jonathan Hall KC has been invaluable. The independent reviewer of terrorism legislation function has identified weaknesses in terrorism legislation and highlighted areas where stronger safeguards are needed, as well as providing crucial and checks and balances on the powers.
When he gave evidence to the Bill Committee, I asked Jonathan Hall whether there is a logic to his office taking on the additional responsibilities and whether he had the capacity to undertake that work. He said:
“My answer is that I think it actually is quite a good fit for the reviewer’s job, and I think it probably is right that the person who does the independent review of terrorism legislation should also do the state threats legislation.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 6, Q4.].
With the highest regard for Jonathan Hall, we recognise the merit in adding to his remit the responsibilities created by clause 53. We can see the benefit of a coherent, joined-up approach to assessing both counter-terrorism and state threat legislation.
That said, were the Minister to make a case for the creation of a brand-new position, exclusively for the independent review of laws concerning state threats, we would certainly be open to that. We are, though, now reaching the Bill’s final Commons stages, and we are very much overdue an agreement that the role will begin immediately once the Bill is enacted, clarity on who will undertake the work, and a commitment that all the new provisions in the Bill will be considered in an annual review. Successive Ministers have understood the point and committed to sorting the situation out, but here we are with no progress and nothing to show for it on the face of the Bill, so we are keen to push new clause 3 to a vote.
In Committee, my hon. Friend the Member for Birmingham, Yardley (Jess Phillips) made a powerful case for the provisions in amendment 6, which sits alongside paving amendments 5 and 7. We made clear our concerns about part 4 of the Bill in the Committee. The restrictions on access to civil legal aid stand to do more harm than good if we do not recognise the problems in such an approach.
Let us consider the types of civil cases that legal aid might be needed for. People find themselves in civil and family court proceedings and in need of legal aid support for a multitude of reasons, including housing issues, debt problems and domestic abuse. For example, a victim of domestic abuse might need legal aid to help her to seek an injunction against her abuser. Non-molestation orders protect a victim or their child from being harmed or threatened by their abuser, while occupation orders decide who can live in a family home or enter the surrounding area. Such injunctions protect victims and children in particular. They save women’s lives. They are legal measures that protect women from violence.
My hon. Friend the Member for Birmingham, Yardley made the powerful point in Committee, based on her years of working in the sector, that it is easy to say that someone who has engaged in that type of criminality is not deserving of legal aid, but what if a woman’s abuser is a terrorist? The nature of terrorist offenders means that that is too often the case.
Mr Kevan Jones
My hon. Friend is right that we discussed the issue in detail in Committee. Clearly, the only reason is seen to be that someone has been involved in terrorism. Does she agree, however, that there are many other people, such as rapists, paedophiles and murderers, of whom we also have a low opinion? The logical conclusion is surely that, if we restrict it in one area, we should restrict it for everyone.
Holly Lynch
I am grateful to my right hon. Friend for making that powerful point. He is absolutely right that there is a distinct lack of consistency. If we are singling out specific criminal offences that we do not like, there is more that we could do to ensure that there is some consistency in that approach. There will be vulnerable people here who we want to check are not falling through the gaps, which would make the situation worse for us all.
What if a woman’s abuser is a terrorist? As I said, the nature of terrorist offenders means that that is often the case. For some of the lower-level offences covered by clauses 84 to 85—for example, that someone made a phone call on behalf of an abuser—it is easy for somebody to say, “I wouldn’t do that, because I’m not a terrorist,” but we all might if we were living in a household where we were terrorised. The danger is that more women in such cases will end up stuck with a terrorist making them be a terrorist, rather than being able to escape them. That is why we feel strongly that the Government should adopt amendment 6.
On some other changes that we would like to see, we have tabled new clauses 5 and 6. They were drafted in the wake of the revelations that the right hon. Member for Uxbridge and South Ruislip (Boris Johnson), when he was the Foreign Secretary, met former KGB officer Alexander Lebedev without officials or security at the height of the Salisbury poisoning case in 2018. That was immediately after the then Foreign Secretary had attended a meeting of NATO Foreign Ministers at NATO headquarters in Brussels to discuss the collective response to Russia’s use of Novichok on UK soil. We still have a series of questions about that encounter, not least who his guest was at that party and why we have not taken steps to sanction Alexander Lebedev, given the assessment of our Five Eyes partner Canada, which has sanctioned him.
Having made the case in Committee for new clauses 5 and 6, which both seek to put safeguards in place to prevent that type of security breach ever happening again, the Minister was keen to stress that he was not going to seek to defend the Administration of the right hon. Member for Uxbridge and South Ruislip, as if that time had passed and there was no need for any further changes to the law in this regard. When that exchange happened on the Tuesday, little did the Minister or I know that by the Thursday, remarkably, the right hon. Gentleman would be launching his campaign to come back as Prime Minister. None of us could have foreseen that, which is one more reason why I stress that the clauses would complement the Bill.
I appreciate that new clause 8, tabled by my right hon. Friend the Member for North Durham (Mr Jones), has been deemed to be out of scope of today’s debate, but I remind the Minister of the remarks of the then Home Secretary, the right hon. Member for Witham (Priti Patel), on Second Reading:
“We are not shy of the issue and are certainly not ignoring it, but it is important that we focus on ensuring that individuals can make disclosures safely, which means protecting them through safeguards and proper routes. That work is still under way, and we need to go through it in the right way.”—[Official Report, 6 June 2022; Vol. 715, c. 571.]
We understand that the Home Office has engaged with trusted partners on what options look like in this space. Once again, we are all waiting for further detail on that front.
I now turn to the plethora of Government amendments. Frankly, late in the day additions to the Bill have plagued its scrutiny and Report stage is no different, as many right hon. and hon. Members have already said. I am pleased that the Government heard our concerns about places of detention and have clarified that only places
“owned or controlled by a police force”
can be used as places of detention, which ensures that they will be subject to proper inspection regimes. We are satisfied that the Government have listened, so our amendment 4 is no longer necessary; Government amendment 54 brings those places within the scope of an existing inspection regime.
As the Minister knows, there are still outstanding concerns about the broad nature of clauses 79 to 83 in part 4. We welcome Government amendment 51, however, which seeks to tighten the definition of those in scope of clauses 79 to 83 to those involved in “terrorist wrongdoing”, but that will warrant further exploration in the other place.
On Government amendment 60, like a number of modern slavery charities—the point has already been made by the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith)—we are really concerned about the lateness of this addition to the Bill and the scrutiny that has been avoided by adding it to the Bill at the final Commons stages. Justice and Care, which does outstanding work in placing victim navigators within police forces up and down the country, was keen to stress that there has not been any consultation with modern slavery charities concerned that they, like us, have had insufficient time to fully consider the possible impact on modern slavery victims. I could have asked the Independent Anti-Slavery Commissioner for their views, except there isn’t one. The Government have failed to appoint a new commissioner since Dame Sara left office in April, so I take this opportunity to suggest that the Government address that now as an urgent priority. I have to ask the Minister to outline the rationale for this move, and I want to be clear just how unhappy we are with this provision at such a late stage.
I am grateful to my hon. Friend the Member for Rhondda (Chris Bryant), who is so often my partner in crime fighting, for his amendments. I know he has a great deal of understanding in this area that has shaped the detail of his amendments, so I hope the Government are reflecting carefully on those.
Once again, we have sought at every stage and with every Minister to engage on the Bill constructively. We know that our police forces and security services need the provisions in the Bill to be able to keep us safe from the hostile state threats that are increasingly testing the UK’s resilience. I hope the Minister, who to his credit had to pick up the Bill in the final stages of the Bill Committee, hears our outstanding concerns today, recognises the spirit in which we strive to find solutions and continues to work with us towards a robust and proportionate Bill we can all have confidence in.
Mr David Davis (Haltemprice and Howden) (Con)
I welcome the Minister to his post. He is very much a round peg in a round hole—despite my historic critique of the Home Office, that is meant as a compliment. I thank him for seeing me and my colleague, the hon. Member for Barnsley Central (Dan Jarvis), on the amendment the other day. He will be unsurprised that he did not persuade me, but I thank him for the time in any event. In view of the short time, I will focus mostly on amendment 14, which I hope we will press to a vote. It is in my name and that of the hon. and gallant Member for Bromley—not Bromley, but Barnsley Central; not quite Bromley. That amendment strikes out clause 27.
A decade and a half ago, the British public were shocked to hear stories of British complicity in American and other countries’ acts of kidnap, rendition, torture and assassination, typically but not always by drone strikes, with the collateral damage that that entailed. Collateral damage in this context is a euphemism for the deaths of innocent women and children who happen to be standing near the original target. I use this stark language to make plain the potential consequences of what might seem like bland legalistic language in the Bill.
The legal basis of those actions—I almost said atrocities, but of those actions—was the Intelligence Services Act 1994, when we first recognised the operation of the Secret Intelligence Service. Most notably, it inserted the melodramatically named “007 clause”—section 7—which empowered Ministers to authorise criminal behaviour overseas. I was one of the Ministers who took that Bill through the House. We Ministers were briefed very firmly that, in practice, that section would authorise bugging, burglary and blackmail—the normal behaviour of intelligence agencies seeking to penetrate enemy states and organisations—not kidnap, not torture and most certainly not a licence to kill.
We the Ministers on that Bill gave our word to the House that that was what it was for, but a decade later section 7 was used to authorise the enabling of rendition, torture and quite possibly assassination as well. We know the names of several victims of UK complicity: Binyam Mohamed, Abdel Hakim Belhaj, Fatima Boudchar, his wife, and Rangzieb Ahmed, to name just a few.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
It is worth reflecting and placing back on the record that we know the names of Belhaj and Boudchar only because somebody happened to find the papers unattended after the fall of Gaddafi. That was the only way that the truth about their cases came into the public domain.
Mr Davis
The right hon. Gentleman is right, and it is also true that we found out about Binyam Mohamed only because of extended legal cases in the courts, which were resisted by the agencies at every turn. We know about Rangzieb Ahmed only because I got access to the in-camera papers. So this is a general problem and I will come back to that. A most recent example is Jagtar Singh Johal, who alleges that he was tortured by Indian authorities and was detained, we believe, as a result of British intelligence. Again, we know about that only because we could spot the case inside one of the commissioner’s reports. Accordingly, exactly because of that, this is literally the tip of the iceberg.
The Intelligence and Security Committee report on detainee mistreatment found 232 cases where UK personnel
“continued to supply questions or intelligence”
to other intelligence services, after they
“knew or suspected that the detainee had been or was being mistreated.”
As I said, I have seen in-camera evidence that showed quite how deliberate some of those decisions were—absolutely in the knowledge that they would be used in the process of torture. That was done rather more broadly, even when the intelligence services did not know at all where the detainee was being held, or even whether they were being held legally or not. Those are the consequences of vague legislation that awarded too much power to the authorities.
We might therefore expect clause 27 to tighten up over-loose legislation to make Ministers, officials and agents more conscious of their responsibilities, not less. Instead, it does the exact opposite. Clause 27 would provide an exemption to schedule 4 of the Serious Crime Act 2007. Schedule 4 sets out the circumstances in which assisting and encouraging a crime that occurs overseas is still a criminal offence. Clause 27 means that it would no longer be an offence to assist a crime overseas where someone’s behaviour is necessary for
“the proper exercise of any function of the Security Service, Secret Intelligence Service or GCHQ or...the armed forces.”
In plain English, that would effectively insulate Ministers and officials from responsibility for assisting or encouraging heinous overseas crimes.
To see the potential impact of that, consider the case of Abdel Hakim Belhaj. Mr Belhaj, a Libyan dissident living in exile, was detained and subsequently tortured in both Thailand and Libya. It later emerged that UK information sharing had contributed to his detention and rendition. After years of litigation and wrangling, the Prime Minister wrote a letter of apology to Mr Belhaj, and the Government admitted responsibility for the role that UK intelligence played in his rendition. That was a civil rather than a criminal case, but if officials are certain that they will not face any criminal liability for assisting torture and other serious crimes abroad, reckless information sharing of the kind seen in Mr Belhaj’s case will occur more frequently and with more impunity.
I understand that one reason for the change in the clause is apparently to allow the easier transfer of bulk data. That is an especially risky activity to which to give legal cover. The transfer of bulk data is a euphemism for saying that we give the Americans—principally—so much data that we do not have time to check it all. That is it in a nutshell. As Edward Snowden revealed, that has historically amounted to unimaginably vast quantities of data, of course about suspects, but also about innocent people. Because of the high level of secrecy that applies to current bulk data issues, I have no current UK example to hand, but I can exemplify this by outlining the behaviour of our closest ally, and the principal recipient of bulk data, the United States.
The greatly respected President of the USA, Mr Barack Obama, used to go to the White House Situation Room on a Tuesday once a month to authorise a kill list—20 people who were going to be assassinated by the United States and who were perceived to be its enemies; typically, al-Qaeda officials and the like. President Obama talked proudly of how the best technology—artificial intelligence, algorithms and, crucially, bulk data—was being used to identify targets.
However, that comes with enormous risks, most plainly shown by the case of Ahmad Zaidan, who was selected for targeting by the US National Security Agency based on algorithms using bulk data. Fortunately, he was not assassinated. I say “fortunately” because there had been analysis of his telephone contacts and he had talked to Osama bin Laden and all the al-Qaeda high command, but, before the drone strike was organised, it was suddenly realised that he was the Pakistan office head of Al Jazeera. The analysis had thrown up an innocent man who could have been assassinated.
That is why we must be careful about what is handed over without knowledge of the bulk data. If we give greater legal cover to officials sending bulk data to other countries, cases of bulk data being used in the commission of serious crimes abroad—even against innocent people—will happen more frequently.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
Order. I will now announce the results of the ballot held today for the election of the Chairs of the Education Committee and the Transport Committee. Due to the compressed time in this Report stage, I will not take any points of order until just before the Adjournment at the end of business today. I hope everybody will be happy with that.
In the Education Committee Chair election, 452 votes were cast, one of which was invalid. The counting went to two rounds. There were 436 active votes in the second round, excluding those ballot papers whose preferences had been exhausted. The quota to be reached was therefore 219 votes. Mr Robin Walker was elected Chair with 228 votes.
In the Transport Committee Chair election, 448 votes were cast, none of which were invalid. The counting went to five rounds. There were 369 active votes in the final round, excluding those ballot papers whose preferences had been exhausted. The quota to be reached was therefore 185 votes. Iain Stewart was elected Chair with 192 votes.
Both Chairs will take up their posts immediately. I congratulate Mr Robin Walker and Iain Stewart on their election. The results of both counts under the alternative vote system will be made available as soon as possible in the Vote Office and published on the internet. Congratulations once again.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
It is a pleasure to follow the right hon. Member for Haltemprice and Howden (Mr Davis). He has our full support, both in relation to amendment 14 and to what he said about clause 83.
A Bill of this nature is absolutely necessary and overdue, but I share the concerns of colleagues about the amount of time provided for debate and scrutiny. So short of time do we appear to be that the Minister, much as I respect and like him, did not actually even seem to speak about any of the amendments he has tabled today, including Government amendment 60, which is, frankly, absolutely outrageous, but I will come on to that shortly. It is essential, yes, that we update our espionage laws, but it is also essential that we update them correctly. If we do not do it correctly then: first, we risk severely criminalising behaviour that was not intended to be criminalised; secondly, we leave loopholes to be exploited by those who mean us harm; and thirdly, we confer powers way beyond what is reasonable or required. Our amendments seek to address all three dangers.
First, we have concerns about behaviour that should not be caught in the provisions. We have concerns about the impact of the legislation on protesters, journalists, non-governmental organisations, whistleblowers, those acting in the public interest and, now, victims of trafficking. In some cases, that is because of how some of the specific offences have been framed. For example, by catching someone who might
“approach or be in the vicinity of”
a prohibited place, clause 4 risks seriously criminalising protesters at Faslane for example, assuming the Government still consider nuclear weapons as essential to the
“safety or interests of the United Kingdom”.
Similarly, the National Union of Journalists is concerned that clause 5 risks a chilling effect on its photographers by criminalising any photo of a prohibited place as “inspecting” it. We tabled amendment 120 to protect protesters who are simply in the vicinity of a prohibited place, and amendment 133 to ensure that taking a photograph of a prohibited place is not automatically considered an inspection of it and therefore an offence.
Other groups risk being caught in the Bill, because some of the overarching terms and the framework for deciding when there is foreign influence is perhaps not as tightly drafted as it should be. For example, the very important notion of the
“interests of the United Kingdom”
is central to quite a few offences, yet that is a nebulous concept and appears to be whatever the Government of the day choose it to be. Depending on which day of the week it is and which Prime Minister is in office, fracking might be something the Government think is in the
“interests of the United Kingdom”.
That is an unsatisfactory way to describe a criminal offence, so we have offered a way to try to fix it. Amendments 116 and 118 list specific critical interests, above day-to-day political agendas of the Government, which need protecting. The Minister complained in Committee that the list was not long enough, so we added the ones he complained were missing. It is important to say again that the reason why we included those particular interests is that we are mirroring a scheme under the Official Secrets Act 1989, where specific interests requiring protection are set out: security and intelligence, defence, international relations and crime. The key point is that
“interests of the United Kingdom”
is too broad and too wishy-washy.
We also have concerns about the “foreign power condition”, which is pivotal to deciding whether behaviour is caught by some of the new offences. In particular, as we have heard, there are many NGOs and other institutions with financial links to other Governments. That is why we tabled what is now amendment 124 in Committee to propose that the condition is made out only where the finance was specifically for the act that will be criminalised. However, we welcome Government amendments 48 and 49, which aim to address a similar problem.
Ultimately, like others, I think that the best answer to all these questions is not to make various tweaks here and there. If anything, our scrutiny of the Bill has convinced us more than ever of the need for an overarching public interest defence. We share the regret that we will not have that chance today.
Finally on this group of amendments, we also need to worry about trafficking victims who could be prosecuted as spies or foreign agents. I agree that it is outrageous for the Government to have introduced amendment 60 less than one week before the final stages of the Bill without explanation or evidence. Frankly, I dread the modern slavery legislation that seems to be coming down the track if this is a foretaste of it. People trafficked, enslaved and coerced into activities under this Bill, such as photographing a prohibited site or stealing information, could be punished as though they are guilty of espionage.
I alerted various trafficking charities and experts to the amendment on Monday. They were all completely and utterly unaware of it and certainly had not been consulted on it, despite some of those organisations being on Home Office working groups and the like. They have a million questions to ask about it. Frankly, I am so irritated about how the amendment has been sprung on us that I am absolutely determined that we have the chance to vote on it this evening.
Turning to the loopholes for those who would seek to harm us, I will mention a couple of amendments. On clause 2, on the theft of intellectual property and so on, we queried why that should be an offence only outside the UK in very limited circumstances, even though UK trade secrets were being protected and stolen under the offence. We tabled amendment 117 to ensure that there is also an offence not just when a UK citizen is a victim, but when a UK resident or person in the employment of a UK person is. Government amendment 40 addresses that point insofar as people who live in the UK, but it does not cover employees.
Most significantly, we worry about the rules on registration in relation to the foreign influence registration scheme. If a specified Government seek to direct activities directly in the UK, the operation of the foreign activity regime seems clear. However, it is hard to imagine that that is how things will generally operate. Surely intermediaries will be used much more often. If that intermediary is in the UK, again, the scheme should work, but what if the intermediary is still in a specified country? In theory, it seems as though the intermediary will be under an obligation to register the agreement, but that will not happen. Meanwhile, those doing the activities in the UK seem to have no obligation to register anything, as they have no direct agreement with the specified Government. That seems a possibly significant loophole, so we tabled amendment 130 to flag up the issue of how we deal with intermediaries.
Thirdly and lastly, let me turn to amendments that seem to grant excessive powers to the Government. Amendment 121 places restrictions on the additional sites that the Home Secretary can deign to be prohibited. Prohibited places have always previously related to security, so we think that new sites should also relate to security and that the nebulous concept of “interest” should not be enough to justify allowing a Home Secretary to add extensively to that list.
Clause 70, which is part of the registration scheme, creates ludicrously broadly drafted powers for the Secretary of State to ask for pretty much any information that she wants from any body or organisation that is or should be registering a scheme. That will be a huge number of bodies. However, if we look at clause 70, we see that there is no limit on the type of information that can be requested or the purpose of the request. There is no means to challenge or appeal against a notice. In Committee, the Minister said that the clause’s purpose was to allow the Home Secretary to seek such information as is necessary to make sure that people comply with the registration requirement. None of that is in the Bill, however, so amendment 131 would put that restriction in it. It is the bare minimum protection that we require.
The major overreach has been described by the right hon. Member for Haltemprice and Howden: clause 27’s carve-out for the security services in relation to the Serious Crime Act. I echo what the shadow Minister, the hon. Member for Halifax (Holly Lynch), said. We approached this with an open mind. Officials and staff have been successful in persuading us of the need for many parts of the Bill, but not here. As was remarked on Second Reading, other protections are in place. I have not heard any suggestion that members of the Intelligence and Security Committee have been persuaded by the services, so we, too, remain concerned that the proposal provides an enormous and unwarranted protection from prosecution, even where Ministers or officials provide information that leads to torture overseas.
The right hon. Member for Haltemprice and Howden has also addressed the powers provided to courts in relation to the award of damages, which rather stink of Ministry of Justice virtue signalling and politics. There are already powers to deal with those dangers, as the Minister sort of accepted today in his letter to members of the Bill Committee. Amendment 132, which is directly informed by the comments of Jonathan Hall KC, the independent reviewer of terrorism legislation, would at least mean that there has to be proof on the balance of probabilities before damages can be permanently confiscated—a modest proposal, and one that the right hon. Member has advocated. We are also sympathetic to the right hon. Member’s amendments to take the relevant provisions out altogether.
The Bill’s legal aid provisions are, frankly, utterly farcical. It is the criminal justice system that should be used to punish people, not the civil justice system. Our amendments 125 to 127 would clip the wings of the state threat prevention and investigation measures by ensuring that the normal civil test applies before they can be imposed, by reducing the number of times they can be extended, and by taking out provision for polygraph testing.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
Order. As hon. Members can see, there is quite a bit of interest in the debate. I am introducing an initial six-minute speaking limit, which I am sure will be reduced to accommodate everybody.
Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)
I am grateful, Mr Deputy Speaker. I will not take that long.
Before I speak to the amendments in my name and those of other hon. Members, which are quite narrow, I want to address Government amendment 60, which I am quite surprised to find in the Bill. Peculiarly, it sets out a series of offences to which it is no longer a defence to claim modern slavery. I am surprised that many of them are not already captured elsewhere. Some of them are very general, such as “entering a prohibited place” and “foreign interference: general”. I always get worried when I see the Government tabling amendments that say things like “in general”, because it really means that they want to do something else that we do not know about. I accept that the amendment will make it into the Bill today, but I want to see what comes back from the other place once the Lords have managed to probe it and find out about it. I would be grateful if the Minister explained why the Government suddenly needed to put it in the Bill.
My amendments would strike out subsections (1)(b) and (2)(b) of clause 68. The Government seem almost to have cut and pasted some of the US legislation and possibly the Australian legislation. I know that the exemption for legal services appears in that legislation, but I am concerned. My amendment is a tightening-up exercise. I really wonder why we think it necessary to provide such a general exemption for legal services. I am sorry if there are practising lawyers present in the House, but if I know anything at all about how lawyers work, they will find ways to exercise the process of lobbying on behalf of organisations and individuals with no right to be here. They will not call it lobbying; they will find some term that is covered by “legal services” and then get on with it. That will also be a way of getting around the Crown prerogative.
I would be grateful if the Minister looks at the issue carefully and understands that there is a problem. I have talked to a lot of lawyers, and most of them believe that the exemption for legal services is not necessary. There is no reason why they should be exempted; the rules should apply directly to them. Either the definition of what constitutes legal services needs to be tightened up very carefully, or the exemptions should be struck out as the amendments require. I would like some indication from the Minister at the Dispatch Box that the Government will look seriously at the matter in the Lords and act on it. An exemption for legal services is unnecessary and will lead to lobbying by the back door; I am sure that all sorts of terms will be found that are covered by “legal services”.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
Order. After the next speaker, the speaking time limit will be five minutes. I call Dan Jarvis.
Dan Jarvis (Barnsley Central) (Lab)
It is a pleasure to follow the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith) and everyone else who has spoken, and a particular pleasure to follow the right hon. Member for Haltemprice and Howden (Mr Davis). I agreed with all the points that he made. He has done the House a great service in explaining the context of the amendment that we tabled, and I am very grateful for it.
I say that mindful of the fact that we live in a world that continues to create new threats to our safety and way of life from a wide range of hostile states and actors. While their methods and origins vary, their intent is clear: to undermine our national security. Like others—like everyone who is in the Chamber at the moment, I am sure—I personally take these issues very seriously, and I also appreciate the complexities of the issues that we are debating today. None of this is easy, and I know very well the challenges that our security and intelligence services face every single day. I also know very well that our response to terrorism must always be unequivocal, but must always be legal.
I do not doubt the intentions that underpin the Bill. I have known the Minister for a long time, and I absolutely believe that he wants to do the right thing. This is the prism through which I view the Bill: I view it as someone who cares deeply for our country and wants to scrutinise the Bill in order to make it better, and to make our country both stronger and safer. It was in precisely that spirit that I tabled amendment 14, along with the right hon. Member for Haltemprice and Howden, with whom I have worked for some time on these issues.
I acknowledge that the Government’s intent in tabling clause 27—as I understand it—is to protect UK personnel in the intelligence services and the armed forces if they are found, in the course of their duties, to have committed a crime. However, I consider that the scope of the clause is too wide, and I fear that it would instead end up protecting Ministers and senior officials. As we heard earlier from the right hon. Member for Haltemprice and Howden, section 7 of the Intelligence Services Act already allows Ministers and senior officials to authorise some potentially unlawful activities, carried out by UK personnel overseas in the course of their duties. Clause 27, however, would provide protection for Ministers and senior officials who “encourage or assist crimes overseas”, such as giving a tip-off that leads to someone’s torture, as opposed to the direct commission of the crime itself. In that sense, it is, as drafted, unlikely to help UK personnel overseas who receive separate legal protections under the Intelligence Services Act. To that end, it is only right for the decision to prosecute, or not, to rest with the Director of Public Prosecutions, and not to be legislated away.
If clause 27 remains in the Bill, it will mean there is little chance of seeking justice in a criminal court for any crimes and human rights abuses abroad that have been enabled by UK Ministers and senior officials. The reality is that this will send a message that the UK Government are above the law, with near-guaranteed immunity for human rights abuses overseas. Clause 27 will undermine the UK’s position as a leader in promoting human rights, and prevent criminal sanctions against those who have enabled torture.
When providing evidence to the Intelligence and Security Committee in 2018, a senior security services official apparently described existing protections as “belt and braces”. Clause 27 would add a suit of armour, shielding the Government further from what I consider to be entirely legitimate scrutiny and accountability. It is using a sledgehammer to crack a nut, and that is not how we should be doing things. Stronger national security should not mean weaker human rights.
I oppose clause 27 because I believe that the Government’s intentions do not align with its consequences. I ask the Minister to listen carefully—as I am sure he will—to the concerns that are being raised this afternoon and have been raised with him previously, and to work with us to ensure that the Bill is improved and our country is kept safe, while also ensuring that human rights are protected. That is all I ask.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
Order. I have miscalculated—this is one of the reasons I was never made a Treasury Minister—and I want to give the Minister an opportunity to respond at the end. Sir Robert Buckland, you can have five minutes, but then we will go to four minutes.
Sir Robert Buckland (South Swindon) (Con)
Thank you, Mr Deputy Speaker. I will not be able to emulate the admirable record of my hon. Friend the Member for Broxbourne (Sir Charles Walker), but I will do my best to be as succinct as possible. It is a pleasure to follow the hon. Member for Barnsley Central (Dan Jarvis), who is right when he says that we have to strike a balance here: we need to protect our way of life but not protect ourselves out of the very values that we seek to defend—or, in other words, diminish the very rights that we want to protect. That is at the heart of all the national security legislation that I and others in this House have dealt with over the years. I am grateful to my right hon. Friend the Minister for Security for our conversations about these issues.
I cannot conceal my disappointment at the non-selection of new clause 8, in the name of the right hon. Member for North Durham (Mr Jones), which was signed by me and others. It is inevitable that this issue will be revisited in the other place. There are two issues that arise from it that are of general application to the Bill and to the future reform of the Official Secrets Act, which has to come. The first is the potential creation of a public interest defence, which in my view is an essential substitute to the rather random guessing game that we have at the moment, with jury trials—however well directed the juries might be—ending up with verdicts that, to many of us, seem perverse.
The second relates to the recommendation to create a statutory commission to allow people to raise their concerns—to whistleblow, if you like—through an approved process. The Law Commission’s report of September 2020 made those very clear and cogent recommendations and I commend them strongly to my right hon. Friend the Minister. I think they go hand in hand. The time is here for the Government to start addressing these issues and to adopt those recommendations. To quote my hon. Friend the Member for Broxbourne in another context: if not now, when?
Mr Kevan Jones
There are many things in the Bill that I support, but I think it is a missed opportunity. It has been a messy process in Committee, as has been said, as a result of the number of Ministers we have had dealing with it, the late inclusion of things like the foreign agents registration scheme and the completely missed opportunity to reform the Official Secrets Act 1989. The new Minister is very good, but he is a bit like a friendly old bank manager: he listens to you, he agrees with you and he is sympathetic, but you do not get the loan at the end of the day. The point is, however, that this Bill will be changed radically in the other place, because we have not had the proper amount of time to do it.
I want to refer to clause 27, which has been spoken to by the right hon. Member for Haltemprice and Howden (Mr Davis) and my hon. Friend the Member for Barnsley Central (Dan Jarvis). I was on the Intelligence and Security Committee when we were discussing detention and rendition, and some of the things that went on then did not make for pretty reading. We do not want to go back to those days. Things were changed in the consolidated guidance and the principles were brought forward. One of the sops for the Committee—a phrase that everyone kept using—was that there could be a chilling effect on the security services. Everyone kept asking what the chilling effect would be.
A commitment was given to allow the ISC to have classified information on this, and the Chairman of the ISC wanted that before today because it would have given us an opportunity to say whether we were satisfied. Unfortunately, that was turned down, but we have had the initial information and I and other members of the Committee are not yet satisfied that there is justification for this. We have asked for more information, which we are going to receive, but it would have been handy to have it before today. Unless there is good cause, frankly I think it will be interesting to see how this can be justified.
Referring to something that the right hon. and learned Member for South Swindon (Sir Robert Buckland) said, I am disappointed that my new clause 8 was not selected. This is one of those things in the Bill that will come back. The equivalent new clause was selected in Committee only because the hon. Member for North Wiltshire (James Gray) and my hon. Friend the Member for Bethnal Green and Bow (Rushanara Ali) in the Chair agreed to it, so I was not surprised that the Clerks knocked it out of selection, but it will not go away. My fear is that a great opportunity to modernise our national security landscape is being completely missed. I do not think we will see a Bill on public interest or reforming the 1989 Act, but it desperately needs to be done.
Sir Jeremy Wright (Kenilworth and Southam) (Con)
In view of the time, I will only briefly say something about three areas of the Bill. First, amendment 14, in the name of my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) seeks to remove clause 27, which excludes liability for assisting an offence overseas if the relevant behaviour is necessary for the proper function of the intelligence agencies or the armed forces. The key question being: how is that materially different from the defence to encouraging or assisting crime in section 50 of the Serious Crime Act 2007 of acting reasonably?
I am a member of the Intelligence and Security Committee, as is the right hon. Member for North Durham (Mr Jones). As he said, we are due to receive further evidence on clause 27 and we are, therefore, not yet in a position to provide a view on it. It is probably right that I reserve my final judgment until I have considered that further evidence but, speaking personally, I am not persuaded that, within the parameters of the reassurance and protection it is reasonable to offer those acting on behalf of the intelligence agencies or the armed forces, clause 27 achieves anything that the current section 50 defence does not. The Minister will have to explain the difference between acting reasonably and acting in the proper exercise of a function, as this clause requires.
Mr David Davis
My right hon. and learned Friend will remember that, when the Overseas Operations (Service Personnel and Veterans) Act 2021 was first brought before the House, the International Criminal Court told the Government, “If you go too far with this and nobody can be prosecuted, we will prosecute.” Is there not the same risk with clause 27?
Sir Jeremy Wright
I hope my right hon. Friend is wrong, but the Government have to consider it for exactly those reasons. It would be not only wrong but profoundly embarrassing if the United Kingdom were to find itself in that position.
I hope the Minister can clearly explain the difference I outlined, because the only difference I can see is that it could be argued that “acting reasonably” may be applicable to more circumstances and, therefore, offer arguably broader protection than “acting in the proper exercise of a function.” We have heard it argued that the current defence is not sufficiently legally certain but, from experience, legal certainty is an elusive quarry. The concept of reasonableness is very familiar to the courts in a variety of contexts. Anyone looking for absolute certainty in every case will not find it, because all cases are different and must be considered on their merits.
The second area I want to mention is amendments 8 to 12, in my right hon. Friend’s name, dealing with the potential reduction of damages in national security proceedings where a successful claimant has committed wrongdoing related to terrorism. It is worth noting in passing that such wrongdoing is not limited to convictions for criminal offences, and we need to understand from the Minister what level of wrongdoing in this context would suffice to put someone’s damages in jeopardy.
The operative measure is clause 58(3), which says
“the court must decide whether, in light of its consideration of the national security factors, it is appropriate for it to reduce the amount of damages”.
So we need to know what “appropriate” means—or should mean. Surely it should mean appropriate in all the circumstances of the case and in the interests of justice overall—it would be helpful if the Minister could confirm that—and that there is no presumption in favour of reduction, nor is there an instruction to reduce damages where the factors set out are present. That is how I understand the clause, but I would be grateful if he could confirm it.
Lastly, I wish to discuss amendment 38, which would remove clause 84 and stands in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry). That clause provides that, save for in very limited circumstances, civil legal aid would not be available in any case where it otherwise would be to those previously convicted of terrorism offences. My concern is that this is a very significant shift in the principles applicable to legal aid. At the moment, we award legal aid on the basis of the merits of the case and the financial circumstances of the individual applying, never before doing so on the basis of their previous character. This change would be very significant and it would need significant discussion, which, by definition, given the clock in front of me, it is not going to get today.
We need to be clear about what we would be saying if we made that change. We would be saying that whatever happens to that individual—however blatantly their rights may be infringed, in cases wholly unrelated to their previous conduct—the state will not assist them to defend their rights as it otherwise would, because of a previous criminal conviction. I am not sure that would be right and I am not sure that if it is, it makes any sense to specify only terrorism offences, rather than any other serious criminal offending. But whether it is right or wrong, we need to discuss it properly and not have it tacked on to this Bill, which is about something completely different, with very limited time to discuss it.
Mr Carmichael
It is a pleasure to follow the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright), who did the House a great service in bringing to us in four minutes what could have been the subject matter of a whole afternoon’s debate in itself, thus highlighting the total inadequacy of today’s proceedings for proper scrutiny of this Bill. I fear it will be filleted when it goes to the other place, and it deserves to be.
I added my name to new clause 8, but it is not available to debate and discuss. So much of what is in the Bill risks offering protection to people who do the wrong thing in the service of our country, while those who seek to expose that wrongdoing are to be left completely unprotected. Others have said it before, and I say it again now: this was the perfect opportunity to provide protection of that sort. If not now, when are going to see it?
It is a matter of significant regret that in an area of public policy where there is a substantial and natural consensus across the political parties, we have come to this stage in the proceedings of the Bill with so much division and disagreement, albeit a disagreement between those on the Treasury Bench and the Government Back Benches, not just between the parties. I do not think anybody in this House would not want to promote the security of our nation, and we all understand the complex and difficult situations in which pursuing that work often places people.
We also know, because it is human nature as much as anything else, that in these difficult and complex situations it is often possible to persuade oneself of just about anything. When that happens, it is necessary that somebody, somewhere, can be held accountable for it, because we are a country that believes, still, in the rule of law, and these things matter. That is why my colleagues on the Liberal Democrat Benches and I are so concerned about the content of clause 27 and clauses 79 to 83.
As I mentioned in my intervention on the right hon. Member for Haltemprice and Howden (Mr Davis), the cases about which we know and are rightly shocked, we know about only because these matters came into the public domain by mere happenstance. It is eminently possible that the circumstances of Belhaj and Boudchar would not be known to us today but for the fact somebody who happened to be walking around Gaddafi’s palace during the fall of his Government found the papers that revealed the extent to which rights had been deliberately traduced. It is surely wrong that there should be protection for people who behave far outside British standards, notwithstanding Government policy and indeed the law.
The same is true in relation to clauses 79 to 83, which remain the subject of massive controversy. I am certain that they will be revisited, hopefully with more detail and vigour than we have been able to give them today, because they do not belong in a Bill of this sort. I hope that, when the Bill eventually comes back to this House, it comes back without them.
Ben Everitt (Milton Keynes North) (Con)
It is a pleasure to follow the right hon. Member for Orkney and Shetland (Mr Carmichael) and to see so many members of the Bill Committee in the House on Report. It was a very constructive Committee, and I am pleased that we are all still vaguely getting on.
As the Minister said in his opening remarks, a number of clauses in the Bill update espionage legislation that goes back to world war one. Obviously we do not have time to go through all of them, but after putting the Bill into context, I will spend some time talking about clauses 13, 14, 20 and 21. The context is important. In my lifetime, and since the end of the cold war, we have lived through an era of what could be considered unprecedented global peace. In many ways, in the ‘90s, we took our eye off the ball. Once the Berlin wall came down, we took our eye off the ball on state-based threats. When things got hot in 2001, after 9/11, our national security legislation and our activity were focused much more on counter-terrorism, so now is the time to update our espionage legislation to counter state-based threats as well as counter-terrorist threats.
It is clear that state-based threats have not gone away. There are more Russian spies in London now than there ever were at the height of the cold war.
Ben Everitt
Because I have read it. [Interruption.] I will give sources to the House of Commons Library if I have to.
Those hostile threats are a real and present danger. Russia in particular is a danger. We know that the Skripal poisonings were the work of the GRU. We know that Russia continues to implement a range of hybrid techniques that undermine what it sees as its adversaries—to make it clear, that includes us. The use of disinformation, particularly through bot accounts on Twitter, has been used to foster division and political instability in countries.
The head of MI5 has declared that China, not Russia, is the biggest long-term threat to Britain’s national security. It is said that if Russia is a tropical storm, then China is climate change. This new threat requires new measures to protect us. We need to create new offences to tackle state-based sabotage. I refer to clause 13, in particular. I would argue to my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes), who is not in his place, that we do go far enough.
Part 2 of the Bill covers prevention and investigation measures, which update our legislation to mirror the counter-terrorism legislation that we learned so hard in the noughties. In many ways, that reflects the new foreign intelligence threat that we face, which is much more like the threat of terrorism from the past 20 years. Espionage has never been the gentleman’s game that is portrayed in books and films, but now, in particular, we face some pretty gruesome threats. Clause 21, on arrest and detention, is also incredibly necessary in this day and age.
In summary, I support the Bill. We must bring our espionage laws up to date and into the 21st century.
Chris Bryant
I, too, support the Bill, but I think part 3 is a complete mess. I do not think it will survive long in the House of Lords—I hope they do a proper job of scrutinising it, because we are certainly not able to do a proper job of scrutiny this afternoon. The Minister is a lovely chap, but if he were on the Back Benches, he would be saying exactly what I am saying now. We know that Ministers do that, because only days ago, the right hon. Member for Camborne and Redruth (George Eustice), the former Secretary of State for Environment, Food and Rural Affairs, told the whole House that the one thing he had been proclaiming to the world—that the UK deals with Australia and New Zealand were wonderful—was not what he really believed.
Of course, we need to tackle political interference by hostile states in the United Kingdom. Some of us have been arguing that point for a very long time, which is one of the reasons why I would like to see the tier 1 visa report published—I see the Minister nodding, so let us hope that he will have produced it by the end of the week. Secondly, I would like us to have the full Russia report, so that we know exactly what the Government knew about interference in British politics.
Some interference is overt, but much of it is covert, as the hon. Member for Milton Keynes North (Ben Everitt) has just referred to. Some of it comes not from embassies, but from all sorts of different people who approach MPs and Ministers and seek to influence the British political system. Some of it is online targeting through bots and trolls, which may be done from St Petersburg, Tehran or wherever, but some of it happens on our own streets. Sometimes, it happens in Parliament through all-party parliamentary groups that receive support, whether secretariat or financial, that comes directly or indirectly from a foreign power. We need to be careful about that. We on the Standards Committee have had direct advice from Parliament’s director of security that this is the Achilles heel of the British political system at the moment.
MPs and peers, of course, do not have the resources to be able to personally check whether the person who is coming through the door has legitimate bona fides; we simply do not have that intelligence resource. That is why one of the amendments I have tabled seeks to establish that, once somebody has registered that they are working for a foreign power, they should declare that when they come to see a Member of Parliament or Government Minister. In Parliament, we do not just register: we declare. That is a simple thing and I am bewildered that the Government are not prepared to accept it.
My new clause 2 would, very simply, make it a new criminal offence for an MP or peer to work for a foreign power that has been specified by the Government to be a danger to the country. Why would anybody vote against such a measure? I have no understanding of why the Government would oppose it. Without my new clause, the Government might decide that, for instance, Iran or Belarus was to be one of the countries on the list and introduce that by regulation, but an MP or Member of the House of Lords would be free to work for that foreign power—all they would have to do is register the fact that they are doing so. I am sorry, but I think that should be a criminal offence. People have talked too easily of treachery and traitors in the political domain over the last few years, but this is an open door to treachery and treason, and I think we should close it.
Antony Higginbotham (Burnley) (Con)
It is a pleasure to speak in this debate and to follow the hon. Member for Rhondda (Chris Bryant). I agree with everything that my hon. Friend the Member for Milton Keynes North (Ben Everitt) has said. I am incredibly supportive of the Bill overall, but I do have questions that it would be helpful to get clarity on in this debate, or—what I think is more likely—when the Bill goes to the other place. I say that because the questions and issues we want clarity on are so substantial that we cannot do them justice in the limited time we have today.
For me, those issues revolve around the foreign influence registration scheme and the exemptions to that scheme. I am mindful that the scheme was introduced into the legislation after we had taken evidence in Committee, so we did not get the chance to question some of the experts on what it would look like. I will address my remarks to clause 68 and Government new schedule 2, and to amendments 15 and 16, which stand in the name of my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith). I am particularly concerned about the legal services exemption. I do not understand why such a broad exemption is required. As my right hon. Friend said, it might be that we are just copying the US legislation, but we need a level of explanation. Removing the legal exemption is not about restricting access to legal services—we still fundamentally believe in natural justice and the rule of law—but we need transparency to prevent exactly the kind of lobbying that we have spoken about. I know that we are unlikely to vote on the amendments today, but we need that kind of transparency.
If we are trying to copy or mirror some of what the US has done, I would question the lack of any kind of exemption for academia, which the right hon. Member for North Durham (Mr Jones) spoke about. I have spoken to Universities UK, which is concerned about the enhanced tier proposed in FIRS and the impact it could have on UK R&D and on our competitiveness. The US registration scheme clearly has an exemption for
“religious, scholastic, academic, or scientific pursuits”
provided that no political activities are included.
I am saying not that there should be an exemption for academic services but that we in this House need to debate properly what exemptions, if any, should apply to the scheme. Should there be an exemption for legal services? Should there be an exemption for academic work? I do not think we have the opportunity to consider that properly today, but I look forward to following the debate in the other place. I ask the Minister to think about some of those exemptions and, if we are to proceed with them, to give a proper explanation to the House about why they might be necessary.
Stewart Hosie
The Minister said in relation to the foreign influence registration scheme that other countries have had similar provisions for some years, and of course, that is absolutely true. It is also true that the ISC is very much in favour of introducing a foreign influence registration scheme. We are concerned, however, that the scheme as proposed is more complex than the ones in the US and Australia but that it simultaneously does not go far enough, which is a problem.
Unlike the US and Australian schemes, the proposal is for the one here to be two-tiered. I welcome Government amendments 63 to 94 to restructure clauses 61 and 64, which at least makes some of this a little more comprehensible. However, that still leaves us with a primary tier that will capture all arrangements and activity undertaken on behalf of any foreign power for the purpose of influencing a political event or decision—that is welcome at face value—and a secondary tier designed to capture all other activity beyond political influence, including, for example, acting as a foreign intelligence officer. For arrangements or activity to require registration, however, they have to be undertaken on behalf of a country set out in secondary legislation, so the provision does not necessarily apply automatically to every country.
As I said earlier, it is difficult to understand why acting covertly as an intelligence officer outwith the political influencing sphere, for example, applies only where the foreign power is set out in secondary legislation. It is perfectly possible that intelligence operations will be undertaken by countries that are not named in the regulations and so will not require registration. That is self-evidently an omission and a weakness. Requiring all countries to register such activity would be a stronger deterrent.
As the scheme does not yet name a particular country that may be registered under the second tier, it is not clear which countries the Government intend to name when the Bill becomes law. It is also not clear what criteria will be used when deciding which countries to add to the list. Furthermore, as has been pointed out, these things can take some time. I do not know how swiftly the Government might react to add a new country threat, and I am certainly not at all convinced that when that threat is lifted, the Government will act swiftly to remove a country from the list in the secondary tier.
This is a bit of a dog’s dinner. The real risk is that the secondary tier, which could be valuable tool and which I want to see work, might end up not being used. As the Security Minister recognised in Committee, use of the enhanced registration requirement will be “limited”. We do not want this to be limited; we want it to be comprehensive, to be able to capture the majority of the risks. It would surely be far more effective to have one tier which applies to all countries and a broad range of covert activity.
John McDonnell
For the record and as a message to the other House, I wish to say that I believe that the Government forcing through such a serious Bill in so limited a period of time today is a matter of contempt of this House and the parliamentary process.
I rise to speak because over a decade ago I gave an undertaking to one of my constituents that I would seek to ensure that no other person would go through what he had gone through. It worries me that sometimes this House’s collective memory is lost, so it is worth reminding people of what was happening in that period. There was a culture of unaccountability—almost of impunity—among some of our services, and the way they liaised with other nation states and their intelligence services resulted in the torture of our constituents.
My constituent was a young Asian doctor, who had just finished his training. He went on an altruistic, charitable expedition to Pakistan to work in hospitals there. He was picked up and for six weeks he was tortured. At the end of each torture session, which consisted of thorough beatings, he was interrogated by what could only be MI6. It was clear to us. I saw Ministers; alongside the Ministers were civil servants, and alongside them were, I believe, intelligence officers. I got the same response as has been given today, with the same phrasing: “We do not condone or support or participate in torture.” Well, they did on that occasion, and scarred my constituent for life. Even though he is now a successful consultant, he lives in fear still.
What was happening is that decisions were taken here about the arrest of my constituent and the questions that would be put to him at the end of the torture, as though at the end of the exercise we could have clean hands. It was unacceptable. I support amendment 14 because I fear that, if we try to lift some of the protections that our constituents have, we will recreate that culture of unaccountability and impunity and others will suffer like my constituent suffered. That is why it is important not to lessen the accountability of decision makers at every level, whether they are on the frontline or in ministerial offices here.
My second point can be stated briefly. I am the secretary of the National Union of Journalists parliamentary group. What this Bill has successfully done—I have never seen it before—is unite the Society of Editors with the NUJ and various campaigning bodies. They say the provisions will
“strip away longstanding safeguards that are in place to prevent the wrongful access of journalistic material and are a risk to sources and investigative journalism more widely.”
They also say the legislation may “criminalise” some investigative journalism and “chill” whistleblowing.
It is not right to criticise Mr Speaker’s selection of amendments, but we were hoping that an amendment that was in order would be crafted at this stage to provide at least some protection—the public interest protection. That is why I support amendment 3, tabled by the Labour Front-Bench team. If the other place does not insert a public interest protection, a review of the legislation at an early stage will be critical and may result in such a provision. I congratulate the hon. and learned Member for Edinburgh South West (Joanna Cherry) and the hon. Member for Glasgow South (Stewart Malcolm McDonald) for the litany of amendments they have tabled trying to ensure at least some protection in the detail of the legislation for journalists, whistleblowers and others. I regret that it looks as though their amendments will not be made today.
Joanna Cherry (Edinburgh South West) (SNP)
I was here to speak to new clause 7 and amendments 17 to 28 and 30 to 39, but there is not enough time for me to do so. That is most regrettable, given the importance of the Bill.
I am here not in my personal capacity but as Chair of the Joint Committee on Human Rights. Our duty is to scrutinise legislation to check its human rights compliance, and we have done that. I remind Members that the Joint Committee is a cross-party Committee with half its members from the House of Commons and half from the House of Lords. That is just as well, because it will be in the House of Lords that our amendments get the attention that I believe they deserve. Although I am not really a fan of the House of Lords as an unelected Chamber, I am very much a fan of second Chambers. Nevertheless, it is regrettable that such a small amount of time has been afforded to us today to debate this important Bill, which we believe has significant human rights implications. Given the short time available to me, I shall make some general comments; as I say, I hope that our detailed amendments will get the attention they deserve in the House of Lords.
We broadly welcome the attempt to modernise espionage offences, but we have some concerns about the Bill’s provisions. The Bill is a step forward and many of its provisions are broadly in line with the recommendations of the Law Commission’s recent review, but there are risks that some of the provisions are drawn far too widely and could criminalise behaviour that does not constitute a threat to national security. We think that other provisions would interfere unnecessarily and disproportionately with rights to freedom of expression and association and the right to protest, and that they may regrettably have a disproportionate impact on certain communities in the United Kingdom, particularly if new police powers are not exercised with restraint.
The provisions on prevention and investigation measures, which were not included in the Law Commission’s review, also engage the right to a fair trial, the right to liberty and security and the right to a private and family life in a way that gives the Joint Committee cause for concern. We are also very concerned about the restrictions on the grant of legal aid and on the awarding of damages to those who have been involved in terrorism. They risk impeding access to basic rights and legal protections, as other Members have elaborated on. We have therefore suggested that the Bill be amended in a number of ways but, as I say, there is not sufficient time for me to address any of the amendments in any meaningful way.
Let me say one other thing before I sit down. The Bill does not address issues relating to the unauthorised disclosure of information—sometimes known as leaks—despite it being a significant part of the Law Commission’s review. The commission set out clearly the ways in which the existing law engages and potentially breaches the UK’s human rights commitments under the European convention on human rights, and suggested ways in which law might be changed to overcome such issues. Although the Joint Committee appreciates that this is in many ways a complex and controversial area of law, we hope that that is not going to result in inaction, and encourage the Government to consult on legislative provisions as soon as possible.
We believe that reform of the Official Secrets Act 1989 is needed to ensure adequate respect for free speech. That is why I added my name to new clause 8, tabled by the right hon. Member for North Durham (Mr Jones), which I very much regret we are not able to debate today. Put shortly, we need a public interest defence in this country.
Tom Tugendhat
This has been a very full discussion involving many people. Although I sympathise with those who have quite rightly made the point that we could always have more time for these debates, the truth is that we had a lot of time in the Bill Committee and we are going to have to do much more work on this subject as its various elements evolve with the technology and the challenge. The truth is that if we had had this debate five, 10 or 15 years ago, we would have been debating different subjects, different nations and different elements of technology that have evolved into the threat that we sadly face today. Although I recognise that many hon. Members have understandably raised the number of hours and days that we have had today and in the past few weeks, the Government have listened and adapted the Bill to many aspects that have been raised in different ways.
Chris Bryant
One thing that the Government have certainly had plenty of time to get ready is the tier 1 visa report, as promised by five Home Secretaries. When will the Minister publish it?
Tom Tugendhat
It will not surprise the hon. Gentleman to know that one of the first things I did on arrival at the Home Office was to ask for it to be prepared for publication. I will come back to him with it, I hope, urgently—I will let him know.
Many different points have been raised. I pay enormous tribute to my many right hon. and hon. Friends who have spoken and to those who have approached the Bill with the diligence and seriousness that the subject demands, particularly the hon. Members for Halifax (Holly Lynch) and for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), who have been extremely supportive critics and have been challenging in the right spirit. I am glad to say that those discussions have resulted in most of the Bill going through in the way that was intended, and that those challenges and changes have improved it.
I accept that there are some differences of opinion. On areas such as the Serious Crime Act and the changes to statutory requirements, I believe that the Government are right because the exercise of the functions of an officer of the state are exactly what should be the limiting functions of their powers. That is why this reform makes sense, although my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) raised some important points and challenges that we will have to look at.
My right hon. and learned Friend also asked about damages and whether they followed in the way that he described, and I agree that they do. The point is that we should neither make it harder or more applicable to have damages, nor prevent it where judges seek the discretion to do so. Where they have that discretion, they may continue to do it, but we are asking them to look and consider the situation in which those damages arose to make sure that they are truly applicable. It is merely a review policy, rather than a block. That is an important element of the Bill; judges may already have that power but this measure merely puts it on the statute book.
Much of the debate has focused on whistleblowers and the public interest defence, and the way in which various people could argue that they are acting in the interests of the wider polity in raising different objections. This is a hugely important area and I understand that many hon. Members have raised different points. The head of MI5, the heads of various agencies and many others who have engaged on it have been absolutely clear on this point, however, because we need to make sure that we are not introducing any defence that forces the Government to reveal the damage that has been done in order to provide a defence.
The reality is that forcing the publication of damages may indeed be further damaging to the initial offence. That is why although I take the point about the public interest defence, which is a wider question for the whole of Government and the whole country, and I take the point about whistleblowers, which is again a wider question and not specific to the Bill, I am afraid that I hold with the head of MI5 and others who have been extremely clear on this point.
Mr Kevan Jones
With the greatest respect, that is a weak argument, because there can always be closed hearings on national security grounds. I say to the Minister that this issue will not go away—the courts are deciding it anyway. I would sooner state a protection in law than leave it to the whims of a jury, which is what we have now.
Tom Tugendhat
I have a great trust in our jury system, and I know the right hon. Member does, too.
Tom Tugendhat
Oh, he does not. I do have trust in our jury system and I do have trust in the Great British people to make decisions appropriately. One of the decisions sometimes made by juries is to strike out a case because they disagree with it. I am afraid that is simply one of those—
Mary Robinson (Cheadle) (Con)
The public interest defence has been mentioned on several occasions throughout this debate. Notwithstanding the strictures of national security and of this Bill, it is important that people have a reliable route that they can take when they want to expose wrongdoing. Does my right hon. Friend consider that an office of the whistleblower might be such a route? I know the public interest defence is very likely to come forward again.
Tom Tugendhat
My hon. Friend is absolutely right to raise that. It is not specific to this Bill, but it is something that many of us have been considering for a while. I certainly agree that wider consideration is important in ensuring that those who have legitimate grievances and objections to what they may have been asked to do have a valid route for raising such questions.
I will go through a few of the other points very quickly. My right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) and my hon. Friend the Member for Burnley (Antony Higginbotham) raised the point about legal services, and they were absolutely right to do so. Let me be quite clear that this is about privileged legal co-operation. Therefore, that privilege should be exempt—it should absolutely be exempt—so that those who have access to legal rights should be able to exercise them without the state’s intervention. That is essential to the rule of law and, indeed, to the protection of human rights in our country.
I should also make it quite clear that the Government have heard very clearly the points made about civil legal aid. These will be receiving very serious consideration in the coming days, and I look forward to updating the House in due course on where that goes to.
I briefly thank for their insights my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland) and my hon. Friend the Member for Milton Keynes North (Ben Everitt) on the Government side, and of course my very dear friend, the hon. Member for Barnsley Central (Dan Jarvis). Although we disagree, again, he remains a very close friend, and I look forward to discussing more of these issues with him in the future. I shall leave it at that.
Question put and agreed to.
New clause 9 accordingly read a Second time, and added to the Bill.
New clause 3
Reviews of Parts 1, 4 and 5
‘(1) The operation of Parts 1, 4 and 5 of this Act must be reviewed by a person, or people, appointed by the Secretary of State.
(2) The operation of Part 4 must be reviewed by the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006.
(3) The operation of Parts 1 and 5 must be reviewed by either—
(a) the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006, or
(b) a different person appointed by the Secretary of State.
(4) Reviews under this section must be carried out in respect of—
(a) the 12-month period beginning with the day on which any section in this Part comes into force, and
(b) each subsequent 12-month period.
(5) Each review under subsection (1) must be completed as soon as reasonably practicable after the period to which it relates.
(6) The person or people mentioned in subsections (2) and (3) must send to the Secretary of State a report on the outcome of each review carried out under subsection (1) as soon as reasonably practicable after completion of the review.
(7) On receiving a report under subsection (6), the Secretary of State must lay a copy of it before Parliament.
(8) Section 36(6) of the Terrorism Act 2006 shall be read such that the “expenses” and “allowances” mentioned therein may include the discharge by the person or people of their functions under this section.’—(Holly Lynch.)
Brought up, and read the First time.
Question put, That the clause be read a Second time.
Tom Tugendhat
I beg to move, That the Bill be now read the Third time.
It remains for me to thank enormously my right hon. Friends the Members for East Hampshire (Damian Hinds) and for Stevenage (Stephen McPartland), who did so much to get the Bill to the right place; my right hon. Friend the Home Secretary, who has very graciously left me to get on with this; and all the Members who have been so helpful.
My great thanks go to the intelligence and law enforcement agencies in particular. Their extraordinary courage and skill have earned more than my admiration, respect and gratitude for many, many years, but never more so than in the last few weeks, in which I have been privileged to serve them.
It is worth pointing out very quickly one or two elements of the Bill that I have not yet had the chance to touch on. Let me make it absolutely clear that there is no possibility—no way, no desire, no intent—that any area in this Bill, or in any other that this Government would pass, would in any way diminish the unqualified right not to be tortured. That is an absolute right that this Government and, I know, other Governments, would all hold to. I should be absolutely clear that not only is there is no desire in this House for that to change, but there is no such desire in any of the services and agencies with which I have had the privilege of discussing it.
What our Government, our agencies and those who hold office in our name all know very well is that they are defending our rights and freedoms when they defend the rule of law. They are absolutely championing the values and liberties that matter to us. In the Bill, we are evolving from trying to stop spectaculars such as the tragedies that hit on 9/11 to employing spectrometers—finer points of detection—to try to ensure that we eliminate risks that come in different ways. That is why I am so grateful to them all for the advice and help they have offered to ensure that the Bill is structured as it is.
I should make it quite clear that the Bill has opened up an area in which we will need to go further and in which I am glad the Prime Minister has asked me to go further: the defence of democracy. Our democracy in this country has sadly been under attack for too long. We are not alone; we know that our friends in other parts of the country and other parts of the world have faced similar attacks and similar areas of influence. I am delighted that the taskforce that the Prime Minister has asked me to lead will get on with its work very shortly, updating the integrated review and helping to ensure that this country is ready for the changes in the threats that we face so that the ultimate sovereignty of our people—the right to choose—is guaranteed and defended long into the future. That means that we have to set up not just powers to empower those agents who work in our name, but the guardrails to defend that right.
I am very glad that the Bill includes such provisions as the requirement for the Attorney General’s consent—the Advocate General’s in certain cases—to make sure that none of the powers is abused in any way. I am delighted that we have got that in the right place, because we know, sadly, that abuse is always possible.
I will end with the words of Ken McCallum, the director general of MI5, who today was very supportive of not only the Bill but many of the measures that his service has been carrying out. He has been inspirational in his leadership of his service and his defence of the United Kingdom, so I am delighted by his welcome for the foreign influence registration scheme, describing it as
“a modern power designed to tackle a modern threat”.
He is absolutely right, and the scheme is essential. For those reasons, I am grateful for the support we have had from the hon. Members for Halifax (Holly Lynch) and for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), and other Members across the House.
Holly Lynch
I rise to confirm that the Labour party supports the Third Reading of this Bill.
It is the first job of every Government to defend our national security from hostile states that wish to do our country harm, and from malign actors and extremists who want to undermine our democracy and everything we stand for. That is not a principle that divides us along party lines; it unites every Member of this House. It is why throughout the Bill’s passage we have worked with the Government to get the detail right and to defend our shared interests, and why we will continue to do so.
Our world-leading intelligence and security agencies do incredible and unseen work, day in, day out, to keep us safe. We pay tribute to them and thank our brave officers and staff for their service. I also thank those in policing, the Home Office and the intelligence community for the way they have engaged with me and other hon. and right hon. Members involved in scrutiny of the Bill.
The threat posed by hostile states is on the rise. The annual threat update given today by Ken McCallum, the director general of MI5, was a daunting assessment of the breadth and nature of the threats facing the UK. However, we remain concerned about clause 27 in particular and some of the details of the Bill, and we will continue to work with the Government and all those in the other place to find resolutions to those outstanding issues.
Labour supports the Bill because we could not take national security more seriously. We know that our democracy can be defended only when our agencies are equipped with the powers and tools they need, and when we can all have confidence in the procedures and oversight that accompany them.
Stuart C. McDonald
I, too, thank all colleagues for their involvement and engagement in the Bill, even if we could have done with a little more time for that today. I also thank all the officers and staff of the Home Office and the agencies for their engagement. They have persuaded us of the merits of large parts of the Bill, if not quite all of it. I want personally to thank my right hon. Friend the Member for Dundee East (Stewart Hosie) for keeping me right on lots of these issues, and my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) for her detailed work with the Joint Committee on Human Rights.
We do need a Bill of this nature—in fact, a Bill of this nature is long overdue. There are still dangers—as I said on Report, we have to make sure that we do not criminalise people the Bill is not intended to criminalise or leave loopholes for people who should be criminalised, and that we rein in some of the more excessive powers—but the Government have listened to some of our concerns and responded positively to some of the amendments. I just encourage them to listen more as the Bill proceeds.
Question put and agreed to.
Bill accordingly read the Third time and passed.
Mr Robin Walker (Worcester) (Con)
On a point of order, Madam Deputy Speaker. Further to the announcement from the Chair on the result of the Education Committee elections, I would like to put on the record my thanks to the Clerks who organised today’s elections and to all colleagues who voted in them. I recognise that a number of excellent candidates ran for the post of Chair of the Committee, and I pay tribute to all of them for the respectful and constructive tone of their campaigns.
Nothing can be more important for the future of our country than how we educate and support our children. I pay tribute to the excellent work of my predecessor, my right hon. Friend the Member for Harlow (Robert Halfon), in holding Ministers to account for that. I am grateful for the support of esteemed colleagues in all parts of the House in allowing me to follow in his footsteps.
Iain Stewart (Milton Keynes South) (Con)
Further to that point of order, Madam Deputy Speaker. May I also put on the record my grateful thanks to the staff of the House for the conduct of the Transport Select Committee election earlier today? I am very grateful to have won the support of colleagues throughout the House. I pay tribute to the other candidates. I think the election somewhat taxed the arithmetical skills of the counters a little more than the election for the Education Select Committee, as it went through all the rounds of the contest. We had a good-natured and humorous campaign. I should mention in passing my hon. Friend the Member for Lincoln (Karl MᶜCartney) and his innovative and tuneful campaigning style.
I very much look forward to chairing the Committee. Transport affects all our lives and all our constituents. I look forward to digging deep into the many issues and challenges that are coming forward. In the two hours or so since the result was announced, I think I have received about 20 different requests for the Committee that I look forward to fielding. Again, I offer my grateful thanks to all colleagues.
Madam Deputy Speaker (Dame Rosie Winterton)
I thank the new Chairs of the Education Committee and Transport Committee for their points of order. I am sure that everyone in the House will have appreciated their kind words, not least those about the other candidates in the elections. I congratulate both hon. Gentlemen. I am sure they will have an enjoyable and interesting time carrying out the very important job of scrutinising the Departments, which I know everyone in the House appreciates—Ministers particularly appreciate that work. Many congratulations, and thank you also for your kind words about the staff of the House and their facilitation of the elections.
Stella Creasy (Walthamstow) (Lab/Co-op)
On a point of order, Madam Deputy Speaker. I wonder whether you might be able to advise me on a slightly more sombre subject. In a question earlier today, the Immigration Minister responded to a concern raised by the hon. Member for Buckingham (Greg Smith)—I have been trying to find him to say that I was going to raise this issue—regarding the absconsion of a gentleman who it subsequently transpires from press reports has been accused of a very serious assault of a young refugee child in my constituency. The Minister said he would investigate the matter and come back to the hon. Member. Can you advise me, Madam Deputy Speaker, on how I can ensure that, given that the matter took place in my constituency—we were not aware at the time—I get an update on the issue as well?
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
Further to that point of order, Madam Deputy Speaker. The reports of the case are very serious and raise some questions about how the Home Office has handled this case. We do not know the full circumstances at the moment, but could you use your good offices to ensure that the Immigration Minister updates us and fully investigates this case?
Madam Deputy Speaker
I thank the hon. Lady and the right hon. Lady for their points of order. Obviously I do not know the background to this case, but I can see that it is a very serious issue. Government Ministers are present and I think the Minister for Security may wish to intervene.
The Minister for Security (Tom Tugendhat)
Further to that point of order, Madam Deputy Speaker. I am sure that I speak for the Immigration Minister and the Policing Minister when I say that they will both look into it very carefully. I am sure they will return to answer these questions.
Madam Deputy Speaker
I thank the Minister; that is extremely helpful. I know that it will be fed back that this has been raised, that it is a serious issue and that the House would like some further information about what has happened since.
National Security Bill
Thursday 17th November 2022
(2 years ago)
Lords ChamberRead Full debate National Security Act 2023 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 16 November 2022 - large print - (16 Nov 2022)
National Security Bill
Tuesday 6th December 2022
(1 year, 11 months ago)
Lords ChamberRead Full debate National Security Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 16 November 2022 - large print - (16 Nov 2022)
Lord Sharpe of Epsom
That the Bill be now read a second time.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, the first responsibility of any Government is to ensure the safety of their citizens, both at home and abroad. For this Government, it is not just a responsibility but an absolute priority. The introduction of the Bill is a result of the manifesto commitment to ensure that our law enforcement and intelligence agencies have the powers they need to combat the evolving nature of state threats. That is why we are adopting a robust and front-footed posture. The Bill will confront and tackle state-threat activity that may seek to undermine the democratic principles of the United Kingdom and the security of its people.
I know noble Lords will all join me in paying tribute to those in our law enforcement and intelligence agencies, who go above and beyond to keep us all safe every day. They are the very best of us and they have my enduring gratitude, respect and admiration. For all that they do, we must hold up our end of the bargain and ensure that they have the necessary tools and powers to do their vital work, which is precisely what we will do through the measures in the Bill.
It is worth looking back for a moment to understand the context in which we are discussing these matters. Russia’s recent illegal invasion of Ukraine has shown the essential need to bolster our national security and ensure that we have the ability to counter state threats. The House will also recall the events in Salisbury in 2018, which are a clear reminder that we need laws that seek to deter serious harm from being inflicted on our soil. As that outrageous episode underlined, the dangers we face are real. We must continue to develop our robust and effective apparatus and act now to further harden our resilience. This is why the National Security Bill introduces enhanced powers for our intelligence and law enforcement agencies to do even more to counter state threats and strengthen the security of the United Kingdom.
States are becoming increasingly assertive and sophisticated in how they advance their objectives and undermine the safety and interests of the UK. It is therefore essential that we are able to deter, detect and disrupt state actors that seek to harm the UK by covertly targeting our national interests, sensitive information, trade secrets and democratic way of life. The National Security Bill will protect these interests and uphold our democratic principles, consolidating the safety of our citizens through essential new measures designed to address an ever-evolving threat. We are determined to advance the safety, security and prosperity of the UK, and the Bill is designed to achieve precisely that.
I will now speak to the key measures set out in the Bill. The Bill will modernise the law against espionage, replacing the 1911 to 1939 Official Secrets Acts. New offences of foreign interference have been carefully designed to tackle the threat from any foreign power that chooses to act with malign intent. It is important to stress that these offences are actor-agnostic, and any state or individual seeking to harm the UK will be met with the full force of these newly established powers and tools, regardless of their origin.
These offences, and the others introduced in Part 1, will enable the disruption of illegitimate influence by foreign states intent on advancing their own interests or seeking to damage the UK. It will be an offence for foreign powers improperly to interfere with our democracy and civil society through covert influence, disinformation and attacks against our electoral process.
The Bill also has police powers designed to address the specific threat of foreign power activity. There are specific powers of arrest and detention which reflect the threats posed by such actors. There are also additional police powers to support investigations into foreign power threat activity, focusing on obtaining information on financial activity. These powers will ensure that the police have the tools they need to fully investigate state threat activity and bring those acting for foreign powers against UK interests to justice.
Furthermore, the amendment to the Serious Crime Act 2007 will provide essential protection to those who discharge authorised national security functions on behalf of His Majesty’s Government. The amendment will enable more effective co-operation with our international partners. It is about addressing operational challenges and removing the personal risk that trusted and dedicated individuals face for carrying out their proper, official duties on behalf of our intelligence community and Armed Forces. I welcome the comments of Sir Alex Younger, the former head of our Secret Intelligence Service, who correctly highlighted that it is morally wrong that the risk of liability should sit with individual officers acting on behalf of our agencies. Any risk should rightly sit with the Government and this amendment supports that aim.
Preventing and disrupting state threats is one of the Government’s prime concerns. In a very small number of cases, it will still not be possible to bring a prosecution forward. We must therefore ensure that a backstop is in place to prevent state actors conducting harmful activities in the UK. We will introduce new state threat prevention and investigation measures, enabling restrictions to be imposed, when necessary, where there is a reasonable belief of involvement in foreign power threat activity.
It is important to clarify that this will be a tool of last resort, to be used only where it is believed that there is involvement in foreign power threat activity, there is a necessity to impose measures and a criminal prosecution is not available. These measures will also remain proportionate to the specific threat posed by an individual and be subject to rigorous checks and balances, including by the courts, to guarantee their appropriate use.
The Bill will also introduce measures to prevent the exploitation of the UK’s civil legal aid system by convicted terrorists. It will protect the UK’s civil damages system by ensuring that terrorists’ own misconduct is taken into account in an award from public funds. Courts will also be provided with the ability to order that civil damages awarded to a person are frozen or forfeited where those funds might be used to support terrorism. These provisions will allow the Government to take steps to ensure that a claimant’s damages cannot be used in this way.
With regard to legal aid, access to publicly funded services is a benefit of being part of a democratic society. This Government remain wholly committed to providing legal aid funding for those unable to resolve their issues alone, but there must be a line. Individuals who commit acts of terrorism are rejecting the values of state and society and it is right that the benefit of legal aid—a benefit of our democratic society —is removed from them. These measures will help instil a rigorous process that provides greater transparency around how public funds are distributed.
The Bill will also introduce a foreign influence registration scheme, requiring certain foreign activities and influence arrangements to be registered. The scheme’s aims are twofold: to strengthen the resilience of the UK political system against covert foreign influence and to provide greater assurance around the activities of certain foreign powers or entities.
I must make clear that we will continue to welcome open and transparent engagement from foreign Governments and entities. The scheme itself will play a critical role in encouraging such transparency and, crucially, will deter foreign powers that wish to pursue their aims covertly. The implementation of this scheme delivers a key recommendation of the Intelligence and Security Committee’s 2020 report on Russia and has been assisted by consultation with our friends in the United States and Australia, which have implemented similar schemes.
The National Security Bill is a dynamic piece of legislation that reforms our approach to hostile state actors and the threats that they pose. The introduction of our foreign influence registration scheme will ensure safety in our systems and transparency in our political processes. I look forward to engaging with all noble Lords on the Bill. I welcome discussion both today and as this essential piece of legislation progresses through this House. As I hope I have demonstrated in this speech, the Government are steadfast in their determination to protect our people, our values and our democracy. With that critical objective in mind, I beg to move.
Lord Coaker (Lab)
My Lords, I thank the Minister for his introduction and the very helpful briefings he has given me. I also thank the services for arranging that. While in the business of thanks, I thank the services for all they do on our behalf now, in the past and in the future.
First of all, I will set some context for this Second Reading debate. We are all united in our desire to protect our country, our democracy and human rights and freedoms across the world. We agree with the Joint Committee on Human Rights, which said in its recent report that, overall, this Bill
“is a welcome attempt to modernise espionage offences … and … broadly in line with recommendations of the Law Commission’s … review”.
We support the passage of the Bill and much that is in it.
The Bill introduces new measures to update the protection of the UK’s national security, the safety of the British public and the UK’s vital interests against modern hostile activities and threats posed by state and non-state actors. Many of these threats reflect the modern age in which we live, through cyberattacks and information and disinformation campaigns that are used to undermine or destabilise our institutions or policies, with direct interference always a possibility. All of this is delivered in ways and by using methods that were unthinkable in the past, so change is long overdue.
However, in responding to these changes, in renewing our national security interventions and in reflecting on our policies, we should never undermine the very values that we cherish and seek to protect. So, as I said, in supporting the Bill, we will challenge the Government, hold them to account and challenge them to explain why certain policies and powers are needed. This is not to undermine national security but to demonstrate confidence in our institutions. Transparency and openness are, as far as possible, a strength. Shining a light on what we do—debating security in this Parliament and implementing actions that are then subject to scrutiny here and in the courts—stands in sharp contrast to other states and bodies across the world that are shrouded in mystery and operate in total secrecy in the shadows. The contents of this Bill, therefore, are to be welcomed in general, but there are areas which need further debate during this Second Reading, in Committee and beyond.
First, I say to the Minister that, in discussing such changes and details, there must be absolute confidence that the Government practise what they preach. Does the Bill make it absolutely clear that a Foreign Secretary, or any other Minister, should not be meeting former KGB officers in secret and without officials, and that, if advice is given by the Security Service about the appointment of any Peer, as reported, it is acted on? The Public Administration and Constitutional Affairs Committee said in its report, published just last Friday:
“The reappointment of the home secretary sets a dangerous precedent. The leaking of restricted material is worthy of significant sanction under the new graduated sanctions regime introduced in May, including resignation and a significant period out of office.”
In his response, can the Minister reassure us all that everyone in the Government will act according to the principles that have been have laid out, and that the Bill will help to achieve this? It seems to me that someone working for any of the services doing the same would at least have been severely reprimanded, if not sacked.
Clause 1(1)(b) refers to
“the safety or interests of the United Kingdom”,
and the term is used or implied throughout the Bill. Who decides what that is? What are the “safety or interests” of the UK; what does the term include and exclude? Sometimes there is real debate in this House as to what the actual interests of the UK are. Should we not seek to define that, rather than just leaving it to the courts? Too often, we abrogate our responsibility; we are the legislators, and we should debate such issues. Again, as the JCHR says:
“More thought must be given to how the legislation will affect whistle-blowers, protesters and journalists who are engaged in activities which are part of a healthy functioning democratic system.”
This was a warning from a cross-party Joint Select Committee of this Parliament. Do we need a public interest test in the Bill? I have no doubt that this will be debated. What protections are there for investigative campaigners and journalists? It simply will not be good enough for the Government to say that there is nothing to fear. What does it mean that an offence is committed only if the “foreign power condition”, which is explained later in Bill, “is met”? Yet, from Clause 29 onwards, the clauses do not say “hostile power”, so the scope is extended, and we will need to discuss and debate that.
Who has to register under the lately added foreign activities and foreign influence registration scheme? How were the exemptions in Schedule 14 arrived at? A lot more detail and clarity will be needed. The Minister will have to be a lot clearer than, for example, in Clause 63, which states that “specified persons” will be “specified … in regulations”.
So many bodies, groups and individuals receive foreign support quite legitimately. We are told by the Campaign for Freedom of Information that the following have recently received or receive some funding from foreign Governments for their international work: Action Aid, Anti-Slavery International, ClientEarth, Global Witness, Privacy International and Reprieve, to name a few. Are they affected by the regulations in the legislation? Who else is and why? These are serious questions. Protecting information should not be about protecting Governments from the exposure of mistakes, embarrassment or worse.
In keeping the Bill—or Act as it will be—under review, who will be the independent reviewer? Jonathan Hall, the Independent Reviewer of Terrorism Legislation, keeps TPIMs under review. Will it be him or his office or whoever follows him? Will they be responsible for the STPIMs in the Bill? What about other parts of the Bill? Mr Hall has said:
“My answer is that I think it actually is quite a good fit for the reviewer’s job, and I think it probably is right that the person who does the independent review of terrorism legislation should also do the state threats legislation.”—[Official Report, Commons, National Security Public Bill Committee, 7/7/22; col.6.]
Do the Government agree? What is the thinking on that?
Surely, as the Minister outlined, one of the most contentious parts of the Bill is Clause 28. It creates an exemption under the Serious Crime Act for MI6, GCHQ and our Armed Forces when acting in the proper exercise of any function of an intelligence service or Armed Forces. We believe that this would remove the need to get a Section 7 authorisation under the Intelligence Services Act 1994, which allows the Secretary of State to give immunity from civil and criminal liability for pre-authorised crimes abroad. We believe there is a real risk that Clause 28 removes the role of Ministers even when there is a reasonable defence also available. The implications that possibly result from this are clear and, at the moment, unjustified. Why do the Government believe it necessary? As the House of Commons Library briefing stated:
“The provision therefore appears to be intended to extend immunity from criminal prosecution to actions which could not be proved to have been reasonable.”
This is hugely contentious and, notwithstanding what we may hear about further reassurances given to the ISC, it clearly cannot in its present form be right. Many senior MPs of all parties have criticised the clause for allowing actions with no safeguards, such as ministerial approval. As my colleague Holly Lynch MP said, or as David Davis MP said, how will we be able to criticise other nations for laws which allow their services to conduct foreign operations in that way when we will have a law which will do the same?
There are many other aspects to the Bill, including restricting the award of damages and the granting of legal aid, which will require debate. We also look forward to associated actions regarding the online harms Bill and what liaison is taking place for that. The need for joined-up government is clear if we are to take the example of Hikvision. Does this Bill deal with a technology that has raised such security concerns that the Government themselves will exclude it from their own buildings? In Committee, the Minister also committed to considering whether the Bill should clarify whether only sites located in the UK can be designated as places of detention. Has that been clarified?
We all wish to ensure national security. We all wish to modernise to meet the fresh challenges and the new threats we face. This Bill is an important chance for us to debate where the line should be drawn between security and our freedoms and democracy. Eroding those freedoms and human rights cannot be justified simply by saying “security” or “national interest”. They need to be argued for, with careful decisions made as to the correct balance. This Bill gives us the chance—the opportunity—to do that and we should take it. In doing so openly and transparently, we can showcase our democracy and respect for freedom even in the face of the new threats we face. Of that we can, and should, be proud.
Lord Marks of Henley-on-Thames (LD)
My Lords, in general we support the aims of this Bill. We agree that our national security law needs updating, and we agree that many of the threats posed by foreign actors to our national security are new and require fresh and targeted solutions. The Bill attempts to achieve all that and in many ways, which the Minister ably explained, it does so. I add our thanks to those of the Minister and the noble Lord, Lord Coaker, to the security services for all the brave, efficient and crucial work they do to protect our national security. However, we have a number of concerns. I shall concentrate largely on the criminal offences proposed in Part 1 of the Bill.
Our first concern is one of principle, because restrictions proposed in the Bill threaten important rights and liberties, but we are also concerned that the Government have missed serious adverse and almost certainly unintended and unforeseen consequences which follow from this proposed transformation of our national security law. These concerns overlap, where there are restrictions of our rights and liberties which were almost certainly unforeseen, and I shall deal with them together.
Our first objection in principle is that the breadth of many of the definitions in the Bill would substantially and unacceptably broaden the scope of the protections ostensibly afforded to national security. Let us consider protected information. The definition within Clause 1 is unduly wide. It covers any information where
“it is reasonable to expect that access to the information … would be restricted in any way”.
So the information does not need actually to be restricted to classify as protected information, disclosure of which is to be criminalised by the Bill.
Then there is the foreign power condition—the foundation of a major expansion of the reach of the national security provisions, and applicable to a number of the new proposed offences. I quite understand the need to replace the concept of a national enemy with the concept of a foreign power, in the attempt to update our legislation and rid it of old-fashioned distinctions between friend and foe and to make it “actor-agnostic”, as the Minister described it. But the attempt is not trouble-free.
In particular, the foreign power condition must be met for an offence under Clause 1 of obtaining or disclosing protected information to be made out. The condition is defined by Clause 29 and relates, broadly, to conduct that is carried out for or on behalf of a foreign power, which may be any friendly non-UK Government. Conduct qualifies as carried out for or on behalf of a foreign power if it is carried out with financial or other assistance provided by a foreign power, so a state-backed broadcasting organisation or state-run company funded by a friendly Government would have such financial assistance. It follows that anyone who obtains or discloses information which they “ought to know” is prejudicial to the interests of the United Kingdom, however defined—and I agree with the noble Lord, Lord Coaker, that there is no definition available; it is a desperately controversial test—on behalf of a foreign nationally owned broadcaster is at risk of prosecution and conviction of this very serious national security offence.
The freedom of journalists working for foreign broadcasters might be substantially restricted if, for instance, they came by and used leaked information which the UK Government might prefer that they did not have and thereby found themselves at risk of being prosecuted for a Clause 1 offence. The relationship between the conduct and the foreign power may be indirect, so any such conduct meets the foreign power condition wherever it appears in the Bill. For example, it also appears in the definition of the new offence of obtaining or disclosing trade secrets under Clause 2, which carries a maximum term of 14 years. Clause 2 again is very widely drawn; it covers unauthorised obtaining, recording or retention of a trade secret, for whatever purpose, on behalf of any body deriving financial assistance of any sort from a friendly overseas government body. This presents a significant threat to a wide range of investigative journalism on matters of importance and public interest, which ought to be aired in public even if the owners of such information might regard such airing as highly unwelcome.
In the unforeseen consequences category, the Clause 3 offence of assisting a foreign intelligence service presents a serious difficulty. Under this Bill, the foreign intelligence service can be that of any friendly foreign country; an offence under the clause, again carrying a 14-year term, penalises all conduct to assist any foreign intelligence service in carrying out UK-related activities—that is, any activities, of whatever nature, taking place in the UK. So, a UK citizen who assisted Mossad within the UK to recover goods looted by the Nazis, or who helped the CIA find and arrest war criminals, would be guilty of an offence, unless they could show that they were acting under a UK legal obligation or effectively on the direction of the British Government. If they could not show that, I can see no defence under the clause as drafted. How can that be right?
The unauthorised entry to a prohibited place offence under Clause 4 is also far too wide, penalising even inspection of a photograph of a prohibited place, even for journalism, if the accused should have known that the purpose was prejudicial to the interests of the UK. And that is not just UK defence or security interests, but any interests at all. So, photographs of any environmentally damaging activity carried on by government as a matter of policy—fracking, for example, if it were ever again authorised—would count. That is not the defence of national security; that is the suppression of legitimate investigation and dissent.
The Home Secretary told the House of Commons in a Statement on national security and this Bill in particular on 1 November, a week after her reappointment:
“Now, as our markets integrate, we need to think about the future of our industry and innovation. Our economic security guarantees our economic sovereignty just as our democratic security guarantees our freedom … Britain has been on the frontline of the defence of liberty for generations”.—[Official Report, Commons, 1/11/22; col. 790.]
The Bill fails to ensure that the steps we take to defend our liberty are targeted and limited to what is necessary for that defence of liberty. So, the first task for this House at the later stages in the Bill will be to cut down the scope of conduct that is unnecessarily and wrongly caught by the Bill as drafted.
However, much of the discussion on the Bill has been as to whether there should be a public interest defence to the new offences. We regard such a defence as essential. It offers the prospect of avoiding convicting journalists, investigators, campaigners, whistleblowers and many others who should not be targeted by the criminal law at all. Such a defence must be broad enough to protect the free flow of information on which democratic political discourse depends, and it must protect from criminal sanction activities that may infringe private rights of physical or intellectual property where such infringement is justified in the public interest. As the NUJ briefing, which many of us will have received, put it succinctly:
“There should be no situation in which journalists risk being classed as spies or traitors … A free press is one of the conditions of a pluralistic democracy and the UK government should not close down scrutiny of its activities.”
I do not believe that the public interest defence should be available only in Clause 1 cases of obtaining or disclosing protected information. It should be no less applicable in cases under Clauses 2 to 5 and Clause 16, and possibly Clauses 13 and 15 as well.
The possible conditions of a public interest defence have been widely discussed, but I suggest they should include, in some form, each of the following. First, it should be for the defendants to raise the defence. I leave open the question of whether the burden of proof should be on the defence to prove the defence, or whether, once that defence is raised, it should be for the prosecution to rebut it. However, if the burden is to be imposed on the defendant to prove the defence, that should be on the balance of probabilities, and it should also be specifically incumbent on prosecuting authorities to consider the prospect of such a defence succeeding before a decision to prosecute is made. Unnecessary and unmeritorious prosecutions cause untold heartache and substantial loss. The prospect of being prosecuted has a serious chilling effect on conduct in the public interest, and the risk of such prosecutions should be carefully weighed before they are ever brought.
Secondly, the manner in which the defendant has acted should always be a factor to be considered. Thirdly, so too should the good faith of the defendant be considered, and whether or not the defendant reasonably believed that their conduct was in the public interest. Fourthly, proportionality should always be a factor, whether or not the conduct was no more than was necessary to protect the public interest asserted by the defendant. Fifthly, whether or not the conduct was for personal gain should be considered, but the fact that a defendant stood to gain from their conduct should not be enough to rebut the defence; after all, journalists stand to gain from scoops. Finally, a jury should always be left to consider the overall reasonableness of the defendant’s conduct in the light of a balancing of possible harms risked against possible benefits to be derived by the public.
In an interconnected world, many of us work in a number of professional fields, collaborating with agencies of foreign Governments. Particularly sensitive is the work of journalists, academics, researchers in commercial fields, and many working directly for friendly foreign Governments and international organisations. My noble friend Lord Wallace of Saltaire will elaborate our concerns about the foreign influence registration scheme, or FIRS, and the degree to which academics will be snowed under by a bureaucratic avalanche in working out what they need to do to comply with this law’s requirements, and then in undertaking the necessary registrations to comply with an unnecessary and overcomplicated registration system which threatens to stifle and deter international academic co-operation. Journalists, broadcasters and researchers in the commercial world, as well as the media, are equally under threat.
On a happier note, it is a relief to note that the Government have excluded giving and taking legal advice from the scope of this part of the Bill; a completely justified protection of legal professional privilege and the right of all to secure legal advice in confidence. However, the Bill contains a pernicious attack on the right to equality before the law. Clauses 82 to 84 give a court power to reduce damages payable by the Crown to any claimant bringing national security proceedings against the Government. But national security proceedings include any case where any of the claimant’s evidence or submissions, of whatever nature, relate to the activities of any security service, here or overseas. So if a claimant sues the UK Government—any department—and adduces evidence of wrongdoing by, for instance, the Saudi or Rwandan intelligence services, the Crown is entitled to seek an order that the damages will be reduced, and to seek that order at any stage in advance of final judgment. Granted that one of the factors the court must take into account is whether the claimant has been guilty of terrorist wrongdoing, but the lack of that factor does not avoid a reduction in damages. That is inequality before the law. It hands the Government a tool to stifle legal claims against them. It is inimical to liberty.
So too is the proposed ban of up to 30 years on the grant of civil legal aid for anyone convicted of any terrorist offence or an offence having a terrorism connection. The ban is not just for the most heinous terrorist offences but minor accomplice offences, which may have been committed by a family member and which, as the Joint Committee on Human Rights and the Law Society point out, may not be of a very serious nature. Further, the legal aid ban is not just for proceedings connected with terrorism but any civil legal aid to which they might be entitled for any purpose, thus largely putting them outside the protection of the law.
Although the general tenor of the Bill and its purpose are understood and accepted, at the later stages of this Bill we will be trying to make sure that it properly reflects the concerns that we have.
Lord Evans of Weardale (CB)
My Lords, I welcome the introduction of this Bill. It has been very clear for many years that our official secrets legislation is extremely elderly and was set up to counter threats that have changed and developed a great deal. It is right that we should be revisiting it. I hope that, in due course, the Government will seek an opportunity to revisit the Official Secrets Act 1989, which is also in need of reform, in my view.
For most of the last 20 years, the principal threat to national security we have faced in this country has been terrorism. While the terrorist threat continues to be very significant, throughout that period we have also faced state threats and foreign interference in this country’s activities. From time to time, that has become evident—for instance, with the Litvinenko killing or the Salisbury attacks—but much of what was going on was not visible. Indeed, many people, including some in public life, did their best to turn a blind eye to foreign interference activities throughout that period. That has been much harder to do since February and the atrocious invasion of Ukraine by the Russians. However, it is important to recognise that the threat of foreign interference does not come from just one country. We have seen a variety of foreign threats from several countries over that period, including a number of countries one would have viewed as a friend or ally in any other circumstances. Therefore, we need to have the ability to push back against foreign interference that is a threat to us, from whichever country it originates. In that regard, I think the Bill gets the balance correct.
The Bill also learns from a number of the legal measures that have been put in place to counter terrorism over the last generation. The introduction of prevention and investigation measures in respect of foreign interference seems to me an appropriate measure. We have been very careful in this country to apply the terrorist PIMs carefully, proportionately and in very small numbers, and I think we will learn from that in the way we apply the same mechanism to foreign interference threats.
I welcome the introduction of a foreign interests registration system; we have had a gap in our armoury on this for some time. It has worked well in the United States and Australia, and we need now to introduce similar legislation here. I have some sympathy for some of the concerns expressed about the definition of foreign interference, and I hope that, in Committee, we will be able to refine the definition and make sure that it bears heavily on those who cause a real threat but not on those acting legitimately. There are areas of concern here.
I welcome the proposals to introduce an offence relating to interference in elections, but I do not think that it goes far enough. I declare an interest as chair of the Committee on Standards in Public Life. In 2021, the committee produced a report on the regulation of election finance, which made a number of recommendations to tighten up the electoral system against the risk of foreign money and inappropriate finance coming in. I regret to say that the Government accepted almost none of the recommendations made at that point, but I wonder whether there might be a greater openness to such changes post Ukraine. I note that the Electoral Commission itself—in the briefing note it prepared on this legislation—made recommendations for tightening our election finance system which were broadly similar to some of the recommendations made by the Committee on Standards in Public Life.
The proposals in the Bill are worth while, but they do not go far enough. They still leave a wide opportunity for, for instance, companies to donate into the electoral system even though they have not earned the money from which the donation would come in this country. Where has that money come from? It has come from abroad.
The provisions in the Bill do not make any changes to, for instance, associations—I cannot think of the word, but there is a particular phrase which basically means any group of people who want to get together and donate money but do not want to be accountable as to who they are. That model of donation seems to me to be extremely open to abuse, not just domestically but internationally. So there is some progress here, but we have not gone far enough.
There are a number of areas of controversy in the Bill, as has already been stated, in particular the question as to whether there needs to be a public interest defence. I have some reservations on that proposal. I cannot think of any disclosures in recent years, even those that have been extremely damaging to national security, when the person making the disclosure has not claimed to be acting in the public interest. Edward Snowden is a good example of that; happily, he has just got his Russian citizenship, on which I am sure we wish to congratulate him.
The problem here is not that action needs to be taken against people who are genuinely acting in the public interest; it is the evidential problems of demonstrating whether the public interest has been engaged. That is a really big problem when you are talking about intelligence and the intelligence investigations that may lie behind that. We do not want to compound the damage by having to argue against a public interest defence. A similar issue appears in the Official Secrets Act 1989 with the definition of harm.
On Clause 28, I have complete sympathy with anything which provides protection for individual officers in the intelligence agencies or the military who are undertaking difficult and complex operations overseas. They need our support and protection. It is also extremely important that we retain the confidence of our allies, because so much of our national security is tied up with the strong alliances that we are part of.
Nevertheless, I recognise that we do not want to put ourselves in a position where it appears that we are endorsing illegal action which would be contrary to our values overseas. I use the word “appear” advisedly. I have no doubt that the agencies operate to high ethical standards and go to great lengths to ensure that they behave in an ethical and appropriate way in their operations, whether in this country or overseas, but we do not want to be easily accused of opening the door to unethical practice. I hope it will be possible in Committee to find a way of closing the gap between those who feel there needs to be protection and the concerns as to whether that protection is too broadly cast.
Finally, the timeliness of this legislation is extremely attractive. It is nice that we are in a good position to push back against foreign interference today, given the evidence that Russia is doing everything it can not just to destabilise Ukraine but to push back against the strong international co-operation and common disgust at what has been going on in that country. From that perspective, this is timely legislation and I welcome it.
Baroness Ramsay of Cartvale (Lab)
My Lords, this is a long and detailed Bill which is clearly the product of much consultation and effort over a considerable amount of time by all those currently engaged in the defence of the security and well-being of our country. I am grateful for the detailed introductory letter that we all received from the Minister.
All the challenges facing us are shared by our allies. There is an issue for all parliamentary democracies of how to fight hostile state threats in all their complexity without compromising our own ethical principles and standards. All other Five Eyes partners have reviewed or are reviewing their own legislation. There will be opportunities for detailed discussion on specific points as the Bill progresses, but today in Second Reading I want to make, as briefly as possible, some general points from my own past professional experience and membership of the ISC.
Co-operation among our own security and intelligence services is, and has been in recent years, extremely close and interlinked—something that is much envied by some of our closest allies. It was not always thus. As late as the 1960s, there was much less understanding between MI5 and MI6, but happily that has completely changed, which is very much to the credit of the leaderships and members of both organisations.
On reading parts of this Bill, it struck me that much of it is codifying into law what has developed as good practice already. This seems to confirm that much which should already have been in legislation is in fact not, which validates the judgment that for decades there has been outdated and inadequate legislation in this field which has hindered rather than helped our agencies. It is indeed high time that we get our act together and produce helpful and decisive guidelines.
UK agencies are generally considered to be among the most overseen in the world. That is something to be proud of, but only as long as it never blunts or hinders their efficiency. This Bill has to deal with one of the problems that arises for all parliamentary democracies, regarding the use of material that is at risk of having been produced by others by means that would not be approved by us. In my opinion, responsibility for that decision should not be put solely on the shoulders of individuals in the field. We will see in the detailed examination of this Bill if a fair conclusion can be achieved on this problem.
It is good to be assured that our practitioners in the intelligence and security world have been involved in agreeing the contents of this Bill, and I look forward very much to the future of our deliberations.
Lord Wallace of Saltaire (LD)
My Lords, this Bill is clearly necessary. I welcome the intentions behind it, but I want to focus on some of its weaker provisions, specifically Clauses 13 and 14, Clauses 29 and 30 and Part 3.
In Clause 30, the definition of “foreign power” is extremely broad, covering all foreign states except Ireland, including political parties in government and agencies that are subject to effective control by government. Last week in Westminster Hall, I was talking to some Canadian Liberal MPs, currently in the governing party. On the face of it, under the provisions of Clause 30 and Part 3, I in should have declared that interaction to the Home Office. Do I need to fill in a form every time I go to meetings with like-minded politicians from foreign Liberal parties? We need to find some way of narrowing the definition of “foreign power” to prevent overwhelming the Home Office and confusing the many, many British people who interact with representatives of other foreign states. Should we not amend the Bill to exclude all members of NATO, or all states with which the UK has a security relationship?
How do we tackle foreign powers that are deeply embedded in British life, such as the Gulf states? These are anti-democratic monarchies, with a record which includes kidnapping their nationals on British soil and murdering their critics in third countries, but they are visibly present at Ascot and Newmarket, with houses in Belgravia and estates in Surrey, mixing and conversing with British society at the highest level, including MPs and Members of this House—more difficult to disentangle than the Russian connection of which the ISC report warned.
Clauses 13 and 14 deal with foreign interference in British politics and elections. I find it astonishing that action is now proposed in response to what the Government rightly recognise as a serious threat without their having followed the recommendation of the Intelligence and Security Committee to publish a substantial part of the evidence it had collected on Russian interference. When I asked an Oral Question about this last year, the noble Lord, Lord True, told the House that the Russia report had found no evidence of “successful interference” in UK elections—an admission that they had indeed found evidence of attempts to subvert our democratic processes but were nevertheless refusing to publish it.
This is not a dead issue. Mrs Justice Steyn, giving her judgment in the libel case Arron Banks brought against the journalist Carole Cadwalladr in June this year, stated that Mr Banks had lied about his meeting with the Russians, that at least some of the meetings were covert, and that more investigation was needed into whether the Brexit campaign had accepted any funds from Russia. Earlier this year, Mr Banks reportedly wrote off a further loan of £7 million to Leave.EU when it went into liquidation. The source of the funds for his remarkable generosity over the last seven years remains unclear, except that it came from somewhere foreign. If we are to have an informed debate in Committee, the Government must now publish what the ISC recommended we should be told.
The Minister in the Commons spoke in Committee of the importance of Parliament and the public understanding and the nature of the threat. That would help us understand the nature of the threat that we recognise so far.
I have asked for advice on the interaction between Clause 14 and the Elections Act, which this House considered earlier in the year. That Act extends the right to vote in UK elections to all UK citizens resident in all other states in the world for their lifetimes. There is little provision to check the identity or status of overseas citizens applying for the register; personation will be easy, the origins of donations almost impossible to verify. This Act takes a much tougher approach, against personation, misuse of proxies and acting as a channel for funds from a foreign power. I welcome that, but Tom Tugendhat’s new Defending Democracy Taskforce, which he announced the other week, will need to rewrite parts of the Elections Act.
The Act’s references to undue influence in UK diaspora communities also raise delicate and sensitive issues that we will need to examine. I speak as someone who has done a lot of politics in Bradford. The Israeli embassy and the Indian and Pakistani high commissions, for example, work actively to maintain the links between British diaspora communities and the states they represent. Britain has many diaspora communities, and many dual nationals who have settled here, from hostile authoritarian states as well as from Commonwealth members and democracies—Iran, for example. So far as I am aware, the UK has no coherent policy on the legal rights and obligations of dual nationals, either when in the UK or in their other countries of citizenship. This suggests that greater clarity there is badly needed.
Part 3, which establishes a foreign influence registration scheme, was added in Committee in the Commons. Sir Iain Duncan Smith remarked in Committee:
“The Government seem almost to have cut and pasted some of the US legislation and possibly the Australian legislation.”—[Official Report, Commons, 16/11/22; col. 747.]
The Minister must be aware that the Australian legislation led to an unanticipated surge in reports of “foreign activity arrangements” by Australia’s eight research-intensive universities, which overwhelmed the Government’s capacity to process submissions. The UK has a great many more research-intensive universities than Australia, which are actively involved in research partnerships across the world. We also have world-renowned research institutes in Chatham House, the International Institute for Strategic Studies, the Royal United Services Institute and others. As it stands, Clause 62 would lead to a flood of reports from all of these to the Home Office, far beyond its limited capacity to cope.
I speak with passion on this subject because it would have hobbled my own career. I was director of research at Chatham House for 12 years from 1978 to 1990, and thereafter taught international relations at Oxford and then the LSE. At Chatham House, among other things, I was the British secretary of the Anglo-Soviet Round Table, a forum for dialogue with the Moscow institute for world affairs—a state-controlled entity close to the Politburo. Our engagement was supported by the Foreign Office but repeatedly attacked as subversive by the Murdoch press throughout that period.
My wife would still be caught by this clause. She keeps in touch with, and visits, several former students who are now in government in several countries across Europe. Some of her visits have no doubt been paid for from state funds in those countries. My son would be caught, too. He is a systems biologist at Edinburgh University, involved in a number of international collaborations with universities in Germany, the Netherlands and the United States, and with the government-funded Institut Pasteur in Paris. When attached to an American university, he was working closely with Russian mathematicians. They and thousands more academics and researchers will be filling in forms and sending them off to the Home Office. What do we do about the many foreign nationals working in UK universities? Over 40% of the staff in some of our top universities—the figure is higher in the London School of Economics—and a good deal more of the students in some of our universities are from a wide range of friendly and unfriendly countries.
I have been told that the proposals in Part 3 were floated by the Home Office before and then withdrawn after sustained criticism from other Whitehall departments and outside bodies. I have the strong impression that the Home Office has not considered the overlap and duplication of this provision with clauses in the Higher Education (Freedom of Speech) Bill, which the House will consider on Report tomorrow. I understand that there has been very little consultation with universities so far. One academic told me yesterday that the Bill as currently drafted will transform the UK from a science superpower to a scientific bureaucracy superpower.
A concern with real threats must nevertheless consider that Britain’s universities are among its greatest international assets and that Clause 62, as drafted, could severely damage their reputations and future operations. Can the Minister assure the House that Part 3 will not be considered in Committee until the Home Office has ensured that other Whitehall departments are content with what is proposed; that it does not contradict other Bills or Acts; and that our research universities, our leading international institutes, the Royal Society and the other academies have all been properly consulted on its implications?
The Bill focuses on state threats, rather than on non-state threats. It is fuzzy on quasi-state enterprises—companies owned by sovereign wealth funds in Malaysia or Qatar, or companies with a substantial and sometimes controversial presence in the UK, such as DP World—and does not touch on the role of immensely wealthy private persons, whether Russian, American, Arab or Asian, attempting to influence events in the UK by penetrating British society and through money.
Right-wing authoritarians such as Viktor Orbán in Hungary have made much of what they regard as the malign influence of George Soros and his open society foundations. I am concerned about the malign influence of the American Koch family foundations and their attempts to influence British politics through their close links with right-wing think tanks here. I read footnotes to Koch foundation publications in the Policy Exchange papers that shaped the Higher Education (Freedom of Speech) Bill. Policy Exchange does not publish where its funds come from. Nor does the Institute of Economic Affairs or the Adam Smith Institute, which together exerted such strong and malign influence over the Truss Government. We know, however, that they have received funds from American multinational companies and foundations, and we have a right to know more about all their foreign funders.
The Boardman review of the fallout from the Greensill scandal in 2020 recommended to the Government that they
“should consult on whether think tanks, research institutes and lobbying academics should be required to disclose their sources of funding and whether there are circumstances when they ought to be required to register as consultant lobbyists.”
I am surprised that this proposal is not in the Bill, at least as far as foreign funding is concerned. I will attempt to amend the Bill to force political think tanks to declare all overseas sources of funding.
This is an important and necessary Bill but it has been badly drafted and inadequately thought through. It is better to get it right than to rush it on to the statute book.
Baroness Manningham-Buller (CB)
My Lords, I was going to say quite a lot this afternoon, but my noble friend Lord Evans and I did not share each other’s speeches beforehand, and he has said most of what I wanted to say. I assure noble Lords that there are many times when I do not agree with him—we had plenty of animated disagreements in our past life together— but I agreed with everything he said a moment ago, so I will spare your Lordships a long repetition.
I start by mentioning, at my noble friend Lord Anderson of Ipswich’s request, that he very much wished to be here but is not able to be. He hopes that, as a former Independent Reviewer of Terrorism Legislation, and given his interest in this broader subject, he will be here at later stages of the Bill.
As we have already heard, this Bill is a doorstop. It is complex and long, and it attempts to do a number of things. I welcome it, as the Opposition and the Liberal Democrats have. It is important and long overdue.
Since I have been in this House, we have had plenty of legislation on aspects of terrorism but very little on aspects of what I was brought up to call “hostile states”. I have now learned that the current terminology is “hostile activity by states”—I must get that right. Either way, the defences of this country, and the work of my former colleagues in the intelligence agencies and the police, are weakened by the lack of a proper legislative framework—one that, in most cases, was drafted to deal with the run-up to the First World War and the Second World War and the threat from German espionage.
I have also heard people say that this is a new threat. To a degree, it is, in terms of its scale and what can be done by cyber, and given that there is no longer the need for small cameras to photograph documents. It is a different threat, but the reaction to the story of the Chinese agent in the Commons earlier this year showed me that there is a degree of naivety among the public about what is done by intelligence services that are hostile to this country. We should not have been as surprised that that woman was cultivating and paying money to Members of the other House; that is to be expected.
I remind people of various aspects of what this activity might be. There is, of course, the traditional one of stealing secrets, but there are not only state secrets but commercial secrets—we have seen the attempts to attack the work on vaccines in this country. We have also seen attacks on critical national infrastructure. I cannot remember all the aspects of it—being younger than me, my noble friend Lord Evans probably can—but it covers various sectors of British society whose continued successful operation the Government rightly believe is important for the success and safety of the United Kingdom. We have seen disinformation, including anti- vaxxer propaganda, spread around.
I know that I must not think just about Russia any more and must think more broadly. We were reminded only recently by our current head of MI5 about what Iran is doing in this country, trying to kidnap people, and about Chinese police stations. But I can remember when a key part of what the KGB did was called “active measures”. It was not stealing secrets but trying to attack us by influencing, persuading, sowing disagreement and undermining democracy. Disinformation is still very much happening.
There have been references to the murder of Litvinenko, the attacks in Salisbury and kidnaps. I strongly agree with my noble friend’s comments on the protection of the electoral process and its integrity. I do not know the facts, but I have certainly read, and believe it very likely to be true, of attacks on the British, French and American electoral systems. It is possible to know all that without knowing whether they had any effect or impact. Quite frankly, a lot of this effort may be pointless, but it is still there to be watched.
I am going to skip the next two pages and wind up with the challenges of this legislation, which I think are clear and have been extensively mentioned in the other place. They were all mentioned by my noble friend: legal aid, Clause 28 and the public interest defence. I join others in pointing out that there are some very good mechanisms for whistleblowers and others to raise issues, internally and externally, before going to the press. They have existed for many years. There is an ethics counsellor, internally, who has been there for at least 20 years. There is an external counsellor—it was previously Sir John Chilcot, but I do not know who it is today—to whom members of staff can raise ethical issues and concerns. There is the chair of the ISC and the Investigatory Powers Commissioner’s Office. There are others, before the press, to whom people can raise concerns and be listened to.
In protecting against damage, we have to remember the human agents involved. I do not mean members of the organisation; I mean those the legislation calls covert human intelligence sources—that awful chunky expression. These people give information, in some cases at risk of their lives, for very little remuneration, to protect us and others from threats and attacks. Any public interest defence risks danger to them. Getting that right is very important.
As others have mentioned, the scope and practicality of the foreign influence registration scheme, however important it is in principle, again needs more scrutiny.
I end by saying that we can address and manage those challenges during this Session. This Bill is fundamentally important and long overdue, and I welcome it.
Lord West of Spithead (Lab)
My Lords, this legislation has been a long time coming. The ISC first recommended reform of the outdated Official Secrets Act almost 20 years ago, in 2004. In the intervening period, as has been said by a number of speakers, the need for reform has become more pressing. The world has changed significantly. Threats to the UK’s national security, particularly from hostile state actors—I must get that right —have become more complex, varied and destabilising, making it more important than ever for our intelligence community to have the tools it needs to defend us.
In 2020, the ISC’s Russia report explicitly and simply stated that
“the Official Secrets Act regime is not fit for purpose”.
We recommended that new legislation be urgently introduced as,
“the longer this goes unrectified, the longer the Intelligence Community’s hands are tied.”
The ISC therefore strongly welcomes the long-awaited introduction of the National Security Bill.
Nevertheless, the committee is disappointed to see that the Government are only partially reforming the Official Secrets Act regime. The 1911 and 1939 Acts are being repealed but, crucially, not the 1989 Act, which deals with the unauthorised disclosure of sensitive information. This is a significant missed opportunity. The Government have accepted the need for change for years. In their 2021 consultation paper on the National Security Bill, they said it would,
“include, at a minimum … Reform of the Official Secrets Act 1989”.
Despite that recognition, this Bill still does not reform the 1989 Act.
If this Bill is to provide a new framework to tackle state threats, as it purports to do, it is vital that that framework is comprehensive. It must provide better protection for sensitive information, such that offenders can be prosecuted effectively. This is too serious an issue to have been put in the too-difficult pile, as it appears to have been. I hope the Minister agrees that sensitive information must be properly protected and will therefore commit to reforming the Official Secrets Act 1989 as part of this Bill or, at the very least, to introducing additional legislation in this parliamentary Session.
Before I address the detail of the Bill, I want to emphasise the words of my ISC colleagues in the other place. They made it clear that they felt the Government’s handling of this Bill had been disgraceful and had significantly undermined Parliament’s ability to scrutinise the proposed legislation. There has been a catalogue of problems, including multiple Security Ministers responsible for taking the Bill through the other place; the Government’s introduction of the most significant aspects of the Bill by amendment at a very late stage, reducing the time available for scrutiny; and the limited time made available for debate, preventing any serious consideration of the proposed changes to the Bill in the other place. This Bill is about our national security; it is too important to be handled in such a haphazard manner. I am sure that I speak on behalf of all noble Lords when I say that we expect the need for effective parliamentary scrutiny to be taken seriously by the Government.
I turn to the detail of the Bill. Many of the changes proposed were recommended by the ISC and therefore we broadly welcome them. Clause 1 incorporates updated language to reflect the modern espionage threat. It replaces the outdated existing legislation with provisions that are tailored to the radical technological changes that have taken place since the Official Secrets Act early in the last century. Clause 12 is also sensible, creating a new sabotage offence. This is an important change, particularly given the risks of foreign involvement in critical national infrastructure, which the ISC first publicised in its report of the same name in 2013. Clauses 3 and 15, which create new offences for assisting or obtaining material benefits from a foreign intelligence service, are valuable additions. Together with Clause 16 —the preparatory conduct offence—these will provide law enforcement with additional tools to disrupt foreign agent networks at a much earlier stage, making the UK a more difficult environment for foreign intelligence services to operate in.
Turning to the long-awaited foreign influence registration scheme, one of the cornerstones of the new regime, the ISC firmly supports such a scheme to increase the transparency of foreign influence activity in the UK. It was a key recommendation of the ISC’s Russia report in 2020, which assessed that such a scheme would be helpful in countering overt Russian influence. It is perhaps a case of better late than never. The United States first introduced such a scheme in the 1930s, over 80 years ago. By contrast, despite the Government describing it as a key component of the new Bill, it was introduced only by amendment late in Committee in the other place, driven, I understand, by the last-minute events in Ukraine. This delay has meant that there has not been sufficient time to scrutinise this very complex regime. We now have time to consider it and, as an aside, bearing in mind thoughts of abolishing this House, thank goodness for our Chamber’s ability to actually do that.
I believe that noble Lords will find the same as the ISC, that, as it stands, the scheme is too complex, compared to similar schemes in the United States, for example, while at the same time not going far enough. It is separated into two registration tiers: the first captures all arrangements and activities that are undertaken on behalf of any foreign power for the purpose of influencing a political event or decision. This is a welcome provision, providing an additional tool to disrupt clandestine foreign activity that is intended to influence our democratic institutions. The second, enhanced tier of registration will capture all other activity beyond political influencing. It will capture, for example, acting as a foreign intelligence officer. For arrangements or activity to require registration, such activity has to be undertaken on behalf of a country set out in secondary legislation. It therefore does not apply to every country automatically.
It is difficult to understand why, unlike with comparable schemes in the US, there are two tiers and why the registration of harmful activity outside political influencing applies only where the foreign power is set out in secondary legislation. It is possible that harmful operations will be undertaken by countries that are not named in the regulations and so will not require registration. Requiring all countries to register such activity would act as a far stronger deterrent, helping the authorities prosecute such behaviour and making the UK a more challenging environment in which to operate.
Listing countries by regulation will also be a challenge to use in practice. It will take time for the Government to agree which countries to add, particularly given the potential diplomatic ramifications, when flexibility and pace may be required. These flaws will inevitably lead to the enhanced tier, which could have been a valuable tool, not being used. As the Security Minister recognised in Committee in the other place, the use of this enhanced registration requirement will be “limited”. This is a wasted opportunity, undermining a potentially effective tool. It must be more effective to have one tier that applies to all countries and a broad range of covert activity. That may require there to be a greater number of exemption categories, but it would surely be a simpler and more practical system of registration.
Little thought also appears to have been given to the transparency of the scheme. While the Security Minister has said that the registrations under the primary tier will be published, he confirmed in Committee in the other place that those relating to the enhanced tier, reflecting the most damaging activity, will not be published. There is no reason for that disparity. While there may be a national security reasons justifying why certain information cannot be made publicly available, that will not always be the case. Transparency is at the heart of the scheme and, in order to avoid it being fundamentally undermined, details relating to the secondary tier must be published.
For the scheme to work effectively, the Home Office team supporting it must be properly resourced. That unit will be responsible for scrutinising submitted documents, identifying risks and updating the register, yet in Committee in the other place the Security Minister said:
“It is unlikely that every registration will need to be scrutinised. More likely, the register will be a resource for public scrutiny.”—[Official Report, Commons, National Security Bill Committee, 18/10/22; col. 401.]
The Government clearly believe they can save money by not resourcing a team at the Home Office and relying on the public, a position completely undermined by the fact that details relating to the enhanced tier are not going to be published so the public will not know what to report. We believe that a failure sufficiently to resource this crucial unit or an overreliance on public scrutiny will fundamentally undermine the regime’s effectiveness.
I turn to the important Clause 28, about which Members of the other place had serious concerns and which the ISC cannot recommend to this House. Clause 28 disapplies the offence of encouraging or assisting offences overseas under the Serious Crime Act 2007 when the activity is deemed necessary for the proper exercise of any function of an intelligence service or Armed Forces. Put simply, it provides a rare carve-out from liability for the intelligence agencies and armed services when working abroad. Colleagues in the other place, particularly those from the ISC, question the justification for such a broad exception from criminal liability. There is already an offence of acting reasonably under Section 50 of the Serious Crime Act. Further, the agencies can already seek immunity from liability for any act committed abroad under Section 7 of the Intelligence Services Act 1994. The lack of a proportionality requirement and the absence of an oversight mechanism were also criticised.
The Bill Committee in the other place recognised that there may be highly classified information underpinning the Government’s rationale for the clause that could not be disclosed to it, and the Government committed to provide the ISC with that highly classified material. The ISC has now considered that highly classified material, which was taken in evidence, and I can tell the House that the committee is of the view that Clause 28 potentially identifies a legitimate problem, which is that, despite the existing legislative protection, there may still be a risk of criminal liability for junior members of the intelligence community and the military, even when acting within the remit of their duties, which could have an impact on operations. Indeed, to be fair, there have been historical instances where military and agency junior ranks in the field have effectively been hung out to dry when doing their best to fulfil what they see as their duty. The ISC therefore sympathises with the aim of the clause.
Nevertheless, the ISC is also firmly of the opinion that the clause goes considerably beyond what is needed and is not appropriate as drafted. While the existing mechanisms to avoid liability may not be comprehensive, that does not justify such a broad automatic exemption with such limited accountability. The clause must be either significantly amended or replaced entirely. The ISC has been given an assurance that the Government are looking to find a way to meet its concerns. They must work quickly to identify a more appropriate approach, as the current clause is unacceptably broad, and we cannot support it as it stands.
If there were time, I would draw noble Lords’ attention to a number of other important points that were raised by the ISC and other colleagues in the other place; no doubt we will consider these as the Bill progresses. I particularly note the need to consider simplifying the “trade secrets” definition in Clause 2 to make the offence more effective in practice; the need to expand the “foreign interference” offence to cover recklessness as well as intent; the concern that the state prevention and investigation measures be used only as a last resort; and exhortations to extend the oversight provisions in Clause 54 across the rest of the Bill.
The ISC firmly supports the aims behind the Bill, but it requires careful analysis and considerable improvement if it is to strengthen the ability of law enforcement and the intelligence community sufficiently to manage the significant threat posed by hostile state actors, and if the UK’s new national security regime is to be comprehensive and effective. We echo what was said about the bravery and efficiency of the agencies, and what they achieve. The Bill will be very useful for them in making our nation safer, but it needs a certain amount of amendment.
Baroness Jones of Moulsecoomb (GP)
My Lords, the speakers’ list for this Second Reading debate is a terrifying assortment of people who know what they are talking about, whether it is the law, foreign agents or hostile acts by other states. Unlike the noble Baroness, Lady Manningham-Buller, I will not hesitate to refer to things that have already been referred to, but I will do so more briefly and through the narrow lens of civil liberties and, of course, justice.
Call me untrusting of this Government, but I am always sceptical when they come to your Lordships’ House and ask for more power, especially under the vague guise of national security. Over the last two decades there has been a steady erosion of civil liberties, under both Labour and Conservative Governments, and this has become an absolute landslide in the past few years, given the legislation that has gone through your Lordships’ House.
The test for any such legislation is: what powers are being asked for, for what purposes and how might they be misused? As the mother of a journalist, I am particularly concerned about the Bill’s potential misuse against journalists, and the Government’s refusal of a public interest defence in the other place. Similarly, there are many concerns about the widely drafted offences being committed by civil society organisations that receive some funding for international work on environmental, human rights, press freedom, asylum or other issues. The Bill undermines the rule of law and our international reputation by shielding Ministers and officials from accountability for serious crimes such as torture, and by denying compensation to victims on the basis of vague national security factors in a crucial area.
There is also the question of what the Government are leaving out. As is often the case, the Bill is found lacking. There is a minor section in it about foreign interference in elections, but how is anyone supposed to judge whether this is sufficient when the Government have not published their 2019 Russia report? The country is still in the dark about the nature and circumstances of Russian interference, even if it did not achieve very much. Tinkering with election offences does not come close to giving reassurances that our elections are free and fair. So I only have one question for the Minister today: will the Government publish the Russia report before Committee, so that we can understand what is actually being said?
The Security Minister in the other place recognised that there are
“some important points and challenges that we will have to look at.”—[Official Report, Commons, 16/11/22; col. 760.]
The Government have had some months to look at the important points, and I hope the Minister will bring amendments to resolve them.
Lord Beith (LD)
My Lords, like previous legislation on intelligence and security, the Bill gives significant powers to agencies and Ministers, and it creates new offences. Its purpose is to help protect our citizens, but it is in the nature of these powers and this work that, in order to be effective, much of it must operate in secret, without the visible accountability we would normally expect. Therefore, there are alternative forms of accountability: commissioners, reviewers of terrorist legislation, the courts, the tribunal and the Intelligence and Security Committee, on which I will concentrate.
I was a member of that committee from its establishment in 1994 until 2008. One of the consequences of being on it rather a long time is that this debate is full of people from whom I took evidence during that period, not excepting the noble Lord, Lord West, the only present member of the committee in this House, who made such a valuable contribution to the debate earlier. The committee was created when, until very recently, the existence of the agencies was either denied or not acknowledged, and when the Five Eyes alliance was a secret. The result was that it was a battle—I suspect it still is—to get the level of access essential to the committee doing its job.
I see that job as having two principal purposes: to ensure that the secret parts of government operate competently and efficiently, with adequate resources; and to ensure that they do not do what Parliament would not allow them to do if they were openly accountable. I see it as a reassurance—or an intended reassurance—for Parliament that a representative group of colleagues not beholden to the Executive has sufficient access to the secret activities of government and sufficient independence of judgment to ensure that these objectives are properly met.
As time went on, the committee increased its access, helped by a new generation of agency heads, many of whom recognised that it was in the interests of their service to have effective accountability. We had many battles, particularly with Ministers. Battles continue, including the doomed attempt to instal Chris Grayling as the committee’s chairman. The Justice and Security Act 2013 strengthened the committee’s position, particularly in relation to operations and the important inclusion of defence intelligence in the committee’s remit. This Bill makes no further changes, but it creates further issues and processes for the committee to monitor. I want to focus on two examples of the problems it faces.
The first is the disengagement of Prime Ministers from the committee, which has occurred under several recent Prime Ministers. Because reports are redacted, the normal process of parliamentary and political reaction leading to improvement is severely limited. On some quite major issues, only the Prime Minister has full access to the committee’s conclusions. He or she needs to respond directly in discussion with the committee. Meetings between the committee and the Prime Minister were normal practice after the annual report was produced, and for some special reports as well. They should resume.
The second issue is what appears to be an obscuring of ministerial involvement in difficult and highly controversial issues where the agency’s actions may or may not have specific authorisation from the Minister. That brings me to Clause 28, which has been referenced. It provides a defence that “extra-territorial application” of the Serious Crime Act 2007 would not apply if the action or the assisting or encouraging of that action was necessary for
“the proper exercise of any function of the”
intelligence agencies or the Armed Forces. It is not a new problem, but it used to be dealt with by ministerial authorisation, which would be available only when the circumstances were exceptional and the action proportionate and defensible. As I understand it, ministerial authorisation is not required under this formula—or so it appears. It might not even be sought if it were thought better for the Minister not to know about it. That would be a very unhealthy state of affairs to encourage.
Serious issues may be raised by this provision. They range from very minor breaches of local law in intelligence-gathering right up to rendition resulting in torture. We should not have a situation in which the relevant Minister can claim that they were not fully consulted, briefed or asked for any specific authorisation. The ISC pointed out in its 2010 report on detainee mistreatment that:
“The Guidance is insufficiently clear as to the role of Ministers, and what (in broad terms) can and cannot be authorised. The Guidance should … make clear that Ministers cannot lawfully authorise action which they know or believe would result in torture.”
What if Ministers are never asked because of Clause 28? Ministerial approval, or its refusal, is an essential part of the chain of accountability, and it needs to be maintained and backed up by ISC scrutiny of Ministers’ actions in this area.
This brings me to my experience of the committee’s attempts to establish what submission was made to Ministers on the potentially controversial action outside the United Kingdom involving an intelligence agency. Several of our reports made reference to the stonewalling in this instance, with numerous mutually inconsistent excuses being offered for failing to provide the documentation. I refer right back to the 2006-07 annual report, under the chairmanship of the noble Lord, Lord Murphy of Torfaen, which reported that, at its meeting with the Prime Minister, the committee had been
“told that the matter would be reviewed once again, although this instruction does not appear to have filtered down to those concerned.”
Referring to the Government’s position as “untenable”, the committee revealed how many years it had been submitting this demand for the disclosure of specific documents. Although the paragraphs were published, No. 10 successfully demanded that the number of years the committee had been seeking this documentation would be redacted—and it was.
You cannot serve on the ISC without becoming aware of how many very able and, in some cases, very courageous people work in intelligence agencies and the related organisations on our behalf. Effective accountability in a form which is compatible with the secrecy of their work is in their interests, just as it is in the interests of the citizens they protect. It is also in their and our interests that the legislation they work under is fit for purpose. As noble Lords have indicated so far in this debate, there is considerably more work to be done to ensure that this Bill meets that test.
Lord Carlile of Berriew (CB)
My Lords, a benefit of my removal to the Cross Benches some years ago is that, very occasionally, I have the pleasure of following the noble Lord, Lord Beith. As ever, he spoke in a cogent and considered way, and I agree with most of what he said.
I am very grateful to Ministers and officials for the level of consultation that at least some of us have received on these important and difficult issues. Officials have been exemplary in those discussions: not venturing opinions but giving options we can discuss, to the benefit of the Committee stage, when we come to it. I know that my noble friend Lord Anderson of Ipswich shares that view. Unfortunately, as has been said, he is absent today as he is doing public duty in another part of the British Isles, but I am sure that his absence will be requited in Committee.
I broadly support the Bill, and, in doing so, I join in the tributes to the intelligence agencies. When I was the Independent Reviewer of Terrorism Legislation, I saw not only their diligence and efficiency but that they spared this country from numerous very unpleasant events which would have caused enormous distress to the public. They are not thanked often enough, perhaps because of their innate secrecy.
It is doubtless that, in Committee, we will discuss nuances and finesses that we will make on this Bill. I listened with particular attention to the noble Lord, Lord Marks, who raised some very important points which will benefit from detailed discussion. Broadly, I welcome the opportunity to update the legislation around official secrets and connected matters; it is overdue for this kind of update. As has already been mentioned, the Bill was amended in important aspects in Committee in another place. Of course, while we all acknowledge the skill and interest of the Members of Parliament concerned in those amendments, any amendment by even very senior Back-Benchers in Committee represents a perilous way of producing enduring legislation which would survive the scrutiny of the courts—and not only of mature policymakers.
I want to raise two issues in particular, both of which have already been raised. Clause 28, which the noble Lord, Lord Beith, referred to a few moments ago and the noble Lord, Lord West, referred to earlier, would amend Schedule 4 to the Serious Crime Act. Total and predestined immunity from prosecution is an unattractive option in any area where there may be—however remote—a risk of serious and possibly deliberate wrongdoing. I am totally opposed to any form of immunity, which sits uncomfortably in our law anyway, not least because there are alternatives. For example, I suggest to the Government that they could easily prepare a separate statutory defence that explicitly protects those carrying out acts necessary for the proper exercise of the United Kingdom intelligence community’s statutory functions. This could include a separate offence with an evidential burden of proof—mentioned by the noble Lord, Lord Marks—in which the prosecution would have to disprove to the criminal standard that the burden of raising the evidential standard of proof had been created in the case, rather than an elaboration of a reasonable defence. Reasonableness is something that is extremely difficult to define in a reasonable way because, of course, we have many views of what is reasonable, even in the expertise of your Lordships’ House.
I also suggest that, as an alternative to Clause 28, there could be a clear reference to the responsibility of agency heads and ministerial responsibility, which in my view remains important. Ministers should be required to take these responsibilities if they become Ministers; after all, it is voluntary and known to be responsible. Ministers and agency heads should ensure the acts of a member of the UK intelligence community which would otherwise be an offence under the Serious Crime Act are necessary to fulfil statutory functions. It is similar in wording to Section 13(2) of the Bribery Act. That could include a new document which would bear close similarity to the July 2019 document entitled The Principles relating to the Detention and Interviewing of Detainees Overseas and the Passing and Receipt of Intelligence relating to Detainees. That is a government document and is a splendid example, a paradigm, of the sort of document required in the situation we are discussing.
I also ask your Lordships to remember that in our unwritten constitution there is a further guarantee that is very rarely discussed: the second part of the Crown Prosecution Service code test. Before a prosecution can be brought, even if there is evidence prima facie that there was an offence, the Director of Public Prosecutions considers whether it is in the public interest to bring that prosecution. That is a very important protection which has been exercised in a few—only a few—extremely significant cases. In my view, the fears that I have heard expressed from the agencies that without an immunity there would be a serious risk of prosecution and that operatives would therefore move very nervously is not borne out by any evidence at all. If you look at very delicate areas of the law—take, for example, assisted suicide—there are almost no prosecutions and one can rely on that constitutional protection given by the public interest test as being important.
The noble Lord, Lord Anderson, has suggested—indeed if you care to read his interesting tweets you will see this set out in detail—an amendment of Section 7 of the Intelligence Services Act 1994. I offer that too for consideration and explanation so that we can make an educated choice on the alternatives to Clause 28 as it exists.
I turn to the second issue that concerns me: Part 3 and the foreign influence registration scheme, or FIRS, which has been mentioned by others. I should mention my interest in this area. I happen to be involved in running a small company that advises foreign Governments and entities, including companies and, occasionally, charities that would also be affected by this. We have experience in the work that we do with the National Security and Investments Act 2021. We have examined many cases under that Act and there have been more than was imagined at one stage, but the Act deals competently with national security issues. FIRS is not about national security. National security cases with an investment element are considered under that legislation. The Ministry of Defence and BEIS have set up well-organised units to deal with that small cohort of cases.
I have no objection in principle to the FIRS system. However, it is much broader than the United States equivalent, which is called FARA, or the Australian FITS system. The way it was raised in the House of Commons means that, to take a metaphor from architecture, it looks like the first concept drawing by an assistant in an architect’s office to see very roughly what the skyscraper they might possibly design in future would look like. That concept drawing has not been the subject of any detailed analysis or information.
FIRS could affect a huge number of entities. It could have a dramatic effect on legitimate commercial confidentiality by there being a registered public register that would tell competitors in the United Kingdom what foreign companies were thinking of doing. It would require the disclosure of other forms of confidential information, which fall within the normal commercial confidentiality picture. As I said, it would affect charities. I am aware of charities operating in Ukraine—Ukrainian charities that collect money in this country and do very good work. There are charities operating in Romania, dealing with the aftermath, now many years later, of the problems in orphanages, which many of us are old enough to remember. Those are foreign charities, some of them very small, which would find themselves having to instruct lawyers and consultants to swallow their hard-earned cash to be able to carry on with their work. I suspect that some smaller charities would simply give up. It will also affect the appetite of foreign large-scale investors, including sovereign wealth funds, to invest in the United Kingdom, if they think that, without a clear architecture to which they can refer, they will simply have to disclose. Because there are criminal sanctions, people will take the cautious approach and feel that they must register, even though it is not strictly necessary.
If we are to have a FIRS system—as I say, I am not opposed to it in principle—we must have the structure that makes it work. There has to be a registrar and it has to be a separate registrar, which must have enough staff, so that it does not become a pale imitation of the immigration system. We must have points of reference, so that those who intend to register can write frankly to the registrar and ask whether it is necessary, obtaining advice on how best to do it, as we do when we register our interests with the registrar of Members’ interests in your Lordships’ House, who is always very helpful in assisting us to draft a form of our registration of particular interests. We have seen nothing of that. If we in your Lordships’ House do not see codes for guidance—a document similar to the principles relating to the detention of overseas detainees—while we are debating this matter, we will be working in the dark. That would not be a proper way for the Government to proceed and, more importantly, could be damaging to the national interest.
The registrar could be self-funded, because it is perfectly reasonable to ask people to pay fees in proper circumstances, and required to produce annual or biennial reports, like the Independent Reviewer of Terrorism Legislation. Indeed, I am puzzled as to why FIRS has found its way into a National Security Bill, because it is not a national security issue. It looks as though it is a way to appease some argumentative Back-Benchers in another place, but I suggest to the Minister and the Government that what should really be done is that the Government should commit themselves to introducing another Bill in the next Session of Parliament, when these questions raised by me and others have been ironed out, so that it is a proper vehicle for legislation.
Lord Tyrie (Non-Afl)
I welcome the intentions of the Bill and I strongly support the work of the agencies in keeping us safe, but years of experience of trying to get to the truth on rendition—Britain’s facilitation of kidnap and torture—have made me cautious about it. Others have alluded to the shortcomings of Clause 28, and Clauses 82 to 85, among others, and I shall linger on their effects for a moment in the context of rendition.
As the noble Lord, Lord West, pointed out, Clause 28 would give effective immunity—a line of defence from prosecution—to politicians and those advising them for assisting or encouraging crimes such as torture, where their actions are deemed necessary for UK intelligence purposes. The word “necessary” is extremely important in this context. The effects of this clause are very broad and, in my view, disproportionate.
Clause 85 provides the means whereby, in civil cases, Ministers and their advisers could avoid paying damages, even where it is accepted that they carry liability, by citing “national security factors”. That also needs careful attention as a phrase: I was quoting from the Bill. The risk must be that, as a consequence, a number of obstacles —and the current arrangements are obstacles—to the practice of the UK’s facilitation of extraordinary rendition, the kidnapping of people and taking them to places where they may be maltreated or tortured, would be removed. An example might help.
In the Belhaj case, a Libyan family were tortured by Gaddafi after Mr Belhaj’s rendition with the assistance of American and British intelligence operatives. A criminal investigation followed—exactly the sort of investigation that these clauses might well close down. Ben Jaffey KC, who led in the Belhaj case, has concluded that the new clauses
“will in practice, allow UK intelligence services to carry out a range of grave criminal conduct, without existing safeguards of personal ministerial authorisation and oversight.”
Whether this transpires or not, even the appearance of it resulting would be damaging, a point made by the noble Lord, Lord Evans, earlier this afternoon. I do not think that even the appearance of such conduct should be made any easier, and these clauses need to be re-examined.
We need to have in mind that the existing checks on rendition have failed to prevent it. We also need to bear in mind that in the years following 9/11, Britain appears to have been involved in at least 70 cases, according to the 2018 ISC report. The fact that the UK was involved in any rendition is bad in itself, but we should be concerned for at least two other reasons. First, the effects of such facilitation have been the opposite of those intended: they have hindered the security services, and those of other western agencies, in their efforts to collect intelligence. That is a point—I was more or less quoting there, too—made on more than one occasion by Sir Richard Dearlove, the former head of the SIS. Secondly, our involvement also undermines the values that we are seeking to export—a point not lost at all on President Putin, among others, at the moment. The fact that these clauses might weaken the checks in place on the facilitation of such practices is reason enough to be very concerned about them.
These clauses might have been less unacceptable if the Bill had contained an explicit role for Parliament’s watchdog of the security services, the Intelligence and Security Committee; but far from containing such a provision, the Bill makes no mention of the ISC at all. In my view, the ISC can and should be given the job of ensuring that such a unique carve out of Ministers and officials from the criminal law, and such an exclusion in practice from claims that might otherwise come from maltreated victims, are not misused by future Governments.
Given the secret nature of much of the information likely to be covered by these clauses, and by other parts of the Bill, the ISC provides the only realistic place for parliamentary scrutiny. In this context it is important to bear in mind that almost all other scrutiny routes, and almost all means of securing reasonable transparency about rendition, have been closed down or abandoned. The Justice and Security Act created an effective bar against information coming from FOI, and the judge-led Gibson inquiry into kidnap and torture was first suspended and then abandoned, the Government clarifying later that they had no intention to resuscitate it, nor anything similar.
Even the Intelligence and Security Committee itself has struggled. In its first investigation the ISC erroneously concluded that there had been no British involvement in kidnap and torture. This was, we were much later told, because the committee had been supplied with misleading information, apparently as a consequence of inadequate record-keeping by the agencies. The ISC’s second inquiry into kidnap and torture was abandoned in 2018 when the then Prime Minister denied the committee access to almost all the people in the security services who might have been able to help it find out what was really going on. That is why that inquiry came to a halt. So the ISC itself needs bolstering. It needs, in my view, with the exception of material concerning current operations, to be given access to all people and papers that it deems necessary for its work.
However, the powers of the ISC are largely a subject for another day. For now, what matters is that, at the very least, the ISC’s remit is extended to include this legislation. The noble Lords, Lord West and Lord Butler, both attempted to provide the ISC with such a role in respect of the National Security and Investment Act, but they appear to have failed. The same arguments that they developed about the need for ISC oversight in a parliamentary democracy apply here.
Paragraph 8 of the Government’s own MoU, agreed with the ISC, asserts that
“only the ISC is in a position to scrutinise effectively the work of the Agencies”.
Yet as the noble Lord, Lord Butler, put it in that earlier debate last year:
“It is as if the Government have acquired a watchdog, yet are unwilling to let it bark”.—[Official Report, 16/3/21; col. 241.].
I urge the Government to think again about Clause 28 and Clauses 82 to 85, and I urge them to at least provide the ISC with an explicit scrutiny role and put it in the Bill.
Lord Stevenson of Balmacara (Lab)
My Lords, I want to pick up two points raised by my noble friend Lord Coaker in his introduction, and which others have touched on in the course of the debate. They are the proposals in the Bill to criminalise legitimate public interest journalism, and to ask whether the measures included within this Bill, and the similar measures in the Online Safety Bill, are sufficiently harmonised.
The Minister has explained the rationale for the Bill and noted the influence of the preceding Law Commission review. However, the Joint Committee on Human Rights points out that, although the Bill is broadly in line with the Law Commission recommendations, it does not include all of them, and as a result there are risks that the Bill would
“criminalise behaviour that does not constitute a threat to national security”
and
“interfere unnecessarily and disproportionately with rights to freedom of expression and association”.
A free and independent press facilitates government accountability and the public’s right to know, but the nature and scope of the proposed espionage offences will have a chilling effect, discouraging sources—including whistleblowers—from coming forward and engendering a risk-averse environment in media organisations. Others have argued that the failure to include a public interest defence in the Bill poses a grave threat to investigative journalism and its sources.
Clause 5 outlines conditions under which unauthorised entry to a prohibited place would be a criminal offence. The noble Lord, Lord Marks of Henley-on-Thames, expressed concern that photographers capturing material as part of their journalistic duties would thereby fall into scope of the Bill. The Law Commission envisaged a public interest defence available to anyone—including journalists and photographers—charged with an unauthorised disclosure under the Official Secrets Act 1989 on the basis that
“it was in the public interest for the information disclosed to be known by the recipient; and … the manner of the disclosure was in the public interest.”
I accept the concerns expressed by the noble Lord, Lord Evans, and the noble Baroness, Lady Manningham-Buller, but I believe that the courts would be able to reach a view on such cases, and I urge the Government to introduce the defence.
The Law Commission also advocated having a statutory commissioner to investigate allegations of wrongdoing or criminality made by civil servants or members of the public where disclosures of such concerns would be an offence under the 1989 Act. There may be other protections for whistleblowers, as has been pointed out, but there is a principle at stake here. The report I have already quoted noted that the
“recommendation for a statutory commissioner, fortified by a public interest defence, … is about a fair law that takes seriously the public interests in national security and in accountable Government”,
so it would have a dual function. Who could resist calling for “fair law” anyway? That would be nice.
A public interest defence enables matters of public interest to be scrutinised and debated and allows malpractice to be exposed and addressed. I suggest to the Government that this could help them with the problem they are having with the issue of “legal but harmful” material and freedom of expression in the Online Safety Bill. The intention in this Bill is clear: to ensure that platforms in scope of the Bill do not have the right to take down content from “recognised news publishers”, and that their websites are also exempt from the Bill’s scope. But the problem lies in defining “news-related material” and determining what constitutes “recognised news publishers”. As the Joint Committee for pre-legislative scrutiny of the Online Safety Bill—I declare my interest as a member—recognised, introducing a public interest test in the Bill for this purpose would be very helpful in this context, and it would have the additional benefit of ensuring that hundreds of independently regulated specialist publishers’ titles are not excluded from the protections afforded in the Online Safety Bill.
I look forward to the Minister’s response.
Lord Ricketts (CB)
My Lords, I rise from what has clearly become the securocrats Bench. I am able to speak pretty briefly, because I agree very much with what my two colleagues have said. Some very powerful speeches have been made already about the need to update our national security legislation in a changing world, and I am personally very encouraged by the breadth of agreement across the House on that.
I speak as someone who has worked with the intelligence community for more than 40 years, as a consumer, a colleague, and indeed twice as a co-ordinator —when I was chair of the Joint Intelligence Committee and then as National Security Adviser. I am not from the community, but I know the men and women who work there well. I entirely agree with all noble Lords who have paid tribute to these public servants of the highest integrity and real commitment. I want to focus just on Clause 28; I agree very much with what has been said on other aspects of the Bill.
My first point is that, in my experience, the men and women of the intelligence community were profoundly shocked by the revelations of what had happened in those fraught months and years after 9/11. The noble Lord, Lord Tyrie, has just referred to cases of rendition, all of which was laid out in as much detail as possible in the 2018 ISC report—a searing document to read. I believe that the agencies learned the lessons of that period and have changed deeply as a result. Even a decade ago, for example, I know that proposals to Ministers on the sharing of intelligence with allies would often be accompanied by pages of legal analysis. I sometimes wondered whether the extent of the precautions could affect the agility of the agencies in responding to fast-moving crisis situations. In short, this is not a group of people who have the remotest interest in doing anything to short-cut legal process or evade scrutiny.
Secondly, I am convinced from my discussions with officials that the motivation for Clause 28 comes from the public servants in the intelligence agencies. There is genuine concern among practitioners that circumstances could arise, when, for example, exchanging information and analysis with partners to identify a complex terrorist threat, where even if they had followed all the procedures in place, including the Fulford principles, they could still be legally liable under the SCA. That is something that the House needs to take seriously.
I was fascinated to listen to the noble Lord, Lord West, reporting the conclusions of the Intelligence and Security Committee. I need to read that more closely. If I understood him right, the ISC has had the opportunity of highly classified briefing on the sort of circumstances where that risk might become possible—the operational realities of real-life co-operation with our closest allies. As I understand it, the ISC felt that there were grounds for believing there is a serious problem here. That is important. There is clearly an issue that we need to get right if we are going to give the men and women of the agencies the tools they need to do their job of keeping us safe.
I am persuaded by the powerful points made today that the current Clause 28 goes too far by proposing this carve-out or exemption from the criminal law. There is therefore an obligation on this House and the Government to work towards an alternative. I hope it will be possible to do that and that it will address the concerns we have heard today, including the important issue of ministerial accountability and authorisation and oversight by the Investigatory Powers Commissioner and indeed the ISC.
I doubt that the Government will be attracted by the idea of reopening the 1994 ISA—that could well turn out to be a Pandora’s box—but I am sure there are ways of solving the need for a balance between clear oversight and accountability and effective security operations in a fast-changing environment. It is also clearly much better to build a broad coalition of support across this House and more widely. I very much hope that the Government will come forward with proposals in that spirit at Committee stage.
Baroness D'Souza (CB)
My Lords, like others in this Second Reading debate, I welcome the Bill. It updates security legislation that was designed to protect UK security in the context of the Second World War, as has been written recently by those who know. Threats to the security of this country and others have changed fundamentally in the last 20 years or so and, as has been pointed out by experts, are increasingly concerned with state-promoted terrorist action that includes undermining democratic institutions. Countering these threats before they can become destructive action is clearly necessary. That said, there are areas in the draft Bill that would benefit from clarification and, in some clauses, a serious rethink. Of the latter, I refer mainly to Clause 28, Clauses 82 to 85 and Clause 86, supported by Schedule 15.
My approach is informed by universal rights, the prohibition of involvement in criminal acts by Ministers and/or officers of the state and the implied legal cover for those who are. Such criminal acts might include targeted torture and killing. The Bill also appears to protect officials in the UK rather than those operating overseas. It was argued during the passage of the Bill in the other place that Clause 28, as written, could condone foreign assassination, for which we severely castigate other states, and not only make the UK liable to accusations of hypocrisy but undermine any moral leadership it continues to hold. It is worth recalling, as both my noble colleagues fore and aft have already done, that the ISC has documented the extent to which UK politicians and officials were involved in abuses overseas; for example, in the extraordinary rendition and subsequent torture of Abdel Hakim Belhaj in 2004 in Libya.
UK Ministers and officials already have a defence under the Serious Crime Act 2007 against criminal prosecution for “reasonable action”, taking into account the purpose of the action and any authority under which action is taken. It is questionable therefore if the extended legal cover in this Bill is necessary.
Clauses 82 to 86 pose a serious blow to those seeking legitimate damages awarded in civil cases by citing the newly introduced “national security factors”. Efforts in the other place to delete this clause on Report were unsuccessful. Instead, the Government introduced the all-encompassing phrase of “terrorist wrongdoing”, which can be invoked to discredit any such claim and prevent recompense. The phrase is to too broad to be meaningful and once on the statute book would exist as a hostage to fortune.
Terrorist wrongdoing would certainly cover direct efforts to build destructive weaponry, such as bomb making, but it could also encompass merely the purchase of hydrogen peroxide. A further rationale has been advanced that it is necessary to limit any financial recompense in a civil case, from re-investment in terrorist action. This restriction does not apply however to other sorts of revenue such as the lottery, and given the extremely low standard of proof for terrorist wrongdoing, protection and justified recompense for survivors of state-sponsored torture remain paper-thin.
Bearing in mind too that many states around the world use the accusation of terrorism activity to silence legitimate dissenters, these clauses could very easily act as an obstacle to claims made by torture survivors against unsubstantiated allegations. As is now universally accepted, survivors of torture require a formal acknowledgment of the wrong that has been done to them as part of their recovery. These clauses, if applied, would undermine the very notion of justice, so important to them.
The human rights organisation Reprieve has documented several ongoing cases where this clause, as currently set out, adversely affects torture survivors in their quest for redress. Other human rights bodies, including Redress and Freedom from Torture, similarly question the clauses in that they provide Ministers and officials with immunity from crimes that are specifically mentioned in the international treaties as crimes against humanity. I am sure that there will be reasoned debate and amendments to the Bill that will allow it to go through speedily, as it should, but many of us will press for amendments to Clause 28 and Clauses 82 to 86.
Baroness Kramer (LD)
My Lords, I do not normally speak in national security debates, and I bow to the far greater expertise of everybody else involved today, but I could not let this Bill pass without intervening to call for the insertion of a clause to provide proper protection for whistleblowers speaking out in the public interest. Some in the House may know that I focus on the issue of whistleblowers across a wide range of activities.
I recognise that this is a subset of the much broader issue of public interest disclosures, but I would argue, and would say this directly to the noble Lord, Lord Ricketts, that where there are human beings there will be wrongdoing, and where there is power there will be abuse. It is rarely exposed unless a whistleblower brings it to the surface and takes the risks associated with that.
The noble Baroness, Lady Manningham-Buller, said that whistleblowers could go to various individuals to make a protected disclosure. Let me say to her that of the three she named I could not identify one who could do what the whistleblower wants most: to guarantee an investigation of the issue raised. She mentioned the ISC, and we have heard now from both former and present members of the ISC that it is extraordinarily difficult for that body to access the information needed to carry out an investigation.
Therefore, without the mechanisms in place that link the whistleblower through to a process of investigation, most whistleblowers are going to hold back and decide not to speak out, and I would argue that that is very much to the detriment of the national interest.
However, it is also vital to protect whistleblowers, and none of the three powers that the noble Baroness mentioned can provide that protection. They can provide confidentiality but, frankly, keeping a whistleblower’s identity confidential is near impossible. The character of the information alone usually identifies who has spoken out. In addition, people who see something going wrong mention it to colleagues, managers and others whom they work with, and it becomes very evident very quickly, in almost every case, who is the relevant whistleblower. Existing legislation that requires going through an employment tribunal fails whistleblowers extensively. I will not go through that argument in detail today—I have in other places. Of course, even at its best, it only actually covers workers, whereas whistleblowing comes from a wide variety of people: suppliers, contractors and temporary staff—all kinds of people who are engaged around a process and see behaviour that they know needs to be called out. My fundamental argument is that every day that there is not adequate protection for whistleblowers is a day when somebody sees something that they should call out and decides that the price of doing so is too high.
If you are in some sector such as finance, the National Health Service or even the Metropolitan Police, and you speak out and there is retaliation against you, at least that is only losing your job or perhaps being blacklisted for your entire career. However, once this happens in the context of national security, the whistleblowers I hear from—I am careful not to get their names, because I am not a prescribed person, but I am aware of their experiences at second and third hand—are usually told that they will face retaliation through the mechanism of the Official Secrets Act, which, as everyone in the House will know, carries criminal penalties.
I decided to cite one case, and I was careful in choosing it so I do not expose any whistleblower to retaliation, which currently is a real fear. This is far from an isolated case. I am aware in general terms of the case of a whistleblower working for a subcontractor to a global brand, cleared to the highest level, who tried to disclose that work was being subcontracted to a hostile power, with serious national security consequences. The whistleblower was of course fired, threatened with lifelong career destruction and with the Official Secrets Act. After a long delay, a period of complete unemployment for the whistleblower and a bogus investigation by the contractor, the message eventually, through the whistleblower’s constant persistence, reached the right people inside the Ministry of Defence, and I understand that a proper investigation is now under way. However, obviously the whistleblower has suffered huge detriment and there seems no possibility that that will ever be reversed. I suspect the public will never know the harm done in just that one particular case. What I think has shocked many of us is that this process seems to be regarded as “just to be expected”, and in this wider sector of national security, the various mechanisms in place available to whistleblowers such as helplines are, frankly, regarded as anything but helplines. To me, it is totally unacceptable not to provide that protection for those who make disclosures which are fundamentally in the national and the public interest.
In the Commons, Kevan Jones MP and eight others attempted to introduce a public interest defence, but it was not even debated. However, I hope in this House, with its very different set of rules, we will be able to try to craft a series of amendments that will allow at least a detailed debate.
I have in Committee a Private Members’ Bill, the Protection for Whistleblowing Bill, that will deal with many of these issues. I will not go through that Bill today but, frankly, I have relatively limited hope of the Government taking up this Bill, even though every time that I raise this with Ministers, in area after area, they acknowledge that protection for whistleblowers is exceedingly limited, that something needs to be done and that there will be a review, but that it will be in due course.
I recently joined the All-Party Group on Extraordinary Rendition, which made me aware of the case of Jagtar Singh Johal. Again, with that whistleblower experience, I looked with real concern at Clauses 82 to 86. When you spend as much time as I do in dealing with attempts to gag disclosure of wrongful behaviour, you spot the tricks. Here they are, in clause after clause, limiting access to civil justice for redress, deliberately using sweeping language to deny legal aid, and none of that adding to the safety of the UK but rather adding to the safety of those who have abused their position.
I thank the same organisations that perhaps spoke with the noble Baroness, Lady D’Souza—Retrieve, Redress, Freedom from Torture, Survivors Speak OUT, Rights and Security International, and OMEGA—for the high-quality briefings that they have provided. I am a novice in this area, but I will push the issue of protection for whistleblowers. It is fundamental in a democratic society.
Lord Craig of Radley (CB)
My Lords, when I was a squadron leader, I signed the Official Secrets Act. I still have my copy of the form that I signed. We were required to sign, though the reasons given were limited —do not lose or pass on any classified or official information and in general abide by the restrictions of the Official Secrets Act. Signing had no effect on what behaviour was deemed to be legal, because the Act is a law, not a contract, and individuals are bound by it regardless of whether they have signed. Signing was intended as a reminder to the person that they are under such obligations. MoD Form 134 is still available to be signed and sets out the reasons for doing so, although I am not aware of any statutory instruction to sign.
A so-called minor amendment in Schedule 16 to this Bill is that the 1911, 1920 and 1939 Official Secrets Acts are to be repealed. That seems rather more than minor, though of course, OSA 1989 still stands. Will members of the Armed Forces and other Crown servants in future be required to sign the new national security Act? A bigger question for the Government has been mentioned already. If this new national security legislation is replacing the other three, then why is the legislative opportunity also to bring OSA 1989 into one updated Act not being taken?
The Law Commission found that all four existing Acts were outdated—or inadequate for dealing with new technologies—and in need of revision. However, this Bill is nearly 200 pages long, and deals with topics ranging from very major national security issues to the responsibilities in Clause 9 of a constable at the site of a military aircraft accident. I can see that the Government find themselves between a rock and a hard place. New legislation is urgently required to embrace evolving threats, but dovetailing the 1989 Act into this mammoth Bill is beyond any reasonable ask. Therefore, although much was made of the missed legislative opportunity in speeches in the other place, I accept that the current broad approach is right.
I mentioned Clause 9 a moment ago, which refers to when a constable may have to set up an exclusion zone around an aircraft accident. For the avoidance of doubt, I presume that “aircraft” covers manned and unmanned aerial vehicles. It seems that the constable might have powers under this legislation to move or remove the aircraft or parts, but I hope that the essential needs of the accident investigation authorities will ensure that critical evidence of the causes of a crash will not be tampered with or lost by some inadvertent action of the constable.
Also, why is this confined to aircraft? What about one of His Majesty’s ships or submarines that unfortunately finds itself beached on some shoreline? Surely one of these, too, might require an exclusion zone which, by its nature, would not be covered by a previously declared regulation under Clause 8 for any vehicle.
Clause 30, referring to the Republic of Ireland as not being a foreign power, intrigued me. I declare a lasting interest in things Irish: I was born and brought up in Dublin. There are of course many special arrangements agreed between the UK and the Republic, and the Explanatory Notes say that it is because a political party may be active in both. I doubt that it excludes espionage. It also raises this thought, perhaps theoretical at present: were green parties to grow into positions of government influence, would that be a reason for labelling a country with a strong green party as not a foreign country for the purposes in this legislation?
There is also the apparent anomaly that, although Gibraltar gets specifically excluded in Clause 95, which relates to the Clause 20 amendment of Section 238 of the Armed Forces Act 2006, it gets no mention in Clause 7, which lists the UK and the SBAs—sovereign base areas—in Cyprus. How then might monitoring of illegal intelligence behaviour and prohibited places be covered in, say, Gibraltar, the Falklands, or other overseas or dependent territories? Indirectly, this clause indicates that, at present, we do not have special intelligence facilities, other than in Cyprus, elsewhere overseas.
Finally, I found difficulty in discerning the meaning of this sentence in Clause 20, which amends Section 238 of Armed Forces Act 2006. It says that
“the reference in subsection (1)(b) to an offence which is not an offence listed in subsection (2) is to be taken as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is not an offence”.
Perhaps the Minister or an official could transcribe this into less legal English for one to more easily comprehend its meaning.
Baroness Ludford (LD)
My Lords, this has been a most interesting debate, not least due to the contributions from our national security, defence and intelligence professionals—or the securocrats, as the noble Lord, Lord Ricketts, collectively named them. As the noble Baroness, Lady Jones of Moulsecoomb, said, we have heard from people who actually know what they are talking about in this debate—unlike people like me. However, I will plough on none the less.
I thought it rather a pity that nobody from the Conservative Benches, beside the Minister, felt motivated to speak in this debate, while there were five from the Opposition, five from the Liberal Democrats and no fewer than seven from the formidable Cross Benches.
It is clear that UK democracy is under systemic attack from various hostile foreign Governments, including from China and Russia. But, as my noble friend Lord Wallace of Saltaire said, it is absurd to ask us to debate the Bill without publishing the redacted sections of the ISC’s Russia report, which the committee recommended should be released. As the NGO Spotlight on Corruption said, the Bill does not address the hole in the regime for keeping foreign and tainted money out of politics.
The noble Lord, Lord Evans of Weardale, regretted the Government’s rejection of the recommendations from the Committee on Standards in Public Life on political funding. The Electoral Commission has repeated its call for parties and campaigners to be banned from accepting donations from companies that have not made enough money in the UK to fund them and to be required to carry out enhanced due diligence and risk assessments before donations are accepted. Can the Minister tell us why these recommendations are not in the Bill?
The Bill also unfortunately omits the Government’s promised reform of the Official Secrets Act 1989, as noted by the noble Lords, Lord Evans of Weardale and Lord West of Spithead. Perhaps the Minister could clarify whether the Government plan to add that to the Bill during its passage in this House?
The report from the Joint Committee on Human Rights, on which I sit, described this Bill as a
“welcome attempt to modernise espionage offences”,
but expressed many concerns about its human rights impacts, some of which I will mention and have been mentioned by others.
One of the main concerns about the Bill is the Government’s attempts to constrain both scrutiny and accountability, as my noble friend Lord Beith and other noble Lords have said. One of these attempts is the failure to incorporate protection for whistleblowers and journalists, as my noble friend Lady Kramer pointed out; the other is the proposal to grant immunity from prosecution for conduct said to be necessary for the functions of the intelligence agencies or Armed Forces.
A public interest defence for whistleblowers, such as journalists, security personnel or civil servants charged with unauthorised disclosure, is absolutely critical to a rewriting of espionage legislation. We on these Benches are severely disappointed that it has not been included in the Bill, despite the backing of the Law Commission. A statutory defence would act as an internal discipline on better government and better decisions. The run-up to the Iraq war and MI6’s co-operation in acts of torture and extraordinary rendition are examples that might have been prevented with a safeguard.
The NUJ, the BBC and others fear that the Bill poses a significant threat to public interest journalism and press freedom, through the chilling effect it will have on those who expose wrongdoing. Perhaps the Minister can be a bit more encouraging today than he was last Friday to my noble friend Lady Kramer’s Private Member’s Bill on protection for whistleblowers.
Of great concern is Clause 28—surely set to become another notoriously numbered clause from a Tory Government—which would grant immunity from prosecution for encouraging or assisting the commission of wrongdoing abroad by members of the intelligence agencies or the Armed Forces. The noble Lord, Lord West, reported that the ISC believes that Clause 28 is unacceptably broad. The noble Lord, Lord Carlile, backed the changes proposed by my noble friend Lord Marks, and the noble Lord, Lord Tyrie, warned of the experience of rendition, which has never been resolved.
A grant of criminal immunity goes to the heart of respect for justice, human rights and the rule of law. It would be outrageous for Ministers and officials to be granted immunity for actions such as ordering an unlawful targeted killing or providing assistance to torture, interrogation or a disappearance. It may thwart accountability for UK involvement in war-on-terror abuses and undermine the UK’s centuries-old legal prohibition on torture and related abuses. As the noble Baroness, Lady D’Souza, pointed out, it could also destroy the UK’s moral authority in condemning crimes such as the murder of Jamal Khashoggi by Saudi Arabia or international poisonings by the Russian Government.
I listened carefully to the noble Lord, Lord Ricketts, as always, but given the existing immunities under the Serious Crime Act 2007 where a person has acted reasonably, further protections for conduct that is not reasonable are surely invidious. Can the Minister give a credible explanation as to why immunity from criminal prosecution should be granted for unreasonable actions by the intelligence communities and the Armed Forces?
My noble friend Lord Wallace of Saltaire and others, such as the noble Lord, Lord Carlile, have robustly illustrated the huge flaws in the Government’s proposals for a foreign influence registration scheme in Part 3. It threatens to be a bureaucratic monster. Given the Home Office’s struggles with competence in administration, the mind boggles. At the same time, right-wing think tanks escape transparency over their funding from abroad.
The former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Anderson of Ipswich, who, as has been mentioned, is unavoidably prevented from being here today, has helpfully shared his thoughts with us in various Twitter threads. I am going to quote from a different one to the one that has already been quoted from. He warned that the requirement on all Governments and bodies from outside the UK to register “political influence operations” is broader than the Australian and US schemes relied on as precedents and “potentially onerous”. He also pointed out a possible loophole, whereby a large company could avoid registration by ensuring that any activities are conducted by a UK subsidiary. The noble Lord concluded:
“Since the registration requirement is not restricted to specified (hostile) govts, or to companies controlled by govts, or to activities relating to national security, I'm struggling to see what it is doing in a national security Bill … Is it not more in the nature of a lobbying requirement (but one applied, oddly, only to foreign entities?) If so, how does it relate to Lobbying Act 2014 &c?”
Perhaps the Minister will tell us.
“And what useful value is anticipated for it? The Govt’s Impact Assessment … is unspecific … The process of scrutiny requires us to probe this thoroughly so as to ensure that we are passing into law a useful defence mechanism rather than a bureaucratic nightmare.”
I have quoted the noble Lord’s Twitter thread at length, because I thoroughly agree with him.
There are many human rights and civil liberties concerns in Part 1 that I do not need to cover, because my noble friend Lord Marks covered them fully. In Part 2, although the measures are called “Prevention and Investigation Measures”, the investigation element appears extremely limited. These measures, which were not included in the Law Commission’s review, risk prejudicing the rights to a fair trial, to liberty and security, and to a private and family life. I am sure they will get the detailed scrutiny they deserve.
The provisions of Part 4 seeking to restrict both the award of damages to those who have been involved in terrorist activity and the grant of legal aid to those with a terrorism-related conviction raise significant human rights and other concerns. They would potentially enable the Government to evade paying damages for UK complicity in torture or other human rights violations. As the current Independent Reviewer of Terrorism Legislation, Jonathan Hall KC, said:
“It … risks the impression that if the government is sued, it will have a special advantage in keeping hold of monies which is not available to other unsuccessful parties in civil proceedings.”
The question also arises when the Government have a conflict of interest here. However, the availability of damages enabled litigation to be brought by Guantanamo detainees and others who had been subjected to rendition and torture. This uncovered a pattern of unlawful behaviour by the security services and thus served an important constitutional, as well as political, purpose. The proposed restriction on the grant of civil legal aid impedes access to basic rights and legal protections. The current independent reviewer’s view is that it is
“a purely symbolic measure that breaks new ground in the treatment of terrorist offenders and may be counter-productive in matters such as housing, mental health and debt.”
I have a few concluding points. The Bill provides that courts may exclude the public from criminal trials for offences under this Bill. The principle of open justice is fundamental to the proper administration of justice and the right to a fair trial. Clause 36 would be improved if it provided that the public could be excluded only where this was necessary for the administration of justice, having regard to the risk to national security.
The Government need to substantially increase funding for the National Crime Agency—a repeated call from these Benches. It must also strengthen the independence and powers of the Intelligence and Security Committee, which my noble friend Lord Beith and the noble Lord, Lord Tyrie, have called for. The post of reviewer for PIMs should be widened to match more closely the Independent Reviewer of Terrorism Legislation role, to include the full ambit of this Bill.
Lastly, there are several concerns over the Bill relating to the Government’s intention to abolish the Human Rights Act under the Bill of Rights Bill—which I am still hoping might disappear—or even pull out of the European Convention on Human Rights. The Lord Chancellor and Secretary of State for Justice tells us firmly that that is not intended, but this week the Home Secretary, in endorsing a pamphlet by Nick Timothy on asylum, has indirectly called for pulling out of the ECHR. One example of the danger from the Bill of Rights Bill is that the compatibility of national security and official secrets legislation with human rights often relies on the ability of the court to read legislation as compatible with convention rights, so far as it is possible to do so, under Section 3 of the Human Rights Act 1998. The Bill of Rights Bill would abolish that requirement. Can the Minister explain how the Government would then address incompatibilities in national security legislation with human rights?
Although we on these Benches support the Bill overall, it is a curate’s egg, displaying a lack of joined-up thinking. Significant parts of it must be altered both to improve our national security infrastructure and to protect our democratic processes and civic life.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I too thank the Minister and his officials for helping us prepare for this Bill. As the noble Baroness, Lady Ludford, said, there has been a true demonstration of expertise in the debate that we have just had.
I want to give a general introduction and then talk in specific terms about matters that we in the Opposition will concentrate on. Much of the legislation around espionage was drawn from a time when we were at war with Germany, when the threats and capabilities of all the actors were very different. Thankfully, those threats fell away some 77 years ago, but threats from hostile and non-hostile states have not gone away, and indeed have evolved. As the Government’s integrated review makes clear, threats to government departments, national infrastructure, British business and private individuals are growing and becoming ever more complex as states become more assertive in advancing their aims. While hard-power methods of attack persist, the advent of technology has allowed soft-power methods to flourish, with electoral interference, disinformation, propaganda, cyber operations and intellectual property theft used to foster instability and interfere in the strength and resilience of the state.
Clause 28 creates an exemption under the Serious Crime Act for MI6, GCHQ and our Armed Forces when acting in the proper exercise of any function of an intelligence service or the Armed Forces. This could remove the need to get a Section 7 authorisation under the Intelligence Services Act 1994, which allows the Secretary of State to give immunity from civil and criminal liability for pre-authorised crimes abroad. We believe there is a risk that Clause 28 would remove the role of Ministers and, by doing so, remove the Investigatory Powers Commissioner from the process as he inspects Section 7 authorisations. The Intelligence and Security Committee has engaged with the UK intelligence community on Clause 28 but its members are still concerned that it is unnecessary. I will come back to that when I comment on Members’ contributions this evening.
The second matter I want to talk about is misinformation. We fully support action to protect our national security and to deal with the threats to us from hostile state activity, but we would also like to see specific measures to deal with misinformation and disinformation, specifically on social media. Although we welcome the new amendments on misrepresentation tabled by the Secretary of State during the House of Commons stages, we encourage the Government to review the extent of misinformation in the UK and take further steps to address it.
Turning to scrutiny and oversight, we support stronger powers in the Bill to tackle hostile state activity in order to protect our democracy and national interest, but these must be paired with appropriate oversight of these powers, in line with the oversight that exists for other comparable powers. The Government should introduce clauses providing for greater scrutiny from either an appropriate commissioner or an independent reviewer.
Turning to the ISC’s 2020 Russia report, the Bill delivers on some of the important recommendations proposed by the ISC and the Law Commission, but parts of the Russia report have not been implemented. We will explore amendments to ensure that the Russia report is fully implemented in order to protect the strength of our national security. We believe that the Government have been too slow to notice and react to the emerging trend towards hostile state activity over recent years, particularly in the wake of the 2018 Salisbury poisonings.
The public interest defence was extensively debated in the other place. From the responses of both Mr Tugendhat and the then Home Secretary Ms Patel, it seems that the Government continue to look at this matter. I am sure that we will come back to it in Committee, and I would be interested to see whether the Minister has anything to add on this.
Turning to the many contributions made today, I am grateful to the noble Lord, Lord Marks. for giving an extensive exposition of Part 1 of the Bill and pointing out the wide scope of many of the powers the Government seek in it. He went on to give persuasive and strong examples, such as a UK journalist working for a foreign broadcaster who could inadvertently break the laws proposed in the Bill. The noble Lord also commented on the public interest defence and the NUJ briefing, which we all received. As I said, I hope and expect that we will hear more about that from the Minister at a later stage of the Bill.
The noble Lord, Lord Evans of Weardale, referred to interference from other countries, both friends and allies. That goes to the heart of the Bill and the importance of trying to codify much of what should be good practice within the services already, as my noble friend Lady Ramsay of Cartvale said.
The noble Lord, Lord Wallace, made an interesting speech, quoting the noble Lord, Lord True, saying that there were no examples of successful Russian interference in our elections. I noticed that comment as well, and it would be interesting to know what attempts there have been to influence our election results. He also spoke very persuasively about universities potentially being overwhelmed by reporting requirements and the confetti of documents which need to be presented. So many of our universities are extremely international in the nature of their staff, students and research projects. That was a very strong point.
The noble Baroness, Lady Manningham-Buller, described the Bill as a doorstep of a Bill. We have heard that it is a curate’s egg and a doorstep; I suppose that is theoretically possible. She raised what she thought were the most important points, and perhaps they are the most contentious: legal aid, Clause 28 and the public interest defence. I am sure we will be coming back to these on multiple occasions as the Bill progresses.
My noble friend Lord West, the only Member of our House who currently sits on the ISC, gave a masterly exposition of the Bill. He questioned why there were two tiers of registration for foreign state actors, and whether the enhanced tier would be used sufficiently, for various reasons. He also made it very clear that the ISC questioned Clause 28 and thought it inappropriate as drafted. I look forward to working with my noble friend on that as the Bill progresses.
The noble Lord, Lord Beith, also provided some background as a former member of the ISC. It was interesting to hear about the problems he had as a long-standing member of that committee in getting to the bottom of many very controversial actions of our overseas agencies and trying to understand them. I will read his comments with interest, because he gave an interesting background to the role of the ISC and how it has developed over the years.
The noble Lord, Lord Carlile, also spoke about Clause 28. He made a particularly interesting point about the CPS’s second requirement of a public interest in proceeding with a prosecution, and he gave the example of assisted suicide. I see many similar examples in youth courts, where prosecutions are not proceeded with, even though one could argue that a crime has evidently been committed, because it is not believed to be in the public interest to do so. We see that routinely in our courts.
My noble friend Lord Stevenson also spoke about the potential for harmonising elements of this Bill with the Online Safety Bill. The Online Safety Bill is huge and we do not yet know when it is coming to us. It will be interesting to try to tie together some of those elements. He spoke in that context about the public interest defence, saying that there will be similar arguments in respect of that legislation.
The noble Baronesses, Lady D’Souza and Lady Kramer, spoke about the UK’s moral authority. The noble Baroness, Lady Kramer, spoke about whistleblowers, and I will be interested to see the amendments she tables in that regard. I am mindful of what we have heard from the experts about the internal processes, but I listened with great interest to the scepticism with which the noble Baroness spoke about those processes.
Finally, the noble and gallant Lord, Lord Craig of Radley, said something which surprised me: when he was a squadron leader, he signed the Official Secrets Act. I have a very vague recollection that when I was a university air cadet, a long time ago, I too signed the Official Secrets Act. I am not sure whether it is possible for someone to do so at such a junior rank as I suppose I was at that stage. Nevertheless, this has been an interesting debate, and I look forward to the Minister’s response. I think the Committee will be of equal substance.
Lord Sharpe of Epsom (Con)
My Lords, I am grateful to all who have contributed to what has been a very constructive and instructive debate. I welcome the broad support that has been shared across the House. I particularly thank the noble Lord, Lord Evans of Weardale, for his supportive comments on the foreign influence registration scheme. I also thank the noble Lord, Lord Carlile of Berriew, the noble Baroness, Lady Manningham-Buller, and others in this House who engaged us in such a constructive and supportive manner, in both this debate and the engagement sessions we have run over recent weeks.
I turn to some of the specific points that have been raised. I ought to crave your Lordships’ indulgence because this will not be a short speech; it will be a sincere effort to address all the key points in full, and not a cynical attempt to bore all noble Lords to tears. Starting with interaction between this Bill and the Online Safety Bill, which was referenced by the noble Lords, Lord Stevenson of Balmacara and Lord Ponsonby, the Government are obviously aware that we have overtaken that Bill in its passage, and we will ensure that the links between the Bills have the desired effect.
A central element of a number of offences in the Bill, alongside the foreign power condition, is the test of the safety and interests of the UK. This test is one way that legitimate activity is excluded from the scope of relevant offences. In considering any prosecution in relation to the offences to which the provisions regarding prejudice to the safety and interests of the UK apply, the court will consider the nature of the risk to the safety or interests of the UK. Case law already makes clear that
“the safety or interests of the United Kingdom”
should be interpreted as the objects of state policy determined by the Crown on the advice of Ministers. This is notably different from protecting the particular interests of those in office.
The noble Lord, Lord Wallace of Saltaire, questioned the scope of the foreign power condition in the Bill. The foreign power condition provides a single and consistent means by which a link to a foreign power can be made for the purposes of the offences of obtaining or disclosing protected information, trade secrets offences, sabotage, foreign interference and the state threats aggravating factor. The foreign power condition can be met in two scenarios: first, where a person is acting for or on behalf of a foreign power and, secondly, where a person intends that their conduct will benefit a foreign power. I reassure the House that this will not capture people who do not know, and could not possibly know, that they were acting for a foreign power. Rather, Clause 29 requires that a person knows, or ought reasonably to know, that their conduct is being carried out for or on behalf of a foreign power, or they must intend to benefit a foreign power. Of course, where our authorities consider a person to be carrying out harmful activity with a state link, this can be drawn to a person’s attention, providing a strong deterrent effect against a person continuing with that activity.
The Bill follows the Law Commission’s recommendation to replace the existing link of an “enemy”, as set out in the Official Secrets Act 1911, with a definition of a “foreign power”. We agree that incidental or tangential links to financial or other assistance from a foreign power will not suffice to meet the foreign power condition in relation to harmful conduct. Those who receive funding from foreign powers to carry out legitimate activities would not meet the foreign power condition if they were entirely separate to that funding to undertake activity covered by one of the offences in the Bill. The other place passed an amendment on Report to put it beyond doubt that any financial or other assistance must be clearly linked to the illegitimate conduct in question.
The noble Lord raised the matter of the Home Secretary. All I will say is that she has provided a detailed account of the steps she took in her letter to the HASC. I will not make further comment as this matter has been dealt with in detail at other times.
Oversight was discussed at length in the other place, as it has been today, and in the helpful engagement sessions I have held with colleagues. Although we already have oversight mechanisms in place for Part 2 of the Bill, the Government have committed to consider whether any additional oversight is required for state threats legislation. We have been considering whether it is possible to extend oversight beyond Part 2 in a way which does not duplicate or unhelpfully interfere with the responsibilities and functions of the existing mechanisms governing both the UK intelligence agencies and the police. Should we decide to extend oversight of the Bill beyond Part 2, it is important that we do not create any confusion or uncertainty. We are currently exploring the different options for appointing an individual to oversee Part 2, along with our work to consider whether there is merit in expanding oversight beyond it. It is crucial that whoever is appointed has relevant experience and skills and can provide an objective assessment of the offences and powers to ensure appropriate and transparent scrutiny.
Many have raised concerns regarding the Serious Crime Act amendment in Clause 28 of the Bill. I know there will be general understanding of why I cannot go into detail on operational issues in this place; however, let me reassure the House that the Government have been working with the UK intelligence community—or UKIC—which has now provided an operational briefing to the Intelligence and Security Committee outlining examples of why this measure is needed. The committee has acknowledged the need for the SCA to be amended and appreciates our reasoning for seeking changes, though it is not yet in full agreement on the way the problem is being addressed. I thank the committee for its engagement on this matter and welcome a collaborative dialogue going forward. I want to be clear that the Government have heard noble Lords’ concerns and will look carefully at what can be done to tackle these issues. I am grateful to all noble Lords who spoke on this clause and thank them for their thoughts. I look forward to further discussions to find the right way forward.
Let me turn to why the SCA amendment is necessary. Collaboration with international partners is a vital element of the national security work carried out by the Armed Forces and UKIC. To support this crucial work, a number of safeguards and processes are in place to ensure that this collaboration is necessary, proportionate and prevents potential wrongdoing. For example, the Government remain committed to the Fulford principles and overseas security and justice assistance guidance, which exist to ensure that our officers do not knowingly support unlawful activity. Further, UKIC’s regulatory compliance is monitored by the Investigatory Powers Commissioner’s office via regular inspections and routinely scrutinised by the Intelligence and Security Committee.
The UK has one of the most rigorous intelligence oversight regimes in world. There are several internal safeguards and processes in place which manage the way that UKIC and the Armed Forces work with and exchange information with international partners to prevent potential wrongdoing. Operational decisions are carefully recorded and made with the benefit of regular advice from specialist legal advisers to ensure compliance with domestic and international law. Intelligence officers receive mandatory training on the legal frameworks and policies which govern UKIC and Armed Forces activity. These policies include the Fulford principles, the compliance with which is assessed by the Investigatory Powers Commissioner annually and reported to the Prime Minister. UKIC’s regulatory compliance is also monitored by the Investigatory Powers Commissioner’s office via regular inspections and routinely scrutinised by the Intelligence and Security Committee.
The Serious Crime Act offences mean that individuals who have complied with all those safeguards—working under authorisation and in the interests of UK national security—may fear personal criminal liability. It is not right or fair to expect this risk to sit with trusted individuals who are acting in good faith and on behalf of our intelligence services or Armed Forces for authorised purposes. Instead, responsibility should sit with those organisations at an institutional level, where it is subject to executive, judicial and parliamentary oversight.
I want to be absolutely clear: Clause 28 is not a broad, general immunity from criminal offences and not about allowing the Government to carry out torture or commit murder. Rather, the Government are making an amendment to provide a targeted protection which better facilitates co-operation with our key overseas partners. At present, despite being satisfied that all other domestic and international law obligations are met, essential intelligence sharing with partners has been delayed or prevented in order to protect individual officers from potential liability for SCA offences. This is a having a chilling effect across UKIC and the Armed Forces, reducing the confidence of officers who make vital national security decisions every day. As a country, that means that we are less safe, because reciprocal access to intelligence facilitated by joint working is crucial to responding to the threats we face, such as terrorism.
This amendment is not about letting UKIC and the Armed Forces do whatever they want. It is about ensuring that we are protecting those working for us from prosecution and giving them the confidence that the Government have their backs. When things go wrong, it is entirely right that there is scrutiny of and accountability for the organisation’s activities, and I commend the important work of the ISC and IPCO in this space. Meanwhile, any individual found to be working beyond the proper functions of the security and intelligence agencies or the Armed Forces will remain personally liable for those actions. That is right and fair.
I have full confidence, however, in those to whom we are providing protection, including our intelligence agencies. They are expert, professional and highly trained individuals, whose judgment and skill we respect and have faith in. Not taking the opportunity to provide those individuals with assurances that they are protected would be an abdication of our responsibility to support them in keeping our country safe.
The noble Lord, Lord West of Spithead, asked why the SCA is necessary, given Section 7 of the Intelligence Services Act, which authorises the “reasonable” defence. The noble Lord, Lord Carlile of Berriew, also raised a point on those matters, so I shall try to deal with them now. While we consider that properly authorised activity to protect national security should be interpreted as being reasonable for the purposes of the existing defence to the Serious Crime Act offences, the application of the reasonable defence to UKIC and Armed Forces activity is untested. The Government believe that UKIC and the Armed Forces should have a targeted protection that provides far greater clarity and certainty to those tasked carrying out important national security work. Section 7 ISA authorisations are not available in all the circumstances in which the SCA risks arise. Those authorisations primarily apply to overseas activities, meaning that Section 7 could not generally be used to protect officers when carrying out activities in the UK. Section 7 authorisations may be sought only by SIS and GCHQ, and not by MI5 or the MoD.
The foreign influence registration scheme, or FIRS, is being created to tackle covert influence in the UK. It will strengthen the integrity of our systems and enhance the transparency of our political processes, delivering a key recommendation of the Intelligence and Security Committee’s 2020 Russia report. As I am sure noble Lords will agree, it can be only right that the UK public and our democratic institutions are appropriately protected from political interference from abroad and better informed as to the scale and extent of foreign influence in our affairs. Russia’s recent attempts to undermine European stability has brought the need for action into sharp focus. That is why the scheme will require the registration of all political influence activities where they are to be carried out in the UK at the direction of a foreign power or entity. It is important to note that the scheme will not impose restrictions on the legitimate activities of people or business. Indeed, it is there to encourage openness and transparency. To be clear: we continue to welcome open and transparent engagement with foreign Governments and entities, and we will ensure that the administrative burden of the registration requirement is kept to a minimum.
The noble Lord, Lord Wallace of Saltaire, raised two key concerns. First, he suggested that the political tier of FIRS would have a disproportionate impact on academia. That would be the case only when those bodies undertook political influence or activity. Further, no countries are now specified on the enhanced tier, so there is no activity to be registered as it now stands. If the Government list a country, we will consider what activity should be registrable, ensuring that any such registration would be proportionate.
Lord Wallace of Saltaire (LD)
My Lords, before Committee, could we be told how this new proposal will interact with the National Security and Investment Act, which already acts on universities? Universities are concerned that there will be a double effect, increasing the problems they face and the amount of time they will have to spend on them.
Lord Sharpe of Epsom (Con)
I shall get back to the noble Lord on that point.
To conclude on that issue, these decisions will be subject to parliamentary approval.
Secondly, I assure noble Lords that all the policy in the Bill is subject to collective agreement and has the support of the full Government. It is also important to note that the Government undertook a consultation on the Bill, including FIRS, in the summer of 2021, and ran targeted engagement with industry this summer.
With regard to the specified person measure included in the foreign influence registration scheme, it is important to clarify its necessity. It will offer us three key benefits. First, it will provide the Government with a greater understanding of the scale and extent of activity being carried out on behalf of specified foreign powers and entities. Secondly, it will increase the risk to those who seek to engage in covert activities for specified foreign powers, either directly or through entities. By requiring the registration of relevant arrangements and activities, the risk of engaging in state-threats activity against the UK is increased. Finally, the specified person measures provide a potential option for earlier disruption when there is evidence of a covert arrangement between an individual and a specified foreign power or entity but not disclosable evidence of a more serious state- threats offence. Crucially, this provides an opportunity to prevent harmful activities at the earliest possible stage.
On Clause 3, the noble Lord, Lord Marks of Henley-on-Thames, gave the example of an individual working with Mossad in the UK to recover artefacts looted by the Nazis. In his example, we would expect that the UK would have been made aware of such activity and it is possible that the UK would have made an arrangement with Israel. As such, the activity would have a defence in Clause 3(7)(c)(i).
A number of noble Lords raised the Official Secrets Act 1989, including the noble Lord, Lord West, and the noble Baroness, Lady Ludford. As the House knows, the Government are not planning to reform this Act. It is worth noting that the Law Commission, in evidence to the Bill Committee, clearly explained that it did not envisage that any one statute would implement all its recommendations at once, even if the Government were minded to accept them all. It also did not recommend that a public interest defence be created in relation to the espionage offences in the Bill. We continue to consider the Law Commission’s recommendations on the Official Secrets Act 1989.
On the specific issue of a public interest defence, or PID, to overcome a PID, the Government would need not only to show that the disclosure was damaging but that any harm from a disclosure outweighs the public interest in the disclosure. This would likely mean that in a prosecution, even one where a person clearly had malicious intent, the damage of the original disclosure could be severely compounded. This could lead to even egregious breaches of the Act not being prosecuted due to the sensitive nature of the evidence that the Government would have to reveal to defeat the PID. The Government recognise that there may be situations where an individual has a legitimate need to raise a concern—for example, in situations where there may have been wrongdoing and where they think there is a public interest in disclosing that information—but disclosing information protected by the Official Secrets Act 1989 and then relying on a PID is not the safest or most appropriate way for an individual to raise these concerns and have them rectified. Nor would this address the underlying wrongdoing.
The offences in the National Security Bill target harmful activity by states, not leaks or whistleblowing activity. There are safeguards that prevent the Bill capturing whistleblowers and negate the need or utility of PID. For example, to commit an offence of disclosing protected information, the conduct must be done for or on behalf of, or with the intention to benefit, a foreign power and with a purpose prejudicial to the safety or interests of the UK. A genuine whistleblower would not meet this bar. Including a PID in any of the offences in Part 1 strongly implies that acts of espionage could be in the public interest. Clearly, acts of espionage against the UK can never be in the public interest.
There are also already several existing internal and external routes in government through which individuals, including government subcontractors or contractors, can raise a concern about information relevant to the Official Secrets Act 1989 safely. The number of routes has increased since 1989. The Government consider that these routes provide safe and effective options for disclosure, although the appropriate route would of course depend on the disclosure in question. These routes include, among others, government departments’ internal policies and processes; a staff counsellor for the national security community; organisational ethics counsellors; the chair of the Intelligence and Security Committee; the Investigatory Powers Commissioner’s Office; the Attorney-General’s Office; the Director of Public Prosecutions; and the Commissioner of the Metropolitan Police in instances where an individual suspect’s criminal activity is taking place or has taken place. To sum up, the introduction of a PID would carry significant risks to our national security and do nothing to create a safe or effective route to raise a concern, compared to the many legitimate routes the Government are actively maintaining and improving.
Turning to the report published by the Joint Committee on Human Rights, raised by the noble Baroness, Lady Ludford, the Government are clear that the offences and powers introduced by the Bill are proportionate and necessary. Through the use of appropriate safeguards and conditions, and reflecting on the need to protect national security and public safety, the offences have been crafted to catch only legitimate activity, ensuring that they remain proportionate. The Government disagree with the overall position of the committee and maintain that the measures in the Bill are appropriately drawn. Our ECHR memorandum, updated on the introduction of the Bill into this House, outlines the government assessment of how our measures comply with human rights law. I look forward to engaging with the committee as the Bill progresses through this House and the Government will respond to the JCHR report in due course. I am sure the noble Baroness would not expect me to speculate on the Bill of Rights Bill and its future.
The noble Baroness, Lady Jones of Moulsecoomb, asked when the Government will publish the Russia report. I am pleased to be able to tell her that the Government did in July 2020. In fact, I can tell the noble Baroness that our response was published on the very same day; the Bill is a direct response to the recommendations in that report.
In conclusion, I will repeat my earlier thanks to all who have participated today. I look forward to further examination and challenge as we move to Committee, but for now I beg to move.
National Security Bill
Monday 19th December 2022
(1 year, 11 months ago)
Lords ChamberRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 68-II Second marshalled list for Committee - (19 Dec 2022)
Member's explanatory statement
This amendment is intended to tighten the scope of the offence in Clause 1.
Lord Marks of Henley-on-Thames (LD)
My Lords, all the amendments in this group are in my name and that of my noble friend Lord Purvis of Tweed. Before speaking to them, I make a general observation which is applicable to nearly all the amendments we have put down for debate today.
Broadly, Part 1 of the Bill is aimed at updating and clarifying the law against espionage, sabotage and subversive behaviour which threatens the safety, security or defence of the United Kingdom. We and the whole House support that aim, which is clearly described in the Long Title: to
“Make provision about threats to national security from espionage, sabotage and persons acting for foreign powers.”
However, as I said at Second Reading, we on these Benches wish to ensure that the Bill sticks to that remit and is not so wide as to damage individual liberties which our security and defence services are there to protect.
The amendments in this group would ensure that guilt of the relevant offences could be established only on the basis of actual knowledge of essential facts, and not merely what is often called imputed knowledge. The Bill talks of what a person ought reasonably to know rather than what they might be deemed to know. However, we object to the addition of
“or ought reasonably to know”
after “know”.
I shall remind your Lordships briefly of the offences covered by these amendments and the sentences proposed for them. The offences in Clause 1, “Obtaining or disclosing protected information”, and Clause 12, “Sabotage”, both attract a maximum sentence of life imprisonment. All four offences in Clause 2, “Obtaining or disclosing trade secrets”, Clause 3, “Assisting a foreign intelligence service”, Clause 4, “Entering a prohibited place for a purpose prejudicial to the UK”, and Clause 15, “Obtaining etc material benefits from a foreign intelligence service”, attract a maximum sentence of 14 years imprisonment. The offence in Clause 5, “Unauthorised entry etc to a prohibited place”, is in a different category because it is a summary offence, but, apart from that Clause 5 offence, all these offences are treated very seriously indeed.
Yet in order to be guilty of the offences, the defendant does not actually have to know essential facts. It is enough if they “ought” to know them. In Clause 1, the offence is committed if the person
“obtains, copies, records or retains protected information, or … discloses or provides access to protected information”.
Clause 1(b) provides that the person’s conduct has to be
“for a purpose that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom”.
In the next group, I will make the point that the interests of the United Kingdom concerned ought to be the “security or defence interests”, not just interests in general. But in this group, our point is that, in order to be guilty under this clause, the person should actually have to know that their conduct was for a purpose that was prejudicial to the UK. It should not be sufficient to constitute guilt that they merely “ought to have known” that, even if they did not. That is the point of our Amendment 1.
Another unsatisfactory feature of this and other clauses is that the clause presupposes an actual purpose—that purpose, presumably, being the reason for the defendant’s actions. It would be very odd if, the prosecution having established the purpose, the additional requirement of knowledge could be met not by showing that the defendant knew that that purpose, which was his or her own, was prejudicial to the national interest but merely that they “ought” to have known that.
Under Clause 2, which is the trade secrets offence, the defendant’s conduct, under the Bill, has to be “unauthorised”. However, as drafted, the defendant does not have to know that the conduct is unauthorised; it is enough if the defendant “ought” to have known that. Our Amendment 7 would change that.
Under Clause 3, “Assisting a foreign intelligence service”, it should be required, we say, that to convict a person of this offence, they actually knew—the Bill says that they ought to have known that it was “reasonably possible”—that
“their conduct may materially assist a foreign intelligence service”,
not merely that they should have realised that the possibility existed. Amendment 14 would address this. We also say that the word “likely” would be more effective than the words “reasonably possible”, but that is addressed in a later group.
In Clause 4, the offence of entering a prohibited place suffers from the same inherent problem as the Clause 1 offence. The purpose has to be proved, but the defendant does not actually have to know that the purpose was prejudicial to the safety or interests of the United Kingdom; it is enough that they “ought reasonably” to have known. The clause heading, “Entering etc a prohibited place for a purpose prejudicial to the UK”, highlights the illogicality. How can you have that purpose if you do not actually know that the purpose is prejudicial at all? Yet the clause as drafted says that you can; that should go, and our Amendment 17 would remove it.
Clause 5 is the summary offence of unauthorised entry to a prohibited place. Under the Bill, proof of actual knowledge of the lack of authorisation is unnecessary; again, merely the defendant “ought” to have known that. Our Amendment 22 addresses that.
Regarding Clause 12, the very serious sabotage offence, the same point applies to the purpose as in Clauses 1 and 4. Again, we say that guilt ought, crucially, to depend on actual knowledge that the purpose was prejudicial. Amendment 36 addresses that.
Amendments 46 and 48 make similar points about the defendant’s knowledge of the source of benefits provided by a foreign intelligence service. Amendment 65 would amend the application of the foreign power condition in Clause 29, which states that
“the person knows, or ought reasonably to know,”
that the conduct is carried out
“on behalf of a foreign power.”
The foreign power condition in the Bill is a very important condition for liability for a number of these offences. How can it possibly be just for the law to provide that the condition can be met if a person does not know that their conduct is carried out on behalf of a foreign power and naively does not catch on, just because it is later decided that even if they did not know at the time, they should have realised? Juries can, and frequently are asked to, come to a conclusion about what defendants know or knew or even what they believe or believed. Juries are good at determining actual states of mind, drawing conclusions from the evidence they hear and see.
To take a simple example, the Theft Act defines receiving stolen goods as:
“A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods”.
But here we are concerned with the proposal that juries should decide cases not on the basis of conclusions they reach about an actual state of knowledge or belief but on views they may take about what the defendant did not know but should have done. These are value judgments, not true decisions of fact.
We are not suggesting that imputed knowledge is never used in the criminal context, but where it is the context is very different. It is used, for example, for insider trading in Canada, where professional insiders receiving tips are able to be found guilty on conclusions that they ought to have drawn. It is used in the Protection from Harassment Act 1997 in respect of defendants who should have known their own conduct would amount to harassment. In the Official Secrets Act 1989 the reference is broadly to unlawful disclosures by Crown servants and contractors or others to whom confidential information was entrusted. They have a defence to unlawful disclosures if they show they did not know and had no reason to believe that the disclosures were unlawful. The burden of proof is reversed, I accept, but I suggest that is because of the positions the defendants hold or held. However, lack of knowledge or of the reason to believe in a state of fact amounts to a defence even then, so that liability is a long way from these cases because these provisions may catch anyone with no special relationship to the Government on an assessment that the defendant did not know the relevant facts but ought to have done so. Our position is that that is unjust. I beg to move.
Lord Hope of Craighead (CB)
My Lords, I venture a few thoughts on this phraseology. The crucial question is: how much would the prosecutor have to prove about the state of knowledge of the defendant? In some contexts, when phraseology of this kind is used, it is necessary to show what the individual knew was the state of the law and what information that individual had at the relevant time from which a conclusion should be drawn.
The problem with the phraseology here is that it is so general that it is not clear whether the knowledge the individual had is to be the actual knowledge which that person had, which is one thing, or, as has been suggested by the noble Lord, Lord Marks, imputed knowledge. If we are dealing with imputed knowledge, the situation becomes much more serious, particularly having regard to the fact that one is concerned with not just the safety of the United Kingdom but the interests of the United Kingdom, which itself is an unfortunately vague expression. I think it would help the Committee if the Minister would explain exactly what a prosecutor would be expected to have to prove in order to establish the offence.
Putting myself into my former position of prosecutor, I would find it quite troublesome to have to face up to proving not only what the individual knew about the law but what the individual knew about the facts. But it would be quite reasonable for me as a prosecutor to have to do that. To impute knowledge of facts to an individual with an offence as serious as this is to take the matter a long way from a reasonable punishment with the extreme penalties mentioned in this clause. It would be helpful if the Minister would explain exactly what would need to be proved in order to establish the offence so that the noble Lord and those supporting know exactly where they are.
Lord Purvis of Tweed (LD)
My Lords, I rise to support my noble friend and have added my name to these amendments. I apologise to the Committee that I was not present at Second Reading. The Minister knows that I was in Malawi supporting the launch of a parliamentary programme and explaining to our colleagues in Malawi the benefit of line-by-line scrutiny of legislation, which I know the Minister will be relishing over these coming days in Committee. As my noble friends indicated at Second Reading, and as my noble friend has indicated today, we take threats to our country very seriously, and we will work constructively with the Government in the scrutiny of the Bill.
I was struck by the remarks of the former head of the SIS, Sir Alex Younger, when he gave evidence to the Public Bill Committee in the Commons and said that the need to address the changing threats was in front of us. He said:
“What I would call grey threats … often presented us with real challenges, particularly when actors or states felt themselves at war with us and we did not feel ourselves at war with them, for good reason. My career saw less emphasis on conventional threats and more on grey space. Most of my career was devoted to counter-terrorism, which was the dominant example, but subsequently we saw state actors working in sub-threshold space—operations short of conventional war—to harm us.”—[Official Report, Commons, National Security Bill Committee, 7/7/22; cols. 11-12.]
In many respects, it is that grey space that we are seeking to address. I understand the Government’s challenge ahead but, as my noble friend indicated, casting the net so widely without a sharp mesh, I am not sure we will have the kind of security the Government are intending for us to have in this area.
This will be very apparent when we get to Part 3, when it comes to foreign interference in the registers, and other parts. I know the Minister will be in listening mode for a lot of Committee, but I hope he will consider pausing at that part of the Bill for further consultation, because what was apparent at Second Reading—many other noble Lords have, I am sure, received representations from a wide variety of groups, as I have—is that more consultation on that part of the Bill is necessary. Pausing that and bringing it back for the economic crime Bill may be an appropriate way forward. That is a debate we are yet to have, but I just wanted to give the Minister foresight of the case we are making.
As my noble friend indicated—and I defer to his legal knowledge and that of others with extensive legal knowledge who will be participating in Committee—I am struck that because of the Government’s choice not to reform the Official Secrets Act 1989, we will have two competing offences with two contradictory defences. Under this Bill, as my noble friend indicated, anyone who discloses protected information is committing an offence. In the 1989 Act, if an intelligence officer or former intelligence officer discloses any information relating to security or intelligence, they can be imprisoned for up to two years.
Under this Bill, anyone disclosing protected information to a foreign power or a body under the authority of a foreign power faces life imprisonment. However, as my noble friend indicated, in Section 1(5) of the Official Secrets Act 1989 there is a form of defence:
“It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question related to security or intelligence or, in the case of an offence under subsection (3), that the disclosure would be damaging within the meaning of that subsection.”
There is no equivalent in this legislation, and I would be grateful if the Minister would outline in very clear terms why.
Part of the rationale given by the Minister in the House of Commons was that the difference between this and the Official Secrets Act is that with this, for any prosecution, three tests have to be met. I suspect we will hear quite a lot in Committee about the three tests. The Minister, Stephen McPartland, indicated that the three tests for someone to be prosecuted under this part of the Bill were,
“conducting harmful activity with regard to information that is protected effectively, knowingly prejudicing the safety or interests of the United Kingdom, and acting in a way that benefits a foreign power.”—[Official Report, Commons, National Security Bill Committee, 12/7/22; col. 80.]
But “harmful activity” and “protected effectively” are not specified in the Bill and “benefits a foreign power” is not necessary in Clause 29.
Because of the breadth of Clause 29, in some areas it is opaque. For example, does someone have to prove objectively that they did not know they were providing a service to a foreign power because they were providing it for an authority of a power? That means that the objective test, on a subjective element under this clause, is problematic.
The Minister in the Commons was not clear with regard to what the three tests are, and Clause 29 is broad. It would therefore be preferable for there to be a far more objective approach, as there is in the 1989 Act, rather than what is in this Bill. On that basis I support the amendments in my noble friend’s name.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the amendments in this group, tabled by the noble Lords, Lord Marks and Lord Purvis, intend to tighten the scope of offences in Clauses 1, 2, 3, 4, 5, 12, 15 and 29. This is achieved in these amendments by leaving out
“or ought reasonably to know”
from the relevant clauses, meaning that an offence is committed under these clauses only if the person
“knows … that to be the case.”
The practical effect of these amendments is therefore that offences are committed only when a person knows that their actions are damaging. Given that the offences in the Bill could carry significant sentences, as we heard from the noble Lord, Lord Marks, the Committee is right to probe to what extent a person must know that they are committing such an offence, especially as it will otherwise be up to the courts to determine whether a person ought reasonably to have known that they were committing the offence.
However, it is not unusual for offences to be committed when a person ought reasonably to know. There is a recent example of this, which includes the Criminal Justice and Courts Act 2015. I was recently googling it, and it seems that the Act was passed by the coalition Government.
Further to this, if an offence is committed only when a person knows it to be the case that their actions are damaging, it could be difficult to get a successful prosecution. None the less, it is right and helpful that the Committee should ask the Minister to expand on the points we have heard in this short debate.
As the noble Lord, Lord Marks, said, juries often decide on the state of somebody’s mind when an action is committed, and the decision as to whether the defendant is guilty or not guilty can easily turn on their perception of the state of the person’s mind. The noble and learned Lord, Lord Hope, spoke about the difference between knowledge and imputed knowledge. As he said, it would indeed be helpful if the Minister could expand on the level of imputed knowledge that may be expected to secure a conviction.
The noble Lord, Lord Purvis of Tweed, reminded us of the complexity of dealing with “grey space”, as he referred to it. This is an opportunity for the Minister to try to clarify the situation so that prosecutions can be appropriately brought and reasonably thought to have secured an appropriate conviction.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I thank noble Lords for their broad support for the Bill and the noble Lord, Lord Marks of Henley-on-Thames, for introducing these amendments.
The test that a person
“knows, or ought reasonably to know”
the effect of their conduct recurs throughout the offences and measures in Part 1 of the Bill. Failing to include an element of objectivity in this test would risk seriously undermining the offences and not criminalising behaviour for which we consider individuals should be culpable. Those conducting state threats activity are likely to be skilled at their tradecraft and will be adept at hiding their activities from our intelligence and law enforcement agencies. It is important that we do not hinder our ability to prosecute in these cases.
We consider that knowledge is an appropriate threshold for these offences and the foreign power condition. However, we believe it is also right to include constructive knowledge in these provisions. Given the seriousness of the offences to which this test applies, it is essential that an element of objectivity is included to ensure that offences can still be prosecuted where individuals are unjustly claiming not to have known the relevant consequences or circumstances. It is, of course, right that those who could not have seen those consequences or circumstances should not be criminally liable under these offences.
I think it is helpful at this point to draw noble Lords’ attention back to the 1911 Official Secrets Act, which we are replacing with this Bill. The offences under that legislation cover certain actions, such as obtaining information, by a person
“for any purpose prejudicial to the safety or interests”
of the United Kingdom. Those offences require a no-fault element to be proved in relation to the prejudice to the safety or interests of the state. The proposed amendments to Clauses 1, 4 and 12 contain the same requirement for prejudice to the safety or interests of the United Kingdom, but, importantly, and as recommended by the Law Commission, introduce a subjective fault element. We agree with the Law Commission that these offences should contain a subjective fault element. Crucially, the offences would not capture a person who genuinely could not reasonably have known the effect or nature of their conduct.
Perhaps I might provide a hypothetical scenario of how the proposed amendment could affect the foreign power condition in Clause 29. It is possible that an individual is unaware that they are working for an undercover foreign agent. The noble Lord, Lord Purvis of Tweed, made a very good point about the grey area in which much of this activity takes place. Let us imagine that the security services tell that individual that the person they are working for is, in fact, a foreign agent but the individual refuses to believe it despite clear warnings. At this point, it would be reasonable to make that individual culpable should they continue activities at the behest of the foreign agent, whereas it might prove difficult to successfully prosecute the individual if knowledge had to be proved.
To be clear, the individual in this example would still need to meet all the other tests in any given offence to be charged with that offence. Meeting the foreign power condition is not in itself wrongdoing.
The same logic applies to other amendments tabled. In Clauses 3 and 15, I am sure the whole House would agree that it is not right that an individual should escape liability when they reasonably should have known that their conduct could assist a foreign intelligence service or that they were receiving a benefit from a foreign intelligence service. A purely subjective test would make these offences very difficult to successfully prosecute.
Constructive knowledge is applied by the courts in other circumstances and the Government are confident that this test is appropriate. There will be a range of culpability between those who have actual knowledge and those who should have known, but that is something that is appropriate for sentencing rather than conviction. I hope that goes some way to answering the question put by the noble and learned Lord, Lord Hope—ah, apparently not.
Lord Hope of Craighead (CB)
I want to make it quite clear that, for the reason that was expressed earlier, I do not object to the idea of objectivity here, because it is sometimes extremely difficult to prove that someone knew something. The phraseology being used is pointing in the right direction, but there are two different levels of knowledge. The first is the knowledge of the background facts, and then there is the knowledge that flows from the conclusion based on those facts. Both of those are built into the rather short phraseology of this clause.
Taking those as two separate things, I can agree that the conclusion to be drawn from those facts can be looked at objectively. My question is: how much is the prosecutor going to be dependent on imputed knowledge of the background facts? It would be consistent with some other contexts in which reasonable knowledge is used to say that you look to see what information is possessed by the individual. Taking that as a given, you look at what facts the individual knew, and then you look at the conclusion that ought to be drawn from those facts. I hope I have made it clear that there are two stages here and my concern is about the first stage—whether the clause is imputing knowledge to the individual which that individual does not have. If it is going that far, it is taking a very serious step.
Lord Sharpe of Epsom (Con)
I thank the noble and learned Lord for that clarification. I do not think the clause is imputing that but I will read Hansard very carefully and, if I may, I will come back to him in writing on this point.
The noble Lord, Lord Purvis, will pick me up if I do not address the Official Secrets Act 1989, but that is due to be discussed in group 33 on a subsequent Committee day, so I ask if we can come back to that detail then, if that is acceptable.
Lord Purvis of Tweed (LD)
Of course, as long as it is on the basis of the point that my noble friend raised—that we will have two pieces of legislation. The 1989 Act will cover serving or former members of the intelligence services, but this Bill means that there will now be two competing pieces of legislation. I do not know which the Government intend will trump the other.
Lord Sharpe of Epsom (Con)
I understand where the noble Lord is coming from. I commit to making sure that we explain that in considerable detail at the appropriate time, if that is acceptable.
For the reasons I have given, the Government cannot accept the tabled amendments and I ask the noble Lord to withdraw.
Lord Marks of Henley-on-Thames (LD)
My Lords, I shall certainly withdraw the amendment at this stage at the end of what I have to say, and will then consider it and my other amendments with the Minister and others between now and Report.
I am grateful for the incisive consideration of imputed knowledge by the noble and learned Lord, Lord Hope, supported, as I understood it, by the noble Lord, Lord Ponsonby, who clearly articulated the difference between the basic knowledge that you must have and the conditions for imputing knowledge. That is what the Government’s drafting of all these clauses in the Bill simply does not address.
My noble friend Lord Purvis of Tweed pointed out the very difficult coexistence of the Bill with the Official Secrets Act 1989, which I think the Minister accepted and said that we are going to come back to. It is difficult precisely because it is not simply a competition between offences that involve serving or former intelligence officers and those involving any person; it is also that there is a carefully defined defence under the Official Secrets Act that does not apply here, and the offences can be made out on the basis of imputed knowledge.
The point made by the Minister, that the requirement for actual knowledge might hinder prosecutions, would be a good one were it not for the fact that juries are very good at determining whether or not people who deny knowledge actually have it, as the noble Lord, Lord Ponsonby, pointed out. With the exception of the Clause 5 offence, these are all indictable-only offences, as you would expect, carrying very serious penalties. A defendant who denies knowledge will have that denial very carefully considered, and the underlying facts that he knew, or can be shown to have known, will be considered to enable a jury to decide whether he actually knew.
On that basis, I suspect that, at the end of the deliberations on the Bill, the House may well want to ensure that, for a conviction to stand, it is a question not of hindering prosecutions but of whether a conviction on reasonable evidence is a likely outcome. When that is considered, I believe that actual knowledge should be required, although I of course wish to consider this over the intervening stages of the Bill. On that basis, I beg leave to withdraw the amendment.
Member's explanatory statement
This amendment is intended to clarify the definition of “interests of the UK”.
Lord Marks of Henley-on-Thames (LD)
My Lords, our amendments in this group would all tighten the definition of the
“interests of the United Kingdom”
that are to be protected under the provisions of the Bill. They would make it clear that the interests to be protected from damage or prejudice by this National Security Bill should be the “security or defence” interests of the United Kingdom.
In opening group 1, I made the point that the aim of Part 1 was set out in the Long Title: the Bill is about “threats to national security”, not general concerns about the interests of the United Kingdom. This reflects a point, made by me and others at Second Reading, that the interests of the UK in the Bill as drafted are not restricted to the defence or security interests of the UK at all but that any interests of the United Kingdom are to receive protection.
For example, under Clause 1, obtaining records or disclosing “protected information” is to be criminalised. “Protected information” includes any information that is “restricted in any way”, or may be reasonably expected to be so restricted, for the purpose of protecting any interests of the United Kingdom, not just security or defence interests. There is no requirement that a genuine threat to the UK be shown, and there is no restriction on which areas the interests of the UK might be held to cover.
As the Minister said in responding to the Second Reading debate, the phrase “interests of the United Kingdom” has been interpreted by the courts as meaning
“the objects of state policy determined by the Crown on the advice of Ministers”.
He also said:
“This is notably different from protecting the particular interests of those in office.”—[Official Report, 6/12/22; col. 152.]
In a personal sense, that may be so, but the interpretation that he recited, which I accept is correct in law, means effectively that the interests of the UK are synonymous with government policy at a particular time. So if the Government of the day are pursuing a particular policy on environmental protection, for example—I mentioned fracking at Second Reading but it could just as easily be immigration or any commercial interest covering transport, planning, housing, safety standards, employment rights or whatever—then investigation and disclosure would be at risk of being criminal.
Under Clause 4, photographing, recording or even looking at any prohibited place for a purpose contrary to any interests seen as those of the UK—these interests are effectively determined by the policy of the Government of the day—would all be criminal. Worse still, the photography or the recording could all be from outside the prohibited place.
Under Clause 8, the Secretary of State may designate anywhere in the United Kingdom—or for that matter any vehicle—as a prohibited place if they consider it necessary to protect the unlimited and undefined interests of the UK. That would hand an unscrupulous Government the power to choke off much of the investigative journalism and broadcasting that is fundamental to our democracy. Consequently, informed discussion of what the national interest requires would be similarly choked off. The dissemination of information about government policy on almost any topic that the Government could claim bore on the national interest could be stifled by the imposition of government restriction at will.
As drawn, many of these provisions have nothing whatever to do with national security. All of our amendments in this group are designed to restrict the interests to be protected by the Bill to “security or defence” interests. That is sufficiently wide, and it is the aim of the Bill, as demonstrated by the Long Title. We therefore hope that the Government will accept these amendments, because we find it hard to believe that they would wish to arrogate to themselves such wide-ranging protection of all possible interests that could be designated as interests of the United Kingdom in a Bill that is rightly concerned with the protection of national security. I beg to move.
Baroness Jones of Moulsecoomb (GP)
My Lords, I will make some simple arguments, because there are other noble Lords who can make much more complex arguments. I say very clearly that the Bill we are debating is the National Security Bill and, therefore, it ought to be about national security. The offences should not be able to be translated to other areas. The offences are drawn so badly and broadly that they will criminalise a huge range of conduct which might only vaguely affect the interests of the UK. The wording should be changed to “security or defence”, as the noble Lords, Lord Marks and Lord Purvis, have suggested in their amendment. It is a dangerous piece of legislation, because it is so broad that the police and security services will be able to turn it into something they can use against far too many people.
Lord Evans of Weardale (CB)
My Lords, I have reservations about this amendment, because it seems to me that, for the reasons outlined by the noble Lord, Lord Purvis of Tweed, we are talking about a grey-zone threat from foreign powers and not just the traditional threat which focused almost entirely on national security and defence in the traditional sense. If we are to have legislation which is fit for purpose for the current hybrid warfare that we face as a country, it needs to enable the intelligence and security services to take the appropriate action against not only narrowly defined national security and defence interests but the wider interests of the country—that is what the grey zone is about. While we may be talking about, for example, economic or political interests, it would be an error to focus solely on national security and defence, because, unfortunately, that is not the only area on which our opponents and enemies are focused.
Baroness Butler-Sloss (CB)
My Lords, I understand entirely what the noble Lord, Lord Evans, has said about the grey area, and we may need to look at that. However, because of how the clause is drafted, it goes far broader than that: as the noble Lord, Lord Marks, said, it allows for any interests of any Government at any period of time. What does the Minister think is the purpose of “interests”?
Lord Hope of Craighead (CB)
My Lords, there is an important principle at heart here. While I appreciate the description of the zone as grey, the problem is that, when you are criminalising conduct, particularly with the penalties that are mentioned in the clause, absolute clarity is needed so that the individuals at risk of being prosecuted can judge whether or not they are at risk of prosecution. Therefore, some attempt at changing the wording—not necessarily following the exact wording in the amendments—is needed to clarify the situation in the interests of the members of the public who are at risk of being prosecuted. I quite understand the greyness of the area, but that is a challenge that must be faced by finding a way, though some form of wording, to avoid the broad reach—indeed, the broadest possible reach—which is at risk if the wording of the clause is kept as it is.
Lord Carlile of Berriew (CB)
My Lords, I agree absolutely with the Government’s aim in that there are certain British interests that they wish to protect. However, the way the Bill is drawn leaves an area of opacity and inconsistency with other important and analogous publications. I draw your Lordships’ attention to the revised version of the integrated review produced in 2021, which refers to:
“Our interests and our values: the glue that binds the”
nation. It continues:
“The Government’s first and overriding priority is to protect and promote the interests of the British people through our actions at home and overseas. The most important of these interests are: … Sovereignty … Security … Prosperity”—
and it explains each of those terms. The explanation of prosperity is extremely vague, but the descriptions of both sovereignty and security are quite clear. Those two descriptions are different from “the safety or interests of the United Kingdom” in the Bill, at least as I understand it. My plea to the Minister is for him to accept that there may be some opacity in what we are presented with, and for him to go back and consider this—alongside other publications that the Government have produced, including the integrated review—so that we can have something which is consistent across the board by the time we complete the Bill.
Lord Beith (LD)
My Lords, one of the considerations of the kind referred to by the noble Lord, Lord Carlile, is, of course, a fairly familiar debate parallel to this one which is about the economic well-being of the United Kingdom. Many of the powers exercised by security services can be exercised to defend the United Kingdom from physical threat, but they can also be used to defend the economic well-being of the United Kingdom. I have always been worried about the potential growth of that term, not its actual use. It is very easy to think of things that perhaps ought not to attract intelligence activity but which affect the economic well-being of the United Kingdom. The achievement by a particular firm of a particular contract in competition with another firm is a simple example.
We have some experience of trying to deal with this, and to move to an even wider definition of United Kingdom interests seems to me to open the door to criminal cases being mounted with serious potential penalties in circumstances which Parliament will not have envisaged, except in this short debate, when the matter arises in real life. I can see the intelligence agencies being put at some disadvantage by there being a suspicion that they can do things to favour one group of people over another in the economic interests of the United Kingdom or, as in this case, in the wider interests of the United Kingdom. There is a problem, and I think it needs to be addressed by tighter wording.
Lord Purvis of Tweed (LD)
My Lords, I support my noble friend’s amendments. I respect the issue of the grey area of tactics, but I equally acknowledge that if we are seeking to secure convictions beyond reasonable doubt for life sentences and sentences of 14 years, then the burden has to be, in my view, on having the primary legislation as clear as it can be. I will come back to the wider areas of concern.
The Government have referenced that this is an update not a wholesale replacement of the 1911 Act, which states in Clause 1:
“safety or interests of the State”.
But that is a very specific reference to the penalties for spying. It does not go beyond that, so the reference for the understanding of the interests of the state with regard to that penalty and that part of the 1911 Act are very clear. The difficulty with this Bill, as my noble friend indicated, is that the Government are now using that across a series of different offences which are very broad in nature. We will no doubt come back to some of those within the Bill.
The Government have also said that we do not need to have it clarified in the Bill because they are relying on case law definition for this; they cite Chandler v Director of Public Prosecutions—1964 AC 763—as far as that is concerned. I looked at that case, which was specifically about a decision that was made about protesters seeking to access a site where nuclear bombers were going to be taking off. The court found that it was not for the courts to decide what were national security interests; that was a responsibility of the Executive. That is very understandable.
That decision has also been looked at in other cases including Secretary of State for the Home Department v Rehman in 2001. In that case, with regard to Chandler v DPP on national security issues, Lord Steyn said:
“But not all the observations in Chandler v Director of Public Prosecutions … can be regarded as authoritative in respect of the new statutory system.”
So purely relying on the definition of case law on a whole breadth of different offences under this Bill is not sufficient.
I was slightly concerned by what the Minister, Stephen McPartland, told the House of Commons in Committee. He seemed to imply that the real reason why the definition was so broad in this Bill was that the evidential threshold had to be low to secure prosecutions. He said of any further restrictions, as in my noble friend’s amendment:
“That would create a higher evidential threshold to secure prosecution in an area that is often difficult to evidence due to the sensitive nature of the information that may have been obtained or disclosed. Put simply, we would have to explain why it caused damage, which may require evidence that compounds the damage. That would provide challenges to our law enforcement agencies and courts”.—[Official Report, Commons, National Security Bill Committee, 12/7/2022; cols. 81-2.]
I am not a lawyer, but I imagine that our courts are fairly well equipped to handle such cases, which are sensitive or relating to national security, as they have in the past. I was troubled to read that the Minister gave the argument that we needed to keep the definition so broad to create a lower evidential threshold, but the penalty is life imprisonment. That surely cannot be right.
More alarmingly—this goes to the noble Lord’s point about wider interests—the Minister referred to the wider elements, not just national security but economic interests. He also referred to public health interests, saying that these areas would be covered in the Bill, and not just when they are used to threaten national security. So it is not just the grey tactics that concern us with regard to national security grounds, but the greyness of how, potentially, Ministers and prosecutors will seek to define that wider national interest. On the public health interest, I can understand that a malign interest may wish to use such a tactic, as I understand the North Koreans tried to do with malware and the NHS. Those are all tactics but, ultimately, these are national security concerns and not public health concerns.
Fundamentally destabilising our economy should be a national security interest. The examples my noble friend Lord Beith gave of undermining certain sectors or competition are not sufficient to meet a trigger for national security. Therefore, I believe that that triggering should be in the Bill, which is why I support my noble friend’s amendment.
Lord Coaker (Lab)
My Lords, this is a very important group of amendments which in many ways goes to the heart of much of the debate that will take place on a number of amendments. It reminds the Committee that the heart of the issue is Clause 1(1)(b), which says that to commit an offence
“the person’s conduct is for a purpose that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom”.
Fundamental to that is that what we are discussing here, as the noble Lord, Lord Marks, ably set out, is what we actually mean by the interests and safety of the United Kingdom. It is to the great credit of our country that we can debate that here to try to decide what it should be.
I agree with the majority of noble Lords who have said that it is important that we try to understand how to make sure that defending the interests and safety of our country is about national security and defence. The noble Lord, Lord Evans, reminded us that there are grey areas in that respect. That is not a criticism of having the debate, but it means that we have to decide where we want to draw the line. I have mentioned this to the noble and learned Lord Hope, and I pray him in aid. He mentioned it with respect to the Public Order Bill, and again with this one. It is an abrogation of this Parliament’s responsibility if it does not seek to answer these difficult questions and just leaves it to the courts, saying that it is for the courts to decide and determine. We ourselves should try to give greater clarity to what we as legislators think that phrase actually means.
It is incumbent on the Government to say what they will do to try to define this, as Amendment 2 moved by the noble Lord, Lord Marks, and my Amendment 3 seek to do. Either they should say “We don’t need to do that”, lay out why it is not necessary for Parliament to determine it and why they think we should leave it to the courts, or say how we will get some sort of definition that makes sense and gives greater clarity. To be frank, that is a real problem for the Bill.
As the noble Lord, Lord Purvis, pointed out in his interesting and incisive remarks, along with other noble Lords, the Government say at paragraph 62 of the Explanatory Notes:
“The term safety or interests of the UK is not defined”.
They have already made up their mind that they do not need to define it. The basis of these amendments is that we think they do. We do not oppose the Bill or think it is not important that we protect the safety and interests of the United Kingdom, but somewhere along the line our Parliament should try to say what that means. The Government say in the Explanatory Notes that it is not defined and, as the noble Lord, Lord Purvis, mentioned,
“case-law has interpreted it as meaning, in summary, the objects of state policy determined by the Crown on the advice of Ministers (see the Court’s view in Chandler v Director Public Prosecutions (1964)”.
I remind noble Lords that in that judgment, the House of Lords—constitutional arrangements were different then—essentially rejected the idea that it was for a jury to determine or decide whether something was in the interests of the state. As Lord Pearce’s judgment stated,
“the interests of the State must in my judgment mean the interests of the State according to the policies laid down for it by its recognised organs of government and authority, the policies of the State as they are, not as they ought, in the opinion of a jury, to be.”
I am not a lawyer—I have been a politician all my life—but I would argue with that. It may be quite correct from a legal point of view, but sometimes Parliament has not caught up with public opinion or where people are. Often, juries are an important way of determining what the public think, and they work.
We have seen recent examples of that. The noble Baroness, Lady Jones, reminded us well of all the different issues that have arisen with protests. They are irrelevant to the Bill, but let me give another example: assisted dying. Time and again, juries have refused to convict on assisted dying, because they will not convict somebody in those terrible circumstances and do not believe that Parliament has caught up with the reality of where we are.
Lord Faulks (Non-Afl)
I entirely understand why the noble Lord is concerned about any uncertainty in these provisions, given the significant penalty, but is he at all reassured by the fact that it would be necessary for a jury to be satisfied beyond reasonable doubt that a defendant knew or ought reasonably to have known? That is quite a high threshold to be crossed before you even get on to this definition.
Lord Coaker (Lab)
I agree; I am just making the point that a definition would also help and give us certainty and clarity. It is important for a Bill that seeks to address issues of national security that it seeks to define that. The debate has already taken place in Parliament; the noble Lord takes the view that it is unnecessary, but I think a definition would be helpful. A number of noble Lords have said that, in the Bill as drafted, it appears that not only national security or defence issues will fall under the Bill but a whole range of other potential offences which have nothing to do with national security or the defence of the realm.
That is the clarity we seek, and it is right to explore it in Committee. It will be interesting to hear what the Minister says as to why my amendment or those of the noble Lords, Lord Marks and Lord Purvis, are unnecessary. Maybe he will use the argument the noble Lord put forward to say that that is what makes it unnecessary—
Lord Purvis of Tweed (LD)
My Lords, I agree with the thrust of the noble Lord’s argument. I was just reflecting on the intervention by the noble Lord, Lord Faulks. Of course, the jury will have to reach beyond reasonable doubt whether the individual knew. The question is what the mechanisms are of proving beyond reasonable doubt that the person knew what those interests of the Government were, if those interests are not specific and linked to national security. If the Government have made a case that those interests are as broad as the Minister in the House of Commons indicated—that they were linked with public health or economy—that makes the task in the courts much harder, I would have thought. Therefore, it is in the interest of securing better prosecutions that those restrictions are on the face of the Bill, as the noble Lord, Lord Coaker, has indicated.
Lord Coaker (Lab)
That is quite right. As I said, the problem with the Bill is that there is no indication of what else may be covered by the “safety or interests” of the state, or what the limits of those terms might be. As I have been arguing, and as others have said, as well as the prevention of terrorism and espionage, they could extend to policies on energy, national infrastructure, the protection of water, power, food, health services, transport, law and order, organised crime and immigration controls. The extent of the powers that may be taken in the Bill could be used in relation to a wide range of state interests, not just state interests related to national security or to the defence of the realm. The interests of the state clearly are ensuring that we have enough energy, but should that be covered by a National Security Bill? These are questions that the Minister needs to answer, and it will be interesting to hear his answer.
I will make a couple of final remarks. Like many, I am somebody who has never read the Official Secrets Act 1911, but in preparation for Committee—and knowing the depth of knowledge, experience and wisdom that we have around—I thought it was necessary to make sure I was quoting. The Official Secrets Act 1911 says under “Penalties for spying”:
“If any person for any purpose prejudicial to the safety or interests of the State—”.
The Official Secrets Act 1911 says that it has to be for a purpose “prejudicial” to the interests of the state. Logically, should not defendants or people have the right also to argue that their act was not prejudicial to the state? The Act says that your act has to be prejudicial, so surely you have a right and a responsibility to prove that it was not prejudicial. That argument could take place within the courts or wherever. This argument about someone’s actions in relation to the safety or interests of the state, and whether they were prejudicial, needs some sort of definition. Without it, how on earth do we know whether somebody is going to commit an offence under this Act? It would be for somebody to interpret.
Can the Minister clarify what the Government mean by “safety or interests” of the state? Who determines what they are? How can anybody act against that in a way which does not break the law, whether it be through protests or actions? If I take action outside of an RAF base, protesting against it and trying to disrupt things going in or out, or if I am at the peace camp at Faslane, will that be classed as a protest? Where does it become something that falls foul of the Bill? In other words, where do you draw the line? That is an important question for the Government to answer.
My amendment and those put forward by the noble Lord, Lord Marks, and others say to the Government that it is not good enough just to say the “safety and interests” of the state. What does that mean? People have challenged that over the decades. They have stood up and said that the safety and interests of the state are something that they challenge or do not agree with. Through history, that is how progress and reform have taken place. At the time, those protesting, taking action or conducting various activities have sometimes been accused of undermining national security or acting against the interests of the state.
We do not want to pass a law which leads to more confusion or a greater inability for Parliament to say that these are the sorts of actions we mean. That is the whole point of the amendment from the noble Lord, Lord Marks, which I support. It says that if it does not relate just to defence and national security, where is the grey zone that the noble Lord, Lord Evans, mentioned? Where do we draw the line? As the noble and learned Lord, Lord Hope, keeps reminding us, we should not abrogate our responsibility on that. It is our fundamental responsibility to try to answer that question.
Lord Sharpe of Epsom (Con)
My Lords, once again, this was a helpful debate, as noted by the noble Lord, Lord Coaker. I thank all those who participated. These amendments seek to limit the “interests” element of the “safety or interests of the United Kingdom” test which applies to many of the clauses in Part 1. As noted by many noble Lords, this concept was explored extensively in the other place.
The majority of these amendments change the “interests” element to cover only security or defence interests. This moves away from the safety or interests of the UK test that already exists and is understood in current espionage legislation. Indeed, the Law Commission noted its support of the Government’s decision to retain this term. At the oral evidence session to the Public Bill Committee, it noted that
“safety or interest of the state is consistent with a lot of the wording that already exists within the Official Secrets Act”—
those of 1911 and 1920—and
“avoids what might risk being an unduly narrow focus on national security”,—[Official Report, Commons, National Security Bill Committee, 7/7/22; col. 52.]
as the noble Lord, Lord Evans, noted.
The experience of the Government and the Governments of allied states is that espionage is frequently targeted at and can result in significant damage to all sorts of national interests, some of which may fall outside the scope of security or defence interests. Indeed, any attempt to narrow or define the interests to the UK risks creating a test that is quickly outdated, as the UK’s interests naturally and properly evolve.
A number of noble Lords referred to the Chandler v Director of Public Prosecutions case that was heard in this House in 1964. It concluded that the interests of the state meant the objects of state policy, determined by the Crown on the advice of Ministers. That is noticeably distinct from protecting the particular interests of those in office. I heard what the noble Lord, Lord Purvis, and others said in relation to the 2001 case. However, in answer to the noble Lord, Lord Coaker, the Government do not think it can be defined in legislation. It needs to retain flexibility for future threats as they evolve.
For this reason, it would also not be appropriate for the Secretary of State to attempt to define the UK’s interests in a Statement to Parliament, as in the proposed amendment to Clause 1. Notably, these amendments do not include economic interests, interests related to public health, as the noble Lord, Lord Purvis, noted, or interests related to preserving our democracy—to name just a few areas that would be overlooked by them. We know that these areas are targeted by hostile actors, and they should rightly be protected.
I was asked what safeguards are in place to prevent the Government using this legislation inappropriately—
Lord Purvis of Tweed (LD)
I am grateful to the Minister for giving way. I want to test the issue with regard to economic activity. If the Minister is saying that the Bill will be broad and go beyond national security economic activity, then presumably that brings into its remit all significant areas of major trade disputes where we have mechanisms for reciprocal action for penalising, having punitive tariff responses, et cetera, when effectively there is economic warfare. If the noble Lord, Lord Evans, and the Minister are correct, anyone involved in any trade competitor which is engaged in dumping or activity that may lead to reciprocal trade actions will now be under the remit of the Bill. It is criminalising an offence with potentially 14 years’ or life imprisonment, rather than going through the approach of what other economic trade activity is concerned. Part of the concern is that the Government will be able to decide that all these different areas would now come under the remit of the Bill.
Lord Sharpe of Epsom (Con)
If noble Lords will bear with me, I am going to address that point.
I was saying what safeguards are in place to prevent the Government using the legislation inappropriately—for example, by deciding that someone is acting against government policy but where there is no national security impact. Each offence under this legislation includes tests that must be met in order for the offences to be committed. For example, for a person to commit the Clause 1 offence, they must obtain or disclose information that is “protected” for a purpose that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom, and the activity must be conducted for, or on behalf of, or with the intention to benefit, a foreign power. The limits to the type of conduct that is capable of being caught under this offence, in particular the foreign power condition, ensure that there is a state link. Designing the offence in this way clearly focuses the offence on harmful state threats activity.
Additionally, Attorney-General consent must also be obtained before prosecution can be pursued for the majority of offences under Part 1—in the case of Northern Ireland that is the Advocate-General for Northern Ireland—and the Crown Prosecution Service must apply the public interest test.
I understand the intention of these amendments. I would say to the noble Baroness, Lady Jones of Moulsecoomb, that obviously individuals and groups might not agree with government policies, and the noble Baroness makes it very clear that she falls into that category on a regular basis, but they nevertheless represent the policy of the Government who have been elected to act for the country, and disclosing information to a foreign power can never be the right response to that.
As I say, I understand the intention of these amendments, but the Government cannot support them and respectfully ask for them not to be pressed.
Lord Marks of Henley-on-Thames (LD)
My Lords, I entirely understand the position taken by the noble Lord, Lord Evans of Weardale, but, with respect, the fallacy that he falls into, and the fallacy into which the Government fall—the Minister has articulated it—is that, in the interests of being able to prosecute a wide range of activities, they threaten to lower the threshold for such prosecutions to a point where the responsibility for the decision on guilt lies not with a jury considering guilt or innocence but with those who decide to prosecute because they perceive a threat to the interests of the United Kingdom, and the interests of the United Kingdom are very wide.
I agreed with almost everything that the noble Lord, Lord Coaker, said; the one thing he did which I did not agree with was that he misquoted the Bill. The Bill is not about prejudice to the safety “and” interests of the United Kingdom. Everywhere that the phrase occurs, it says the safety “or” interests of the United Kingdom”.
Lord Coaker (Lab)
The noble Lord is quite right; I should have said that, and I meant to. I apologise to the Committee; that is what I meant to say. I thank the noble Lord for clarifying that.
Lord Marks of Henley-on-Thames (LD)
I am quite sure that no apology was needed for what was plainly a slip in a detailed speech made without reference to lots of notes. But the point is an important one, because the protection of the interests of the United Kingdom is free-standing, and the point that almost every noble Lord who has spoken has made is that, because they are defined, there is no clarity at all.
The noble Lord, Lord Carlile, talked about opacity. It is not just opacity; it is that no one can know what is criminal. The prosecutors are there to decide what they will charge—certainly with the consent of the Attorney-General where that is required. However, where they make that decision, the jury is left with an impossible position. The judge is bound to direct the jury properly, under the terms of Chandler—that the interests of the United Kingdom are effectively what the Government of the day determine those interests to be—and the offense is left effectively without any clarity at all. That is our objection. I take it a little further, but it is an objection that illuminates the danger of going down that path. It is unjust not to have clarity about what behaviour is criminal, particularly where the sentences are so serious. It is also damaging to public confidence in the criminal law itself if prosecutors and defenders cannot know what is criminal and what is not.
Baroness Ludford
Member's explanatory statement
This amendment is recommended by the JCHR and would confine the offence of obtaining or disclosing protected information to information that has been classified as secret or top secret (rather than to all information access to which is restricted in any way).
Baroness Ludford (LD)
My Lords, the debate on Amendment 4 flows fairly naturally from the previous debate. The amendment flows from the report by the JCHR, which I am a member of, and is designed to
“confine the offence of obtaining or disclosing protected information to information that has been classified as secret or top secret (rather than to all information access to which is restricted in any way).”
As the offence relates to the sharing of information, freedom of information—which is of course protected under Article 10 of the European Convention on Human Rights—is engaged, including the potential that it could catch journalism, political expression or whistleblowing activity. This could potentially capture a wide range of information, not least given the uncertainty we have just been discussing as to how the words
“safety or interests of the United Kingdom”
might be applied in a given case.
The requirement that the information be “restricted in any way”, or even that it might be “reasonable to expect”—that also harks back to the preceding debate—that information be restricted in any way, lacks clarity and legal certainty. As your Lordships can see, common themes are emerging. It would of course catch information that was not protected but it was reasonable to expect that it would be. The Government’s Explanatory Notes set out that it would cover non-classified information accessible in a building with restricted access, such as a government building.
I recall the severity of the offence; with a potential punishment of life imprisonment, it might be reasonable in the light of that to expect that it would attach to a clear type of information such as that categorised as “Secret” or “Top Secret”. It seems unreasonable and disproportionate that the offence should attach to information simply categorised as “protected”, or indeed official information that is not restricted at all.
The offence as currently drafted in Clause 1 does not make it sufficiently clear what information is considered to be protected for the purpose of this offence. It creates an unacceptable level of legal uncertainty, raising concerns about compliance with rights to liberty and security, the right to a fair trial and the right to freedom of expression, as protected by Articles 5, 6 and 10 of the ECHR.
As proposed by the JCHR report, in the interests of improving legal certainty and proportionality, this amendment proposes that the clause be amended to say that it applies only to information at a certain level of categorisation and therefore sensitivity, such as “secret” or “top secret”. The report suggests that the details of what could be included could be contained in a non-exhaustive indicative list or specified in a statutory instrument, but this amendment is designed to tighten up the offence so that it does not spread too far or impact too much on freedom of expression, journalism and other lawful activities. I beg to move.
Lord Marks of Henley-on-Thames (LD)
My Lords, our Amendment 6 would omit Clause 1(2)(b). Your Lordships will know by now that Clause 1(2)(a) deals with protected information as being when
“access to the information, document or other article is restricted in any way”,
as my noble friend Lady Ludford has explained. However, Clause 1(2)(b) goes on to say that
“it is reasonable to expect that access to the information, document or other article would be restricted in any way”—
that way being entirely unspecified.
It is our position that the inclusion of Clause 1(2)(b) takes the clause far too wide. There is no answer to who would be doing the restricting, or what the determinant would be of when and how it would be reasonable to expect restriction. It might be completely reasonable to expect a mad authoritarian Government to restrict the most innocuous but possibly controversial informational document for the purpose of saving public or national embarrassment. Yet that would not make the entirely unjustified restriction on the information or document any less unreasonable; nor would it make the removal of the document from the public domain more justifiable.
This is a misplaced provision, and it should go. We agree with my noble friend Lady Ludford on the JCHR’s Amendment 4, that the restriction of prohibited information ought to be limited to “secret” and “top secret” categories as a matter of definition.
Lord Anderson of Ipswich (CB)
My Lords, I apologise for not being present at Second Reading. I cannot even claim, like the noble Lord, Lord Purvis of Tweed, that I was broadcasting the benefits of line-by-line scrutiny to a foreign power. I was performing a long-arranged judicial function in the Channel Islands.
I am well disposed in principle to Clause 1, and I entirely understand why the concept of protected information is not limited to “secret” or “top secret”, as the JCHR recommended. However, in the interests of obtaining a little more clarity, perhaps I might press the Minister on this point. Paragraph 63 of the Explanatory Notes states:
“Protected information includes, but is not limited to, classified material.”
Three examples are given. One is about information on the identity of police officers working with security and intelligence services. One is about information on intelligence officers operating in a foreign state. I suspect that they do not get much more classified than that. One is classified information on a defence system.
Bearing in mind that those examples appear to relate to classified information, I would be grateful if the Minister could explain, first, what circumstances he can envisage in which it should be an offence to obtain or disclose information that is not classified, or that could not reasonably be expected to be classified, applying Clause 1(2)(b). Secondly, how is one supposed to know that non-classified information is protected, given that the only controlling factor, other than the purpose of protecting the safety or interests of the United Kingdom—which, as the Committee has just heard, is very broadly framed—is that access should be restricted in some way? On one view, “restricted” could apply to anything, however innocent, that is not actually published. I assume that such a broad meaning is not intended, but could the Minister give us more of a clue as to where the line is drawn?
Lord Ponsonby of Shulbrede (Lab)
My Lords, this group relates to the new offence of obtaining or disclosing protected information. Both amendments pertain to what information should be included in this offence. While the offence currently applies to all restricted information, Amendment 4, moved by the noble Baroness, Lady Ludford, would confine the offence to “secret” or “top secret” information. This amendment reflects recommendations by the JCHR.
His Majesty’s information assets may be classified into three types: “official”, “secret”, and “top secret”. The practical effect of the amendment is therefore to exclude the disclosure of “official” information from the offence. However, according to a 2018 Cabinet Office paper, official information could have
“damaging consequences if lost, stolen or published in the media”
but is
“not subject to a heightened threat profile.”
The Official Secrets Act 1989 includes offences on the disclosure of each classification of information. Amendment 6, tabled by the noble Lord, Lord Marks, and which the noble Lord, Lord Purvis, put his name to, leaves out part of the definition of protected information, which states that
“it is reasonable to expect that access to the information, document or other article would be restricted in any way”.
As noted by the noble Lord, Lord Marks, and in the Explanatory Notes, this is a subjective view of the information.
Given that security officials and civil servants would likely have knowledge of whether or not information is restricted, the inclusion of this line, which would create an offence for when a person should reasonably expect it to be restricted, could impact journalists and civil society. I therefore think that this is an opportunity for the Minister to clarify how he expects that people should be able to reasonably expect that information is restricted or not. I look forward to his response.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, I thank all noble Lords, and the noble Baroness, for their contributions to this short debate. I also thank the Joint Committee on Human Rights for its report and its close scrutiny of the Bill. I take the opportunity to confirm that the Government’s response has been published today, and I have asked for a copy to be placed in the Library of the House.
The Government consider that limiting what can be captured under “protected information” to specific security classifications, as the noble Baroness’s amendment seeks to, risks creating loopholes within the provision that could significantly undermine the operational utility of the offence. There are already limits to what “protected information” covers: protected information is any information, document or other article, where, for the purpose of protecting the UK’s safety or interests, access to it is restricted, or it is reasonable to expect that access would be restricted. I therefore suggest that there lies the answer to the question posed by the noble Lord, Lord Ponsonby. Moreover, the current definition of protected information would cover instances where information may have been misclassified but would still be extremely harmful if shared widely.
In contrast to the proposed amendment, the current definition of protected information also includes instances where seemingly less sensitive unclassified information or lower-classification information from within a government building or on a government computer system was obtained but could undermine the safety of the United Kingdom if disclosed to a hostile actor.
To answer the question asked by the noble Lord, Lord Marks, this could include the floor plans of a government building or even an organisational chart of a team working within that building. There are many examples of official documents at lower classification levels that may also be harmful if disclosed, such as information about a UK trade deal with another country. It is imperative that this breadth of information is also covered within the definition.
Lord Purvis of Tweed (LD)
The “foreign power” test, which we will come on to later in the Bill, is extremely broad. Under Clauses 29 and 30, the “foreign power” test can cover the public service broadcaster of Canada. So, if someone who believes that our Government are committing wrongdoing provides a document to the public broadcaster in Canada because they believe that our Government are doing wrong, which is in the global interest, would that be covered, with potential life imprisonment, under this Bill?
Lord Murray of Blidworth (Con)
It would be the case only if those three tests that I have just described are met for the purposes of the offence in the Bill. So it would have to be that the information was protected, that the person ought reasonably to know that, and that its disclosure was prejudicial to the safety or interests of the UK. I imagine that will be the topic of some debate in the context of the hypothetical example that the noble Lord mentioned. It also has to be done with the intention to benefit a foreign power. I cannot see that, in the hypothetical situation the noble Lord mentioned, that issue realistically would arise because the combination of these tests means not only is the proposed offence proportionate but an appropriately high bar has to be met to bring a prosecution under this clause. The Government therefore consider that the definition of protected information is justified and cannot accept the proposed amendments. I invite the noble Baroness, Lady Ludford, to withdraw her amendment.
Lord Marks of Henley-on-Thames (LD)
Following up on my noble friend Lord Purvis’s question, would it not probably be in the interests of Canada in the example he gave to expose wrongdoing on the part of the Government of the United Kingdom? The Government of the United Kingdom might define the interests of the United Kingdom in accordance with government policy in a way which was inimical to the interests of Canada and the offence would still be committed.
Lord Murray of Blidworth (Con)
I find the hypothetical example that the noble Lord postulates hard to follow, because it seems difficult to envisage a situation where a prosecutor could conclude in those circumstances that there was a prejudice to the Government of the United Kingdom and a benefit to the Government of Canada, and that the other elements were present. It seems a most unlikely scenario.
Lord Purvis of Tweed (LD)
I would just like to make sure the Minister is very clear with the Committee. All the decisions that would take place would have to have an objective view that that foreign power benefits. But in my reading, the Bill does not state that. It is simply that providing information to an authority of a foreign Government, which could be a public sector broadcaster such as CBC, is under this Bill. No one has to make the decision that that public broadcaster is then seeking to benefit the Canadian Government. That is not in this Bill.
Lord Murray of Blidworth (Con)
It is the intention to benefit that foreign power that is in this Bill, and it seems to me that that is a sufficiently clear and adequate definition to afford protection under the proposed section.
Baroness Ludford (LD)
My Lords, I was just looking up to see whether the words “intended to benefit a foreign power” were actually in the Bill, but I did not have time. In skimming through, I did not see them.
The Minister’s response has not really reassured me. The lack of definition of “interests of the UK”, with a question mark over what that means and how you could conflate the interests of the country and the interests of the current Government, coupled with the potentially wide definition of “restricted”, suggests, to myself and my noble friends on these Benches at least, a lack of precision and an opportunity that is too wide, especially considering that the penalty that could be faced is life imprisonment. Surely, there is an onus on us to secure a tight definition of offences in this Bill.
The other missing element, which we will come to in further discussions, is the lack of a public interest defence or a whistleblowing defence. What we are facing here is considerable uncertainty about what the real scope of the offence could be. As my noble friend Lord Marks said, the term “restricted in any way” is so undefined, it could cover innocuous but controversial documents, which could be restricted to prevent embarrassment. That is the discussion we keep having on journalism and whistleblowing: we should not open the door to the criminalisation of obtaining or publishing material that could be embarrassing to the ruling party.
I scribbled some notes, but I am afraid I cannot remember which noble Lord made this point. I think it was the noble Lord, Lord Anderson. How are we meant to know what non-classified information is protected? It could apply to anything, however innocent, that was not published. If the Government have a document that they regard as restricted, even though it is not classified, the fact that it has not been published would mean it was restricted, although it may not be damaging except possibly to the reputations of the Government or Ministers.
If I were to get hold of a document saying that a Bill—for the sake of plucking something out of the air, let us say the Northern Ireland Protocol Bill—is designed to assuage some elements of political opinion in the party in power but is highly damaging to the diplomatic and economic interests of the United Kingdom, would that fall within the terms of the offence under Clause 1? In those circumstances, what is the nature of the restriction? What is the harm committed and what is the test of UK interests?
We keep coming back to the considerable grey areas in this whole package around Clause 1 and other clauses. I think we will want to explore this matter further. Otherwise, we are driving a coach and horses through the exercise of freedom of expression and other rights under the European Convention on Human Rights, which for the time being the UK is still a party to.
Lord Purvis of Tweed (LD)
I think my noble friend and I are reading the same version of the Bill, but I am not sure the Minister is. There is no reference to benefiting a foreign power with intent, so I hope that at some stage during Committee the Minister will be able to clarify this position.
Baroness Ludford (LD)
I thank my noble friend very much for that extremely useful intervention. I think we will have further discussion on this whole lack of precision in definitions in the Bill, especially considering the nature of the potential penalty: life imprisonment. You cannot afford to be vague about definitions in that context. In the meantime, I beg leave to withdraw my amendment.
Baroness Ludford
“(ca) the person’s conduct is significantly prejudicial to the safety or interests of the United Kingdom, and”Member’s explanatory statement
This amendment is recommended by the JCHR and would narrow the scope of the offence of obtaining or disclosing trade secrets so that it applies only to trade secrets that would prejudice the safety or interests of the UK.
Baroness Ludford (LD)
My Lords, this is a JCHR-recommended amendment under Clause 2, which is about making it an offence to obtain or disclose trade secrets, punishable by up to 14 years’ imprisonment. Again, the JCHR feels that, as the offence is about the sharing of information, freedom of information—protected under ECHR Article 10—is engaged, including the potential that it may catch journalism, political expression or whistleblowing.
It is difficult to justify this as being in the interests of national security because no element in the offence has a link to the interests of national security, or indeed to the safety or interests of the United Kingdom. In their human rights memorandum the Government did not address the compatibility of this offence with ECHR Article 10. In the offence there is no requirement for there to be any detriment to the UK or to the public. As such, this seems to be really an offence of theft affecting a private actor. It does not really belong in a national security Bill.
The examples given in the Explanatory Notes relate to artificial intelligence and energy technology, which suggests that the Government envisage industries with links to critical infrastructure and national security concerns for this offence, rather than mere commercial secrets—important but not relevant in the Bill—relating to industries that pose no risk to national security. But as drafted the offence risks catching all trade secrets, no matter their relevance or lack of relevance to national security. As I say, that is more properly governed by the offence of theft. In his reply, perhaps the Minister can tell me why it is not covered by the offence of theft.
Lord Carlile of Berriew (CB)
My Lords, I rise with some trepidation to disagree with these amendments, for reasons that I will try to give briefly. Amendment 8 and, indeed, all the others in the group are concerned with intellectual property. My entry in the register of interests discloses involvement with a strategy consultancy. In that role, we sometimes make ourselves available for the investigation of imposter frauds, for example. Many of those frauds can be connected with the attempted theft of intellectual property, not just by individuals and companies but by nation states. Some of those nation states are extremely big and powerful and have the capacity to make full use of the secrets they steal to become world leaders in the marketing of such goods.
I would suggest, with respect, that Amendment 8 shows a misunderstanding of the issue by the JCHR. Indeed, the reason why the proposed Clause 2(1)(ca)—Amendment 8—is not needed is that the reasons for this provision are well set out, in subsection (2)(b) in particular. This is for the protection of some very important and extraordinarily valuable intellectual property, which is created in, and in the interests of, this country. Indeed, if one looks at the other amendments, in particular those seeking to amend subsection (2), one has to think for only a moment to see the problem, and that these amendments defy that problem.
Let us take the example of a university computer science or physics laboratory where leading-edge research is being done or, to take something extremely topical, a vaccination laboratory where research is being done that could make a huge difference to humankind in general. As it happens, it could also make an enormous amount of profit for those creating the scientific inventions and, given the advantages they gain through taxation, for the Government.
It seems to me that the provisions in the Bill are absolutely needed to protect those scientists and inventors. There is a stage between the idea—which may come to someone in the bath or shower—and the production of a patent or copyright during which that idea is not protected by registration. These provisions precisely protect that intermediate area between the idea coming into the scientist’s head and its being registered and protected under the intellectual property legislation, which can be quite slow, very expensive and very complex.
So I respectfully suggest to those who have tabled these amendments that they are not needed and that, in fact, the Bill gives the right sort of protection precisely where it is needed, in the clause in question.
Lord Pannick (CB)
I respectfully disagree with the noble Lord, Lord Carlile. He may well be able to make a compelling case that there is a mischief that here needs to be addressed, but it is surely nothing whatever to do with national security, which is the subject of the Bill. The noble Baroness, Lady Ludford, is right that it is puzzling that there is no requirement in Clause 2 that it be established that the conduct in question is prejudicial to the safety or interests of the United Kingdom. The desirability of improving intellectual property law is really not an appropriate subject for a Bill of this nature.
Moreover, the noble Lord, Lord Carlile, says that if one looks at Clause 2(2)(b), that paragraph ensures the protection. I remind the Committee that all that Clause 2(2)(b) does is define a “trade secret” as information that
“has actual or potential industrial, economic or commercial value which would be … adversely affected if it became generally known”.
That is the loosest possible definition of a commercial trade secret. It is impossible to understand why matters of that sort should be dealt with in the Bill; indeed, that information may be enjoyed or owned by a foreign individual or company.
Trade secret law is very well developed. It includes remedies for damages and for injunctions. To include Clause 2 in the Bill would attract not just the considerable criminal penalties that the noble Baroness, Lady Ludford, referred to, it would invoke Clause 16, on the criminality of preparatory acts—
Lord Davies of Gower (Con)
My Lords, if this is an intervention, could the noble Lord make his point, please?
Lord Carlile of Berriew (CB)
The noble Lord asked to make an intervention, which is why I allowed him to, and I regret that he used the procedure of the House to make a speech. He will be free to make a speech if he wishes to do so.
Lord Carlile of Berriew (CB)
No, I am not letting the noble Lord in now. I am sure he will make a speech if he wishes to in a moment.
I will respond to the noble Lord’s intervention, if I may be allowed a moment to do so. His intervention completely misses the point. He seeks to impose upon us his definition of national security. I do not share his definition of national security. If there is theft by a major state overseas of important intellectual property that has yet to be registered and which could make a huge difference to this country, in my view that falls well within the definition of national security. Indeed, that is why the Government have chosen to include economic issues in the broad definition of national security. So I respect my noble friend’s intervention but I disagree with it. I shall listen very carefully to any speech that he makes—after I have sat down.
Lord Pannick (CB)
I am very sorry. I apologise to the noble Lord and the Committee; I thought he had sat down, and I was not the only Member of the House who thought so.
I have made my speech. The only point that I was going to add was that if we retain Clause 2, it includes the preparatory acts under Clause 16 and the powers of search under Clause 21. For all those reasons, I think Clause 2 should not be included in the Bill.
Lord Wallace of Saltaire (LD)
My Lords, the noble Lord obviously did not know that the noble Lord, Lord Carlile, had not sat down, but he perhaps ought reasonably to have known.
This exchange has focused my mind much more on the following question: part of the grey zone that we are dealing with is whether or not economic security is now part of national security. To a considerable extent, it is. I have not yet fully understood the relationship between the Bill and the National Security and Investment Act, passed last year, which deals with, among other things, some aspects of intellectual property. There may well be—but I am not sufficiently expert on it—a degree of overlap between that Act and what is proposed here.
Lord Carlile of Berriew (CB)
I am grateful to the noble Lord for giving way. The National Security and Investment Act 2021 deals with investment and the transfer of more than 25% of the equity in certain types of companies, and it is very clear. A unit has been set up, in two departments at least, to deal with those provisions. There is no real relationship between this provision and the NSIA.
Lord Wallace of Saltaire (LD)
I am reassured. I declare a certain interest: I have a number of relatives in aspects of scientific research. My son tells me that he is a systems biologist, but I note that engineering biology and synthetic biology are defined in the NSI Act among the strategic areas, and they are in some ways very similar to systems biology. So that is part of my active interest in this area. I am well aware that, in our universities, we have a large number of multinational teams working on the cutting edge of advanced science in a number of different areas. That is part of the grey zone with which we are now dealing and which it is extremely difficult to come to grips with.
I will speak to my Amendment 11, which is very much a probing amendment, raising the question of how we handle the very substantial number of dual nationals we have in this country, both living here and living in other countries—in some cases, they are long-term residents in other countries. If we are moving towards an increasingly unfriendly and difficult international environment, as we are already seeing, dual nationals will come under increasing pressure, not just from what we may do, mildly, within the Bill but from the other countries of which they have citizenship and with which they have connections. We have seen the pressures that the Iranian Government are willing to push on to the family members of dual nationals or single British citizens living in this country, and we have seen the same in China. Therefore, there are a number of questions about whether we need to take on board the presence and complexity of our dual-national citizens as part of the complications of the Bill.
I am also conscious that, unless the Minister can reassure me, we have no idea how many dual nationals we have, who they are or where they are. All the questions I posed during the passage of the Elections Act about our overseas citizens, and potential overseas electors, have told me that we have very little idea of who and where they are. I raise this because I simply do not know whether there is a problem or how serious it may be. But it seems to me that we should pay more attention to a world in which some hostile foreign states will do their best to bring all the pressures that they can on British citizens with origins in their country or dual citizens.
Baroness Manningham-Buller (CB)
I will not take very long; I will just correct the suggestion of the noble Lord, Lord Wallace, that economic pressures on national security are a new addition. The Security Service Act 1989—the noble Lord, Lord Beith, who is not in his place, referred to this—talked about protecting the
“economic well-being of the United Kingdom”.
This is not a new issue. That is a point of clarification, for which I have not taken too much time.
Lord Macdonald of River Glaven (CB)
My Lords, on the minor tiff between the noble Lords, Lord Pannick and Lord Carlile, both of whom I have great respect for, I am inclined to side with the noble Lord, Lord Carlile. I have no doubt at all that economic well-being is an aspect of national security. It is worth observing that Clause 2(1)(d) requires that
“the foreign power condition is met in relation to the … conduct”
in question. In Clause 29, the “foreign power” condition is:
“For the purposes of this Part the foreign power condition is met in relation to a person’s conduct if … the conduct in question, or a course of conduct of which it forms part, is carried out for or on behalf of a foreign power, and … the person knows, or ought reasonably to know, that to be the case.”
That is the sort of conduct that we are talking about. We are not talking simply about one commercial organisation stealing a science secret from the University of Oxford; we are talking about this conduct being carried out at the behest of a foreign power, which rather colours the matter in the way that the noble Lord, Lord Carlile, described.
Lord Faulks (Non-Afl)
My Lords, I had two points to make, the first of which, about foreign power, has just been made by the noble Lord, Lord Macdonald, so I will not repeat it. The second is more of a question. The noble Baroness, Lady Ludford, asked, “Why not charge theft?” I have no doubt that I will be advised by the Minister, but is there not a requirement that you have to deprive somebody permanently of something to constitute the offence of theft? I can see some potential argument that somebody charged under that offence would say that they had no intention to deprive that person permanently of that information.
Lord Marks of Henley-on-Thames (LD)
My Lords, I have not yet spoken to Amendments 9 and 10, which I was proposing to do before my noble friend spoke for us. Before doing so, I join my noble friend Lady Ludford in opposing the protection of all trade secrets without any requirement for there to be prejudice to the interests of the United Kingdom. That amendment, which has been proposed on behalf of the JCHR, seems to me to be sensible. I also share her bemusement, and that of others, that trade secrets are included in the Bill, because the way in which they are included is extremely wide.
The noble Lord, Lord Pannick, has pointed out that Clause 2(2)(b)—he read it aloud, but I will not repeat doing so—is so wide that it effectively covers any information which has any commercial value of any significance. Of course, that information is important, and, to that extent, I accept the points made by the noble Lord, Lord Carlile. However, state actors may also steal, or act nefariously in respect of, trade secrets—as may others, be they state actors or not. They may be from the United Kingdom or abroad. They may be connected to national security, but if the Bill will deal with trade secrets, they need to be defined in such a way that it is confined to trade secrets that present a threat to national security. The Bill goes far too wide if we include wide threats to trade secrets in the criminal proceedings—which, as my noble friend Lady Ludford said, carry very heavy sentences—without the need to prove the threat to national security as an element of the criminal offence. As the noble Lord, Lord Pannick, said, threats to trade secrets are normally dealt with in the civil courts, where the protection to intellectual property is customarily and very frequently dealt with every day.
It is absolutely right, as the noble Lord, Lord Macdonald of River Glaven, pointed out, that there is a requirement that the foreign power condition must be met. However, the foreign power condition in Clause 29 is not a very difficult hurdle to surmount. The present drafting does not require any prejudice to the security, defence or other interests of the United Kingdom. It is met if conduct is carried out not by a state Government but by any entity controlled or financially assisted by a foreign power—so that could be a commercial organisation that happened to be state-controlled. For “foreign power”, we have to read that as any power or any other state, including any friendly Government from anywhere in the world.
Our Amendments 9 and 10 tighten up the wording on trade secrets in Clause 2, but only in a limited way: by requiring that a trade secret must be subject to measures to prevent it becoming generally known or available to rival experts in the field. We suggest that it is simply not satisfactory—
Lord Carlile of Berriew (CB)
I have been listening very carefully to the noble Lord, whom I always listen to with great respect. Can I take it that he or his party will put down an amendment to the Long Title of the Bill in due course? Perhaps he has not read the Long Title in full, because, as far as I can see, it covers all these amendments in the exact way in which they are intended. We are in danger of over-sophisticating a non-existent definition of national security.
Lord Marks of Henley-on-Thames (LD)
I am bound to say that I discussed that before the noble Lord came in. Since, in my opening speech on the first group of amendments, I quoted specifically from the Long Title of the Bill dealing with Part 1 offences, I do not accept the criticism that I have not read it. Nor do I accept the criticism that it is apposite to threats that have nothing to do with national security, because the Long Title—which starts by dealing with Part 1, as far as the first semi-colon—is about making provision about threats to national security. My point is that, if you protect trade secrets in these very wide terms, it may include threats to national security, but it is not limited to threats to national security and it may go far wider.
It is not satisfactory for trade secrets to qualify for protection just because the information in those secrets might be reasonably expected to be subject to measures to prevent them becoming known generally. What would the measures be? Would they be imposed by a court, by government or by regulation? That is undefined. Perhaps the Minister, in replying, would explain what those measures might be. How does it help to protect trade secrets that are not subject to any protective measures, as the Bill specifically envisages? The clause raises far more questions than it answers.
Lord Purvis of Tweed (LD)
My Lords, I will very briefly follow my noble friends to agree with that proposition. There has been reference to the foreign power condition, and I will refer to that too.
First, I take the opportunity to say that I am grateful to the Minister for what he said to me earlier by highlighting Clause 29(5). Yes, it does include that the foreign power condition can be met,
“if the person intends the conduct in question to benefit a foreign power”,
without necessarily identifying that foreign power. However, that is not an exclusive meeting of the test, as my noble friend Lord Marks has indicated. The test can be met, for example, if one of two business partners who has some intellectual property or something of commercial value is in negotiations with, say, a sovereign wealth fund in the Gulf and then there is a dispute between the two business partners. While one wants to sell that to the sovereign wealth fund in the Gulf, the other says, “You can’t do that, because that is now in breach of the National Security Bill, because I believe that this is a trade secret.” That is because a foreign power, under Clause 30(1)(c), is
“an agency or authority of a foreign government”,
so a sovereign wealth fund seeking investment could be within that definition. Therefore, I have sympathy for the point made by the noble Lord, Lord Carlile, but a counterpoint has been raised by asking whether the Bill is the most appropriate way for national security to cover those aspects—and, on balance, I do not think that it is.
However, I agree with the noble Lord, Lord Carlile, that the acquisition, use or disclosure of a trade secret is unlawful where the acquisition, use or disclosure constitutes a breach of confidence in respect of confidential information. As I understand it, that was the thrust of his argument. That is also the law: we have transposed the Trade Secrets (Enforcement, etc.) Regulations 2018 into UK law, so we have that intellectual property legislation—including a nine-page trade secrets regulation. I listened very carefully to what the noble Lord said, and all of it, I think, is covered within existing legislation. The question then arises as to what the intent would be if one is either selling a trade secret or giving a trade secret to a foreign power to advance that foreign power.
That could absolutely be included in the Bill. The concern is that, given the way the Bill is drafted, so many other aspects could also be. That is the point we are trying to tease out: whether the Government intend that trade secrets are, as the noble Baroness indicated, some form of economic warfare, espionage or tactic. That is where the interest of the Bill should lie. It should not be the mechanism whereby trade disputes, commercial disputes or intellectual property disputes are resolved. Ultimately, that is where the Bill could be used. I do not think there are any in this Committee, but I am certain there are creative lawyers who might look for the most appropriate vehicle for the less appropriate cause. I am worried that the Bill would become one of those.
Lord Coaker (Lab)
My Lords, the amendments in this group relate to the new offences of obtaining or disclosing trade secrets. We support these new offences and agree that the Government should safeguard against threats to the UK’s trade policy. We see them as important amendments. None the less, we have had an interesting and important debate today. As the noble Lord, Lord Marks, has outlined, Amendments 8, 9 and 10 are about trying to understand why the Government believe that the offences need to have such a wide scope and whether narrowing them down would really have the unintended or bad consequences that the Government believe they would.
I have a couple of specific questions for the Government. The Bill says that there has to be a direct link to a foreign power, but suppose somebody obtains information such as a trade secret and sells it not to a foreign power but to a competitor business. Is that covered under the legislation? Is it the case that, under the Bill, to prosecute there would need to be a link from the individual to a foreign power and not just to a competitor within the UK?
The measures in Clause 2(4) to (7)—I think the noble Lord, Lord Wallace, referred to this in his Amendment 11—are really quite important. Why can the offence take place only outside the UK if it is in respect to possession by a UK national, as opposed to a UK national and/or a UK resident, or any other description of persons? Having talked about a narrow definition, I wonder why the Government have restricted the measures in subsections (4) to (7) to a UK national. I would be interested to hear the Government’s answer to that.
An interesting discussion and debate has taken place within the Committee about the JCHR recommendation. It is an interesting point that we will all want the Government to clarify. What is the Minister actually saying to the points from the noble Lords, Lord Carlile and Lord Marks, and the noble Baroness, Lady Ludford? The JCHR quite clearly states that:
“The theft of trade secrets that pose no risk to national security is more properly governed by the offence of theft (and other breach of confidence and intellectual property rules) than through new espionage offences.”
It would be interesting to understand whether the Government think the JCHR is wrong or whether it has a point. If the JCHR is wrong, why do the Government believe it is wrong? Maybe the points made by the noble Lord, Lord Carlile, have greater relevance with respect to this Bill. With those few remarks, I look forward to the Minister’s response.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords who have participated in another lively and entertaining debate. Amendment 8 seeks to add a “safety or interests of the UK” test to Clause 2. Amendments 9 and 10 seek to narrow the definition of a “trade secret” so that it captures only information which is actually subject to measures to protect it. Amendment 11 seeks to expand the scope of a “UK person”. The Government reject these amendments and I will try to explain why.
The offence of obtaining or disclosing trade secrets targets threats designed to undermine our economic prosperity, tackling the whole-state approach to national security adopted by state actors. The Government believe that economic prosperity and national security are inherently linked. You cannot have one without securing the other, and Clause 2 seeks to protect both.
Lord Coaker (Lab)
I am not going to disagree with the Minister, but on the question of the letter—and I am pleased that he is writing to me—could he put it in the Library, and do that with respect to all the letters, so that every noble Lord can see his answers to the various questions?
Lord Sharpe of Epsom (Con)
Yes, I am happy to give that reassurance. This is just me flying somewhat solo, so I shall clarify that, but I can think of a number of circumstances where it would very much depend on the corporate. But I shall seek official clearance on that. In light of all those answers, I respectfully ask the noble Baroness to withdraw her amendment.
Baroness Ludford (LD)
My Lords, that was another interesting debate. I am very grateful to the noble Lord, Lord Pannick, for defending the honour of the JCHR against a charge of naivety from the noble Lord, Lord Carlile, which I reject. I am sure that the JCHR is capable of understanding the noble Lord’s points.
As the noble Lord, Lord Pannick, said, there is a mischief here. As the noble Lord, Lord Macdonald, said, economic espionage can be against national security—and it can be, but I think that the Minister went further than that. He said that economic prosperity and national security were synonymous. That is a very broad assertion. For instance, the shareholders in Tesla apparently believe, because the share price of Tesla has dropped rather fast, that Elon Musk has neglected the economic prosperity of Tesla by his concentration on Twitter. I do not think that any of us would regard the share price of Tesla as affecting the national security of the United States. I believe that the Minister is wrong in saying that economic prosperity and national security are synonymous, but of course I accept that economic espionage can certainly damage national security.
As my noble friend Lord Marks said, my Amendment 8 intends precisely to put in a test or condition that the theft of a trade secret is prejudicial to the “safety or interests of the United Kingdom”, preferably with that term redefined by amendments from these Benches. Without that condition, as the noble Lord, Lord Pannick, said, Clause 2 does not belong in this Bill. I conclude that I am really not persuaded by the arguments against Amendment 8. When damage to economic prosperity is also harmful to national security, that would be satisfied, if a test of that was added—and I have not heard an argument as to why that test is missing from Clause 2. If the Minister is correct that economic espionage and damage to national security are synonymous, what is the harm of putting in a definition, as the amendment suggests? But I have not yet persuaded the Minister, or indeed some other Members of the House, so for the time being I beg leave to withdraw the amendment.
“(c) intends that the conduct will prejudice the safety or security or defence interests of the United Kingdom.”Member's explanatory statement
This amendment adds a further intentional element to the offence in Clause 3.
Lord Marks of Henley-on-Thames (LD)
My Lords, the amendments in this group would add a mental element of intention to prejudice the safety and security or defence interests of the UK to a number of offences in the Bill—those in Clause 3, assisting a foreign intelligence service; in Clause 4, entering a prohibited place; Clause 5, unauthorised entry to a prohibited place; and Clause 16, preparatory conduct to any of the offences in Clauses 1, 2, 4 or 12. The amendments also add, importantly, a similar mental element of intention to prejudice to the foreign power condition that we discussed in the last group, in Clause 29.
The Clause 3 offence of assisting a foreign intelligence service would require intent to prejudice the safety, security or defence interests of the United Kingdom to be proved. That would answer my criticism at Second Reading that the Bill would criminalise a private citizen who helped Mossad to trace possessions looted by the Nazis from their victims, or criminalise the private citizen who helped the CIA to trace war criminals and bring them to justice from whatever theatre. Noble Lords may remember that the only answer that the Minister, the noble Lord, Lord Sharpe, gave to my example of a citizen working for Mossad was that
“we would expect that the UK would have been made aware of such activity and it is possible that the UK would have made an arrangement with Israel. As such, the activity would have a defence in Clause 3(7)(c)(i)”.—[Official Report, 6/12/22; col. 156.]
On analysis, that is no answer at all. There is no legitimate reason why a British citizen should not assist the intelligence service of a friendly nation to achieve ends which are not remotely inconsistent with the interests of the United Kingdom. It is entirely wrong, not to mention high-handed and often either impractical or impossible, to suggest that the citizen should have to go through one of the hoops set out in Clause 7 of demonstrating a legal obligation, carrying out a UK public function, or being in accordance with an agreement with the UK or a proxy of the UK to make his or her conduct lawful.
The proper way out of this difficulty is to criminalise assistance to a foreign intelligence service only if it is intended to prejudice the safety or security or defence interests of the United Kingdom—although, as I pointed out in an earlier group, I am not wedded to those words. But it must be clearly defined, and that is the point of the proposal in Amendments 12 and 15. That is consistent with the aim of the Bill, which the clause as drafted, with its breadth, is not.
The noble Baroness, Lady Ludford, has Amendment 16 from the JCHR in this group, which we support, but we stress the need for the interests of the United Kingdom to be defined by reference to national security; the disjunctive safety or interests of the United Kingdom generally is not enough.
Amendment 19 adds a similar requirement to the Clause 4 offence of entering a prohibited place. That clause is less offensive as it stands, because it already requires knowledge or imputed knowledge that the conduct in question is prejudicial to the safety or interests of the UK. If our amendments in groups 1 and 2 were accepted, as they have not been as yet, all Amendment 19 would add is a positive intention requirement, which we say is justifiable and needed but which would not cause great problems by its omission if those amendments were accepted.
Amendment 20 to Clause 5, the summary offence, is more in need of change, even if our amendments in groups 1 and 2 were accepted. The noble Baroness, Lady Ludford, has Amendment 21 in this group, with a similar change to Amendment 16 of requiring the intention to prejudice, which we support, subject to the same proviso regarding the definition of UK interests.
Amendment 47 adds an intentional prejudice element to the Clause 15 offence of obtaining a material benefit from a foreign intelligence service. Again, as drafted, this is far too wide and ill defined. If a journalist is paid to investigate or write a story for the intelligence service of a friendly nation, entirely compatibly with the national interests of the United Kingdom, he should not be guilty of a criminal offence unless the benefit derived was, in the words of the Bill,
“reasonable consideration for the provision of goods or services”,
and so was within the so-called excluded benefits in Clause 15(4).
Baroness Jones of Moulsecoomb (GP)
I have watched quite a number of debates in your Lordships’ House and am always struck that the Government invariably reject all the wonderful advice they get from their KCs and former judges. I appreciate that it is much harder when they disagree, but perhaps they ought to look a little more closely at these amendments, read Hansard and think about changing some of the Bill.
These are extremely serious offences. They are meant to protect national security, but currently they do not need intention to be proven. That is incredibly important. A person could unwittingly commit a serious criminal offence without having the foggiest clue that they were doing anything wrong. That is not to suggest that ignorance is a defence, but unintentional consequences to the UK’s interests should not be a serious criminal offence.
One example that is extremely important to me is journalists and whistleblowers exposing government wrongdoing. As the noble Baroness, Lady Ludford, said in the previous group, it is a perfectly legitimate activity that risks being criminalised by this legislation. The intention of journalists and whistleblowers is not to harm national security but to hold power to account. That is partly what your Lordships are doing in this House, so we should take every opportunity to support journalists and whistleblowers who do it too. I am concerned that they might be trapped by this legislation.
Likewise, the offence in Clause 15 risks criminalising people for receiving a benefit from an intelligence service. Those benefits include receiving information. A person could commit a criminal offence simply through a foreign intelligence service telling them some information which they may not want to hear, potentially completely against their will. Overall, these clauses are deeply flawed and need substantial rewriting.
Baroness Ludford (LD)
My Lords, I will speak to Amendments 16 and 21. I will get a bit repetitive in the debates on this Bill, since I am speaking to amendments stemming from the JCHR, whose job is to pay attention to human rights.
The problem that Amendment 16 seeks to address is that the conduct that could be criminalised is very wide and could include conduct that engages a number of human rights, most obviously freedom of expression, as the noble Baroness, Lady Jones of Moulsecoomb, said—journalism, other political expression and possibly whistleblowing—but also freedom of association and the right to protest. The Government have not sought to justify any interference with human rights in respect of this new offence in their human rights memorandum. It seems difficult to argue credibly a national security justification for bringing proceedings under this clause when there is no prejudice to the safety or interests of the United Kingdom in the test of the offence.
Conduct outside the UK is not caught unless it is
“prejudicial to the safety or interests of the United Kingdom”
but that test does not apply to conduct within the UK. I hope the Minister can explain why. The JCHR gives the example that the offence would seem to criminalise a French national in the UK who alerts the French intelligence authorities to a terrorist threat in the UK. Let us posit that they do not know how to alert the authorities in the UK. It does not seem very sensible to criminalise such behaviour. Amendment 16 suggests a requirement that the conduct must have the potential to harm UK interests—
Baroness Manningham-Buller (CB)
I may have misunderstood the noble Baroness, so perhaps she would be kind enough to clarify. Did she say that the French intelligence service would not know how to contact the British authorities about an incident in the UK? It may be my fault for not hearing—I apologise if it was.
Baroness Ludford (LD)
It is possible that I gabbled. I would not suggest that the French intelligence authorities would not know how to contact their UK counterparts; I think we all hope and believe that there is close collaboration between them.
Baroness Manningham-Buller (CB)
I assure the noble Baroness that they absolutely would.
Baroness Ludford (LD)
Of course; the example in the JCHR report was of a French national in the UK—an ordinary person working in a bar or a bank who alerts the French intelligence authorities to a terrorist threat in the UK. It may or may not be hugely realistic, but that would be criminalised, which does not seem very sensible. The focus of Amendment 16 is to add a test of
“prejudicial to the safety or interests of the United Kingdom”,
always with the caveat that we want that test to get further attention and elaboration.
Amendment 21 concerns the offence of entering a prohibited place, which is punishable by up to 14 years’ imprisonment. Clause 5 is about accessing a prohibited place where
“the person knows, or ought reasonably to know, that their conduct is unauthorised.”
There is no requirement in this offence for any prejudice to the safety or interests of the UK. The JCHR suggests that it is more akin to an offence of criminal trespass—it will have nothing to do with national security, unless there is some sort of test of national security.
All the amendments I have spoken to today are about tightening up definitions so that we do not inadvertently catch what ought not to be criminalised behaviour and avoid any clash with human rights under the HRA and the ECHR.
Lord Pannick (CB)
My Lords, I share the concerns expressed by the noble Lord, Lord Marks, and the noble Baroness, Lady Ludford, about the breadth of Clause 3, particularly Clause 3(1), and the absence of any requirement that the defendant intends that the conduct will prejudice the safety or security or defence interests of the United Kingdom.
The noble Lord, Lord Marks, gave a practical example relating to Mossad which I will not repeat. I have a concern because of my professional interest as a practising barrister, and I would welcome advice from the Minister as to whether I will be committing a criminal offence under Clause 3(1) if I give legal advice to a foreign intelligence service in carrying out UK-related activities. Clause 3(1) refers to “conduct of any kind”; it is a criminal offence, punishable with 14 years’ imprisonment, for me to materially assist a foreign intelligence service in carrying out UK-related activities. My advice, of course, may be to say to that foreign intelligence service, “You can’t do this in the United Kingdom, it would be unlawful, and you should be aware of that”, but what are the potential defences if I am prosecuted? Under Clause 3(7), it is a defence for me to show that I am acting
“in compliance with a legal obligation under the law of the United Kingdom which is not a legal obligation under private law”.
I am very doubtful that my actions as a practising barrister fall within that provision. It is a defence, however, under Clause 3(7)(b)
“in the case of a person having functions of a public nature under the law of the United Kingdom”.
I do not have that; I am a mere practising barrister. Clause 3(7)(c) relates to some agreement with the United Kingdom; that does not apply.
The only other defence that I could offer when I am prosecuted at the Old Bailey for giving legal advice is the exemptions for legal activity which are in Schedule 14, but they seem to me—and I would be delighted to be corrected if I am wrong—to be exemptions confined to the provisions to which we will come which concern requirements to register foreign activity arrangements and foreign influence arrangements. We are not talking about that; Clause 3 is not concerned with any of that. My question to the Minister is please can I be told whether the legal advice that I give as counsel to a foreign intelligence service falls within the scope of Clause 3(1). I raise this not just because I am very concerned not to end up at the Old Bailey but because that demonstrates that Clause 3(1) is far too wide. It really needs to be redrafted to ensure that it addresses only matters of national security.
Baroness Manningham-Buller (CB)
My Lords, I understand the wish of the noble Lord, Lord Marks, to define and narrow this part of the Bill. To a degree, I have some sympathy with him. I would like to answer the Mossad point and make a second point. For Mossad to operate in the United Kingdom, there would be an understanding that it should declare its activity. Therefore, I do not think this problem would arise unless it deliberately chose to conceal it, because it would be seeking support and help.
The second point is that if we make it too narrow about what British interests are, we will exclude those foreign intelligence services—including some of our friends—who act against their own citizens in this country, which we would regard as against British interests in the broadest sense though it does not directly threaten British interests. There is a range of activity that this Bill seeks to capture which is not absolutely directed against the UK but may be directed against other people here and which is unacceptable.
Lord Hacking (Lab)
My Lords, I have been out of the House for about three months, and it is very refreshing to come back to your Lordships’ House and one comes back with a rather clear mind. If one just reads the contents of Amendment 12—I have not had time to study the other clauses that the noble Lord, Lord Marks of Henley-on-Thames, is addressing—and the simplicity of it, one wonders what the Government could be objecting to. I, of course, share the concern that the noble Lord, Lord Pannick, should not go to the Old Bailey and be sent to prison.
Lord Coaker (Lab)
My Lords, we all hope that the noble Lord, Lord Pannick, will not be criminalised by this Bill, but we look forward to the Minister’s response and for the exemptions to which the noble Lord referred to cover him.
I want to make a couple of brief remarks, again supporting what the noble Lord, Lord Marks, is trying to do, which is to narrow the focus—that has been the subject of much of the debates have had on the various amendments. This amendment would require an intention that the conduct will prejudice the safety or security or defence interests of the United Kingdom and apply that to a number of clauses. The noble Lord, Lord Marks, has outlined quite adequately why a discussion about that and a decision for the Government are needed. I hope that the Minister will explain why the Government do not think it is necessary rather than just dismissing it.
I wanted something to be clarified, notwithstanding the fact that it may be a simple response. On visiting many military bases, one finds people outside them taking photographs and numbers and watching the activity because it is a pastime; it is something that is of interest to them. I do not think that the Bill will criminalise that, but on behalf of people who have an interest in something that I personally would not have an interest in doing, I wonder whether the Minister could clarify it. I have seen people taking photographs at RAF bases of the planes taking off. It is simply something of interest to them. It would be helpful for the Minister to clarify that they would not be caught by the Bill, even if unintentionally.
The noble Baroness, Lady Jones, was right to remind us about intention. It is important. We will come to the public interest debate later, but she referred to journalists and whistleblowers, who risk being criminalised even though their intention is not to undermine national security. That will take us to the public interest defence debate that we will get to later in the Bill.
In answer to the points and amendments from the noble Baroness, Lady Ludford, I think that the JCHR amendments—whether or not they are all right, and we heard a debate earlier on about them—are really important for the JCHR to have put before the Committee. What it is essentially saying is, “We think this is possibly something which impacts on the freedoms that we enjoy in our democracy”, freedom of expression being the one that the noble Baroness just referred to. The Government seek to modernise the national security law, which we all agree with—there is no disagreement in the Committee about that—but the noble Baroness, Lady Ludford, should not apologise for the JCHR; rather, we should congratulate it on coming to all of us and asking us to justify what we are doing and on asking the Government to justify what they are doing in the name of national security. There is a compromise to be made sometimes between national security and complete freedom to do X, Y or Z. All of us accept that. The debate, as we heard on earlier amendments, is where you draw the line. I, and other noble Lords, think it is important—whether in respect of this group or others—that a debate takes place in this Parliament, and we should attempt to do better at defining what we actually mean rather than just leaving it to the courts.
I say to the noble Baronesses, Lady Ludford and Lady Jones, and to others who continually remind us about the JCHR that I am sure it is sometimes immensely irritating to the Government, but that is the job. That, in a non-flippant way, is important, because there are compromises with freedom of expression, freedom of association, freedom to do X, Y or Z, and freedom for people to go about doing things exactly how they want to. It is a price we pay for our national security; how high that price should be is something we should not flinch from debating in this House.
The amendments from the noble Lord, Lord Marks, seek to put intent into these offences. If the Government do not believe that is important, it is necessary to argue the case as to why. On whistleblowers, journalistic freedom and so on, which the noble Baroness, Lady Jones, mentioned, I am sure we will come to that debate later when we discuss the public interest defence. I finish by saying again to the noble Baroness, Lady Ludford: more power to your elbow.
Lord Murray of Blidworth (Con)
My Lords, I thank noble Lords for another very interesting short debate. These amendments seek to amend or add a safety or interests test to the various offences throughout the Bill. I will address each offence separately, given the different effect each amendment will have on each offence.
Amendments 12, 15 and 16 would narrow the scope of the offence of assisting a foreign intelligence service, so that the offences would apply only to assistance that would, or is intended to, prejudice the safety or interests of the United Kingdom. The Government reject these amendments. We believe that any activity taking place in the UK on behalf of a foreign intelligence service that the UK has not even informally agreed would be inherently prejudicial to the safety or interests of the UK. I pause, as here lies at least some explanation to the noble Lord, Lord Pannick, who none of us want to see in the dock in Court 4 of the Old Bailey.
Creating an additional legal test to prove beyond reasonable doubt why that activity is prejudicial would add an unnecessary hurdle for a prosecution. The noble Lord, Lord Marks, asked why the Government are criminalising assisting a friendly foreign intelligence service in the case of Mossad. The noble Lord, Lord Pannick, and the noble Baroness, Lady Manningham-Buller, also dealt with this example. I would say that we are criminalising covert assistance and I highlight the additional safeguard of the public interest test in the prosecution. We believe that any activity taking place in the UK on behalf of a foreign intelligence service that the UK has not even informally agreed to would be inherently prejudicial.
We would be happy to consider further the point raised by the noble Lord, Lord Pannick, on the drafting of Clause 3, but need more information about that hypothetical situation. Who would counsel be advising and when? For example, is he advising a foreign intelligence service which has an agreement to operate in the UK? In those circumstances, the prosecutor’s options would of course be very different.
On Amendment 16, the existing distinction between activities taking place inside the UK and those taking place overseas was deliberate. For activity taking place overseas, Clause 3(4) requires the conduct to be prejudicial to the safety or interests of the UK. This has been done to ensure that we target activity overseas which has an appropriate link to the United Kingdom. On this amendment, and Amendments 12 and 15, it is the Government’s view that activity taking place inside the UK, where not covered by the defences in Clause 3(7) and without even informal agreement or consent, is inherently prejudicial to the UK’s safety or interests.
As I understood the example from the noble Baroness, Lady Ludford, of a French citizen working in a bar or a bank, surely the answer is that they could simply call 999. I do not think there is any need to tighten up the definition in the context of the example she gave. In further response to the points the noble Baroness raised, I quote from paragraph 43 of the Government’s formal response to the JCHR report:
“Alerting a foreign intelligence service to a potential terrorist plot against the UK would not be conduct in relation to UK activities by that intelligence service. If the UK and France have an agreement to work on such activity together in the UK then that would fall under one of the defences available.”
Regarding Amendment 19, it is the Government’s view that an individual who knew, or reasonably ought to have known, that their conduct has a purpose that is prejudicial to the safety or interests of the United Kingdom should not be outside the scope of the offence simply by virtue of it not being the intention behind the activity to cause harm to the UK. To require the higher level of intention that this amendment seeks to introduce would create gaps that would jeopardise our ability to prevent harmful activity at the sensitive sites these provisions seek to protect. The Government consider it correct to penalise such conduct irrespective of the specific intention of the perpetrator, so long as they have, or should have, knowledge of the damage their action could cause. The Government therefore cannot accept the proposed amendment.
I will address Amendments 20 and 21 together, given that they both would add some variation of the safety or interests of the UK test to Clause 5. For the current Clause 5 offence to be committed, a person must engage in specified conduct in relation to a prohibited place that is unauthorised. They must know, or ought reasonably to know, that their conduct is unauthorised. This therefore protects those who have no reason to know that the activity they are conducting at that specific location is not authorised. There is no requirement to prove intent against the United Kingdom, as the offence is aimed at circumstances where activity is unauthorised but it cannot be established that a person had a purpose they knew, or reasonably ought to have known, was prejudicial to the safety or interests of the UK. For example, if a person trespasses on a site that they know is a prohibited place and steals something from it, that is not on the face of it damaging to the safety or interests of the UK. This is reflected in the lower maximum penalty for this offence of six months’ imprisonment.
The Government consider that including a further condition to prove that conduct is prejudicial to the safety, security or defence interests of the UK significantly reduces the utility of this offence and creates an unhelpful overlap with the Clause 4 offence. This would result in these provisions not being able to capture the full range of potentially harmful activity that prohibited places face. I add that it would seem clear that the innocent photographer taking pictures of RAF aircraft at an air show would not be caught by this offence for the reasons I have set out.
Amendment 47 would add an additional condition to the offence provided in Clause 15(1). The Government reject this amendment because it would create an additional and unnecessary evidential burden to overcome, severely limiting the efficacy of the offence at preventing hostile foreign intelligence activity against the UK. I suggest that no one would ever be prosecuted in the hypothetical situation advanced by the noble Lord, Lord Marks.
The effect of the amendment would be to require the person committing the offence to know, in all circumstances, what the foreign intelligence service intended to do through the provision of the relevant material benefit. Furthermore, the prosecution would be required to prove that knowledge in court on the basis of admissible evidence, which would be a difficult task.
Were this offence to be amended as suggested, it could be simply circumvented by the foreign intelligence service ensuring that the person who would otherwise commit the offence is not told what is intended. In such circumstances, conduct as set out in the offence as drafted would not be a crime. It is the Government’s view that a foreign intelligence service funding operations in the UK is inherently prejudicial to the safety or interests of the United Kingdom.
As to Amendment 49, noble Lords seek to include an additional element of intent as part of the preparatory conduct offence under Clause 16, through the addition of a provision requiring proof that persons engaged in preparatory conduct were acting with a purpose that they knew would prejudice the safety or security or defence of the United Kingdom. In the Government’s view it is unnecessary to include this additional element; if a person engages in preparatory conduct with the intention that it will lead to one or more such offences, the preparatory conduct offence will be committed only if the person has the intention that each element of those offences will be met in the future. I do not accept that the offence could be unintentionally committed in the manner postulated by the noble Baroness, Lady Jones.
Baroness Ludford (LD)
The Minister has the advantage of having read the Government’s response to the JCHR report. As a mere member of the JCHR, I know that, unfortunately, two months after Report, it did not come in time for this Committee, let alone Second Reading. I look forward to reading it.
I did not follow every detail of what he read, but could the Minister tell me what guards against someone being prosecuted under Clause 5,
“Unauthorised entry etc to a prohibited place”?
The clause raises worries about protestors, journalists, photographers and so on, and does not have a test of breaching national security because the criteria in Clause 4—where there is a test of prejudice to the safety or interests of the UK—are not met. It could look as though you have the lower offence, with the possibility of six months imprisonment, where there is no purpose to assist a foreign power and no prejudice to the interests of the UK, but the catch-all of Clause 5, where anyone who wanders on to Ministry of Defence land can attract a six-month prison sentence, whether or not they have done any espionage or harm to the security of the UK. What is the defence to Clause 5 being some sort of compensation for not being able to charge under Clause 4?
Lord Murray of Blidworth (Con)
As I sought to explain to the Committee, the Clause 5 offence can be committed only where a person engages in the specified conduct in relation to a prohibited place that is unauthorised, and they must know, or ought reasonably to know, that their conduct is unauthorised. It is specifically the point, as I hope I alluded to in my remarks earlier, that the Clause 5 offence is the summary-only offence, which is intended to preclude unauthorised entry to prohibited places to avoid the risk of national security consequences.
Lord Pannick (CB)
Can I respectfully ask the Minister to write to me before Report, and place a copy in the Library, with a fuller explanation of why I would not be committing a criminal offence by giving advice to a foreign intelligence service? The noble Lord asked what advice; the very simple example I gave was being asked by a foreign intelligence service to advise it whether certain conduct would be unlawful in this country. Would it be a criminal offence for me to advise it on that? Grateful though I am to the Minister for his expression of the hope that I do not end up at the Old Bailey, I would like greater comfort than that. He did perhaps go a little far in suggesting that that would be the view of all noble Lords, but I am grateful for his personal assurance.
Lord Murray of Blidworth (Con)
I will endeavour to make sure that that letter goes to the noble Lord as soon as it is prepared.
Lord Purvis of Tweed (LD)
I have a genuine query. The Minister referenced a number of times, as I think was cited, that if a foreign intelligence body is operating in the UK unauthorised, it is now considered to be prejudicial to the safety and interests of the United Kingdom. Why is that activity not unlawful?
Lord Murray of Blidworth (Con)
The activity itself is made unlawful in the provisions of the Bill. Is that the point that the noble Lord is making?
Lord Purvis of Tweed (LD)
So it is unlawful for a foreign intelligence service to carry out any activities within the UK if they have not been prior approved by UK intelligence services. Is that correct?
Lord Murray of Blidworth (Con)
As the noble Lord is aware, it is the effect of Clause 2 to prohibit the offences of espionage and assisting a foreign intelligence service. Therefore, those offences in Clauses 1 and 3 of the Bill would have the effect of criminalising activity of the type described by the noble Lord.
Lord Purvis of Tweed (LD)
I am grateful to the Minister; I am purely seeking clarification for the benefit of my own ignorance. I am concerned that it is not very clear. If a friendly intelligence service is carrying out UK activities, which is not espionage against the United Kingdom, the Government are saying that this is prejudicial against the safety and interests of the United Kingdom but it is not unlawful, but a UK citizen advising on that basis is unlawful. Would it not be clearer to state that that activity is unlawful?
Lord Murray of Blidworth (Con)
I note the noble Lord’s remarks. I am not entirely sure that I follow the logic, but I will study Hansard carefully and take it back to the department.
Lord Marks of Henley-on-Thames (LD)
My Lords, the Minister has given no quarter. I suppose that is to be expected on the first day of a Committee on a Bill, with the Government defending their position as thoroughly as he has done. I hope that when he does read Hansard, as he has just promised to do, he will realise that there are a great many areas in which flaws in the Bill have been exposed—and exposed in particular by this group of amendments—where it is quite plain that conduct that ought not be criminal runs the risk of being criminalised. The question asked by my noble friend Lord Purvis of Tweed just a moment ago exposed the danger for people working for a foreign intelligence service if they are British citizens; they are plainly caught. There are a number of areas where assisting a foreign intelligence service, for instance, gives rise to particular difficulties.
Before I go on to any detail, let me say that it is a dangerous path for a Government to say that they do not believe that there would be many unjustified prosecutions because the public interest test for a prosecution would not be met. Let us remind ourselves that the prosecution services have to consider two things: first, whether there is a reasonable chance of a conviction on the evidence, and, secondly, whether it would be—
Lord Marks of Henley-on-Thames (LD)
“Realistic” is better than “reasonable”; the noble Lord knows far better than I what the test is.
The second point is whether it would be in the public interest to prosecute. That is a decision made by prosecuting authorities. What we are concerned about in this Committee is what conduct is criminal and merits a conviction in a criminal court. That carries with it the question of how a judge will be constrained to direct a jury as to what criminal conduct is. We have to get that right. Nowhere is that better shown than in this group of amendments.
The noble Baroness, Lady Jones of Moulsecoomb, was referred to jocularly in an earlier group by the Minister, the noble Lord, Lord Sharpe, who said that she often does not agree with government policy and the interests of the United Kingdom as defined by government policy. Of course, he is right that she often does not agree with government policy, but she is right to point out the danger of ill-thought-out laws that go too wide, criminalising behaviour that is no more than the democratic expression of dissenting views. That is one of the evils at which this whole suite of amendments that we have tabled is directed.
An example of how the Bill goes too far was highlighted by the response of the noble Baroness, Lady Manningham-Buller, to my Mossad example. She said that, of course, Mossad operating in the United Kingdom would be—I forget the phrase she used—notifiable activity, or it would notify of the activity. That is not the concern I was expressing. The concern that I and others were expressing is that a private citizen helping a foreign intelligence agency in the interests of the United Kingdom or compatible with them, without a government sanction and without working for the Government, would be criminalised. I suggest that it is wrong for that private citizen to be dependent on the Government, prosecuting authorities or the Attorney-General taking the view that the public interest test was not met.
In connection with the points made by the noble Lord, Lord Pannick, we simply heard no answer to his question about the tendering of legal advice. I know the Minister said that consideration would be given to that, but that calls into question the whole gamut of queries raised in this House, in this Committee and elsewhere about where the Bill goes too far. I suggest that where a Bill is too wide because it offends against human rights so that human rights are infringed and obviously infringed, the law can become positively dangerous—that is why the JCHR position taken on a number of these amendments is so important; I agree completely with the noble Lord, Lord Coaker, on this. We do not just have to consider a benign and friendly Government steeped in the traditions of British democracy. As the noble Baroness, Lady Chakrabarti, who is not here today, often says, you have to consider the possibility arising of a Government who are wholly against the traditional freedoms that are protected by our law on human rights. I suggest that that is the danger that we are concerned to defeat.
I therefore invite the Minister and his colleagues to go away and think very carefully about the breadth of these clauses and about the strength of the amendments that we have suggested to them, and to discuss with those people who have proposed amendments—we will all be willing to discuss these amendments and any refinements there should be; we are not wedded to the wording as it is the principles that are involved. Thus, by the time the Bill comes back on Report, they can be far more clearly defined, and the intent to prejudice national security—the subject of the Bill—should be clearly made out before anyone is subjected to serious criminal consequences as a result of misguided prosecutions and convictions that will inevitably flow from the misguided wording of the Bill. Having said that we will discuss it, at this stage I beg leave to withdraw the amendment.
Member's explanatory statement
This amendment provides for a higher threshold to be met for the offence in Clause 3.
Lord Marks of Henley-on-Thames (LD)
My Lords, this group contains only Amendment 13. That said, there ought to be two amendments, because a further amendment in exactly the same terms is required to Clause 3(2)(b).
Clause 3 deals with assisting a foreign intelligence service, and Clause 3(2)(a) provides that a person commits an offence if they engage in conduct
“that it is reasonably possible may materially assist a foreign intelligence service in carrying out UK-related activities.”
For some reason that I cannot explain, we did not propose that Clause 3(2)(b), which provides that the person
“knows, or ought reasonably to know, that it is reasonably possible their conduct may materially assist a foreign intelligence service in carrying out UK-related activities”
should be similarly amended. If this goes further, there will be such an amendment.
Lord Purvis of Tweed (LD)
My Lords, I too have a question to ask about this. I thank my noble friend for introducing these amendments so comprehensively. My question relates to Clause 3(2)(a) because it is so broadly scoped.
I am fully aware that there are many extremely professional UK-based organisations that provide training, support, advice and consultancy on security matters. In fact, it has become part of an industry for those who used to serve in some of our Special Forces and intelligence industry. By and large, it is done extremely professionally, which is to their credit. However, under the Bill, presumably, all that activity now needs to cease because it is criminalised. A person will commit an offence where
“it is reasonably possible their conduct may materially assist a foreign intelligence service in carrying out UK-related activities”,
which would mean training within the UK. Therefore, any consultancy—for example, a privacy sector security concern that trains allies in the Gulf and carries out any of that activity here in the UK—presumably is now liable for 14 years in jail. Can the Minister clarify whether that is the case?
Lord Ponsonby of Shulbrede (Lab)
My Lords, as the noble Lord, Lord Marks, mentioned, there should be a second amendment to go with Amendment 13. There is only one amendment in this group.
Clause 3 means that for the first time it will be a criminal offence to be a covert foreign agent and engage in activity that assists a foreign intelligence service. While the clause currently states that an offence is committed when a person engages in conduct that
“it is reasonably possible … may materially assist a foreign intelligence service”,
this amendment would mean instead that an offence is committed only if it is likely materially to assist a foreign intelligence service. The impact of the amendment is that it increases the threshold for the likelihood of whether an action assists a foreign intelligence service, reflecting concerns raised by the JCHR. As the noble Lord, Lord Marks, said, this would be punishable by up to 14 years’ imprisonment, so we look forward to the Minister clarifying why the offence is not more tightly drawn.
The noble Lord, Lord Purvis, raised a very interesting question about the large group of consultants with experience of the security services and forces who provide training to any number of actors across the world, and how they may be caught by this provision. I look forward to the Minister’s answer.
Lord Sharpe of Epsom (Con)
My Lords, Amendment 13 seeks to narrow the scope of the offence provided for in Clause 3(2). For brevity, I will refer to a foreign intelligence service as a FIS.
The Government reject this amendment because we do not consider it to be necessary. Clause 3(2) provides for an offence where a person engages in conduct which it is reasonably possible may materially assist a FIS in carrying out UK-related activities. Amendment 13 seeks to change this to “likely materially to” assist a FIS. We do not consider there to be a difference between the two terms. I recognise the spirit in which this amendment has been made, to raise the bar for this offence being conducted, but I assure noble Lords that for this offence to apply, a person not only needs to engage in the conduct that it is reasonably possible may assist a FIS but must know, or ought reasonably to know, that it will assist a FIS in carrying out UK-related activities.
To ensure that we do not capture legitimate activity, there are defences in Clause 3(7). Not only will we not criminalise activity conducted in accordance with an agreement to which we are a party—such as agreements with our Five Eyes partners based in the UK—but we will exclude law enforcement and others who are legally obliged under UK law to assist a FIS. That goes some way to answering the question asked by the noble Lord, Lord Purvis. Additionally, where someone with public functions—
Lord Purvis of Tweed (LD)
My reading of it is that, taking the defence in Clause 3(7)(b) as an example, if I was providing Special Forces training—unlikely though that might seem—because I have functions of a public nature, I would be fine, although I do not think anyone would wish to receive Special Forces training from me. I was asking specifically about UK private sector bodies—consultancies and those that carry out those functions. I am happy for the Minister to write to me if he does not have an answer now, but I do not think that private sector enterprises are covered by any of the defences in Clause 3(7).
Lord Sharpe of Epsom (Con)
My Lords, my reading of it is not the same as the noble Lord’s, but I will seek clarification and happily write to him on that.
The noble Lord, Lord Marks, raised a hypothetical about assisting foreign intelligence services. I am happy to provide a few more which may clarify the scope of this clause. Hypothetical examples of a person assisting a foreign intelligence service in carrying out its activities could include aiding intelligence-gathering operations or providing a financial benefit to a foreign intelligence service, or someone working for a foreign intelligence service to entice an individual into working for them. I hope that clarifies it to some extent.
It is important to note that the threat posed by espionage, as we have said in previous groupings, is constantly evolving. It is important that our legislative provisions withstand the test of time. We must safeguard against a rapidly changing and complex threat landscape in which foreign powers and their intelligence services use a whole-of-society approach to conduct hostile activity against the UK. That is why Clause 3 is such an important part of the Bill. We therefore reject this amendment and respectfully ask that it be withdrawn.
Lord Marks of Henley-on-Thames (LD)
I was going to ask the Minister something before he sat down, but he sat down so fast.
My concern with the Government’s approach, and the Minister’s approach in his response, is that it describes activities without reference to the legal definition of the activities concerned. Clause 3(1) involves the person committing the offence if the person
“engages in contact of any kind”.
Under Clause 3(4):
“‘UK-related activities’ means … activities taking place in the United Kingdom”.
It is not necessary to identify the service. As my noble friend pointed out, Clause 3(7) does not cover the private sector.
My amendments are very simple and very short, but even that raising of the threshold the Government resist. We are at a loss to understand why the Government are not prepared to bring a more forensic approach to the definitions in our criminal law. I quite appreciate and agree that the offence, in principle, of assisting a foreign intelligence service to the prejudice of the interests of the United Kingdom—which we say should be clearly defined—is a very important part of the Bill. But it is wrong to draft the law in such a way as to catch any conduct that attracts the displeasure of our intelligence services, our prosecuting authorities or government policy. It is important to define criminal conduct in such a way that it criminalises only conduct that ought properly to be a criminal offence when committed not only by United Kingdom citizens but by others who have absolutely no intention of assisting a foreign intelligence service to the detriment or prejudice of the United Kingdom. I beg leave to withdraw the amendment.
Baroness Ludford
Member's explanatory statement
This amendment is recommended by the JCHR and would remove the power of the police to order a person to leave an area “adjacent to” a prohibited place.
Baroness Ludford (LD)
My Lords, the offences and powers in Part 1 of the Bill, which are about entering a prohibited place, are incredibly wide and were detached to significant areas of the British countryside such as Ministry of Defence land covered by public footpaths frequented by tourists, hikers and dog walkers. My amendments in this group aim to guard against innocent members of the public inadvertently committing a criminal offence and to tighten up the conditions for the police to exercise their powers.
It does seem disproportionate to apply the restrictions, and police powers and criminal offences, to land, vehicles and buildings which do not disclose any significant risk to the safety or interests of the UK. Of course, under Clause 8, the Government would give themselves powers to declare additional land, buildings or vehicles to come under the definition of prohibited places. It may not be possible for the public even to know how much of this land and how many vehicles and buildings are Ministry of Defence property and prohibited places. They could risk committing an offence without being aware that they were approaching a Ministry of Defence car, which may have no markings at all, or walking along a coastal path which was Ministry of Defence property. My noble friend Lord Marks was talking in the previous group, or maybe the one before, about how dangerous it is to have wide definitions in criminal law. That is intrinsically bad but imagine if we got a truly authoritarian Government in this country.
Lord Wallace of Saltaire (LD)
My Lords, I have three amendments in this group. I suppose I should declare interests in relation to the amendments of my noble friend Lady Ludford. I have been stopped by the MoD police twice in my life: outside RAF Fylingdales when walking with a local Liberal Democrat councillor, and outside RAF Menwith Hill, where I had stopped to address a meeting of splendid Quaker women who constituted the Campaign for the Accountability of American Bases. We were watching American servicemen in the ceremony in which they took down the union jack. There are no British servicemen on the base most of the time.
I want to talk about the probing amendments I have put down on why the Crown dependencies and British Overseas Territories do not appear here. I explain my interest—and form—on this, which dates back to the Royal Commission on the Constitution of 1970-74, on which I was a very junior witness. I learned about the deep ambivalence surrounding the relationship between the Crown dependencies and the UK in particular, and about the British Overseas Territories.
I note that, in the Procurement Bill, which we have just passed through this House, the Crown dependencies are included under the definition of “a UK supplier”. However, under a number of other Acts that we have passed through this House in the last few years, they exclude themselves. They move in and out in various different ways.
In a number of these territories and dependencies, there are places of considerable concern to our security and interests: the Falkland Islands, the British Indian Ocean Territory, Ascension Island, Saint Helena, et cetera. The Crown dependencies I am much less sure about, although I know there is a Territorial Army base on Jersey. The last time I looked at the official Guernsey website, it still said that Guernsey’s contribution to British defence is the maintenance of the Alderney breakwater. That is a very interesting conceit. When, nearly 20 years ago, I asked the Ministry of Defence a Written Question on the importance of the Alderney breakwater, an official phoned me up to say, “We don’t understand your question”. On further investigation, he said that they had ceased to be concerned with the Alderney breakwater at the time of the Second World War.
There are many ambivalences here but surely, they should be part of this Bill. They are neither foreign nor entirely British. They are of importance to the UK, in financial terms and, when it came to the Falklands, in military terms. I am assured that there are some facilities on Ascension Island. There are certainly facilities on the British Indian Ocean Territory, although they are of course primarily American, and I think there are fewer than two dozen British servicemen there. However, they should be in the Bill and are not. I merely wish to ask why.
Lord Purvis of Tweed (LD)
My Lords, anybody watching a wonderful BBC documentary series about Ordnance Survey maps a few years ago would have seen the rather amusing part about a gap in the centre of London on the Ordnance Survey map as result of the Official Secrets Act. That was because it was forbidden to have the Telecom Tower on the map because it was a prohibited place for national security, so none of our foes were able to know where it was by studying the Ordnance Survey map. I hope that we avoid such absurdities with this Bill.
In Committee in the Commons, the Minister stated that there is not, nor will there be, a register of prohibited places. I hope the Minister can provide some more clarity with regard to that today. The offences under the Bill are so significant and potentially draconian that some of the issues that my noble friend Lady Ludford indicated might well come about, because the Minister in the Commons was unable to state in clear terms how people will know where a prohibited place is. Some might be perfectly obvious, such as some of the bases which my noble friend Lord Wallace approached with a Liberal councillor, but others are not. I understand entirely that there will be some areas where the Government do not wish to promote the activities or make it clear where they are, but how will they approach inadvertent activity, given that someone statically observing a prohibited place through an iPhone lens or a binocular lens could inadvertently be committing a criminal offence? I simply do not know how the Government intend to ensure that people are aware that they are potentially falling foul of this legislation.
Not only that but the Bill allows Ministers to move quickly to extend prohibited places. It does so by general description, as the Minister said in the Commons. Prohibited places do not have to be specified, as I understand it. They can be categorised, so that all areas that meet the general specification will become prohibited places. Is there a mechanism so that local authorities or local police are informed, even if no local communities are going to be informed? The Minister in the Commons said
“some sites will not want people to know exactly where they are and what they are doing because they will become targets. Once again, there is a balance to be struck in relation to provision for the intelligence community”.—[Official Report, Commons, National Security Bill Committee, 12/07/22; col. 107.]
Of course there needs to be a balance but, as with some other elements of the Bill, we see no other part of the balance. We see no mechanism that will protect the interests of people who are inadvertent.
The Government have also indicated that they might have to move very fast. There is of course merit in understanding that if there has been an alert about a threat, certain areas might need to be prohibited. I am not advocating it, but I am curious about the choice that has been made. The Government have not chosen to go down the route of the “made affirmative” procedure, which other legislation has if something has to be done urgently. They say that if there is a threat risk, to allow a prohibited place to be put in place they will bring it forward using the negative procedure and consult on it. It does not really ring true as far as how urgent a response that would be to a national security threat.
However, there are significant wider concerns when it comes to the powers that the Government are seeking. Where are the limits for the extension of prohibited places? Would it be, for example, that an immigration centre could not become a prohibited place under this Bill? Would it be that local government department buildings could not be prohibited places? What is the limit? Unless there is a limit, notwithstanding if there is an immediate threat—I think there are procedures anyway with regard to securing areas where the police think that offences are to be carried out, and for the safety of the public there are mechanisms that can secure places under existing legislation—how do we know how far Government want to extend those prohibited places? Unless we are clear, that raises the considerable concern that they can be used to prevent peaceful protest or concern.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the amendments in this group span Clauses 6 to 11 and cover the new offences of
“Entering and inspecting places used for defence etc”.
These clauses are intended to update the prohibited places provisions which fall within the century-old Official Secrets Act 1911. Given that technological developments, such as the use of drones, are providing new methods of accessing protected sites, it is right that the Government are evolving the offences, and it is right that this Committee is probing how these new offences will be implemented.
The 12 amendments in this group are probing and were recommended by the JCHR. They seek to tighten or narrow the offences and definitions. Amendment 34 in the name of the noble Baroness, Lady Ludford, raises the unintended consequences of these provisions on the right to protest and on journalism. This will be a common theme throughout Committee stage, and my Amendment 88, which will be debated at a later date, will consider the implications of later clauses for journalists and civil society.
Amendment 26 in the name of the noble Baroness, Lady Ludford, and Amendments 27, 28 and 30 in the name of the noble Lord, Lord Wallace, raise questions about where prohibited places may be located and probe why they may include any MoD land and why Crown dependencies and overseas territories are excluded. Given the sentences which offences may carry, it is important that the Minister clarifies the type of locations which will be included. As the noble Baroness, Lady Ludford said, the purpose of this group of amendments is to give greater certainty and narrow definitions. She asked the rhetorical question—perhaps it is not a rhetorical question; it is a literal question—of how people will know whether they are in prohibited places.
The noble Lords, Lord Wallace and Lord Purvis, explored quite interestingly why overseas territories are not included within the definitions, and I look forward to the Minister’s answer on that point. The noble Lord, Lord Purvis, asked other questions about who will be informed. If it will not be the general public, will it be local authorities or police forces, and which police forces will it be? The purpose of this suite of amendments is to look at the limits on the extension of prohibited places and at who should expect to be informed about any such extension. I look forward to the Minister’s answer.
Lord Murray of Blidworth (Con)
I thank noble Lords for their contributions to this short debate. I will first speak to Amendments 23 and 33 at the same time, given the argument is much the same for both. I am happy to provide the clarity sought by noble Lords and, in particular, the noble Lord, Lord Ponsonby.
Harmful activity relating to prohibited places or cordoned areas around military aircraft can take place directly outside the boundaries of a place or cordon. This could include conducting surveillance, such as taking video or photographs of the sensitive place or aircraft, monitoring the activities of staff located at the site or conducting close-range information technology attacks from outside the place. It is therefore imperative that, where the police believe a person to be conducting such activity, they should be able to order them to move away. None the less, recognising that a cordon may be imposed at short notice, it is a defence provided for in the Bill for a person to prove that they had a reasonable excuse for failing to comply with a cordon under Clause 11. The effect of these amendments would be to reduce significantly the ability of the police proactively to stop damaging activity from taking place.
The police guidance that is being developed in collaboration with the College of Policing will provide further advice to forces on the use of powers in respect of an area adjacent to a prohibited place or cordoned area. I can confirm that this is addressed directly in the Government’s response to the JCHR’s report at paragraph 52 and onwards, and I again thank the committee for its close consideration of this Bill.
Amendment 24 adds a requirement that a police officer obtain authorisation before exercising a Clause 6 power. Due to the inherently sensitive nature of prohibited places, and the threats that they face, it is likely that the Clause 6 powers will be used rapidly to prevent serious and harmful activity from taking place—activity that could well jeopardise the safety of those working within the site itself. Policing often requires the judgment of officers to take quick and decisive action to prevent harm and keep the public safe. It is important that we continue to empower our officers to make these decisions where appropriate. Introducing a requirement for a constable to seek approval from a senior officer may add an extra layer of confusion as to when constables may or may not use their powers, potentially allowing harmful activity to be completed before the police can respond. We recognise that every effort should be made to help ensure that these powers are not used in a disproportionate manner, and, as such, we are working closely with the College of Policing to develop guidance that the police should use before exercising the powers granted under Clause 6.
Amendment 25 seeks to provide that it is an offence to fail to comply with a Clause 6 order only if the order was necessary and proportionate to protect the safety or interests of the United Kingdom. The legislation is clear that a constable may exercise a power under Clause 6 only if they reasonably believe that doing so would be necessary to protect the safety or interests of the UK. The Government therefore consider that this amendment is unnecessary. As with any such situation, where it is alleged that a constable has acted outside the scope of their powers, a decision to give the order is rightly open to challenge. As it is an important point, I will stress again that the Government are working closely with the College of Policing on the guidance which should be used prior to making any decision to exercise powers under Clause 6.
On Amendment 26, it is crucial for national security that the UK continues to protect all areas used for defence purposes and by the UK intelligence community. Carving out certain places over others within these categories in the way this amendment proposes risks creating gaps that hostile actors could exploit. It could require the Government to pinpoint their most valuable defence and intelligence sites in order to establish that they are indeed prohibited places and so put these places even more at risk of harmful activity—the very opposite of what the prohibited places regime is setting out to achieve. Moreover, the proposed amendment focuses only on the risk posed by entry to such sites, which fundamentally undermines the protection being given to these sites against a range of harmful activity. It also, in inserting this condition around potential risk, significantly reduces clarity on the face of the legislation as to what constitutes a prohibited place.
I understand the intention behind this amendment, which is to ensure that land that might already be accessible, or where there is not perceived to be a significant risk, is not covered by the provision. I want to assure noble Lords that Ministry of Defence land that can be lawfully accessed by the public and such areas of the British countryside with public footpaths do not need to be excluded, nor do the public need to be given authorisation to be in that area. Therefore, they will not commit an offence under Clause 5. They will be committing an offence under Clause 4 only if the conduct is a specified activity with a purpose that they know, or reasonably ought to know, is prejudicial to the safety or interests of the United Kingdom. It is important we are able to catch such harmful activity, even on publicly accessible land. Ministry of Defence land that can lawfully be accessed by the public is still used by our Armed Forces, often for purposes that are sensitive in nature, and it is critical they should be afforded the protections granted by the prohibited places provisions.
I will address Amendments 27, 28 and 30 together, given they all seek to extend the prohibited places provisions to the Crown dependencies and the wider British Overseas Territories. The Crown dependencies and British Overseas Territories are not a part of the United Kingdom, of course, but self-governing territories with democratic Assemblies able to legislate for themselves, including on national security. Should any British Overseas Territory or Crown dependency consider it necessary to designate prohibited places within their territory, they may make similar provisions in their own legislation.
It is of note that the Government consulted with the Crown dependencies on their inclusion within the prohibited places regime, and they have advised it would be preferred if they looked towards mirroring these provisions under their own law and legislation. It is only right and proper that the United Kingdom respects these decisions. I hope that addresses the point raised by the noble Lord, Lord Wallace. I am sure the Bailiwick of Guernsey will think long and hard about the Alderney breakwater. As the grandson of an Alderney girl, I can tell noble Lords how much that breakwater is a feature of conversation.
It is important to address why the Government have chosen to include land or buildings within sovereign base areas—particularly those of Akrotiri and Dhekelia—in the prohibited places regime. Sovereign base areas are critical for UK defence and have special constitutional status among the British Overseas Territories in that their administrator, who also holds the title of “Commander British Forces Cyprus”, is vested with all the executive and legislative authority. This unique context of the sovereign base areas is precisely why, at their request, we are also including the option to extend the provisions in the Bill to the sovereign base areas. As such, it is right that the UK continues to afford protections specifically to the sovereign base areas through the National Security Bill.
Amendment 29 creates a legislative requirement to inform the public of prohibited places. The safeguards in place within Clauses 4 and 5—namely, that a person must either have a purpose that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom or know, or ought reasonably to know, that their conduct is unauthorised—protect those who have entered, or are in the vicinity of, a sensitive site without having any knowledge that they have done so.
The Government agree that, where it is reasonably practicable, every effort should be made appropriately to notify the public of areas designated as prohibited places through the use of signage surrounding these places. However, the Government consider that making it a legislative obligation to notify the public of the location of every site designated a prohibited place is not proportionate, given that Clause 7 already makes public the types of sites that will be prohibited places. Equally, any designation under Clause 8 will set out in law any further types of sites that will be prohibited places. Furthermore, and crucially, there will be a number of sites which, due to their highly sensitive nature, it would be harmful to UK national security if they were publicly declared as prohibited places.
Lord Purvis of Tweed (LD)
I have two quick questions for the Minister. I was grateful for his response to me with regard to local authorities. Can he clarify which lands will be categorised under the Crown interest? Under Clause 7(4)(b), they are
“an interest belonging to a government department or held in trust for His Majesty for the purposes of a government department”.
It is not singled out, so is my assumption correct that these government departments include devolved Administration departments—the Scottish Government, et cetera?
Similarly, I was grateful for the Minister’s reference to the College of Policing, which was also referenced in Committee by his counterpart in the House of Commons. I have heard no reference to the Government working with the Scottish Police College, which is the relevant body north of the border because the College of Policing is only for England and Wales. This is important, because many of these lands are north of the border, where I live. If the Government are consulting, they need to consult with the Scottish Police College as well. I would be grateful for that assurance.
Lord Murray of Blidworth (Con)
Yes. My suspicion is that both answers are in the affirmative, but I am afraid I do not know for sure. I will find out from my officials and write to the noble Lord. I thank him for raising that.
Baroness Ludford (LD)
My Lords, I am quite disappointed by the Minister’s responses on this. There are considerable dangers in this part of the Bill. The Minister referred to the fact that the offence under Clause 4 is committed only if
“the person knows, or ought reasonably to know,”
that their conduct
“is prejudicial to the safety or interests of the United Kingdom.”
We have been around those houses before. Ought ramblers reasonably to know that they are
“in the vicinity of a prohibited place”?
Again, what does that mean? It is like “adjacent”. I do not think the Minister replied on the meaning of “adjacent”; forgive me if I missed that. It is all very difficult for some normal, uncriminal person to know that they are committing an offence under Clause 4. Clause 5 also says they “ought reasonably to know”. It is all rather reminiscent of being “in the vicinity” or “adjacent”. The Government also have powers to designate more places as prohibited.
The Minister drew our attention to the defence
“to prove that the person had a reasonable excuse for that failure”
under Clause 11 in relation to a cordoned area. As far as I can see—I might have missed it—there is no such reasonable excuse defence in relation to the offences under Clauses 4 and 5 on entering or unauthorised entry to a prohibited place. If I am wrong, no doubt the Minister will be able to write to correct me.
This all seems quite reminiscent of the Covid restrictions. In the last couple of days, the human rights barrister Adam Wagner did a review of Matt Hancock’s diaries, or so-called diaries. Presumably, as he is an ex-Cabinet Minister, this publication would have been vetted by the Cabinet Office. This is the Minister who would have signed off all the SIs on Covid restrictions—200, or however many there were. The publication by Mr Hancock says that these were all SIs under the Coronavirus Act, which is not true; they were under the public health Act 1984, if memory serves. It went through the Cabinet Office with no one picking up that the reference was to the wrong law. This is reminiscent of the chaos among the police in applying the restrictions, their failure to distinguish between guidance and law, and the general outrage among the public at being told they could not do things that actually were not illegal. This did not help the reputation of and trust in the police.
I foresee similar echoes from the provisions of this Bill, of an outraged Middle England—or middle UK—where people find themselves adjacent to or in the vicinity of a prohibited place on Ministry of Defence land having had no reason to know about it. The Minister said he would try to consider putting up notices, but I do not think there has been any guarantee. So someone might not know that they were in the vicinity of a prohibited place that is defence land, committing an offence with potentially draconian penalties. This is inadequate as law. The Minister did say that there would be guidance, but there was guidance for the Covid regulations and that did not always solve the problems.
So, while I hear what the Minister says, I will want to return to some of the issues in this part of the Bill. The proposed law is sloppy. It could find innocent people either criminalised or dissuaded from taking their normal walk because they are not sure whether they are allowed in an area, and there could be a general chilling effect on people’s leisure activities. That said, and with the intention of having another look at all of this on Report, I beg leave to withdraw my amendment.
National Security Bill
Wednesday 21st December 2022
(1 year, 11 months ago)
Lords ChamberRead Full debate National Security Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 68-II Second marshalled list for Committee - (19 Dec 2022)
Lord Bethell
“Treason: aiding a hostile foreign power(1) A person commits an offence if the person engages in conduct falling within subsection (2), with the intention to aid—(a) an attack on the United Kingdom by any foreign power,(b) any foreign power that intends to attack the United Kingdom or is engaged in a process of planning or preparing for an attack on the United Kingdom, or(c) any foreign power with whom the United Kingdom is engaged in armed conflict.(2) A person engages in conduct falling within this subsection if the person does any act that is designed to—(a) help carry out an attack or facilitate the carrying out of an attack on the United Kingdom,(b) help the planning of or preparation for an attack on the United Kingdom,(c) aid the military or intelligence operations of a foreign power falling within subsection (1),(d) impede the operations of His Majesty’s forces,(e) prejudice the security and defence of the United Kingdom, or(f) endanger life.(3) A person guilty of an offence under this section must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.”
Lord Bethell (Con)
My Lords, Amendment 37A on treason and aiding a foreign power is in my name and that of the noble Lord, Lord Faulks, who is extremely frustrated that he cannot be here today.
This is an excellent Bill. It is clear from the proceedings in this Chamber that it is welcomed, and I very much echo those sentiments. However, I have moved this amendment because I believe that there is a significant gap in the legislation. An important signal to the British public is needed in an era of hybrid warfare and mass migration. These points were very well made in the Policy Exchange publication Aiding the Enemy, authored by Professor Richard Ekins and current Home Office Minister Tom Tugendhat, with a foreword by my friend the noble and learned Lord, Lord Judge.
We are living in an age of rising great power competition. As noted in the proceedings on this Bill, hostile states such as China and Russia are actively looking to suborn our nationals into actions that undermine our national security. As it stands, the law of treason applies only to international armed conflicts. That is where the gap is. The law of treason should pick out and condemn people who betray the UK where preparations for international armed conflict are being made or where attacks on the UK, such as cyberattacks, may fall short of the threshold required for international armed conflict. This would recognise accurately the wrong being done, which is typically worse than merely mishandling official information, and punish it accordingly. For example, in the Cold War there were British nationals who betrayed our country by passing secrets to the Soviets; they certainly deserved to be punished as traitors but were not because the law of treason was in a poor state. It remains in a poor state now, as a new cold war could be beginning, so it is time that we fixed it.
We need to speak to the hearts and minds of our citizens, to bind the British people and make it clear to those who seek to assist foreign powers to do us harm that they will be designated by law as traitors to their country. This is not about requiring patriotism; it is about the law clearly setting out that to assist a group or country to attack the country in which you are a citizen is a crime. It is for these reasons—that appeal to the heart—that similar arrangements have been recently introduced by other common-law jurisdictions such as Australia, Canada and New Zealand.
I was very struck by the story of Kimberley Miners, who travelled to Syria and returned. She said of her experience living with ISIS:
“People have no idea, but ISIS is actively searching Facebook for vulnerable people. People just like me. These people befriended me, I felt accepted.”
I feel enormous compassion for her but also enormous anger that she was so stupid as to make this decision. If our nationals had a clearer sense of where the boundaries lay, naive people would not make such mistakes.
Treason reform was dropped from the final text of the National Security Bill when it was placed before Parliament, which is a great shame. The consultation on legislation to counter state threats, with which many noble Lords will be familiar, claimed that significant historical analysis would need to be done to enable reform of treason but that that would significantly delay the Bill. I never like the idea that we should avoid good legislation because it is too time-consuming to draft; given the support for this straightforward, clearly drafted measure in many corners of the Committee, I do not think it need delay the Bill or overstress the resources of the MoJ.
One objection to a refresh of the treason laws was made by the excellent Independent Reviewer of Terrorism Legislation, Jonathan Hall KC, who suggested that
“in order to prosecute an individual for aiding a hostile state or organisation, you have to label that state or organisation as such. Doing so could legitimise their cause and give them ‘special status and cachet’.”
I take a different view. Treason is not about labelling your enemies or legitimising their status; they put all their efforts into doing that themselves, without our help or otherwise. Jonathan Hall also suggested that juries would be worried about convicting on such a contentious crime with a controversial history. That is an important point to address, because it is exactly this squeamishness about considering treason a crime that means that we need to bring it back from the legal freezer and make it a commonly understood and demystified concept.
The incidence of treason is not going down—it is quite possibly becoming more frequent. We cannot live in a country in which a sense of social awkwardness prevents prosecution of a heinous crime. Therefore, it would be wise to leave it to the prosecuting authorities to decide which crimes can be most effectively prosecuted, as they are both qualified and rightly responsible to make these decisions. As a parliamentarian, I do not think that good law-making is best achieved by second-guessing juries. There are a number of horrible crimes for which, as noble Lords know, it is sometimes difficult to gain convictions, but we do it because they are important.
I am also conscious of the misuse of treason accusations by autocracies such as Russia. Accusations of treason can be abused and used to silence dissenters, but it is not logical that the misuse of a law by a tin-pot regime elsewhere means that we should not have it in this country, which values the rule of law. The best protection is good, workable legislation. That is why I ask the Minister to reconsider the decision to drop treason provisions from the Bill and to consider supporting this constructive amendment. I beg to move.
Lord Carlile of Berriew (CB)
My Lords, I have great respect for any new clause proposed by the noble Lord, and with the name of the noble Lord, Lord Faulks. It is therefore with some trepidation that I may strike a discordant note. I am almost intimidated by the compelling ad majorem argument which the noble Lord used, and some of the names he referred to in support of his proposal. I read the Policy Exchange document at the time, which seemed to me both ambitious and, to an extent, misguided. I will give four or five reasons why I am of that view.
First, what is described as treason in this proposed new clause is in every instance already prosecutable under existing offences. In my view, duplication of conduct under different headings is a disadvantage to the courts and creates potential difficulties with juries, which are sensitive to the labels that would be placed by conviction upon those prosecuted.
Secondly, the clause refers generally to an “attack”. Does that include cyberattacks, which are now being conducted on a very large scale by countries which have hostile intent towards the United Kingdom? Is it proportionate that a cyberattack should be punishable as treason as opposed to under the available existing legislation?
My third argument is about symbolism in criminal justice legislation. I know that some of us sat in this building in another place during the content of the Westland affair, as a result of which the jury failed to convict somebody who in law had been held by the judge to be guilty of the offence as charged. That is a result we would all wish to avoid. Others here were in very senior official positions during what proved to be a very uncomfortable episode. I look in particular at my noble friend Lord Butler, to whom I give way with pleasure.
Lord Butler of Brockwell (CB)
I think my noble friend is referring to Ponting, not Westland.
Lord Carlile of Berriew (CB)
I thank my noble friend for that correction—yes, it was Ponting, not Westland. I apologise; I had the wrong incident in my mind.
My fourth point is about the life sentence contained in subsection (3) of the proposed new clause. I simply do not like tautologies such as “manifestly unjust” in criminal sentencing provisions. In my view, if there is to be a provision of this kind—we have been told that it has been drafted very carefully—it should not contain tautologous phrases like that. “Unjust” will do very nicely, as far as I am concerned.
My fifth point is about the authority for such a prosecution. The noble Lord, Lord Bethell, referred to the involvement, presumably, of the Director of Public Prosecutions in authorising such a prosecution. However, as drafted, this proposed new clause would permit a private prosecution, which could be stopped by the Director of Public Prosecutions only in certain circumstances. Private prosecutions—often justifiably—are becoming more fashionable and frequent, particularly in fraud cases which the authorities are not able to undertake for reasons of scale and cost. Those are perfectly defensible private prosecutions, as results in the courts have shown. However, the use of private prosecutions for oblique motives in this context seems to be a very realistic possibility. I therefore urge that if we are to have a revised treason offence, it should be prosecutable only with the authority of the Attorney-General.
Finally, the House should pay very close attention—I would say this, as a former Independent Reviewer of Terrorism Legislation—to the views of Jonathan Hall KC, who has considered this matter in detail and with whom I agree. I also simply pose a rhetorical question: who seriously thinks that ISIS would be discouraged in any way whatsoever by the introduction of this clause? The Government are right in the decision they have taken, and I hope that they will stick to their view.
Lord Anderson of Ipswich (CB)
My Lords, it is a pleasure to follow two such clear and thought-provoking speeches. When this House has debated treason offences in recent years, it has generally been in the context of lending support to terrorist groups, particularly in foreign theatres such as Iraq and Syria. It has never seemed to me that there is much point in bringing treason into this. The bristling arsenal of counterterrorism law is already equal to any conceivable type of assistance to terrorism or adherence to a terrorist cause, whatever the nationality of the subject and regardless of the state, if any, against which terrorism is directed. As the noble Lord, Lord Bethell, put it, the boundaries are closely drawn and abundantly clear.
Prosecutions for treason in this area would certainly have the potential to raise the emotional temperature, both for us and for the terrorists themselves. I am against such prosecutions because they are exactly what the terrorists want: to elevate their squalid and immoral behaviour into some sort of noble cause. I remember this point being well made from the Government Front Bench by the noble Baroness, Lady Williams, who is not in her place, shortly after I joined your Lordships’ House in 2018. She said that
“prosecuting terrorists for treason would risk giving their actions a credibility … glamour and political status that they do not deserve. It would indicate that we recognised terrorists as being in some formal sense at war with the state, rather than merely regarding them as dangerous criminals.”—[Official Report, 31/10/2018; col. 1382.]
No doubt this is why militant republicans in Northern Ireland were not given the platform of treason trials but rather prosecuted for murder, firearms and explosives offences and, more recently, catch-all offences such as the preparation of terrorist acts, which carries a maximum sentence of life imprisonment.
If we are looking for simple and effective ways to prosecute foreign terrorist fighters—particularly if they are suspected to have been active in a country where assistance from the authorities in gathering evidence is unlikely to be forthcoming—we would do better to concentrate on the offence of entering or remaining in a designated area, which was pioneered in Denmark and Australia, recommended for consideration in one of my own reports as independent reviewer, and introduced by the Counter-Terrorism and Border Security Act 2019. However, I believe that no terrorist hotspot has ever been designated under that Act, so the provision remains unused.
This amendment moves the debate on, as the noble Lord, Lord Bethell, explained, in that it relates to aiding not terrorism, but hostile foreign powers. The clause would target those who assist the Governments of countries with which we are at war or which wish to attack the UK by unspecified means including, I assume, cyberattacks on our national infrastructure. Unlike its Australian equivalent, which was introduced after 9/11 but is still to be used for the first time, it would relate only to hostile state activity—indeed, hostile state belligerence.
I look forward to hearing the Minister’s view on whether there is a gap in our law regarding assistance to the enemy—or will be one once the Bill, including Clauses 3 and 13, has become law. There might be a gap: I believe that Canada and New Zealand have their own laws against assisting the enemy, though I am not very familiar with them. Our own Foreign Enlistment Act 1870, introduced to restrict mercenary activity in the wake of the American Civil War and Franco-Prussian War, may not be as antiquated as the Treason Act 1351, but it was last used in the aftermath of the 1896 Jameson raid. It should certainly be reviewed if we are thinking of legislating in this area.
As we heard from the noble Lord, Lord Bethell, advocates of a treason law are often motivated by a sense that betrayal—in the words of the Policy Exchange report to which he referred, which was co-authored by the current Security Minister—
“is a specific crime against society and one that deserves punishment.”
I entirely understand that feeling, but betrayal is a regrettable fact of life, and one which we do not consider deserves special punishment in other contexts. The child who kills his parents betrays the family bond, but parricide and matricide are simply types of murder. Those who betray the most sacred bond of all—that of matrimony—may be called adulterers but are not criminalised at all. Can it be said that the bond of citizenship is of a wholly different nature, such that to break it must attract the most severe consequences? I think that is a difficult argument to make, particularly in circumstances where it is now so easy for the Home Secretary to break that bond by depriving people of their citizenship whenever she considers it
“conducive to the public good”.
Incidentally, that is something I hope we will look at some day: in the 15 years to 2020, there were 175 such deprivations on national security grounds alone.
This amendment, interestingly enough, does not follow the Policy Exchange model. Like its enacted but unused Australian equivalent, it has nothing whatever to say about betrayal. It applies to everyone, without limitation to British citizens or even to those who have been given leave to enter and remain in the United Kingdom. I assume it is not intended to apply extraterritorially, or it would criminalise the soldiers of foreign armies, contrary to the principle of combat immunity. But if the amendment is motivated by the desire to punish the betrayal of those who owe allegiance to the Crown, it does not succeed in that aim. Indeed, it is difficult to see why it flies under the banner of treason at all.
My position is simple. If there is a gap in the law as regards material assistance to the enemy, I would be in favour of filling it with an offence punishable by life imprisonment. That offence would be directed to our protection and would therefore apply to all persons within the jurisdiction. Betrayal of a bond of allegiance to the state would be an aggravating factor but not the basis for a separate treason offence, which is needed in neither the terrorism context nor the hostile state context.
Lord Purvis of Tweed (LD)
My Lords, it is a privilege to follow the noble Lord. I share his views and those laid out so well by the noble Lord, Lord Carlile. I thank the noble Lord, Lord Bethell, for allowing us to pose some fundamental questions, but I share the concerns of others who have spoken about whether this amendment answers them. Who are the enemy, and what is an attack? These are not easy questions to answer. I respect those who have worked in our intelligence services and have grappled with these questions over many years. Framing legislation to neatly define who our enemy is at any given time is not easy, nor is it easy to define what an attack is.
From reading the notices provided by MI5 earlier this year and the speeches made by intelligence services leaders, in many respects, it seems that we are under perpetual attack. It is hard to define in the modern sense those grey areas that the noble Lord, Lord Evans, and I discussed on Monday. What is an attack and what is preparatory to an attack? Perpetual cyberactivity can be either an end in itself or preparatory to a bigger effect. In many respects, we are in a state of war with Russia, with hybrid and economic warfare. Our sanctions are not penalties for actions; they are meant deliberately to overtly change the behaviour of a foreign power. I understand the rationale behind the amendment, but it perhaps does not address that clearly. When the noble Lord, Lord Bethell, responds to the debate, I would be grateful if he could clarify the meaning of “an attack”.
I welcome proposed new subsection (2)(e), which references acts that
“prejudice the security and defence of the United Kingdom”.
This is along the lines of what we were arguing for on Monday—trying to sharpen these areas. So we have persuaded someone on this—if not the Minister.
I think this raises another question, which was also raised on Monday. If a foreign intelligence service carries out activity which is not authorised or approved by our intelligence services, the Minister said that that was prejudicial to the safety and interests of the United Kingdom, but he did not say it was unlawful. This now raises an issue that we have to debate further in Committee. Some of the activity which could be defined as attacks or activity against the security and defence of the United Kingdom is not currently unlawful. We need to tackle that.
I close by agreeing very strongly with the noble Lord, Lord Anderson, that either in further consideration of this Bill or separately, we must look at how we interact with the issue of mercenary groups and groups that we would categorise as terrorist groups but that other countries would categorise as civil society groups or NGOs, which are fully funded and equipped by foreign states and operate in other countries, but are threats to UK nationals and UK interests. I travelled to north Iraq many times during the time when Daesh had overtaken Mosul. I saw many groups that were fully funded by Iran operating, sometimes with our compliance, sometimes with our approval and sometimes with our co-operation. At other times, they were operating absolutely against those interests, as with the interaction between some of the terrorist forces and some of the rapid deployment forces. I have seen first-hand in Sudan and elsewhere the Wagner Group, which is fully funded and equipped by Russia. How we cover mercenary and other groups that are not neatly defined within the proscriptions of terrorist legislation is something we also need to tackle. While I do not think this amendment would enable us to tackle this, it has allowed us to raise some of these fundamental questions, so I am grateful.
Lord Hope of Craighead (CB)
My Lords, I hesitate to intervene in a debate after speakers who know a great deal more about this subject than I do, but I wonder why “treason” has to go into the heading of this proposed new clause. It does not add anything to the meaning of the words that are there already:
“aiding a hostile foreign power”.
The problem is, if you use the word treason you raise the temperature of the debate, for the reasons mentioned already.
If there is a gap to be filled, as the noble Lord, Lord Anderson, has suggested, I invite the Minister and the noble Lord, Lord Bethell, to drop the word treason. It is unnecessary, as there is enough description in the headnote as it is. For all sorts of reasons, when you use the word treason people think of all sorts of other things. It is unnecessary to get into that debate if you can describe the offence in the remaining words as simply aiding a hostile foreign power. People may say it is treason but you should not label it as such for the purposes of the administration of justice.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I found this a fascinating short debate. It caused me to reflect on my time in this House, which has been a few decades now. Over 20 years ago, I remember sitting in on debates on treason in the Council of Europe, covering the way it would be addressed and the appropriateness of the death penalty within council member states. There were similar debates, although the debates regarding treason have evolved over those decades.
I thank the noble Lord, Lord Bethell, for raising this issue. He referenced the Policy Exchange paper; obviously, thinking is developing in this area, so it is appropriate to have this debate here in Committee. I want to pick up the last point made by the noble and learned Lord, Lord Hope, about the impact of the word “treason” and whether that actually deflects from the purpose of trying to fill the gap in the legislation identified by the noble Lord, Lord Anderson.
I listened to all noble Lords who spoke so interestingly in this debate. The noble Lord, Lord Carlile, made a point about the labels put on particular words and how that may influence juries, as in the example he gave. It caused me to reflect on when, as a magistrate, I was asked to convict somebody of a terrorism offence, which does not happen very often in magistrates’ courts. This particular terrorism offence charge was for graffiti on the Tube. The words used caused me and my colleagues to reflect on the appropriateness of that charge. I think the defendant pleaded guilty to that offence, so all we were doing was sentencing, but we had exactly that discussion about the appropriateness of words in particular contexts. I can see the argument that “treason” is so emotive that it could indeed affect juries’ likelihood of getting convictions.
As I said, this has been a very interesting debate. I have to say to the noble Lord, Lord Bethell, that some very serious points have been made against his amendment. Nevertheless, there is sympathy that there is a gap in the legislation, which may be filled in other ways.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I agree with the noble Lord, Lord Ponsonby, that this has been a fascinating debate on a fascinating subject. I thank my noble friend Lord Bethell for introducing Amendment 37A on treason in his name and that of the noble Lord, Lord Faulks. I will now explain why the Government cannot accept the inclusion of this new clause in the Bill.
As noble Lords who are interested in this subject will have noted, the Government are looking closely at the issue of treason, as stated by the Secretary of State at Second Reading in the other place. The Government have been reviewing the case for and against reform of the UK’s treason laws and that review has not yet concluded. What we can say is that the UK has extensive terrorism laws—the “bristling arsenal” mentioned by the noble Lord, Lord Anderson—which protect the safety of the UK and its citizens from forms of terrorism which might be considered treasonous. However, it would be correct to assert that treason law is outdated and in need of reform in light of the growing threats from foreign state actors. To answer the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope, the Bill provides a suite of measures for where somebody assists an enemy; it just would not be called treason.
I understand the significant history regarding the evolution of treason in the UK. Because of this, arguments have been made in this House and outside that an offence of treason goes further than criminal offences in relation to terrorism and state threats. Treason acknowledges the duty that a citizen has not to betray their state and many consider that a reformed, modernised treason offence would stress the importance of this through a specific criminal offence, reaffirming the bonds of citizenship that we have to the UK and to each other.
This amendment and others relating to treason have been proposed in previous Bills, but considering the role of treason in modern society is a substantial undertaking and one that we are looking at very closely. I acknowledge that this amendment and others seek to address concerns regarding the lack of a usable modern treason offence in the UK, so we welcome debate on this important topic.
Obviously, I reassure the noble Lords, Lord Bethell and Lord Faulks, and others that the Government do take this issue seriously and will listen carefully to the views offered by all noble Lords. However, as noble Lords may know, the Government are currently considering options for a formal review of this issue, including the possibility of the Law Commission conducting a review in this area. This area is complex, as the noble Lords, Lord Carlile and Lord Purvis, so eloquently explained.
I therefore thank my noble friend once again for his amendment but ask him to withdraw Amendment 37A while the Government’s review is ongoing.
Lord Bethell (Con)
My Lords, I am enormously grateful for the thoughtful and detailed debate we have had on this amendment. I will address a few of the points—I cannot address all of them—and I will seek to be brief.
This amendment is not about the past—it is not about Clive Ponting or Lord Haw-Haw and what happened a long time ago—but about the future. The future has states that use as a strategy the suborning of our citizens as an important part of hybrid warfare, at a scale and with a sophistication that we just have not seen for more than a generation—for two generations—and which, given the way in which they do it, we have probably never seen before. That is why this amendment is important: it is to combat a strategic threat from our enemies.
It fills a gap. The suborning of our citizens is not wholly covered by everything in the Bill at the moment, but I take on board the points made by the noble Lords, Lord Carlile and Lord Anderson, and the noble and learned Lord, Lord Hope, and others on this. Duplication is not a sin in drafting laws. I have seen it happen before and I think that there is a gap that could be occupied by an amendment such as this.
A number of noble Lords asked what kind of attack this might cover. It would absolutely cover the contribution to a cyberattack. That is exactly the kind of modern warfare that our enemies are seeking to suborn our citizens to join in on, and therefore we should be thinking very much indeed about all the contributions our citizens could make to hybrid war when we are thinking about this.
As regards the impact on ISIS or a terrorist group, I completely agree with the noble Lord, Lord Carlile, that ISIS is not going to be intimidated. I am more worried about Kimberley—the person who does not know that they are doing something wrong by helping one of our enemies.
Lastly—I will try to keep my comments brief; I appreciate that I have not tackled all of the points—I confess for a moment here to a massive cognitive dissonance. Noble Lords and noble and learned Lords have spoken about their anxieties about the word “treason” as if it was a super-hot piece of vocabulary that was too hot to handle. I simply do not have that sentiment at all; it does not touch me in the same way that it clearly touches others. I thought the noble and learned Lord, Lord Hope, spoke very well about that. Words such as theft, rape and terrorism are important parts of our legal vocabulary. I regard treason as simply akin to any one of those, and the arguments made—
Lord Hope of Craighead (CB)
The problem is—I speak as a former prosecutor—that if you are facing a jury with a charge that has “treason” on it, that elevates the temperature of the debate. It is much easier if you concentrate on the actual words of the offence that you are trying to get the jury to focus on. That is the point. The prosecutor has to decide whether he or she wants to use the word treason at all in the charge. It is better to avoid it if you can get the substance of the defence into ordinary language and get the jury to consider the facts in the light of ordinary language without being diverted by the more exciting “treason”. That is my point.
Lord Bethell (Con)
My Lords, pragmatism is completely right; I understand the noble and learned Lord’s point and I do not doubt his insight in the slightest. I have a slightly different perspective. That seems to be an argument to rehabilitate the thought rather than to avoid the crime. If something is happening that threatens our national security and is a crime, we need to think of ways of communicating that to juries and to prosecutors. In the same way, juries sometimes struggle with “rape” and are sometimes reluctant to convict—but obviously that is not a reason to not take rape to trial. Given the mood of the House, I beg leave to withdraw the amendment.
Lord Sharpe of Epsom
“(1) A person commits an offence if—(a) the person engages in prohibited conduct,(b) the foreign power condition is met in relation to the prohibited conduct, and(c) the person intends the prohibited conduct, or a course of conduct of which it forms part, to have an interference effect.(2) A person commits an offence if—(a) the person engages in prohibited conduct,(b) the foreign power condition is met in relation to the prohibited conduct, and(c) the person is reckless as to whether the prohibited conduct, or a course of conduct of which it forms part, will have an interference effect.(3) A person (“P”) commits an offence if—(a) P engages in a course of conduct with one or more other persons,(b) the foreign power condition is met in relation to conduct of P which forms part of the course of conduct,(c) P intends the course of conduct to have an interference effect,(d) as part of the course of conduct, a person other than P engages in prohibited conduct, and(e) P intends or believes that as part of the course of conduct, a person other than P will engage in prohibited conduct.(4) For the purposes of subsections (1)(c) and (2)(c) a course of conduct includes a course of conduct engaged in by the person alone, or by the person and one or more other persons.(5) Subsections (1) and (2) apply whether the person’s conduct takes place in the United Kingdom or elsewhere.(6) Subsection (3) applies whether P’s conduct or the prohibited conduct takes place in the United Kingdom or elsewhere.”Member’s explanatory statement
This amendment adds two new ways of committing an offence under Clause 13. Under subsection (2) the offence may be committed recklessly. Under subsection (3) it may be committed by a person where another person engages in prohibited conduct, if both are engaged in the same course of conduct.
Lord Sharpe of Epsom (Con)
My Lords, I turn to government Amendments 38, 40, 41 and 42, and Amendments 43, 44, 45 and 45A in this group, tabled by other noble Lords.
The government amendments to Clause 13 are vital to the utility of the offence of foreign interference and will strengthen our response to hostile attacks against our democracy and society. We must stand up to aggression against diaspora communities in the UK, as well as provide further safeguards to help promote a healthy democracy. The aim of the offence of foreign interference is to create a more challenging operating environment for, and to deter and disrupt the activities of, foreign states that seek to undermine UK interests, our institutions, our political system or our rights, and ultimately prejudice our national security.
We know that states around the world, including the UK, conduct open and transparent influence activities, such as using diplomacy to shape and align policy to benefit shared interests. This is a welcome part of transparent international engagement and it is vital to the UK achieving its interests. However, some states seek to further their strategic interests by going further than overt political influence, such as through cultivating and manipulating relationships with individuals and entities in the UK where power and influence lies and using deception to shape public policy-making.
I will now provide further detail on the government amendments in this group. Government Amendments 38, 40, 41 and 42 deal with three key areas. They clarify the original policy intent in making provision for activity that forms a “course of conduct”, provide for the offence to capture reckless conduct, and, finally, provide definitions for the term “political process”. In addition, there are some minor and technical changes to give effect to the above. As regards the effect on the drafting, the original Clause 13 has now become three clauses. That is to make the provisions simpler with the changes that we have made.
On the amendments dealing with a course of conduct, noble Lords will note that the volume of changes appears substantial, but this is not a change of policy. Amendment 38 has given better effect to our policy intent in respect of third-party conduct. We must ensure that we capture scenarios where foreign interference is achieved through the actions of two or more people acting in concert, but where it cannot be proven that all individuals intended their actions alone to have an undesirable effect. A scenario could be where a person, P, works for a foreign power and intends to interfere with a person’s rights in the UK: for example, pressuring members of a diaspora community to stay silent on certain issues. If P subcontracts the prohibited conduct to another person—for instance, coercion of individuals—these amendments would allow us to charge P with an offence of foreign interference.
In respect of amendments to capture reckless conduct, we have carefully considered the comments made in the other place in respect of recklessness, as well as concerns from stakeholders, and consider it appropriate to add this offence. Not having recklessness leaves a gap where someone who is clearly aware they are involved in foreign interference activity but cannot be shown to have intended the relevant effects escapes a potential prosecution, for example because a person is motivated principally by money or a desire to get ahead.
Recklessness is a well-established and well-understood legal principle in the criminal law. A person is reckless when they foresee a risk that their conduct could, under this offence, cause one of the interference effects. A person must also proceed unreasonably in the circumstances with that conduct even when they are aware of the risks of continuing to do so. To be clear, this will not capture a person who has no appreciation of the risks at the time the conduct takes place.
Amendment 41 makes provision for a new clause which now includes the “interference effects”—previously in Clause 13—and adds a definition of “political process”, which will bring greater clarity to the scope of the offence. The interference effects have had to be amended to take account of the addition of reckless conduct. “Manipulate” has been replaced with “interfere” to recognise that a person cannot recklessly manipulate something. We have maintained the high bar to meet an interference effect.
The Government’s position is that the references to
“proceedings of either House of Parliament”
in the government amendment on “Foreign interference: meaning of interference effect” and in Clause 68 on the meaning of political influence does not, and could not, displace the prohibition on impeaching or questioning proceedings in Parliament contained in Article 9 of the Bill of Rights, and is not intended to do this.
The Senior Deputy Speaker (Lord Gardiner of Kimble)
My Lords, if Amendment 38 is agreed to, I will not be able to call Amendment 39 by reason of pre-emption.
Lord Wallace of Saltaire (LD)
My Lords, my name is on Amendments 43 and 44 and Amendment 45A is in my name. I welcome the clarification in the government amendments and stress that this is an important area in which getting the language right is particularly difficult. I speak as a non-lawyer.
When I read the original text, I had my doubts as to the use of “misrepresentation”. I also have serious doubts about the use of the offence of spiritual injury. I recall being a candidate in a very Irish area of Manchester in 1974. My wife and I spent a long evening with the nine Roman Catholic priests in the constituency during which we discussed what were the important issues in the election to them; of course, they were Northern Ireland, abortion and Catholic schools. We certainly hoped that their sermons the weekend before the election would not have a particular bias against voting Liberal. Spiritual injury is an extremely difficult area to get into; I am not sure that it should be in the Bill but I bow to the noble Lord, Lord Carlile, and others to say whether they really think that this is an area where one could prosecute.
We need to be concerned about enforcement and enforceability in this area. I have a strong memory of the noble Lord, Lord Kennedy, coming to supper with us in Saltaire in the middle of a general election campaign. He had come up as an official of the Labour Party to look at some of the problems of election campaigning in Bradford’s constituencies, in particular within the diaspora community in two or three of those constituencies. He was furious about the police’s refusal to intervene because of what they regarded as not only the difficulties of prosecuting but the dangers to social cohesion of attempting to prosecute in such difficult circumstances. We recognise that this is part of the problem we get into in these important clauses.
We on these Benches are in the unusual position of thinking—others might think it too—that this is an area where the Bill is not yet strong enough and where threats to democracy, of which we are now much more aware than we were a few years ago, clearly need to be countered. We have seen the threats to democracy in the United States, with the efforts of former President Trump and his sympathy for authoritarian regimes across the world. We have seen some on the right of the Conservative Party—certainly in what was UKIP but is now Reform UK—who are much more sympathetic to Orbán than they are to the French or Dutch or other countries on the continent. We therefore all need to be sure that our democracy is protected as strongly as it can be from foreign interference.
At Second Reading, I said that I regretted that the Government have refused to follow the recommendation made by the ISC in paragraph 47 of its Russia report: that the Government should agree to publish a further account of the experience of attempted Russian interference in British elections and the referendum campaign, to alert the public to the threat and demonstrate that it is real. We all understand that to do so would be embarrassing for the Conservative Party, but it should accept the embarrassment and publish. We still do not know where the huge amounts of money that Arron Banks has given over the years came from, including, most recently, writing off another £6 million of debt. We are talking about something in the order of £10 million to £15 million that has come from abroad. I have been assured by others who say they know that it must have come from Russia but I—indeed, we—do not know that.
There are some major issues here. I will focus on the money dimension. It does not have to be amounts of that size, although we are all well aware that the British-citizen partners of Russian oligarchs in London have given some very large donations to the Conservative Party in recent years. Again, that is something about which we should be concerned, but think about someone wanting to influence the outcome in a particular constituency. The sums would not have to be that large. For example, if you are concerned about a candidate who is critical of human rights in the particular foreign power from which the diaspora community comes, those sorts of interventions are relatively easy.
We then come to the question of how we make sure that our overseas voters are who they say they are. A large gap was left on this by the Elections Act. I wish to stress to the Minister that a great deal more needs to be done. I raised a question on this the other week. Yesterday, I received a letter answering my criticisms from the Department for Levelling Up, Housing and Communities, which now deals with elections. I suggested that overseas voters do not have adequate checks on who they are and that they will not have them when we extend it to lifetime. The letter said:
“Similar to domestic electors, overseas electors will be subject to identity checks when registering to vote and, if they choose to vote in person, will be required to show an approved form of photographic identification.”
The idea that any significant number of overseas voters would wish to vote in a British election in person is laughable. Many of them live thousands of miles away—for example, on the west coast of California, in Bermuda, in Azad Kashmir or in northern Nigeria.
On several occasions, I have visited the Bradford electoral registration office to discuss these questions. Bradford currently has 1,000 overseas electors from more than 30 countries in its five constituencies. It is difficult to check back on whether the identity verification offered in those countries, which is looser than that now required under the photo ID requirements for domestic voters, is real or not.
When someone says that they lived in a particular constituency 30 years ago as a child and are therefore now entitled to vote, and you are doing it all online, verification is not easy. It would be reasonable to ask the consular dimensions of British embassies abroad to play a role in this. I tabled a Written Question for the Foreign Office last year about what role it would be playing in checking the identity of overseas voters. The answer was none. The French have a very different attitude to this; they attempt to maintain some clear links and checks on their citizens in other countries.
The letter from the noble Baroness, Lady Scott of Bybrook, goes on to say that if an overseas elector chooses to vote by post—under the Elections Act, et cetera—then, as this Bill and the Explanatory Notes make clear, they will vote by proxy. Proxy votes will therefore be an important part of this. Rightly, the Elections Act limits the number of proxy votes that any elector can hold to two for domestic voters and four for overseas voters. However, if I were an authoritarian regime in a foreign power with a significant diaspora in the United Kingdom and a significant number of dual nationals back in their country, I would not find it difficult to add several hundred alleged voters to a particular constituency where I wanted to get the MP out, and to arrange for the scattering of those proxy votes among enough people to make a difference—perhaps 500. Some metropolitan constituencies already have over 1,000 overseas voters.
As it happens, there was a fundraising event for the Cities of London & Westminster Liberal Democrats last night. It was a very interesting mix of people, with a range of international links, some of them born in Russia, Kazakhstan, Greece and elsewhere. They have over 1,000 overseas voters on the register already. One could imagine the estimate in general is that the numbers would double as we relax the limitation from 15 years to a lifetime. This is a serious issue.
Amendments 44 and 45A address this serious issue and suggest that it needs further consideration. It may not be of advantage to the Conservative Party to apply tighter controls on where the money comes from. I recognise that, but all of us who are interested in maintaining the quality of our democracy must ensure that money that comes from someone who says that they are a long-time British resident now living in Dubai, Singapore, Bermuda or Panama must be checked very carefully, and the identity of that person must be checked even more carefully if they are giving substantial sums of money. All these issues must be investigated further, and I suggest to the Minister that we need further dialogue on this.
I have a couple of other points to add. One example given in the Explanatory Notes is troll farms. I do not entirely understand that, since troll farms do not have to be in this country, nor do I understand how that comes within the scope of this Bill. Perhaps we could discuss that off the Floor. I strongly support Amendment 45 on introducing the concept of a critical incident, since we understand that, in the age of social media, bitcoin and other things, the potential for foreign interference in our elections has grown exponentially. I hope that this will not be pushed through by the Government without further amendment.
I end where I began, by welcoming the Government’s clarifications in the amendments that they have tabled. But we need considerable further amendment and greater concern about how these intentions are to be caught and enforced before this becomes an adequate part of a new Act.
Lord Carlile of Berriew (CB)
My Lords, Amendment 44 is in my name and that of the noble Lords, Lord Ponsonby and Lord Wallace, who has just spoken. I am reassured that I seem to be keeping better company than is my wont, which gives me some confidence for this amendment.
Before I get to Amendment 44, I want to say that I broadly support the amendments that have been tabled by the Minister, though I have real concerns about the phrase “spiritual injury”. In my inquiries into this, I fed into the internet, by mistake, “spritual injury”. Undeterred, the search engine came up with numerous definitions of spiritual injury. Interestingly, some are related to veteran issues. One of them, which comes from Australia, requires careful listening:
“It is proposed that a Spiritual Injury occurs when an incident or event creates a break in the relationship between an individual and their concept of God.”
It is a brave Government who go into that area.
This reminds me of a dinner I used to have from time to time with Ian Paisley, when I was a Member of the other place. The definition is rather similar to one—which I will not recount—that Ian Paisley once gave me of “conciliation”, which was as incomprehensible as what I have just read. He accompanied it with a comment about poor farmers, and I represented a lot of poor farmers in those days. He said that a poor farmer is one who does not have a Mercedes.
I turn now to my original point and Amendment 44. There is a very good reason for Amendment 44. It is an attempt to put on the political parties some responsibility for what happens to them, and particularly where they obtain their money. Having not been a member of a political party for some years—before that I was a member of a fairly virtuous political party—I believe that the political parties are prepared to take their proper responsibility for this area of their lives, and that they should be taking that responsibility.
There are major concerns about foreign financial influence on political parties. It is capable of being covert and indirect. It would not be right to impose criminal penalties on political parties when other measures are available and effective. I suggest that Amendment 44 is proportionate. It places a proper duty on political parties. It is unsensational; it is not the stuff of headlines. It is placing a responsibility on those political parties. It is trusting of our democratic process. Although there is a great deal of criticism of the political parties, they are all committed to our democratic processes, and, when things go wrong, of the type that we are talking about, on the whole they are willing to take the necessary action to reinforce the confidence of the public. But something needs to be placed in statute that sets out what that responsibility is.
Finally, in my view, the availability of civil remedies is potent enough to deal with these issues. Political parties do not like being sued—understandably—because, as I think all have found in recent years, it is actually very costly and not a good use of resources. They are therefore likely to respond to the threat of civil remedies. I think it disproportionate to place senior officers of political parties under the risk of prosecution in circumstances where they may well not have acted dishonestly but may have acted foolishly. Civil remedies are exactly designed for that sort of situation. So although I heard what the Minister helpfully said at the beginning about this amendment, I invite the Government to consider it carefully, because I think it would instil greater confidence in political parties and strengthen the political process.
Viscount Stansgate (Lab)
My Lords, I hope that I can intervene briefly to ask two questions. I support Amendment 44, but the questions I want to ask relate to government Amendments 38 and 42. If I understand the Minister correctly, subsection 2(c) of Amendment 38 inserts the word “reckless” in order to fill a gap. If so, why does the word “reckless” not appear in his other two amendments, 41 and 42? My second question relates to spiritual injury. What would be the effect if you left out the bit in brackets in subsection 2(e) of Amendment 42? In other words, why is the bit in brackets so crucial?
Lord Purvis of Tweed (LD)
My Lords, I will begin by raising a question with the Minister regarding his amendments, and will then support my noble friend, as a member of a fairly virtuous party, and my noble “also-friend”, who is equally virtuous but not in the party.
The noble Lord, Lord Carlile, rightly raised the question of causing spiritual injury. I would be grateful for a lot more clarification as to what the Government’s background justification and intent is in this regard. I would be happy if the Minister wrote to us before Report, because my reading of the new amendment is that causing spiritual injury to any person is now prohibited conduct, in light of the wording in brackets. As I have indicated previously, I have the great privilege of being able to travel extensively and, as the party’s spokesman on foreign affairs, to engage in many discussions on freedom of religion and no belief, on which the greatly respected noble Lord, Lord Ahmad of Wimbledon, leads in this House. That means that we are engaged in many discussions on the sensitive nature of religion and politics.
My reading of the amendment is that it could make it an offence for someone to engage with me and seek to persuade me of the view on the abolition of apostasy legislation in the Gulf, for example. The death penalty applies in Malaysia, a Commonwealth country, and in Qatar and the UAE, for example, for apostasy. Lobby groups who are campaigning for the abolition of the death penalty or the decriminalisation of apostasy, which has taken place in other Muslim nations, could well be defined by others as causing spiritual injury. Unless the Government have a definition of this—we do not necessarily need to rely on the Australian case, which I too saw on the same search as the noble Lord, Lord Carlile—then those people will be able to say that you are doing them spiritual injury if you wish to undermine their belief in Hudud law, which supports apostasy.
These are extremely sensitive areas which those in our intelligence community have to grapple with, because they are at the heart of the motivation of many people to take forward their political views. The situation is similar with those who seek to reform blasphemy legislation. Blasphemy is a very complex area that interacts with different faiths and laws. My concern is that subsection 2(e) of this amendment could cause considerable difficulties with blasphemy legislation, which has been a fairly delicate legislative area in the past, and with our interactions. I therefore hope that the Minister can provide much greater clarity on this. I would like to know what input the Foreign, Commonwealth and Development Office has had into the amendment regarding the convention on freedom of religion and belief. As a consequence of the amendment, some of our activities could be in contravention of the convention, which refers to freedom of religion and no belief. Therefore, the convention provides for the freedom to challenge what some may hold to be an authentic political view of a religion, but which others may believe to constitute spiritual injury. If the Government intend to prohibit debating political faith—political Islam, political Christianity—then we are on a very dangerous path. I hope that the Minister can reassure me on that.
Turning to donations and Amendments 44 and 43, I support the argument of my noble friend Lord Wallace of Saltaire. The Electoral Commission has been very clear in public statements that we have to make progress on tackling the lack of faith in politics. Lack of transparency in the funding of politics is key to that, which is why the Bill needs to be strengthened. There is now an overwhelming case for greatly enhanced due diligence on the part of political parties in working through the source of donations. As the noble Lord, Lord Carlile, said, there is a balance to be struck. There are those who seek to operate a healthy political system and engage in the political processes with those wishing to fund the parties; equally, we need transparency in those areas where undetermined income is the source of the donation. Importantly, this links to our previous discussions on “grey areas”.
At the moment, a political party could receive a donation from an individual through a bitcoin company which is operated by a national from another country—for example, it is based in the Cayman Islands but the donation comes through a UK national. That is perfectly legal, but there is no way of knowing where that income originated. That could be a live example: a Member of this House is on the global advisory board of a bitcoin company based in the Cayman Islands, so this is not theoretical. Looking at the interaction with the source of the income is important.
There is also a case to be made for enhanced diligence: asking whether companies have made enough money in the UK to fund that loan. I had a quick look at the Electoral Commission database for donations. Of the top 20 donations by companies to all political parties, a number have been through holding companies and there is simply a reference to a donation to the party. There is no mechanism to go beyond that: to state whether that company is solvent or making operating profits. Indeed, two of the companies in question made no operating profits for three years in a row but donated substantial sums to a political party. In other situations, having to investigate unexplained income would be important. We have other areas where due diligence applies—supply chain reforms, modern slavery statements and so on—and I do not see why there cannot be an equivalent regime when companies are interacting in the political realm.
Finally, one area where a very significant loophole needs to be addressed is for those countries which the Government themselves have said are at high risk of money laundering and terrorist financing. I took part in the debates on the money laundering, terrorist financing and transfer of funds regulations, which we have transposed into domestic legislation from the EU. In those regulations, we currently have a list of 25 countries for which it is the law that there is enhanced due diligence of any transactions because a company operates, through any business activities, within them. I remind the Committee that that list includes the Cayman Islands, Gibraltar and the United Arab Emirates.
Lord Evans of Weardale (CB)
My Lords, I support Amendments 44 and 45A. It is striking that in the electoral finance regulations there is a great dissonance between what is required of political parties fighting a democratic election and what would, for instance, be required of not only a bank or financial institution but many charities. I find it difficult to understand why there should be any objection to ensuring that money donated to a political party in the course of a democratic election is susceptible to enhanced due diligence. It is quite reasonable to expect that the origin of those party donations should be visible. As the noble Lord, Lord Purvis of Tweed, pointed out clearly, there are very considerable gaps. I agree with the noble Lord, Lord Wallace of Saltaire, that there is a great deal more to be done regarding electoral finance.
I am the chairman of the Committee on Standards in Public Life, which, within the last two years, undertook a major report on the regulation of electoral finance. In that, we spoke not only to the political parties but to representatives of those involved in the referendum campaign and a whole variety of people who have an interest in this area. We were then able to come forward with a series of recommendations to try to close a number of the loopholes. Many of them do not relate specifically to foreign interference but there is obviously the opportunity for those who would interfere as a foreign state in our electoral procedures to exploit loopholes in the system.
Regrettably, the Government did not wish to accept our recommendations, which I feel was a missed opportunity. The Elections Act, which has now gone through, did not address a number of the areas relating to electoral finance where there are glaring inconsistencies and anomalies. This is a good opportunity—at least in respect of some of those areas, particularly where they relate to foreign interference—to introduce these amendments, which will go some way towards closing some of the very evident loopholes. From that perspective, I strongly support these amendments.
Lord Coaker (Lab)
My Lords, we very much welcome Clauses 13 and 14—or however they are now numbered, given the Government’s amendments—as they introduce new offences of foreign interference, given the potential impact on our democratic processes at every level. That is a further reflection of the way that the Bill takes account of the new national security environment and the changing and emerging threats that we face.
As the Minister helpfully outlined, the main effect of the Government’s amendments will be to broaden the offences to include when a person acts recklessly. It appears that that has been brought in to reflect references to “recklessness” in other offences in the Bill and following debate in the Commons. That is very welcome. Can the Minister explain why it was not part of the original Bill, and what has caused the change of thinking in the department for it to bring forward these amendments?
I will also reflect on some of the discussion from the noble Lords, Lord Carlile and Lord Purvis, and others, on what is meant by proposed new subsection (2)(e), which refers to
“causing spiritual injury to, or placing undue spiritual pressure on, a person”.
For the benefit of the Committee, it would be helpful if the Government could say more about what they intend, what that encompasses and the thinking that lies behind it. That would be helpful to the Committee in the light of the various comments made.
We also support Amendment 43 from the noble Lords, Lord Purvis and Lord Wallace. We very much support the concept of an annual report on how these clauses protect the integrity of the UK’s democratic processes. I also understand and appreciate, as I think the Committee does, the Minister’s comment about how this is about protecting the country’s democratic processes from foreign interference, not from the normal democratic and political discourse that one would expect. I am particularly grateful for that, having been accused of being a communist and a member of the Revolutionary Socialist Party—I do not know whether anyone ever came across that in my file. More recently, for the new heads of various bodies, I have been called a traitor for my views on the EU referendum. So I stand here accused of being a communist on the one hand—in my younger days, it has to be said—and then having moved to being a traitor for my views.
The serious point I am trying to make, in a humorous way, is that political discourse takes place, as do debate and argument. It is really important for us to understand the difference in the Bill’s intention that the Minister pointed out. For that to be read into the record is really important so that it is not misunderstood; it is clearly not what the Government intend.
Amendment 44, in the names of the noble Lords, Lord Carlile and Lord Wallace, and of my noble friend Lord Ponsonby, is really important. It was very well articulated by the noble Lord, Lord Carlile, and the noble Lord, Lord Evans, said that he supports it. There are a lot of arguments for this amendment, but my view is the same as the point the noble Lord, Lord Carlile, made—a really important point, particularly at the current time when there is some disillusionment. Accepting Amendment 44 as part of the Bill would help enormously to instil public confidence, to ensure that people understand that our political parties not only are free from foreign interference through political donation but are seen to be free of it from their statements. Instilling public confidence on that is really important.
I move on to my Amendment 45, which is a probing amendment. I say to the Government that it is not necessarily intended to be added to the Bill, but it deals with an important aspect of this discussion. It is how to deal with the issue of informing the public about what we seek to do and the new threats that they face, and how we raise their awareness of them. There is also the crucial question of how this could be done in real time.
I use the example of Canada to cause us as a Committee to think. Canada has a Critical Election Incident Public Protocol, which lays out a clear and impartial process by which Canadians can be notified of a foreign threat to the integrity of an election. That includes provisions for informing candidates, organisations or election officials whether they have been the known target of an attack. It has processes which state how decisions are made, and by whom, and as to whether a public announcement should be made to alert people to the threat.
As I said, this is a probing amendment, and I am not an expert on the protocol. I am trying to understand the Government’s view. If we were to believe that foreign interference was taking place, at what point would they think it appropriate, relevant or consistent with the security of our nation for the public to be informed of that? I think the public have a right to be involved, potentially in live time.
I think this raises real difficulties. Let me create a scenario: a general election takes place—let us not use the next year or two; let us say in 10 years’ time—and the Government find that that election is being compromised by foreign interference. What happens? How does the Bill deal with that scenario? We are in Committee, which is when we look at detail. I think there is an important question for the Government about public involvement with respect to their knowledge and awareness of the potential for interference that may take place and what they have a right to know if the Government or the services come to a conclusion that there is foreign interference and that it may be compromising an election, whether it be a general election, a local election or some other part of the democratic process. I think that is an important part of this discussion. I think that, far from it being a weakness for the Government of the day, with the security services and others, to say that they are protecting the integrity of the democratic processes such is their importance, alongside that, should it be necessary for them to alert the public, they should have a system, or protocol to which they can refer, dealing with what the consequences of that would be.
This has been an interesting debate at the heart of another important series of amendments because they seek to protect our democratic processes from the foreign interference the Minister pointed out in his introduction. I look forward to his reply to not only my remarks but to the remarks of other noble Lords.
Lord Sharpe of Epsom (Con)
My Lords, I thank the notably unrevolutionary noble Lord, Lord Coaker, for his support for these amendments. I will address his precise question on whether the amendments on recklessness represent a change in government policy and why they are being introduced now. It was always our intention to capture malign foreign interference activity in all its forms with this offence. After the completion of the Bill’s passage in the other place and in light of the comments made in the Public Bill Committee on the lack of an offence that could be committed recklessly, we retested the offence against the operational and policy requirements and we saw that there were examples of conduct, such as where a person’s intention was not to cause an effect but rather to improve their status within relevant organisations of a foreign power, that were at risk of not being in scope for the offence. I hope that answers the question on why it is being done now.
The noble Viscount, Lord Stansgate, asked three specific questions about why recklessness is present in only one of these offences. The fact is that there are three different ways to commit the offence. New subsections (1) and (2)—inserted by Amendment 38—relate to a person’s intention, and only subsection (2) deals with recklessness.
Amendment 43 seeks to introduce a requirement for the Secretary of State to lay a yearly report, from the date of the National Security Bill gaining Royal Assent, assessing the impact which Clauses 13 and 14 have had on protecting the integrity of the UK’s democratic processes. This amendment duplicates one tabled in the other place. We do not consider it to be appropriate to introduce reporting requirements on the subject in isolation from the existing work on democratic integrity or in isolation from wider consideration of oversight and review mechanisms for the Bill.
Amendment 45 seeks to introduce a mechanism to alert the public to threats to the integrity of elections. We do not consider this to be necessary. Clauses 13 and 14 ensure that there are appropriate criminal sanctions for foreign interference. These provisions sit alongside other non-legislative activity. In advance of democratic events, His Majesty’s Government stand up an election cell to monitor and respond to any emerging issues during the election period. The election cell is led by the Cabinet Office and brings together government departments, the intelligence agencies, the devolved Administrations and external partners to ensure a holistic understanding of risks and to drive any necessary mitigations. The National Cyber Security Centre also meets regularly with the UK’s parliamentary parties and works closely with those responsible for core parts of the UK’s electoral infrastructure. Finally, formally established in 2019, the defending democracy programme is a cross-government programme with the overarching objective to safeguard elections and referendums and related democratic processes in the United Kingdom.
Lord Wallace of Saltaire (LD)
Several speeches have stressed the importance of informing and educating the public about the dangers of foreign interference in British elections. One of the reasons why people like me go on so much about releasing the additional information in the ISC Russia report is precisely to alert and inform the public. The amendment that the Minister has just been discussing is about alerting the public, in the course of an election campaign, if that should be a problem. He mentioned the defending democracy task force. I have found a small number of references to it, but it is not exactly a public body and what it does is so far extremely unclear. What about the public information and public education dimension of what we are discussing?
Lord Sharpe of Epsom (Con)
My Lords, I am dredging my memory a little bit here, but I remember the Security Minister about a month ago outlining much more about defending democracy. I will have to refer back to the comments he made in the other place, but I am pretty sure they deal with the questions that have just been raised by the noble Lord.
Lord Coaker (Lab)
I think this is a really important point about informing and alerting the public in live time. I would be grateful if the Minister could come back having reflected on that for us.
Lord Sharpe of Epsom (Con)
I will certainly have to read all the various information that I can find on the defending democracy programme, which I am pretty sure deals with most of the issues that have just been raised. If I am wrong on that, of course I will make that clear.
Amendment 44 was spoken to by the noble Lords, Lord Coaker, Lord Carlile, Lord Purvis, Lord Evans and others. The amendment seeks to enhance checks on the source of political donations in two ways. First, it seeks to introduce a requirement for political parties to release a policy statement to ensure the identification of donations from foreign powers. Secondly, it requires political parties to include in their annual statement of accounts a statement detailing their risk management approach to donations and the measures in place to prevent the acceptance of impermissible donations. While I understand the intent behind this amendment, let me be clear that UK electoral law already sets out a stringent regime of controls on political donations to ensure that only those with a legitimate interest in UK elections can make political donations and that political donations are transparent. Given that it has been spoken to by most speakers, I am going to go into a bit more detail on this, with the indulgence of the Committee.
Only those with a genuine interest in UK electoral events can make political donations. That includes registered UK electors, including registered overseas electors, UK-registered companies, trade unions and other UK-based entities or otherwise eligible donors, such as Irish citizens meeting prescribed conditions who can donate to parties in Northern Ireland. Parties and other campaigners are prohibited from accepting donations which are not from a permissible or identifiable donor. Failure to return such a donation, either to the donor or the Electoral Commission within 30 days of receipt is an offence and any such donations must be reported to the Electoral Commission. Furthermore, the Elections Act 2022 introduced a restriction on ineligible foreign third-party campaigning above a £700 de minimis threshold.
It is an offence to attempt to evade the rules on donations by concealing information, giving false information or knowingly being involved in an arrangement to facilitate the making of an impermissible donation. This provides a safeguard against impermissible donations via the back door. Political parties must already register donations over a certain value to the Electoral Commission; they are then published online for public scrutiny.
By requiring political parties to detail publicly their approach to mitigating the risk of impermissible donations, proposed new subsection (3) of the noble Lord’s amendment has the effect of providing such donors with the details of mitigations they need to overcome to make an impermissible donation. I am sure that is an unintended consequence, but it is important to oppose this amendment on the grounds that not only do the existing rules mitigate these risks but the amendment itself risks undermining the already strong rules.
Lord Wallace of Saltaire (LD)
My Lords, I apologise for intervening again. The Minister has not addressed the ease with which someone who has not lived in this country for three or more decades can now register, and the difficulty of verifying that they are who they say they are. If he will not address it now, can he write in detail to some of us, or perhaps invite us to a briefing, and make sure that that area will be tightened by the Bill?
Lord Sharpe of Epsom (Con)
My Lords, that is more properly a DLUHC area, in the light of the Act passed recently, but I will certainly have the conversation with my counterpart there and see what that Act says. I am not an expert on that Act, as the noble Lord will probably appreciate.
Lord Purvis of Tweed (LD)
We obviously have a difference of opinion as to whether the current system is stringent. I am curious why, if the trading arm of a political party was operating with a business that had any interest in one of the 26 countries in the money laundering and terrorist financing regulations, it would have to do due diligence, but if it received money that originated from such a country, it would not. Why does the Minister think that is acceptable?
Lord Sharpe of Epsom (Con)
As I outlined in my answer earlier, I believe this is a stringent regime. I am afraid there is a significant difference of opinion. It specifies that only those with a genuine interest in UK electoral events can make political donations. Any donations that are not permissible and not reported will constitute an offence.
I am afraid I will not address the comments by the noble Lord, Lord Wallace, about support for Mr Orbán over the Dutch and French; that certainly does not apply here. His Amendment 45A seeks to add requirements relating to proxy voting. It would be odd and somewhat undemocratic to seek to apply such measures solely to overseas electors, when the same issue could arise for domestic electors. In any event, proxy voters and those seeking to use a proxy are not in a position to determine whether someone is seeking to support a foreign power. It is an impossible ask of them. Adding such requirements risks disfranchising individuals by blocking their ability to find a proxy and undermining the very point of a proxy voting system.
Lord Wallace of Saltaire (LD)
My Lords, I apologise for intervening yet again. My point was simply that the level of controls and identity verification we have now introduced for domestic voters under the Elections Act is noticeably tougher than those for overseas electors. Given that overseas electors are also potential donors, this seems to be a hole that needs to be filled. The Minister says it does not need to be filled. That does not satisfy us.
Lord Sharpe of Epsom (Con)
I am sorry to disagree with the noble Lord, but on this one I do. However, I commit to discussing this further with my counterpart at DLUHC. I will come back to the subject.
Spiritual injury was raised by the noble Lords, Lord Wallace, Lord Anderson and Lord Purvis. I will commit to write on FCDO engagement on this subject; I do not have the answers to those questions. What is spiritual injury and why is it part of this offence? Basically, it mirrors the Elections Act 2022. The term “spiritual injury” covers the potential harmful impact on an individual’s spiritual or religious well-being that could be directly caused by another individual—for example, excluding a person from the membership of an organised belief system or banning them from attending a place of worship. The term “undue spiritual pressure” could include, for example, pressuring a person to commit an act by suggesting that doing so is a duty arising from the spiritual or religious beliefs that a person holds or purports to hold. In addition, “undue spiritual pressure” could refer to conduct by a person that alters, or has the potential to alter, a person’s spiritual standing or well-being.
Reference to “spiritual injury” already exists in the definition of “undue influence” as set out in Section 114A of the Representation of the People Act 1983. Undue spiritual pressure is a new element of undue spiritual influence in the clarified offence in Section 8(4)(e) of the Elections Act, as part of efforts to clarify what types of conduct amount to an undue influence. I hope I have answered that question.
For these reasons, the Government cannot accept this set of amendments. I ask the Committee to accept the Government’s amendments to improve the foreign interference offence.
Lord Carlile of Berriew (CB)
I am sorry to interrupt the Minister and am very grateful to him for giving way. On this question of spiritual injury, has the Lord Chief Justice been consulted as to whether he and the judiciary regard this definition as something that judges can sum up to juries in a clear way? Although the phrase exists elsewhere, it has not been litigated to any great extent and, without a consultation of the judges, may cause great difficulty.
Lord Sharpe of Epsom (Con)
The simple answer is that I do not know, but I will find out and commit to write.
Viscount Stansgate (Lab)
The question I asked related to the bit in brackets. What effect would there be if you omitted that part in brackets?
Lord Sharpe of Epsom (Con)
I think I have already answered in significant detail why that clause has gone into the Bill. I have also answered the specific points that the noble Viscount raised at the start of the debate.
Lord Purvis of Tweed (LD)
This is really important. As the noble Viscount pointed out, this is not about coercion of an individual but about putting into law “causing spiritual injury” to any person, ill-defined as that is, and not just the person to whom the effect of the interference relates. It is of significance that we would be putting in a very considerable offence of causing an undefined spiritual injury to any person. Can the Minister reflect on that and maybe come back to us in writing?
Lord Sharpe of Epsom (Con)
I have heard the feelings about this around the Committee, so of course I commit to do that.
Lord Sharpe of Epsom
““interference effect” has the meaning given by section (Foreign interference: meaning of “interference effect”);“prohibited conduct” has the meaning given by section (Foreign interference: meaning of “prohibited conduct”).”Member’s explanatory statement
This amendment updates the definitions in Clause 13.
Lord Sharpe of Epsom
“Foreign interference: meaning of “interference effect”(1) For the purposes of section 13 an “interference effect” means any of the following effects— (a) interfering with the exercise by a particular person of a Convention right, as it has effect under the law of the United Kingdom,(b) affecting the exercise by any person of their public functions,(c) interfering with whether, or how, any person makes use of services provided in the exercise of public functions,(d) interfering with whether, or how, any person participates in political processes or makes political decisions,(e) interfering with whether, or how, any person participates in legal processes under the law of the United Kingdom, or(f) prejudicing the safety or interests of the United Kingdom.(2) An effect may be an interference effect whether it relates to a specific instance of a matter mentioned in subsection (1), or to the matter in general.(3) In subsection (1)(d) “political processes” means—(a) an election or referendum in the United Kingdom;(b) the proceedings of either House of Parliament, the Northern Ireland Assembly, the Scottish Parliament or Senedd Cymru;(c) the proceedings of a local authority;(d) the proceedings of a UK registered political party.(4) In subsection (1)(d) “political decisions” means a decision of—(a) the government of the United Kingdom, a Northern Ireland Minister, a Northern Ireland department, the Scottish Ministers or the Welsh Ministers;(b) a local authority.(5) In this section—“Convention rights” has the meaning given by section 1 of the Human Rights Act 1998;the“law of the United Kingdom” includes the law of any part of the United Kingdom;“local authority” means—(a) in England—(i) a county council,(ii) a district council,(iii) a London borough council,(iv) a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009,(v) a parish council,(vi) the Council of the Isles of Scilly,(vii) the Common Council of the City of London,(viii) the Sub-Treasurer of the Inner Temple,(ix) the Under Treasurer of the Middle Temple;(b) in Wales, a county council, county borough council or community council;(c) in Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;(d) in Northern Ireland, a district council;“Northern Ireland Minister” includes the First Minister, the deputy First Minister and a junior Minister;“public functions” means functions of a public nature—(a) exercisable in the United Kingdom, or (b) exercisable in a country or territory outside the United Kingdom by a person acting for or on behalf of, or holding office under, the Crown;“UK registered political party” means a political party registered under Part 2 of the Political Parties, Elections and Referendums Act 2000;“Welsh Minister” includes the First Minister, the Counsel General to the Welsh Government and a Deputy Welsh Minister.”Member’s explanatory statement
This new Clause defining “interference effect” replaces Clause 13(2) and (3). Subsection (1)(c) to (e) now use “interfering” not “manipulating” because of the introduction of recklessness in Clause 13, and political processes and decisions are defined. There are drafting changes consequential on Lord Sharpe’s amendments to Clause 13.
“Foreign interference: meaning of “prohibited conduct”(1) Conduct is prohibited conduct for the purposes of section 13 if—(a) it constitutes an offence, or(b) if it takes place in a country or territory outside the United Kingdom, it would constitute an offence if it took place in any part of the United Kingdom.(2) Conduct is prohibited conduct for the purposes of section 13 if it involves coercion of any kind, including coercion by—(a) using or threatening to use violence against a person;(b) damaging or destroying, or threatening to damage or destroy, a person’s property;(c) damaging or threatening to damage a person’s reputation;(d) causing or threatening to cause financial loss to a person;(e) causing spiritual injury to, or placing undue spiritual pressure on, a person,(whether or not that person is the person to whom the interference effect relates).(3) Conduct is prohibited conduct for the purposes of section 13 if it involves making a misrepresentation.(4) A “misrepresentation” is a representation—(a) that a reasonable person would consider to be false or misleading in a way material to the interference effect, and(b) that the person making the representation knows or intends to be false or misleading in a way material to the interference effect.(5) A misrepresentation may be made by making a statement or by any other kind of conduct, and may be express or implied.(6) A misrepresentation may in particular include—(a) a misrepresentation as to a person’s identity or purpose;(b) presenting information in a way which amounts to a misrepresentation, even if some or all of the information is true.(7) In this section “interference effect” has the meaning given by section (Foreign interference: meaning of “interference effect”).”Member’s explanatory statement
This new Clause defines “prohibited conduct”. It replaces Clause 13(4) to (9). There are changes to the opening words of the definition of coercion in subsection (2), and the definition of misrepresentation in subsection (4), as well as drafting changes consequential on Lord Sharpe’s amendments to Clause 13.
National Security Bill
Wednesday 21st December 2022
(1 year, 11 months ago)
Lords ChamberRead Full debate National Security Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 68-II Second marshalled list for Committee - (19 Dec 2022)
“(iia) section 3 (assisting a foreign intelligence service);”Member's explanatory statement
This amendment is intended to probe the exclusion of offences under Clause 3 from the offence in Clause 16.
Lord Marks of Henley-on-Thames (LD)
My Lords, this group of amendments simply raises two questions, which is why we put down two probing amendments. Clause 16 criminalises preparatory conduct for any offences under Clauses 1, 2, 4 or 12, but it does not cover preparatory conduct for offences under Clauses 3 or 5.
Clause 3, as noble Lords will know, is the offence of assisting a foreign intelligence service. It is not covered by the preparatory conduct offence, and we are simply at a loss to know why the Government deem it necessary to have an offence of preparatory conduct in relation to the protected information offence, the trade secret offence, the more serious of the two prohibited places offences and sabotage, but not in relation to assisting a foreign intelligence service. Can the Minister explain the Government’s thinking?
I do not believe that there is a need for a similar explanation for not criminalising preparatory conduct in relation to offences under Clauses 13 and 14, on foreign interference, or Clause 15, on obtaining benefits from a foreign intelligence service. That is because Clause 13 already covers preparatory conduct, because it refers to conduct or a course of conduct of which it, the conduct, forms part. Clauses 14 and 15 define the new offences in a way that states the criminal acts so tightly that they do not need a reference to preparatory conduct. Indeed, that would be inappropriate.
As for Clause 5, it may be that the reason for not making a separate offence of preparatory conduct for unauthorised entry to a prohibited place is that the Clause 5 offence is summary only and carries a maximum sentence of six months’ imprisonment. It may have been thought that preparatory conduct for such an offence was likely to be fairly nonspecific anyway. If the Government have other reasons for excluding Clause 5 from the ambit of the preparatory conduct clause, please may we know what they are? These are probing amendments, but I beg to move.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, Amendments 50 and 51 seek to expand the preparatory conduct offence by adding the assisting a foreign intelligence service or FIS offence, Clause 3, and the unauthorised entry to a prohibited place offence, Clause 5, to the scope of the preparatory conduct offence.
The Committee will be aware that, under Clause 3, the first offence, in subsection (1), applies where a person engages in conduct that they intend will materially assist an FIS in carrying out UK-related activities. The second offence, under subsection (2), applies where a person engages in conduct that it is reasonably possible may materially assist an FIS in carrying out UK-related activities. The person engaging in this conduct has to know, or ought reasonably to know, that the conduct is of this kind. The type of activity that could be considered to be preparatory acts relating to assisting an FIS are already sufficiently covered by the second offence under subsection (2) and also by the offence of obtaining material benefits from a foreign intelligence service under Clause 15.
Clause 5 targets conduct in a prohibited place which is unauthorised. The offence targets lower-level activity, such as knowingly entering a prohibited place without authorisation. This offence does not therefore require a purpose prejudicial to the UK to be demonstrated. I remind noble Lords that the purpose of Clause 16 is to allow the most serious state threats activity to be disrupted at an early stage. It would be disproportionate to include the Clause 5 offence under the scope of the preparatory conduct offence, given that the offence does not require any proof of intent against the United Kingdom and accordingly carries a lower penalty. As such, we do not consider that the inclusion of these additional offences to the preparatory conduct offence is necessary or proportionate to achieve the aims of the offence.
I hope that that answers the questions put by the noble Lord, Lord Marks. The Government therefore do not find the amendment to be necessary, so I invite him to withdraw.
Lord Marks of Henley-on-Thames (LD)
My Lords, the Minister’s response on Clause 5 was precisely in line with the possibility that I adumbrated, and he has confirmed that, so I shall withdraw that amendment without hesitation. Of course, I shall also not move the other amendment, because it needs further discussion. However, at the moment I do not understand how preparatory conduct is covered by Clause 3 at all. Perhaps we can discuss that behind the scenes between now and Report. On that basis, I beg leave to withdraw the amendment.
Lord Murray of Blidworth
“4A An application for an order under paragraph 3 or 4 may be made without notice to a judge in chambers.”Member's explanatory statement
This amendment provides that an application for a production order may be made without notice to a judge in chambers. Schedules 3 to 5 already make equivalent provision for orders under those Schedules.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, government Amendments 52 to 59 are minor and technical, and bring consistency across the police powers in the Bill by aligning Schedule 2 with equivalent provisions in Schedules 3 to 5.
The amendments serve several purposes. First, they ensure that applications made under Schedule 2 for production orders and explanation orders may be made without notice to a judge in chambers in England, Wales and Northern Ireland, or to a sheriff in chambers in Scotland. This means that, in cases where it could harm an investigation, an application may be made without notifying the defendant. For example, the police may require a production order to obtain evidence from a person suspected of preparing to conduct espionage. Notifying them of the application in advance may result in the destruction, concealment or alteration of that evidence.
Secondly, the amendments ensure that a production order made under paragraphs 3 or 4 of Schedule 2, or an explanation order made under paragraph 8, has effect as if it were an order of the court. This means that if a person fails to comply with the requirements of the order, they can be treated as being in contempt of court, which is a criminal offence punishable by up to two years’ imprisonment or an unlimited fine. Failing to comply with a production order or explanation order can impede a state threats investigation. To avoid damage to such an investigation, it is crucial that provision is made to hold to account those who choose to disregard these orders. This approach mirrors that of the account monitoring orders under Schedule 5 of the Bill and the equivalent production order power in terrorism legislation.
Finally, Amendments 56 and 57 simplify the way that the term “judge” is defined in Schedule 2, aligning it with the definition in Schedules 3 to 5. The amendments do not change the meaning or interpretation of “judge”; they just ensure the drafting is the same across the schedules.
I ask noble Lords to support the inclusion of these amendments.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am grateful to the Minister for that explanation. As he has explained, these amendments make provision for applications for production and explanation orders to be made without notice to a judge in chambers. The amendments also make it clear that the orders should take effect as if they were court orders, so that disobedience would be treated as contempt of court.
We of course accept that such orders should be sought and obtained without notice, where necessary; we would expect that, generally speaking, it would be so necessary, because, as I think the Minister pointed out, a warning that application was going to be made for such an order would encourage the persons holding the material to hide it or other evidence concerned or to concoct explanations and provide false support for such explanations. If the orders are made without notice, the person is caught unawares and the orders are more likely to be productive. We also accept that disobedience should be punishable as contempt of court, simply in order to give the orders teeth, which they ought to have.
However, I add one general point. These production and explanation orders are quite draconian in nature and represent a significant intrusion on privacy and liberty. We accept that the conditions set out in the Bill for making these orders are tightly drawn and that, if those conditions are met, the orders are justified. However, it is important—I am sure the Government accept this—that those applying for these orders, and judges scrutinising these applications, will need to be astute to ensure that the conditions set out in the legislation for the orders to be made are fully met.
Lord Murray of Blidworth (Con)
I am very grateful to the noble Lord for his remarks and I take on board what he says. These minor and technical amendments seek to bring consistency across the police powers in the Bill, as I have said, by aligning Schedule 2 with the equivalent provisions in Schedules 3 to 5. It is right that we are consistent across the Bill in its provisions and definitions, which these amendments seek to achieve.
Lord Hacking (Lab)
My Lords, I wanted to say something about Clause 23 when it was the right moment; I think this is the right moment, without breaking the rules, and I got a nod from the clerk, so I have that assurance.
I am afraid I have not yet been able to get into the details of the Bill, but as I told noble Lords, I have been out of the House for three months, and I am taking a bit of time to get back into the business. There seems to be some discontent on the Government Benches: am I offending somebody? Apparently not.
I received a brief from Reprieve, which says of Clause 23 that it could give Ministers and officials effective immunity for crimes such as targeted killing and torture, and would destroy the UK’s moral authority in condemning crimes such as Jamal Khashoggi’s murder by Saudi Arabia. Clause 23 would thwart accountability for Whitehall complicity in torture—
Lord Purvis of Tweed (LD)
I wonder whether the noble Lord is considering Clause 28 rather than Clause 23.
Lord Coaker (Lab)
What was Clause 23 has now become Clause 28, because of various changes made by amendments to the Bill. So my noble friend’s remarks will be perfectly in order when we get to Clause 28, but we are not there yet.
Lord Marks of Henley-on-Thames (LD)
It might help the noble Lord to know that there are a number of amendments tabled to Clause 28, which is a controversial clause and will be debated on the first day of the new year, I suspect.
Lord Hacking (Lab)
I am very relieved to hear that, because I received this stunning brief which I thought, without necessarily understanding its contents, I should bring to noble Lords’ attention.
While I am on my feet, I shall just make one other observation which I think is important, relating to the size of the Bill and particularly the size of the schedules. The Bill is 65 pages long and the schedules stretch to 124 pages, which is very close to double the size of the Bill. I have spoken about this before on other Bills: there is a terrible disease now among those handling legislation, and we are included, which means that the legislation is of inordinate length. I draw the Committee’s attention to the Occupiers’ Liability Act 1957. That contains important provisions relating to landlords and the occupiers of their land. It stretches no more than 10 pages, and is readable in its entirety without having to take a magnifying glass.
Lord Coaker
“(1A) The Secretary of State may only designate places at which persons may be detained under section 25 which are within the United Kingdom.”Member’s explanatory statement
This amendment would clarify that places of detention must be in the UK.
Lord Coaker (Lab)
My Lords, my noble friend Lord Hacking must make sure that he is here on the Wednesday we come back; I am sure that we will start with the debate he referred to, which will probably be quite a significant and long one. Just to give him time and to get my retaliation in first, I tell the Minister that I have read the relevant bit of Schedule 6—paragraph 1(2)—which he will say makes my amendment irrelevant because it is covered there. I know that; I have put this down so that we can have a debate on it.
In moving my Amendment 60, I recognise the very important issues raised by Amendments 61 and 63 from the noble Baroness, Lady Ludford. We are returning to Schedule 6, which deals with detention under Clause 25, “Arrest without warrant”, which is a significant power. We accept that there is clearly a need for individuals to be detained under the offences in the Bill, but I have a number of questions to seek clarification from the Minister—hence my Amendment 60.
Committee allows us to look in detail at various sections and parts of the Bill and seek clarification on what the Government mean by certain phrases. That is of particular interest because many people read our deliberations and they are often used in the courts to try to inform judgments. I hope the Government will bear with me if some of my questions appear to have obvious answers.
Clause 25(1) states:
“A constable may arrest without a warrant”.
Is that only a constable of a police force, not any other organisation? Is it all UK police forces? Does it include other forces, for example a constable of the MoD police, the British Transport Police or the Civil Nuclear Constabulary? Are there any special arrangements for Northern Ireland, given that the Bill says that any officer of any police force can use this power in any part of the United Kingdom? If they are not in uniform, do they have to produce their warrant to show who they are?
In Clause 25(6), the original detention of 48 hours can be extended by a review officer. How many times can this be reviewed and for how long can someone be detained? Is there a maximum limit or can they be renewed on multiple occasions? At what point would there be any judicial involvement in the process to agree any continuing detention beyond the original 48 hours?
Can the Minister confirm that my Amendment 60 is not needed, as I said at the beginning, because paragraph 1(2) of Schedule 6 says that detention has to be in
“land or a building in the United Kingdom which is owned … by a police force.”
Does this include all types of police force? Would it include the buildings and lands of the British Transport Police, the Civil Nuclear Constabulary, the MoD police, et cetera?
Can the Minister also confirm on the record that no person arrested without warrant under Clause 25 can be held in any UK buildings or land in any security service building outside the UK, any Armed Forces facility or land outside the UK, or any other such facility? There is a need for some clarification here, in the sense that UK military bases are sometimes referred to as “sovereign territory”. Does that imply that they are in the UK and could therefore be used, even though they are not within what one would normally assume to be the borders of the United Kingdom?
Can the Minister confirm or otherwise whether Clause 25 can be used outside of the UK to arrest a UK national who is believed to be involved in a foreign power threat activity within the United Kingdom? If so, how does that actually work? If a UK national is arrested abroad because of the threat they have posed through an activity within the United Kingdom, how is that person then detained and brought back, or can the offence not be used against a UK national who is abroad even if they are believed to have committed an offence when they were within the United Kingdom?
I will leave the noble Baroness, Lady Ludford, to speak to her amendments, but they address the idea that, in a democracy, the proper treatment of detainees must not only be done but be seen to be done. Which body or independent reviewer is or will be responsible for oversight of the operation of Clause 25 and Schedule 6? As I have said, these Benches accept the need for such arrangements, but clarity of purpose and transparency are essential when dealing with issues of arrest and detention. Our democratic traditions demand that we do so in this area, as much as anywhere else. With that, I beg to move.
Baroness Ludford (LD)
My Lords, I thank the noble Lord, Lord Coaker, for introducing this group. As he noted, I will speak to Amendments 61 and 63 in my name, which are inspired, as usual, by the report of the Joint Committee on Human Rights. My amendments relate to Schedule 6, which applies the conditions for arrest and detention without warrant under Clause 25.
We are concerned that some of the protections in the schedule are not adequate to guard against a descent into somewhat arbitrary detention. The initial period of detention permitted is 48 hours, and there is supposed to be a review at least every 12 hours. There can then be a judicial warrant for up to seven days after the initial arrest, subject to a further extension up to a total of 14 days. Although that judicial part has certain guarantees, there are still elements which cause us concern, including when the detainee and their legal representative may be excluded from parts of the hearing, or an application may be made to withhold certain information relied upon by the authorities. To be denied sufficient information to counter any claims made against them or to be excluded from the hearing are serious moves. Obviously, these themes have been encountered before in anti-terrorism legislation, but we are concerned, for instance, that the use of detention could be based on undisclosed or closed material where the concern relates solely to proceeds of crime.
My Amendment 61 is about where there could be a power to delay allowing the detainee to have a named person—a family member or a friend, for instance—informed of their detention and having the right to consult a solicitor, including where the officer has reasonable grounds for believing that the person has benefited from criminal conduct or where the recovery of property of value would be hindered by allowing access to a solicitor or notification to a named person. These are very serious impediments to accessing basic rights for a person detained without charge. The JCHR feels that, while these restrictions may be proportionate if necessary for imperative reasons of national security, such as to prevent immediate harm to persons, the case is less compelling where the objective is solely asset recovery. Therefore, Amendment 61 aims to delete paragraphs 9(4) and 9(5)—I hope they are still paragraphs 9(4) and 9(5)—of what is now Schedule 6; the moving story which has tripped up other noble Lords also applies to schedule renumbering.
Baroness Ludford (LD)
And mine with you. I look forward to the debate on Clause 28.
The Government’s response, which we finally received, does not seem very strong. It says:
“The Government considers that, if the matters relate to the proceeds from crime from state threats activity, in most cases this will be highly sensitive information and every effort should be made to prevent the suspect from having any knowledge that our law enforcement agencies are aware of where these proceeds are located.”
I may have missed something, but while the whole Bill is about national security, I am not sure that the condition that the proceeds from crime arise from state threats activity is there. Maybe it is in Clause 25. I ask the Minister to follow up on paragraph 88 of the Government’s response to clarify whether I am being insufficiently on the ball and whether that further condition that the proceeds of crime arise from state threats activity is there. Otherwise, it does not seem to us pertinent that you should be able to withhold information, stop access to a solicitor and stop allowing people to let others know where they are if it is specifically about asset recovery. Important though that objective undoubtedly is, this is a National Security Bill.
On Amendment 63, the contention I make, inspired by the JCHR, is that the reviews of detention without warrant should be able to be postponed only for well-defined and justified reasons. At the moment, it can happen where
“no review officer is readily available”
or
“it is not practicable for any other reason to carry out the review.”
That seems to us illegitimately broad.
In their response, the Government give an example, saying
“these provisions ensure a wide range of instances”—
that is certainly true—
“which might result in a review not being able to be carried out are covered – for example, if the suspect is undergoing medical treatment. It would be impossible to outline every scenario that may impact a review … therefore this approach”,
which I would describe as wide,
“is preferable.”
The example of a detainee undergoing medical treatment does not cover or justify the “no review officer is readily available” reason. It might fall under the other arm—“it is not practicable for any other reason to carry out the review”—if the detainee is ill and is being supported with medical treatment. However, postponing a review because no review officer is readily available is based on a staffing matter; the detainee really should not be put in this position because somebody—the Home Office, the MoJ or whoever—is unable to supply a police officer or whoever else is in charge to carry out the review.
Lord Hacking (Lab)
I will just say hear, hear—the Bill is far too long and far too complicated.
Lord Murray of Blidworth (Con)
I thank noble Lords for their contributions. I speak first to Amendment 60, tabled by the noble Lord, Lord Coaker. First, I thank him very much for the frank way in which he posed his questions, and I am glad to say that I can answer the first tranche of his questions simply with yes. I will set out in more detail why that is.
The amendment relates to the power for the Secretary of State to designate sites where those arrested under Clause 25 can be detained. There was a lively debate on this topic in the other place, which led to the Government carefully considering this issue and amending the Bill to provide for the sites to be designated only if they are in the UK. As the noble Lord observed, this provision can be found at paragraph 1(1) of Schedule 6, and I can confirm that is indeed the case. That states that the power
“may be exercised only in relation to land or a building in the United Kingdom which is owned or controlled by a police force”—
so that is any police force.
The Government consider that the amendments to Schedule 6 in the other place have sufficiently clarified the need for and the intention behind this power and I understand that this satisfies the noble Lord’s concerns regarding where the sites may be located. Just to confirm, the power therefore extends to the MoD Police, the British Transport Police, ,the Civil Nuclear Constabulary, et cetera, and there are no special arrangements in relation to Northern Ireland.
Clause 25(6) confirms that a 24-hour detention period can be extended by a reviewing officer to a maximum of 48 hours. The first review is as soon as reasonably practicable after arrest and then this must be reviewed at least every 12 hours, obviously up to the maximum.
The noble Lord mentioned arrest abroad. UK constables do not have the power of arrest abroad and the powers therefore do not therefore extend to Armed Forces police abroad. Any relevant people would be arrested by local officers and extradition would be arranged in the conventional way.
I will return to the topic of oversight later but I can confirm that His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has a statutory role in inspecting all police forces under Section 54 of the Police Act 1996, about which the noble Lord knows. That body regularly inspects all aspects of policing, including places of detention. Given that any sites designated under this power will be under the control of the police, they would automatically be subject to their inspection, and the Government therefore believe that there is no need to include a further statutory inspection regime as this will be duplicative.
I can confirm that it was never the Government’s intention to designate sites located outside the UK. This amendment clarifies the policy position. In Northern Ireland, the Police Service of Northern Ireland is subject to annual statutory inspection by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services under Section 41. Similarly, in Scotland, His Majesty’s Inspectorate of Constabulary in Scotland provides independent scrutiny of Police Scotland and the Scottish Police Authority. We do not consider it reasonable to interpret this to include locations under the temporary control of a police force, such as a crime scene.
Amendments 61 and 63 in the name of the noble Baroness, Lady Ludford, are to Schedule 6. They seek to implement two of the recommendations from the Joint Committee on Human Rights’ report on the Bill. The first amendment seeks to remove the ability for the police to delay a suspect’s access to certain rights while being detained under the arrest power in the Bill for solely asset recovery reasons; I will address this first, if I may.
If the police have intelligence to suggest that a detained suspect has property that is connected to suspected criminal activity—for example, cash—and might use their permitted communication with a named person or their solicitor to ask them to take steps to move cash or property on the suspect’s behalf, to hide evidence or otherwise ensure that the asset cannot be seized by the police, it is clearly right that the police should be able to delay that communication taking place while they seize those assets, gather associated evidence and ensure that crime does not pay. I believe that the safeguards written into the Bill as drafted are sufficient when delaying these rights. The direction to delay must be given by a senior police officer, who must have reasonable grounds to believe that allowing access to these rights at that point in the investigation will hinder recovery of the property.
Additionally, it is written into the legislation that the suspect must be allowed to exercise both these rights within the first 48 hours of detention, so there will not be a situation where a suspect is detained for longer than this without exercising these rights. More details on this process will be contained in the code of practice made under this part of the Bill, including the fact that any delay in these rights must be recorded in the custody record and the suspect must be informed of the decision. Similar provisions can be found in PACE Code H, which operates for detentions under the Terrorism Act 2000.
I turn to the noble Baroness’s second amendment—
Baroness Ludford (LD)
I apologise for interrupting but, before the Minister moves on to Amendment 63, can he explain something? It may just be my inability to see it but, in their response, the Government refer to
“proceeds from crime from state threats activity”.
I have not been able to find that phrase in the text of the Bill; it just refers to how there can be a delay in informing a family member or notifying a solicitor if
“the detained person has benefited from their criminal conduct”
and the recovery of the asset “will be hindered by” those rights being exercised. Where does it refer to proceeds of crime arising from state threats activity, so that one can see it being brought within the national security purview? I cannot see that in the text but I am sure that the Minister can point out how the response is justified on that point.
Lord Murray of Blidworth (Con)
Forgive me; the answer is that, in the text of the Bill, this is not limited to state threats proceeds of crime. The operation of the Bill is as I just described in my speech and, as I have already said, its safeguards are built into the statute itself.
The second amendment to Schedule 6 tabled by the noble Baroness seeks to remove certain circumstances whereby a review of a suspect’s detention may be postponed. There are various reasons why a review may need to be postponed. For example, the suspect may be receiving medical treatment and be unable to make representations on their continued detention to the review officer. It may be that there is a delay in the review officer arriving at a custody suite, or they may be reviewing another suspect’s detention if multiple arrests have been made in a short period.
It is impossible to predict all the possible circumstances and make specific provision for them in the legislation. The legislation does not provide for the review to be permanently postponed. It is required to be carried out as soon as possible, but this proposal provides for some operational flexibility. The code of practice—which, as I have said, the Government will publish in due course—will provide further information on reviews of detention, and we will state the requirement for any postponement of detention reviews to be recorded on the custody record. In the meantime, similar provision again can be found in the Police and Criminal Evidence Act code of practice code H, which operates for detentions under the Terrorism Act 2000.
With that, I conclude.
Lord Coaker (Lab)
My Lords, I thank the Minister for that very helpful reply, which put on the record clarification of certain things, in particular that the word “constable” applies to all police forces across the UK. That was helpful in answer to the points raised by the noble Baroness, Lady Ludford. As the Minister will know, a number of regulations and codes of practice will be coming before Parliament with respect to the detention of people under these powers. They will require some quite careful consideration by Parliament.
With that, I beg leave to withdraw the amendment.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment corrects the definition of “relevant appeal court” in relation to appeals in Scotland.
Lord Sharpe of Epsom (Con)
My Lords, Amendment 62 is a minor amendment to Schedule 6 which covers detention following an arrest for foreign power threat activity. Included in the schedule are powers for the police to take fingerprints and samples—biometric data—from an individual in detention. Biometric data can be retained for three years, with the police able to apply to the court for that period to be extended. The police and the individual can appeal the decision on extension to a relevant appeal court. This amendment corrects a reference to the relevant appeal court in Scotland, which is currently defined as the sheriff principal. Sections 109 and 110 of the Courts Reform (Scotland) Act 2014 abolished appeals to the sheriff principal in civil proceedings, with appeals now made to the Sheriff Appeal Court. This amendment corrects this.
Amendment 73 is a consequential change to take account of the new offence at Clause 15: obtaining a material benefit from a foreign intelligence service. This was introduced in Committee in the other place, at which point the Committee had surpassed Clause 15. Clause 15(6) makes its own provision about when offences are committed outside the UK. I beg to move, thank you very much and wish you a happy Christmas.
Lord Purvis of Tweed (LD)
I wish the Minister and all other members of the Committee a merry Christmas and, in keeping with this Bill, a safe new year.
Lord Harlech (Con)
My Lords, I wish all noble Lords and House staff a very happy Christmas and new year.
Lord Lexden (Con)
The compliments of the season from the Woolsack to all those present in the Chamber, and to all those who may be watching our proceedings on the television.
National Security Bill
Wednesday 11th January 2023
(1 year, 10 months ago)
Lords ChamberRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 68-III Third marshalled list for Committee - (9 Jan 2023)
Lord Purvis of Tweed
“6 Paragraph 5 does not apply in relation to an alleged offence under section 44, 45 or 46 that relates to conduct involving—(a) the intentional unlawful killing of a person,(b) torture or inhuman, cruel or degrading treatment or punishment, or(c) the violation of a person’s sexual integrity.7 Paragraph 6 does not prevent a decision not to prosecute in the public interest.”Member’s explanatory statement
This probing amendment would ensure that the immunity provided to Ministers and officials who assist or encourage crimes under the Serious Crime Act 2007 does not cover torture, murder or sexual offences.
Lord Purvis of Tweed (LD)
My Lords, this debate concerns the intelligence agencies and what the appropriate procedures are within the rule of law where they authorise, are aware of, encourage or assist in the commissioning of an offence or are engaged, either at home or abroad, in relations with other agencies or bodies where the risk of breaches of the law arises. The Government’s intent seems to be to seek total immunity from any prospect of prosecution for actions at home or abroad; to widen the authorisation powers of the SIS and GCHQ under the Intelligence Services Act 1994; and to provide brand-new immunity to MI5 and all UK Armed Forces, thereby expanding the current practice to actions at home, which, up to now, have had no immunity.
At Second Reading in the Commons, the Government failed to make a convincing case. We continue to be concerned about such widespread immunity; this view is supported by the Joint Committee on Human Rights and the ISC. At Second Reading in this House, the Minister said:
“Section 7 ISA authorisations are not available in all the circumstances in which the SCA”—
Serious Crime Act—
“risks arise. Those authorisations primarily apply to overseas activities, meaning that Section 7 could not generally be used to protect officers when carrying out activities in the UK. Section 7 authorisations may be sought only by SIS and GCHQ, and not by MI5 or the MoD.”
He also said:
“The Government believe that UKIC and the Armed Forces should have a targeted protection that provides far greater clarity and certainty”.—[Official Report, 6/12/22; col. 155.]
However, he did not say why class authorisations that exist under the ISA would not cover these areas. We know that there have been considerable discussions, both in the ISA and elsewhere, about class authorisations rather than those that are specific. If the Minister could state why class authorisations for the SIS are not working, I would be grateful, because this is a major change.
For domestic activities, for example for MI5, there are the Security Service’s Guidelines on the Use of Agents Who Participate in Criminality and the authorisations issued in accordance with them. The terms of the guidance were made public in a redacted form in March 2021 during a successful appeal by the Government in the Court of Appeal, where a case arguing—unsuccessfully—that there was de facto immunity for the Security Service’s activities was heard. I quote the guidance, which said that
“it may sometimes be necessary and proportionate for agents to participate in criminality to secure or maintain access to intelligence that can be used to save life or disrupt more serious criminality, or to ensure the agent’s continued safety, security and ability to pass such intelligence.”
It goes on to say that an officer is “empowered” under the Regulation of Investigatory Powers Act 2000.
Paragraph 9 of the guidance is clear:
“An authorisation of the use of a participating agent has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution. Rather, the authorisation will be the Service’s explanation and justification of its decisions should the criminal activity of the agent come under scrutiny by an external body, e.g. the police or prosecuting authorities.”
That is the current situation. The guidance goes on:
“In particular, the authorisation process and associated records may form the basis of representations by the Service to the prosecuting authorities that prosecution is not in the public interest.”
This is a scheme that up until March 2021 the Government said had been operating well. They have not made the case for why that needs to change significantly. The judgment also highlighted that the Security Service works under a memorandum of understanding between it, the police and the counterterrorism division of the Crown Prosecution Service. The judgment went on to tell us that there were corresponding protocols in Scotland and Northern Ireland.
Clause 28 of this Bill now allows otherwise criminal actions here in the UK which encourage or assist crimes overseas to be carried out, setting aside previous guidance. This is extremely broad and changes dramatically the practice and the operation of that current guidance, with little justification. I went into a little detail about the domestic situation because it illustrates how a process operates which allows proper intelligence work to be carried out while retaining no immunity from the rule of law. This will now be abolished with Clause 28. For the UK and abroad, as I have indicated and as we discussed at Second Reading, the SAS has powers under the ISA and, as I indicated, there can be class authorisations as well as individually targeted authorisations.
In the Government’s response to the ISC’s report on privacy and security, they went into a little more detail about class authorisations, but it was very clear that such authorisations are under the statutory oversight of the Intelligence Services Commissioner. Under Clause 28, there would be no equivalent of this oversight, and that is a considerable diminution of the ability for there to be oversight of the operations of SIS and GCHQ.
One of the highlights of the Government’s annual human rights reports, the most recent of which was published in early December 2021, is the stress that they put on the human rights guidance on overseas security and justice assistance, or OSJA. It states that when the UK is working with other countries, primarily with their justice and security systems, on addressing threats such as terrorism, serious organised crime or conflict, a risk assessment process must be carried out prior to providing justice or security sector assistance. The institutions are relevant in this context, where the UK Armed Forces intelligence agencies are working with foreign bodies and their armed forces and the police, primarily their gendarmerie, paramilitary forces, presidential guards, intelligence and security services, coastguards and border guards—the list is fairly extensive.
The OSJA guidance sits alongside the Cabinet Office’s Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees. Under OSJA guidance, before any work is undertaken with one of the foreign bodies, a risk identification process must be carried out on human rights concerns, specifically on whether assistance or co-operation might directly or significantly contribute to the use of the death penalty, unlawful or arbitrary arrest or detention, torture, unlawful killing, enforced disappearance, unfair trial, or denial of justice and unlawful interference with democratic rights. The checklist also states that there must be a risk system on violations of the right of the child, human trafficking, and persecution of an identifiable group. All these areas will now be swept away with a risk assessment process, because of this blanket immunity. If it is high-risk, Ministers must be consulted unless ministerial approval has already been given for the specific activity. This will include, for SIS, a 1994 authorisation, and under current law, Ministers must operate under the terms of the Serious Crime Act.
However, this guidance is now redundant, with the Bill removing a major component of the UK’s promotion of human rights by providing wide immunity to our Armed Forces. The Minister in the Commons, in making the case for this clause, stated that the current process created too much delay. He said:
“The impact of that approach is that vital and otherwise legal intelligence opportunities are currently being delayed or missed as the SCA risks are worked through”.—[Official Report, Commons, National Security Bill Committee, 14/7/22; col. 181.]
He promised to provide examples to the ISC. I would be grateful if the Minister can confirm whether those examples have been provided and if I can be briefed on those examples as the Front-Bench spokesman of my party. I have not seen any examples, demonstrating that there has been considerable delay.
The consolidated guidance for intelligence agencies exists because they do not have the powers of detention, either in the UK or overseas, that the Armed Forces may have. There has been considerable concern about the wide extension of this clause to all of the Armed Forces. Paragraph 7 of the guidance states:
“When we work with countries whose practice raises questions about their compliance with international legal obligations, we ensure that our co-operation accords with our own international and domestic obligations.”
This is now being changed dramatically.
Lord Macdonald of River Glaven (CB)
Before the noble Lord sits down, I just wonder whether he considers that there may be a difference between intentional killing, on the one hand, which may or may not be wrong, depending on the circumstances and context, and torture and sexual violation on the other, in respect of which it is very difficult to conceive that they could ever be right. Does he think that there may be a distinction?
Lord Purvis of Tweed (LD)
I understand the case. The Consolidated Guidance to Intelligence Officers and Service Personnel does not make the distinction. It does make the distinction that there is a lack of clarity when it comes to cruel, inhuman and degrading treatment and punishment. Our definitions of that may differ from those of some of our allies, or of others we are working with. For the other two areas, there is no distinction as provided for under the consolidated guidance. Indeed, the risk assessment criteria that all officers currently have to operate under—the checklist that exists within the guidance that they have to go through before entering into any of the security work with agencies—include all of these areas, including where senior personnel and legal advisers conclude that there is risk of torture or CIDT, and also lawful killing. This is in addition to what authorisations under the ISA may bring about.
Lord Evans of Weardale (CB)
My Lords, I listened with great interest to the argument made by the noble Lord, Lord Purvis of Tweed. I wonder whether I could ask the Minister, when he replies, to clarify the way in which the liabilities and immunities under this clause might impact, separately, the members of the intelligence services and the Armed Forces on the one hand, and, on the other hand, covert human intelligence sources, sometimes known as “agents” of the intelligence services, whose activities are authorised, I believe, under separate legislation. It does seem to me that it is very important that we should understand those two separate categories of action, and the way in which the proposed legislation would impact on those, because we are talking there about different legal regimes—although I speak as a lawyer and therefore I am willing to be corrected.
Lord Anderson of Ipswich (CB)
My Lords, that sounds right to me. Part 2 of the Serious Crime Act 2007 abolished the common-law offence of incitement and substituted three specific offences of encouraging and assisting serious crime. Schedule 4 expands the reach of Part 2 to the encouragement and assistance of crimes which are committed, or intended to be committed, abroad. Its provisions have been described by the Court of Appeal as “tortuous”. Professor David Ormerod, the former Law Commissioner, has written of its “incoherence” and “excessive breadth of liability”. The noble and learned Lord, Lord Judge, probably has a full and comprehensive understanding of it, but few lawyers and judges do, and even fewer can explain it to juries. It has, accordingly, rarely been used.
Intelligence officials—from what they have told the noble Lord, Lord Carlile, and me—share in the general bafflement. They cite the risk that they will be prosecuted for acts which are judged, in retrospect, to have been capable of encouraging or assisting the commission of an offence by a foreign intelligence partner. They take only limited comfort from the defence of acting reasonably in Section 50, and from the public interest test applied by prosecutors. The uncertainty, they say, prompts them to act with caution so significant as to have an operational impact.
Clause 28 proposes to address the situation by granting immunity from prosecution, in transnational cases, to those who are behaving in a way that is necessary to
“the proper exercise of any function”
of MI5, MI6 or GCHQ. No clue is given in the Bill as to how this test is to be applied. Compliance with the principles relating to the passing and receipt of intelligence relating to detainees, to which reference has just been made, would doubtless provide the answer in many cases but, as has also been said, there will be others that fall outside their scope.
The same broad immunity would be granted to members of the Armed Forces, not only for activities in support of the intelligence agencies but for any activities which constitute a “proper exercise” of the functions of the Armed Forces—whatever that means. No one has so far explained to me why such a broad immunity for the Armed Forces is necessary, even in circumstances with no intelligence connection. I hope the Minister will be in a position to do so.
I understand that the Intelligence and Security Committee of Parliament has been invited to scrutinise the justification for the claimed special treatment. I expect that it will have been shown operational examples that the noble Lord, Lord Carlile, and I, during our relatively short visit, were not. I hope that, before the Bill advances further, the committee will tell us what, if anything, it has concluded and whether those conclusions are confined to the agencies or whether they extend to the Armed Forces as well. For my part, I have general sympathy with the concerns expressed to me by agency lawyers—who are, in my experience, highly conscientious people—but, like the noble Lord, Lord Purvis, I would feel happier if I knew that an independent person or body, such as the Intelligence and Security Committee or the Independent Reviewer of Terrorism Legislation, had examined the secret materials and pronounced confidently on whether the concerns expressed to us are justified across the full range of circumstances in which they are being advanced.
However, let us assume, at least for the purposes of this debate, that there is a real problem of unquantifiable legal risk translating into excessive caution and reduced operational efficiency. Is the solution to place the agencies and the Armed Forces above the law? The question surely needs only to be asked for the answer to be apparent. We admire our intelligence and military personnel, with very good reason, but, be they never so high, the law in a democracy must always be above them. Modern intelligence co-operation means dealing with a wide range of international partners, some of them less scrupulous than others. Let there be no doubt that the crimes that some of them are capable of committing include some of the most serious of all: torture and unlawful killing. To remove all legal accountability for assisting and encouraging such acts, in particular by the sharing of intelligence, would send an unfortunate message to any person who might be tempted to cross the line. It would also send an appalling signal to the rest of the world.
Fortunately, two off-the-shelf solutions are available, each of them more palatable than Clause 28. The first is my Amendment 64, supported by the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Judge. This would add activities caught by Part 2 to the scheme established by Section 7 of the Intelligence Services Act 1994—sometimes known as the “James Bond clause”, which the noble Lord, Lord Purvis, described, although it is certainly no simple immunity. Subject to further study of what he said, I do not think it does the trick without our amendment. Section 7 provides that those operating abroad, and in limited circumstances within the United Kingdom, are not liable for what would otherwise be crimes under UK law, but only if the commission of such crimes falls within the scope of an authorisation issued by the Secretary of State on tightly defined statutory grounds. Those authorisations, and the agencies’ compliance with them, are carefully scrutinised by the senior judges of the Investigatory Powers Commissioner’s Office—the successors of the noble and learned Lords, Lord Judge and Lord Brown of Eaton-under-Heywood—with the help of their skilled investigative teams. IPCO publishes its conclusions in its annual report, which demonstrates its exacting approach. The Investigatory Powers Commissioner, Sir Brian Leveson, would no doubt notify the Director of Public Prosecutions were it to find any illegality worthy of further investigation.
In this way, the requirements of the rule of law are maintained, and with three other advantages. First, and of some importance, IPCO scrutiny makes it more likely that any wrongdoing will actually come to light. Secondly, the agencies would not be exposed to police or prosecutorial investigations, unless, of course, they go beyond the scope of their authorisations. Thirdly, for any act within the scope of the authorisation the agencies have political cover from the Secretary of State, who would be unable to hang them out to dry. There would be some value in each of those matters, I would have thought, for the agencies themselves.
Like the existing Section 7, my solution would also apply to the Armed Forces to the extent that their actions are necessary for the proper discharge of a function of the security and intelligence agencies. Perhaps that limited application is all that the Armed Forces actually require, and I await the Minister’s comments on that.
Lord Hacking (Lab)
My Lords, I follow on from the early comments from the noble Lord, Lord Anderson, about the confusion and difficulties of interpretation of the provisions before us and similar provisions that have created certain headaches, which he referred to, for those who have a responsibility to enforce our laws. I have already complained about the length of this Bill, which has 65 pages and schedules of double that length. Once again, we are not having any thoughts about the users of the Bill, those who have to enforce the provisions of our legislation. I refer to members of the Security Service, the Secret Intelligence Service, GCHQ, police officers, lawyers—perhaps we have no compassion for their difficulties in interpretation, although I do as I am a lawyer—right up to the judiciary. I am sorry if I am bleating again about this problem, but it continues in our legislation and here is another bad example.
Since I am standing up, I shall make a few comments about the provisions in Clause 28. There must be extreme worry that they give Ministers and officials effective immunity from crimes such as targeted killing and torture. Clause 28 blocks accountability for Whitehall involvement in war on terror crimes and, to take a broader view, Clause 28 undermines the UK’s centuries of legal prohibition of torture-related crimes and the UK’s position when criticising other Governments for their crimes. One thinks of the example of the awful murder of Jamal Khashoggi in Turkey. Indeed, looking broadly at these provisions, one is reminded of President Bush’s tenure of office in the United States of America, when certain members of the Justice Department issued papers justifying torture, such as waterboarding and so forth, and saying that it fell within the constitution of the United States. This Bill brings out many of those unhappy memories.
As for the alternatives, we have had the alternative of the noble Lord, Lord Purvis, who said towards the end of his speech that he agreed with my noble friend Lord Vernon, and of course he is quite right about that. Oh, sorry; Coaker is his surname—I am referring to my noble friend Lord Coaker with extreme familiarity, and to his application to remove Clause 28 altogether.
I have not been able to study this in detail, but I am told that the provision proposed by the noble Lord, Lord Anderson—I mentioned this to him outside in the Lobby, just before we came in—does not go far enough to disable sanctuary to Ministers of State and so forth. We are not saying that they are going to commit these crimes, but our law should not permit those down the line to do so. It is all right for the top members of the intelligence services to behave themselves, but then you may not get the same dicipline down the junior line and there is misbehaviour that should be punishable and for which there should not be immunity.
Lord Beith (LD)
My Lords, the provisions of this clause and its defects have been set out very well by my noble friend Lord Purvis of Tweed, and there has been some really helpful analysis from the noble Lord, Lord Anderson.
I will just make a preliminary point. The inclusion of the Armed Forces in this provision is wholly inappropriate, simply on the basis that it is the wrong place to deal with what is a much wider problem and raises many other issues—battlefield situations; civilian situations such as we experienced in Northern Ireland, where we have had difficult court cases to deal with; and issues around the proper defence that veterans might wish to advance when involved in contentious matters. To push this into a provision about intelligence services does not seem the right way to deal with it.
One qualification that the noble Lord, Lord Anderson, made was that there may be a case for including actions of the Armed Forces in direct support of the intelligence services, but that is as far as I think it reasonable to go on an issue of wide importance that affects the international reputation of this country. I would rather we were simply dealing with the issue of how we provide the appropriate cover for intelligence services when they have reason to act outside the law. What an easier world it would be if we never asked intelligence services to act outside the law, but that is not possible. The range of things that intelligence organisations can become involved in if they are acting outside the law includes things that, on discussion and explanation, most people would find understandable and acceptable, right through to things that are utterly unacceptable—and which have happened. We think particularly of torture and rendition to torture, which has been our worst recent example. Many people would understand that, if you are dealing with a covert human intelligence source engaged with a terrorist group or some other group of people, at some point you will inevitably get into a situation in which both that source and the officer running that source have questions about what is permissible. You need a mechanism that can handle those things, and we thought we had one.
The provisions we have had until now have worked in a wide range of cases, and the ultimate recourse in difficulty is the decision of the Attorney-General on whether a prosecution is in the public interest. On the face of it, it perhaps looks too limited in some ways but, as I say, for the most part it has worked. There is a case being made now that in some situations it is not sufficient, but to move from that to a general immunity, not restricted in the kinds of illegality it can cover, is worrying and dangerous. To do so by way of a system that does not embody authorisation at its heart is a really serious mistake, and I am glad that the noble Lord, Lord Anderson, touched on this.
It cannot be acceptable for an intelligence agency to be able to act in a way which goes outside the law, without having had to make reference to some democratic authority before doing it, whether by way of a class provision or because of the serious nature of the specific incident or action that is involved. Were we to allow that to happen, which will be the case if this provision goes through unamended, Ministers could then always say “I knew nothing about it—it’s not part of my job to know. I just tell them to get on with it and let me know when they’ve finished”. That situation is not acceptable for either Ministers or the agencies, which then of course take all the blame and have to make political decisions—for example, on whether taking such action is going to cause massive international complications. Should an intelligence agency decide that, or should it be decided at the highest political level? Of course, it leaves accountability out of the system altogether.
The accountability is inevitably limited by the nature of what we are talking about. It may depend almost entirely on the judicial forms of accountability which the noble Lord, Lord Anderson, helpfully described—the commissioners and the tribunal, supported also by the work of the Intelligence and Security Committee, which should be told more about the kinds of operation that have to take place. There are mechanisms to have that accountability, which will only rarely be able to be exercised on the Floor of this Chamber or that of the Commons because of the nature of what is being done, but there should be a process of authorisation.
What I fear out of all this is either Ministers being able to say, “This is all very regrettable, but I knew nothing about it”—when it is not something that Ministers would be consulted about—or a situation in which the service says, “We’d better not tell the Minister because it would be very difficult for him to authorise this”. These are great dangers, and we must not pass legislation which fails to address them.
Lord Carlile of Berriew (CB)
My Lords, as is his wont, the noble Lord, Lord Beith, started with a very cogent and important point. The issue about the Armed Forces is both legally and politically distinct. It hardly needs explanation in this Committee as to what those distinctions are, for they are evident to us every time one of those cases is considered.
It is also a pleasure to follow the noble Lord, Lord Hacking, whose return to your Lordships’ House is very welcome to us. He brings a richness of experience on issues which include the quality of the jurisdiction within which we live. Great attention should be paid to the point he made about the way in which our jurisdiction should retain its fundamental values.
In the provisions suggested by the Government in the Bill, I am afraid that I see the words “double standards” above the mirror every time one looks at them. Immunity is inimical to our system of law—full stop. Take the Khashoggi case as an example. I am not suggesting for one moment that we in this country would do anything quite as bad as that murder, nevertheless there could be other outrages committed. If we look at the Khashoggi case and the way that the country that committed that outrage has brushed it under the carpet of immunity, we see how dangerous it is to go down this slippery slope. I will not say a great deal more, but it is a particular pleasure for me to be able to take, as it were, the role of junior counsel to my noble friend Lord Anderson. He opened these amendments with superb and supreme clarity, in my view, and I would only muddy the waters if I said too much more.
I want to make a couple of other points, though. It seems to me that the existing involvement of the Secretary of State in at least some of the decisions to which we are referring does much more than give cover or protection to the individuals who might commit the acts complained of. It shows that political responsibility is taken for those acts, and it is real political responsibility because that Secretary of State is almost always accountable to the other place and will have been elected to it. Misleading actions on the part of, heaven forfend, any Secretary of State could have very serious repercussions in our democratic polity.
Lord Judge (CB)
My Lords, I apologise for not being present at Second Reading; I was doing other business in the House. I feel particularly humbled, because if my noble friend Lord Carlile thinks that he was the junior to my noble friend Lord Anderson and therefore was short, I have reverted to something I have not been since 1964: a pupil. Pupils are allowed to take notes, but they are not allowed to say anything, and, if they do say anything, that marks the end of their pupillage—they are not wanted any longer. I hope noble Lords will forgive this pupil if I say just a few words in support of my noble friends.
Just look at Clause 28 and what it means. It means that we are creating an immunity from prosecution before any facts are known, before any inquiry has been made and before a crime has been committed. We are, in effect, rubber-stamping the possibility that a crime may be committed with no further investigation in public. We all understand that there must be cases of immunity: sometimes because the facts require it and sometimes because, to get at the facts, people are offered immunity if they tell the truth so that the worst features of a case can be grasped. We also recognise authorisations; that is an ordinary, elementary part of the system.
However, what if we say to a special individual or a special group of individuals, “Ah, you will not be prosecuted, whatever you do in any circumstances, because you are immune”? I hate to keep using this phrase in this Chamber, as I do from time to time, because your Lordships all understand it, but what is left of the rule of law if some of our citizens are entitled to break it with immunity and commit crimes with immunity? There is a perfectly good defence in the current Act, as the law stands, and there may be better defences. Indeed, I agree with and support the amendment proposed by the noble Lords, Lord Anderson and Lord Carlile. But what does Section 50 provide? It provides that an individual may, in circumstances that would otherwise be an offence, put forward that it was reasonable. That is a very good start. He may want the reasonableness of his behaviour—he will always want the reasonableness of his behaviour, if he really wants to prove that it is reasonable—to require an examination of all the facts. What happened? What was the situation? But that would be a defence, not an immunity, and there is a huge difference.
We all recognise, for example, that if someone is charged with an offence of violence, murder or serious bodily harm, of course he or she may say that they were acting in reasonable self-defence. They may ask for the circumstances to be looked at as they were. “Do not demand perfection”—as we do not—“in the face of an upturned knife or a gun, or a mob coming at me. Make sure that it is reasonable.” If the prosecution fails to demonstrate that it was not reasonable self-defence, there has never been a crime at all. It is decriminalised, but that is not immunity.
When I looked at this, I asked myself whether the House of Commons Library statement on it was correct. It says:
“The provision therefore appears to be intended to extend immunity from criminal prosecution to actions which could not be proved to have been reasonable.”
I agree with that analysis, and I would like the Minister to refute it if he can. But that is rather shocking, is it not? You can argue that maybe the burden of proof in Section 50 should be amended so that the burden is not on the defendant to prove that he acted reasonably, and it is for the prosecution to prove that he acted unreasonably. You might do that—and you might, as I said earlier, create different defences. You might create specific defences for different parts of those covered by Clause 28, such as the Armed Forces and, if I can call it so compendiously, the Secret Service.
Can the Minister then ask himself what the difference is between acting reasonably in Section 50 as it stands and acting in the proper exercise of the particular function, as is proposed here? Are we really going to legislate that an unreasonable exercise of function must always be treated by previous decision as a proper one, for which there can be no consequences? If so, there is no difference. What are we doing? Is it consistent with the rule of law to grant anyone, or any group of people, immunity from prosecution for serious crime before any facts have been examined? While we are about the rule of law, where does that leave the unfortunate victim of the crime? It leaves them with nothing.
If it is felt that we need to amend any part of the law, as is proposed here, we need to amend Section 50 as I have suggested and we need to use the amendment that the noble Lord, Lord Anderson, proposed. We must create a specific defence that recognises that there are particular circumstances where criminal liability will not follow. We must create a reasonable self-defence issue for those who carry out these duties for us.
Lord Hope of Craighead (CB)
My Lords, I think we need to remind ourselves that the United Kingdom is a party to the torture convention. The amendment in the name of the noble Lord, Lord Purvis of Tweed, raised a red flag in my mind because, when I saw the word “torture” and the implication in his amendment that Clause 28 as it stands could extend to granting immunity for acts of torture, that seemed to me plainly contrary to our obligations under the torture convention.
It is worth remembering two things about that convention. The first is that all states parties to it are prohibited from authorising torture in any circumstance. It is also an unusual convention because it creates a universal jurisdiction; in other words, any state party which finds somebody who has committed torture within its jurisdiction, wherever he comes from, can prosecute that individual for the act of torture. The idea of granting immunity from acts of torture, which is what this clause seems to do, is a false idea because you certainly cannot do that with regard to other states parties to the torture convention.
It seems to me that Clause 28 is fraught with danger for that reason. Therefore, I very much support the amendment in the name of the noble Lord, Lord Anderson.
Lord Pannick (CB)
My Lords, may I add one footnote to the powerful speeches by my noble friends on these Benches? To confer blanket immunity may well have a counterproductive consequence, which is that the alleged victim may well be able to provoke the procedures of the International Criminal Court to be applied against persons in this jurisdiction. That would be extremely unfortunate.
Baroness Manningham-Buller (CB)
My Lords, I had not intended to say anything on this part of the Bill, not least because all these lawyers at various levels of leading counsel, pupil-master and so on do so much better than me. It seems to me that it is wrong in principle for members of the security and intelligence services to have immunity from the law.
I think that the noble Lord, Lord Purvis—the Minister may deal with this in his summing up—has confused the authorisations that are approved for CHIS activity involving criminality with what this part of the Bill seeks to do. I hope that in his reply the Minister will acknowledge the wide concern within the Committee, including from people such as me who have spent a career in the Security Service, and will consider an amendment to address some of these problems.
I quite comprehend that it is not necessarily easy to explain what the problem is that we are trying to address without revealing secrets but, again, I endorse the view that it would be helpful to hear what the ISC has thought on these matters. We heard from the noble Lord, Lord West of Spithead, at an earlier stage, that he and the ISC recognised that there was a problem that needed addressing. For my part, I am unable to support this as a solution.
Lord Purvis of Tweed (LD)
I am grateful to the noble Baroness and of course defer to her very considerable expertise in this area. The point I am seeking to make is that, from my understanding of the CHIS authorisations under the 1994 legislation, some of those will now no longer be necessary because of the blanket immunity under this clause. In fact, many of them will not be, because the authorisations for SIS to act abroad will now be expanded by this clause, with SIS being able to act here for supporting acts that are unlawful abroad as well as officers operating abroad, which is unlawful. The point that I was trying to make is that this clause brings the two together.
Baroness Manningham-Buller (CB)
I will have a short word with the noble Lord, Lord Purvis, afterwards in the dinner break, if he does not mind.
Baroness Manningham-Buller (CB)
The noble Lord may have confused covert intelligence sources as agents—I am sorry; this is terminology—and agents are not full members of the security and intelligence services. The Minister will answer this better than I can anyway; I am sorry to intrude again.
Lord Coaker (Lab)
My Lords, I start by saying that if the noble and learned Lord, Lord Judge, is a pupil barrister, I do not know what on earth that makes me. We shall see.
I start with a comment that I know will be supported by all members of the Committee: if the story on the front page of the Sun is accurate, it reminds us of the debt of gratitude that we owe to the security services. They seem to have foiled a plot to import uranium at Heathrow this morning. If that is accurate, it is something that we in this Committee should note, because I know that the security services and those who work on our behalf in all these areas read our proceedings, and they should not mistake or confuse the very real debate that is going on here about the best way for us to go forward, and the best legislative context for us to have for our Armed Forces and our intelligence services, with any sense in which we underestimate or do not respect them fully for the work they do across the world in our interests.
I have objected to Clause 28 standing part of the Bill, and I thank the noble Lord, Lord Purvis, for his support, because, as it stands, the clause is unacceptable. The Government themselves have said in the other place and in previous debates that they are considering whether the clause needs amending and, if so, how. We all wait with bated breath to see where that has got to. The ISC has said it needs to change, and we know that even with the further closed briefings from the intelligence services to the ISC, it still believes that the clause needs amendment.
Amendment 63A in the name of the noble Lord, Lord Purvis, and Amendment 64 in the names of the noble Lords, Lord Anderson and Lord Carlile, and the noble and learned Lord, Lord Judge, are welcome and important statements of how the Government may deal with the many concerns raised in both Houses. The excellent contributions we had in support of them challenged the Government to say, if they are not the way forward, what is. The Minister’s response to these amendments will be very important and it will be interesting for all of us to know whether the Government are actually listening. Are these amendments to be accepted by the Government and, if not, why not? If they are not, can we expect a government amendment in good time for us to consider it before Report?
Questions that arise for the Minister if the Government do not accept these amendments are clear. The amendment in the name of the noble Lord, Lord Purvis, as he explained,
“would ensure that the immunity provided to Ministers and officials who assist or encourage crimes under the Serious Crime Act 2007 does not cover torture, murder or sexual offences.”
Indeed, the noble and learned Lord, Lord Hope, mentioned the issue of torture. If this is not to be accepted by the Government, can the Minister clearly and without any qualification say that none of this behaviour would ever be allowed if the clause were to be passed unamended? Remember, we are referring to murder, unlawful killing, torture or sexual offences. A clear and categoric ministerial statement, on the record, with no qualification or prevarication, would help the Committee enormously with respect to that amendment.
Amendment 64 would ensure—as I read it, and the explanatory statement confirms this—that high-level ministerial authority is fundamentally important. The noble Lord, Lord Carlile, made the excellent point that high-level ministerial authority must be maintained for the authorisation of the doing of such acts, rather than the weakening or even, as most of us believe, the exclusion of such authority, as Clause 28, as drafted, allows. Is that not the case? Why would the Government object to the maintenance of such ministerial authority, ensuring, in a democracy proud of its traditions, the importance of proper political accountability for decisions that are made? Again, this is a point that the noble Lord, Lord Carlile, and, I think, the noble Lord, Lord Anderson, made. Just as important, if not even more so, is that such ministerial authorisations would be under the supervision of the Investigatory Powers Commissioner’s Office—IPCO. This, under Clause 28, now seems not to be the case, whereas independent oversight and accountability seem to me, and I am sure to most of us in the Committee, to be an essential part of such a process.
We know the phrase in the clause as it stands,
“the proper exercise of any function”,
has also caused concern. What does it mean? Who decides whether it is proper or the breadth and potential scope of the phrase? If there is no independent oversight, as required by Amendment 64, who provides it and how? Something as sensitive and crucial as this cannot be left to a few individuals in a closed meeting in an office away from any public gaze or scrutiny. That is unacceptable in a democracy. As it stands, the clause is not acceptable and these amendments seek to improve it. As I and the noble Lord, Lord Anderson, have said, we will have to come back to this on Report, either to push an amendment or to agree or disagree a government amendment.
Very serious concerns have been raised about Clause 28 that cannot and should not be ignored by the Government. The ISC has said that the clause needs amending because it is unacceptably broad. Will the Government listen to it, if no one else? Even with the additional briefings, as I have said, it does not believe that Clause 28 is the way forward, even if it accepts that there is a problem that needs fixing.
In justifying Clause 28 as it stands, can the Minister answer some of the following questions? There are currently safeguards, such as ministerial authorisation, the reasonableness test so eloquently outlined for us by the noble and learned Lord, Lord Judge, under Section 50 of the Serious Crime Act and the fact that the DPP must be satisfied that a prosecution is in the public interest, as the noble Lord, Lord Carlile, properly reminds us time after time. I am grateful that he does so, because that point is lost; it is about not only whether a conviction can be secured but whether it is in the national or public interest for such a prosecution to be pursued. I have faith in the system. I believe that in most cases, if it is not in the public interest, it will not be pursued. That is an open decision that we can question to see whether we agree with it. Why have these safeguards been swept away with respect to such behaviour conducted abroad?
Can the Minister clarify what it means in Clause 28 for something to be necessary for the proper function of the UKIC or the Armed Forces, with no proportionality required? Why have the Government diminished the role and accountability of Ministers in the decision-making structure? As the noble Lords, Lord Purvis and Lord Beith, asked, why does Clause 28 extend this immunity to the Armed Forces? If I have read it right, the Armed Forces have protection under Section 7 of the Intelligence Services Act. Have I got that wrong? Can the Minister clarify why Clause 28, as drafted, appears to extend these immunities to the Armed Forces? As the noble Lord, Lord Purvis, asked, will he give an example of conduct that is the proper exercise of any function of the services but is currently subject to the chilling effect of the 2007 Act and would therefore now be allowed under this Bill? Why can it not be authorised under Section 7 of the Intelligence Services Act 1994 as it stands?
This is an incredibly serious debate, as we have heard from the many contributions from noble Lords. We also know that a huge cross-section of Members of Parliament in the other place expressed their concerns, many with great personal experience. Dan Jarvis MP, Kevan Jones MP, Maria Eagle MP and David Davis MP made excellent speeches asking why the change is necessary and, if it is, why we cannot have something that deals with the perceived problem and commands support, including from our parliamentary oversight committee, the ISC. The ISC was set up specifically to be allowed closed briefings, so that it could advise us on what was appropriate for these difficult matters. How on earth can the Government command the respect and support of this Chamber if the ISC, the committee we set up to have oversight on these matters, does not agree with Clause 28? Why do the Government set themselves against what the ISC is saying and then wonder why we have doubts?
The excellent House of Lords briefing highlights the many comments expressing doubts, particularly the belief that immunity from prosecution for serious crimes committed abroad would be made much more likely and possible under this clause. As Jeremy Wright MP asked, can the Minister explain the difference between acting reasonably under Section 50—the noble and learned Lord, Lord Judge, made this point—and acting in the proper exercise of a function, as this clause requires?
We are rightly proud of the work of our intelligence services and Armed Forces, but we also have a responsibility as a democracy to set a legislative framework that sets, and is seen to set, high standards. Openness, transparency and accountability are part of the price of our democracy. As drafted, Clause 28 undermines these principles and needs at the very least to be seriously amended.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I thank all noble Lords who have contributed to a fascinating and wide-ranging debate. If the noble Lord, Lord Coaker, is not sure where it leaves him if the noble and learned Lord, Lord Judge, is a pupil, I am under absolutely no illusions where I am left.
I turn to Clause 28, the Serious Crime Act 2007 amendment. I thank the noble Lord, Lord Coaker, for his advance notice of interest in this measure and the noble Lord, Lord Purvis, for our discussions to date on this Bill. I also very much thank the noble Lords, Lord Anderson and Lord Carlile, who provided advance notice of their intention to table this amendment and have generously shared their time and expertise with me and the team on this measure, as the critical friends to the national security world that the Committee knows them to be.
I will speak to the purpose of the SCA amendment and the amendments tabled by noble Lords. Respectively, they seek to remove the SCA amendment in Clause 28 from the Bill and replace it with an amendment to Section 7 of the Intelligence Services Act 1994, or ISA, and to add to Clause 28 to ensure that exemption from liability for individual Ministers and officials who assist or encourage crimes under the SCA would not cover torture, murder or sexual offences. However, before I come to that, it is right to express our thanks to those who work tirelessly to keep us safe, as the noble Lords, Lord Anderson and Lord Coaker, did, while recognising that we should carefully examine any changes to the law which might regulate or enable their activities.
I will briefly tell noble Lords why Clause 28 is in the Bill and why the amendment to the SCA is necessary. In essence, it is vital that we solve an unintended consequence of the SCA which currently exposes those acting for our intelligence and security agencies—MI6, MI5, GCHQ: the UK intelligence community, which I will henceforth call UKIC—and our Armed Forces to potential legal jeopardy and limits their operational agility. This can limit their ability to keep the UK safe, including through our international collaboration with trusted partners, which is vital in the modern world.
The SCA creates offences when an act is done which is capable of “encouraging or assisting” an offence and the person intends or believes their act may encourage or assist an offence. These offences are complex and were predominantly introduced to ensure the police could tackle those directing serious organised crime—for example, capturing those who knowingly directed violence or the importation of drugs but distanced themselves from criminal conduct. There is no minimum level of contribution to the offence which may be encouraged or assisted; the contribution can be small and indirect and there is no need for an offence to be ultimately committed. I will come back to the noble Lords’ amendment, but say here that these are obviously not circumstances that always lend themselves well to pre-authorisation.
Clause 28 focuses on this very specific area of criminal law which is having an operational impact to the detriment of the UK’s security. It is not a general immunity and it would not change the application of all other criminal law offences. It does not make it legal to encourage or enable torture or rendition or solicit murder and does not limit the offence of misconduct in public office. In addition, Clause 28 does not remove civil liability or change either the UK’s international law obligations or UKIC’s or the Armed Forces’ rigid adherence to these obligations. I will come back to that in a moment.
At present, UKIC and the Armed Forces are required to carefully apply the provisions of the offences, sometimes at fast pace and in critical scenarios, as has been noted, and some of which may have life or death consequences—all while they work with our international partners to help protect the UK. We are talking, for example, about sharing intelligence to combat terrorist attack plots. Delays and limits on activity arise solely due to SCA risks when otherwise seniors are clear that there is no wrongdoing and that the activity represents a proper function of the organisation. The offences in the SCA are therefore creating a “chilling effect”, as the noble Lord, Lord Coaker, referred to, across UKIC and the Armed Forces in the delivery of their mission, and impacting on their ability to keep our country safe.
Lord Beith (LD)
The Minister has repeated several times his reference to the Armed Forces, but, up to now, always in the context of support for intelligence organisations’ activities. It would be helpful if he could clarify—he is nodding; I think he is indicating that he might do so—whether the inclusion of the Armed Forces is intended to confer the immunity on their general range of activity or is intended to be confined to their support for the intelligence agencies.
Lord Sharpe of Epsom (Con)
The noble Lord has pre-empted me by about a second. A number of noble Lords have asked why the Armed Forces are included, including the noble Lords, Lord Purvis, Lord Anderson, Lord Beith, Lord Carlile and Lord Coaker. The Ministry of Defence collaborates with a diverse array of allies and partners, with intelligence sharing often forming a key part of such efforts. The Armed Forces also work closely with the UK intelligence and security community, helping to protect the UK from myriad threats overseas. The protection provided for in Clause 28 seeks to ensure that where our Armed Forces collaborate and provide authorised operational support with international partners, as with UKIC, support can continue without exposing individual staff or officers to personal risk of criminal liability. I hope that answers the question to the noble Lord’s satisfaction.
Lord Beith (LD)
It would answer the question if the clause was so defined as to limit the extent of the immunity to acting in support of the intelligence agencies. However, as I read it, it does not do that.
Lord Sharpe of Epsom (Con)
I will continue, but I will come back to that, if I may.
I want to return to the question asked by the noble Lord, Lord Coaker, and the noble and learned Lord, Lord Hope, seeing as we are talking about the application of this, and also to the point on torture. There will be no change to the UK’s other domestic and international legal obligations, including those under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and international obligations on assisting an unlawful act, which is Article 16 of the International Law Commission’s articles on state responsibility for internationally wrongful acts. I hope that is unequivocal enough.
Lord Carlile of Berriew (CB)
I apologise for interrupting the noble Lord. Before he moves on, could he give us two figures which I am sure he must know or could be given very quickly? First, in relation to the security services, how many cases have there been in the past 10 years of the kind we are discussing in which the Director of Public Prosecutions has had to make a decision as to whether a prosecution should take place? Secondly, how many events have been affected adversely over that period by the existing state of the law?
Lord Sharpe of Epsom (Con)
I am afraid that I do not have those figures to hand. I am not sure that I will be able to get them, but I will do my very best to find out and come back to the noble Lord on that question.
Lord Purvis of Tweed (LD)
I am grateful to the Minister for giving way, and I look forward to that reply when it comes in writing. If I have this right, the Minister said that it makes no difference—there is no change—to the approach on unlawful killing, torture or cruel or inhuman treatment. Is he saying that this clause does not provide immunity in offering assistance to others who would be committing unlawful killing, torture or cruel or inhuman treatment?
Lord Sharpe of Epsom (Con)
As I said earlier, I think this is confined very much to the intelligence support by the Armed Forces—is that what the noble Lord is referring to?
Lord Purvis of Tweed (LD)
I am grateful. No, it is not. The Minister said that there was no change to the approach on unlawful killing and torture. My reading of this clause is that there would now be immunity for offering assistance to others to carry out unlawful killing or torture.
Lord Sharpe of Epsom (Con)
I do not believe that there is immunity for that, but I will clarify that if I am incorrect.
Moving on, caution when considering the legality of support to our partners is of course correct and will continue. However, the current impact of the SCA offences means that vital intelligence-sharing opportunities have been delayed or missed, even when UKIC and the Armed Forces are fully compliant with other legal and policy requirements, such as the Fulford principles and the overseas security and justice assistance guidance, which ensure, for example, that support to international partners is in line with our human rights obligations. I have the principles and guidance to hand. If anybody would like me to go through them in detail, I will, but they are long so it will delay proceedings. I will await an intervention, if any noble Lord wishes me to do that.
UKIC’s and the Armed Forces’ adherence to and compliance with the principles are monitored by the Investigatory Powers Commissioner’s Office—IPCO—via regular inspections, and they are also routinely scrutinised by the Intelligence and Security Committee. Ministers are directly accountable for the work of the agencies and the legality of their operations. When things go wrong, it is entirely right that there is scrutiny of and accountability for the organisations’ activities, and I commend the important work that the ISC and IPCO undertake in this space. Meanwhile, any individual found to be working beyond the proper functions of the security and intelligence agencies or the Armed Forces will remain personally liable for those actions. This is right and fair.
However, I have heard the views of the House about this clause. The Government are in close consultation with the Intelligence and Security Committee, UKIC and the Armed Forces, and we are carefully reflecting on the views expressed and considering whether a change in approach is appropriate. It is important to note that those who have seen the very sensitive information which is relevant to this issue have agreed that there is a problem to solve—including the ISC, which has seen specific examples—and I am committed to us reaching a consensus on this matter.
Turning directly to the amendment in the names of the noble Lords, Lord Anderson and Lord Carlile, Section 7 of the Intelligence Services Act allows the Secretary of State to give authorisations for acts outside the British Isles, provided that the acts are done as necessary for the proper function of SIS or GCHQ—though not MI5 or the Armed Forces—and that the nature and consequence of the acts will be reasonable. These authorisations are clearly not currently available in all the circumstances in which SCA risks arise. I understand that this amendment seeks to address that gap and provide a solution to the application of the SCA offences. It also seeks to utilise an existing power for ministerial authorisation which is overseen by the Investigatory Powers Commissioner. These are obviously legitimate and valuable objectives. Section 7 authorisations provide a carefully used route by which the agencies can seek ministerial approval in advance of planned activities. They require Ministers to consider, in relation to specific acts, whether they are necessary and whether the consequences are reasonable. Once authorised, they can remove criminal and civil liability for those acts.
There will invariably be instances where the SCA risk does not manifest itself initially and becomes apparent only much later. Where a risk is not identified in advance, a Section 7 authorisation would not be sought to cover it. In these cases, those acting for UKIC or the Armed Forces would not be adequately protected should concerns about SCA offences arise later. Further, this scenario could lead to an unintended consequence of seeking to use Section 7 authorisations for hypothetical risks, creating an unhealthy reality in which more conduct is approved than would be otherwise without providing meaningful consideration of those risks. I am sure the House shares our desire to find a targeted solution to that problem. It would be a perverse outcome indeed if this well-intended amendment were to lead to less consideration of the SCA risks rather than more. Whether it is a class authorisation or a targeted one, as referred to by the noble Lord, Lord Purvis, the reasons why Section 7 authorisations are inappropriate remain the same.
In short, the Government do not believe that Section 7 authorisation is the best solution to the specific operational issue and do not believe it would improve the clarity of the application of the SCA offences to all the complex operational scenarios that arise in ongoing, carefully considered but agile international collaboration. It is more desirable to remove this risk in a targeted way as per Clause 28, avoiding the burden of potentially missing, and/or the overuse of, Section 7 authorisations for SCA risks.
The noble Lords, Lord Purvis and Lord Beith, talked about criminal conduct and authorisation of this for covert human intelligence sources. I think they may have conflated this with the issue at hand. No amendment is being proposed to the criminal conduct authorisation regime which governs the action of agents. We are concerned here with support for our international partners’ activities, so I agree with the noble Lord, Lord Evans, and the noble Baroness, Lady Manningham-Buller, who articulated this point very well.
I now turn to the amendment from the noble Lord, Lord Purvis, which aims to table provisions which explicitly state that Clause 28 does not cover torture, murder or sexual offences. Again, it is a legitimate attempt to clarify Clause 28. However, it is one which the Government deem unnecessary for reasons that I have partly outlined already but will continue to set out.
Lord Coaker (Lab)
Coming back to the amendment from the noble Lord, Lord Purvis, gives me the opportunity to return to an earlier comment from the Minister. Did he say in answer to the question from the noble Lord that he did not think we could assist others if they were conducting operations which involved torture, et cetera—that we could not support that activity? Was he going to clarify that and write to us, or clarify it later on the Floor of this Chamber?
Lord Sharpe of Epsom (Con)
I am going to do it right now: there is no immunity for inciting or assisting others to kill or torture.
Lord Purvis of Tweed (LD)
Could the Minister give a little more information as to why there is no immunity?
Lord Sharpe of Epsom (Con)
The noble Lord does not want there to be immunity.
Lord Purvis of Tweed (LD)
No. Why, under this clause, would there continue to be no immunity?
Lord Sharpe of Epsom (Con)
Perhaps I could get to the end and then clarify this. As I said earlier in relation to the SCA, I can confirm that the examples that the noble Lord, Lord Purvis, asked about have been provided to the ISC. As the noble Lord, Lord Coaker, pointed out, it has agreed that this is a problem that requires a solution.
It is vital to acknowledge that Clause 28 will not create blanket criminal law immunity or change the application of all other criminal law offences, including those criminalising torture anywhere in the world, as I have said a number of times. The UK remains committed and subject to international legal obligations, including under the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and international obligations on assisting an unlawful act under Article 16 of the International Law Commission’s articles on state responsibility for internationally wrongful acts. The amendment to the SCA offences applies only when persons acting for UKIC or the Armed Forces are acting within the proper exercise of their functions. We do not consider that the activities that are of concern and the focus of this amendment would amount to the proper exercise of those functions. I hope that is clear.
I want to be clear that any individual found to be working outside the proper functions of the intelligence agencies or Armed Forces will remain personally liable for those actions under the SCA offences, as well as other applicable laws. Meanwhile, it will still be possible for legal challenges to be brought against the intelligence agencies and Armed Forces in relation to allegations of unlawful behaviour, whether in the form of judicial review, civil damages claims or through a referral to the Investigatory Powers Tribunal. That is exactly as it should be.
In response to the point from the noble Lord, Lord Carlile, I say that the Government’s position is that this amendment is not intended to, nor would it have the effect of, removing the role of the relevant Secretary of State from the oversight of the intelligence and security services.
The noble and learned Lord, Lord Judge, and the noble Lord, Lord Coaker, spoke about the current reasonableness defence and effectively why it is not enough. There is an existing reasonableness defence in Section 50 of the SCA, as has been noted, which was included in recognition that there may be occasions when it could be shown that an individual’s actions were justified in the circumstances.
Lord Carlile of Berriew (CB)
I am very sorry to interrupt the noble Lord again. He said that this would not remove the oversight of the Secretary of State and I absolutely accept that. Of course the Secretary of State will have oversight, but does the noble Lord accept that authorisation by the Secretary of State, at least in some cases, will no longer be a requirement?
Lord Sharpe of Epsom (Con)
I see where the noble Lord is coming from and, yes, I accept that.
I return to the reasonableness defence in Section 50. While we consider that properly authorised activity to protect national security should be interpreted as being reasonable, the application of the reasonableness defence to UKIC’s activity is untested.
I come back to one of the earlier points from the noble Lord, Lord Carlile. I am not aware of any prosecutions, but he will know that I cannot comment on operational matters.
I also come back to the questions about the CPS. The fact that the CPS would not be obliged to prosecute offers little comfort to those carrying out legitimate work on behalf of His Majesty’s Government, who may still be subject to criminal investigation for carrying out authorised activities in the interests of national security. The Government consider that we should be able to offer legal reassurance to individuals carrying out vital work to support those interests.
I finish by reiterating that I am committed to continuing to work with the experts in this House, particularly the noble Lords who have tabled the amendments we have debated, and those in the other place to reach consensus on Clause 28. I thank all noble Lords for their patience as we move towards that shared objective.
I have noted the comments from the noble Lord, Lord Coaker, on timeliness but, at the moment, the Government cannot support these amendments and I therefore respectfully ask noble Lords not to press them.
Lord Pannick (CB)
Before the noble Lord sits down, could I see whether I have understood him correctly? Is he saying that an act of torture or sexual offences committed in support of another country’s services could not be a proper exercise of the functions of the Security Service—the SIS—or GCHQ? If he is, would it not be better to have that on the face of the Bill rather than simply as a statement from the Minister?
Lord Sharpe of Epsom (Con)
That is what I am saying. I will come back to whether it should be on the face of the Bill in due course.
Lord Purvis of Tweed (LD)
I am very grateful for that last interaction between the noble Lord, Lord Pannick, and the Minister. I am also grateful for the Minister continuing to have a degree of open-mindedness. I do not know where I sit on the cascade of legal hierarchy, but I think it is lower order. I do not know if it is just me, but a frisson of nervousness went through my spine when the noble Baroness, Lady Manningham-Buller, asked for a quick word outside. If I could avoid that, it would be better.
I am well aware of the distinction between SIS officers working under a CHIS authorisation and what is covered under the ISA. I am also well aware of MI5 officers running agents who carry out criminal activity. The point I was trying to make is that there are clear distinctions and that we have procedures with regard to MI5 officers running agents who carry out criminal activity, but there is no immunity for them to do so. The point I made in my opening remarks is that the processes that MI5 has are effectively the defence. The concern with the breadth of this immunity is that those processes will no longer be the case.
I am also well aware of our international obligations, but it is under domestic law that we would realise what those natures are. Because of the extraterritorial nature of the schedule in the SCA, I am still not convinced in the reading of it that our intelligence services and Armed Forces would be able to operate under domestic law in offering assistance to others carrying out criminal acts. Those criminal acts may well also be breaches of international law. I am grateful for what the Minister said, but I am also grateful for his willingness to engage further on that.
I hope the Minister took on board the consensus with regard to concerns about the Armed Forces. The point I made at the start of this debate is that, unique among the SIS and GCHQ included within this, the Armed Forces have powers of detention. Therefore, the processes under way under the MoD doctrine for risk assessments on torture, cruel, inhuman or degrading treatment, extraordinary rendition or rendition, and unacceptable standards of arrest and detention are all areas of considerable concern, if there is immunity for our Armed Forces when working with others.
Of course, the guidance that exists also includes the receiving of unsolicited information or providing or sharing information on collaboration. These risk assessment processes are in place—they are in published principles and guidelines—and the considerable concern is that they will be washed away by the extent of the immunity.
I am grateful to the Minister for being open. I still think that he has not sufficiently addressed all the areas of concern, not least that there would be a considerable diminution of independent oversight in the operation of this. I will withdraw my amendment at this stage. I accept the Minister’s word that he will engage fully before Report, and I hope he will be able to put in writing responses to all the issues that have been raised on this so that we can study it carefully before Report. In the meantime, I beg leave to withdraw the amendment.
Baroness Jones of Moulsecoomb (GP)
My Lords, I do not get frightened easily, but we have talked a lot about nerves here, and walking into your Lordships’ Chamber earlier and seeing a dozen KCs, former judges and members of the intelligence community was slightly unnerving—thank goodness, they are leaving; that relaxes me enormously. I declare an interest as the mother of a journalist, although not one who works in this sort of area. A lot of journalists and organisations have contacted me to express serious concern about this National Security Bill, because things are not clear.
As it stands, there is a huge risk to whistleblowing and public interest journalism, and these legitimate activities—in fact, one could call them absolutely crucial activities for our democracy—could now put journalists at risk of serious criminal consequences. The so-called foreign power condition does not even distinguish between our allies and our adversaries. This will mean that journalists and NGOs will have to be careful when receiving information from any Government, even an innocuous press release from, for example, the United States Government or a local authority in France. Any information received from foreign sources which might reflect badly on the UK Government could put journalists at risk of prosecution under this law; worse, the journalist would commit an offence just by receiving the information, without even publishing it. That is utterly illogical. Journalists have a right to inform the public and the public have a right to know. The Bill is therefore potentially very damaging for the freedom of the press. We rely on journalists to report on corruption of all kinds, so we must amend the Bill. I beg to move.
Baroness Hayter of Kentish Town (Lab)
My Lords, I too did not speak at Second Reading. Unlike the noble and learned Lord, Lord Judge, who is no longer in his place, it was not because I was doing other things in the Lords but because I had not read the Bill. The fact that I have now looked at it brings me to the Committee today. Before I speak, I declare an interest both as a board member of the ABI, although that is not relevant to this amendment, and as a member of the Labour Party. The reason is that I speak to Amendment 68, to which I have added my name.
We will come to Part 3 later but the definition of “foreign power” in respect of Part 3, as spelled out in Clause 81(1), is in Clause 30. Clause 30(1)(e) covers political parties in government, or members of political parties that are in government. Schedule 14 exempts these, or at least the political parties in government, from the Clause 69 requirement to register. However, on a reading of it, it sounds as though that covers only foreign parties in government and not others. Therefore, I am not certain whether the Clause 14 exemption covers political parties in opposition. If it does not, political parties in opposition in other countries are covered as foreign powers.
I confess that some of the noble and learned Lords who have just left have been extremely helpful in giving me advice on this; in case your Lordships think that these are all my own words, I have had the benefit of extremely good advice on this. It sounds as though the exemption in Schedule 14 is only for the governing parties themselves and not necessarily for individuals of those parties or for those acting on behalf of political parties. It also appears that the exemption covers only registration and influencing, and probably not the activities of overseas political parties, even those from friendly states, such as Five Eyes states, with which of course we do a lot of business. So I think that those parties come under Clauses 65 and 66, according to the definition.
I hope the Minister will have enormous clarity when he spells this out in his reply, and I also hope that either the noble Lord, Lord Marks, or the noble Lord, Lord Purvis, will speak on this and can clarify it more than I can. It is interesting whether, if an overseas party—the US Democrats, for example—organised a dinner here, perhaps at Labour Party conference, that would need to be reported, and indeed with the threat of criminal proceedings if it was not. Would any of those political parties coming over here and having meetings with any of us count as activities and would they have to be reported within 10 days, and so on?
We also do a lot of joint working, in our case with the German SPD; we work on environment and trade, and a lot of other issues, and sometimes we buy them lunch—occasionally they buy us lunch. Is that covered by what would have to be declared? Similarly, would we have to report meetings, perhaps with MEPs from across the European Union when they were over here, or is it only those from non-governing parties? Therefore, if we have a mixed group of MEPs coming here, would those from governing parties be exempt but not those in opposition?
If the Minister thinks he is fairly junior down the pecking order, I think I am the tea lady who brings in the tea to barristers, so I hope he will be able to clarify all of this and that it is just me who is confused. However, as my noble friend Lord Hacking said earlier, this legislation should be easy to read. It does not just have to be right in what we want it to say; it is incredibly important that anyone who could be affected by it can pick it up. I am not a lawyer but I am pretty involved in politics, and if I can read it and not understand a word of it—I may be at the stupid end —I doubt that anyone else will be able to.
Part of the reason for the next issue is that there has not been any pre-legislative scrutiny on this Bill, which would have clarified some of this; nor has there been any consultation on these issues. If there are going to be a lot of reports, particularly on political parties in opposition coming over here, we risk having such an enormous number of reports that they become meaningless. If all these activities get reported, the actual dodgy ones, if you like, may be hidden in plain sight.
I know that, either in giving evidence somewhere or in writing, Edward Lucas looked at the case of anti-money laundering. He showed that there are 3,000 reports of anti-money laundering a day; quite a lot of them probably come from your Lordships’ House since we are all PEPs and must be reported on. However, it means that, if you start getting that number of reports, they are meaningless because you cannot see the wood for the trees.
Lord Black of Brentwood (Con)
My Lords, I speak in support of Amendment 66A in the name of the noble Baroness, Lady Jones of Moulsecoomb. This really important amendment gives us a chance to look at the Bill’s potential impact on investigative reporting. At the heart of that is Clause 29. I declare my interest as deputy chairman of the Telegraph Media Group, which is a member of the News Media Association, and note my other media interests.
I support this Bill, which rightly tackles the grave threats to the security of our country; I am sorry that I, too, was unable to speak to that effect at Second Reading. I support this probing amendment because it highlights a substantive issue arising from the Bill that relates to public interest and investigative journalism. Although more could be done—I will mention a couple of points in a moment—this is a limited, practical, technical amendment that does not in any way impact on the Bill’s vital central mission but deals with a serious threat to media freedom.
I do not for a minute believe that this Bill’s provisions will be used regularly to prosecute journalists but, crucially, I do believe that there are circumstances where it could be deployed to stop a major piece of investigative reporting—I will explain why—because of the subsequent chilling impact on investigative journalism, not least because of the rightly high, heavy sentences involved. I also think that there are major issues of press freedom globally on this point because the way in which we legislate in the UK, especially on issues of national security, tends to be copied in a much more dramatic fashion in far less democratic countries; this issue was powerfully raised in a letter from international press freedom organisations that was published today in the Times and which I co-signed as chairman of the Commonwealth Press Union.
I want to make one general comment before I come on to the specifics of this amendment. For more than 25 years, I have been involved in one way or another in major pieces of legislation that are not intended to have any impact on the media. However, unforeseen consequences often become apparent as they are scrutinised and the potential risk becomes clear. On almost every occasion, Governments of every persuasion have acted to amend a Bill to protect the legitimate interests of media freedom. I believe that this is one such occasion when the Government or this House should act when problems become evident. Where public interest journalism is concerned, we must always act with the utmost caution.
Let me explain the crux of the problem. Modern public interest journalism in a digitally connected world inevitably straddles national boundaries. It involves a combination of civil society and media organisations working together to report on leaked documents from the public and private sectors, the publication of which is genuinely in the public interest. It often relies on whistleblowers, who expose themselves to serious risk, and those who provide information that substantiates the truth of claims. The Panama papers and the Uber files are two such investigations, but this point also applies to straightforward reporting, such as that by the Daily Telegraph on Chinese influence in the UK and British citizens being placed on a Chinese watch-list; the reporting of the Daily Mail on the horrific experiences of female submariners on-board nuclear submarines; and the BBC’s story last year about a spy who used his status to terrorise his partner before moving abroad to continue intelligence work while under investigation. You can see how arguments might be made about any of these reports potentially being of use to a foreign intelligence service.
The problem arises because of the wide definitions used in Clauses 1 and 3 and particularly at the foreign power condition in Clause 29. Together, they could potentially criminalise one of the core functions of journalism: reporting on leaks of information about Governments, organisations and companies. They could cause problems for civil society organisations that work legitimately with journalists on investigations if those organisations are funded by foreign Governments, many of whom, like the United States, are of course sympathetic to the UK. They could cause serious problems for sources, who might reveal restricted information such as trade secrets when disclosing information clearly in the public interest to organisations that accept financial assistance from foreign states. They could cause serious problems for those collaborating with UK and international organisations which receive funding from foreign Governments. The admirable Organized Crime and Corruption Reporting Project, to take one such case, receives donations from the US Department of State and the Ministry of Foreign Affairs of Denmark. As we have heard, there is no distinction in the Bill between hostile and friendly sources of funding which would provide protection for such collaboration.
These might all be theoretical issues, as I am sure that my noble friend will say. When it comes to media freedom, history shows us that we must take the utmost care with problems of theory. However, one issue is most certainly not theoretical: the chilling impact that results from the combination of all these pitfalls and from this clause. When the potential sanctions under the Bill are so grave, would whistleblowers really want to take the risk? Would those involved in an investigation who might be needed to corroborate information be willing to take the chance? Would journalists want to put themselves and their editors and publishers in jeopardy? Would civil society organisations affected be prepared to do so? I suspect that the answer to all those questions is no, which would have significant repercussions for investigative reporting, particularly on international matters, something that the Bill never intended to do. The key point is this: journalists and whistleblowers may fall within the scope simply because they ought to have known a story about how a Government might assist another country. That is an incredibly low bar and cannot possibly be right.
The Bill does not need major surgery to deal with these issues. Instead, it needs the tightening up of the foreign power condition and the wording in Clauses 1 and 3. Ideally, as well as looking at this amendment, the Government will think again about Amendments 65 and 66 tabled by the noble Lord, Lord Marks, which have already been debated. Sadly, I was unable to contribute to that debate. Further technical amendments and tweaks to language will be needed in relation to the search powers in Schedule 2. Amendment 75 tabled by the noble Lord, Lord Marks, which I support, would also be helpful.
There must be a holistic approach to the problems of journalism arising from this Bill. I would be grateful if my noble friend could look again at that issue in the light of this debate and consider two points, both of which arise from the amendment moved by the noble Baroness, Lady Jones. First, “ought reasonably to know” in this clause is a low bar when the Bill is aimed at those who absolutely know what they are doing because they are involved in espionage. Let us raise the bar and not potentially criminalise whistleblowers—who already put themselves in serious danger—civil society organisations and journalists by taking that criterion out.
Similarly, we should ensure that the Bill’s provisions are aimed at those deliberately carrying out something which they know prejudices or is intended to prejudice the safety, security or defence of our country, not those who stumble into the purview of criminal sanctions while doing their job in the public interest. I am very grateful to the noble Baroness, Lady Jones, for tabling Amendment 66A, as it deals with a serious problem in a technical and proportionate way that in no way undermines the vital purpose of the Bill.
I very much hope that my noble friend is able to respond positively to this debate, either by bringing back an appropriate government amendment protecting media freedom on Report or, at the very least, giving a powerful signal from the Dispatch Box that the Bill is not aimed at journalism and those who work with journalists, or at hampering investigative reporting.
Lord Marks of Henley-on-Thames (LD)
My Lords, as the noble Baronesses, Lady Jones and Lady Hayter, and the noble Lord, Lord Black of Brentwood, have explained, this group concerns the definition of “foreign power”, both for the application of the foreign power condition and for the Clauses 3 and 15 offences concerned with assisting a foreign intelligence service and obtaining benefits from so doing.
The noble Baroness, Lady Hayter, also raised a number of further and very interesting points in relation to political parties affected by the Clause 30 definition of “foreign power”, not only in relation to the offences but because, by Clause 81, the definition in Clause 30 of “foreign power” is incorporated into Part 3, on “Foreign activities and foreign influence registration scheme”. I will be interested to hear the Minister’s reply to the detailed questions that she posed. Interestingly, there is no reference to foreign powers in the definition of the prohibited places offences under Clauses 4 and 5. I invite the Minister also to explain why that is, so that we can consider his explanation before Report.
Baroness Stowell of Beeston (Con)
My Lords, I declare an interest as the chairman of the Communications and Digital Select Committee. It was because I was chairing a meeting of that committee that I was unable to speak at Second Reading.
I will speak briefly about the potential effect and unintended consequences of this important legislation on investigative journalism. Before I go any further, I should say that I am grateful to the noble Baroness, Lady Jones, for the opportunity to debate this matter. As my noble friend Lord Black already explained, comprehensively and very powerfully, the potential chilling effect on legitimate journalism is of particular concern. That is real and we must find a way of avoiding it, without diluting the intentions and objectives of this Bill, which I, like other noble Lords, support.
I am grateful to my noble friend the Minister for meeting me and others, with some of his officials, in December to discuss our concerns. I look to him for reassurance that the Government remain alive to this problem and open to discussion. I am not sure whether Amendment 66A from the noble Baroness, Lady Jones, is the answer to the problem; it may need to be combined with Amendments 65 and 66, which have already been debated. As my noble friend Lord Black already said, what we need here is a holistic approach to the point in question, which is around making sure that important investigative journalism is able to continue.
As a result of this very important legislation, I would not want, for example, deficiencies in military equipment that cost the lives of our Armed Forces not to be exposed. That example was put to me by some of the media organisations that have been in touch. They reminded me that that particular piece of journalism led to a change in the then Government’s commitment to defence expenditure and, subsequently, a ministerial apology—albeit several years later in a public inquiry. I do not want us to legislate in a way that risks journalists not exposing these important matters, if they fear that doing so would lead to them committing a crime that would attract serious penalties. I support the arguments that my noble friend Lord Black has put forward, and I look forward to my noble friend the Minister’s response and, as I have already said, to our continuing discussions on this matter.
Lord Wallace of Saltaire (LD)
My Lords, my name is on Amendment 70 and I want to speak to Amendments 68 and 71. I stress that, in getting this Bill right, we need to make sure that it does not lead to a level of overreporting that swamps the Home Office, with a great deal of cynicism and a negative reaction from those who are asked to do the reporting. In the last week, I have received a dozen representations, not just from media and academic sources—the liberal metropolitan elite, whom the Minister may regard as not terribly important—but from the City and commercial enterprises, which are as worried about the negative impact that the Bill could have on their international activities as those in universities are.
I admire the speed with which the Minister talks when he responds to our questions, but I hope that he is carefully considering the reasoned and sometimes expert criticisms that we have of this Bill, that he is more concerned to get the Bill right than to get it through and that, between Committee and Report, we will have some long, further conversations on particular aspects of the Bill about which the House has been concerned.
To expand on that a little, I thought the Minister was a little flippant about my suggestion that there were non-state threats from the right in a number of countries, including the United States. He may have been following the attempted coup in Brazil. The reports of it that I read suggested that the Conservative Political Action Coalition in the United States was actively tweeting in support of Bolsonaro and may well have provided funds, and that Steve Bannon and his organisation were also actively in support of Bolsonaro. These things should worry us as much as terrorist and state threats, and this is another dimension that we need to think about in this Bill.
We know that foreign money has come into this country, that there have been some very odd things, such as the Conservative Friends of Russia element, in which the right has appeared to work with what we regard as the foreign left. Those sorts of things need considering. I look forward to the letter that the Minister will be sending me shortly—I hope—on the question of spiritual injury, which the discussion last week suggested is unenforceable and almost undefinable, and therefore should not be in the Bill. I also hope that we will have further discussions on the impact on diaspora communities and dual nationals, because the extent to which our diaspora communities have relations with parties in the other countries to which they have links, and with the Governments of those foreign countries—be it Pakistan, Israel or wherever—is going to be complicated further by the Bill. We need to get to the end with an Act which commands public acceptance and public consent. Incidentally, it is likely to come into effect just before the next election, and if there was an adverse reaction to its implementation, the Government are likely to suffer.
Lord Faulks (Non-Afl)
My Lords, I will not be disclosing quite as much as the noble Lord, Lord Wallace, did, but I will disclose that I am the chairman of the Independent Press Standards Organisation, and it is in that context that I want to add a few remarks. I am also grateful to the noble Baroness, Lady Jones, for her amendment giving those of us who are concerned—I am sure that I speak for the whole Committee—about the potential effect, no doubt unintended, that the Bill might have on press freedom. I do not want to rehearse all that has been very well set out by the noble Lord, Lord Black, and the noble Baroness, Lady Stowell. What is vital, of course, is to think what potential chilling effect this might have on journalism, particularly public interest journalism.
One point that is perhaps worth emphasising is how expensive public interest journalism is, how heavy it is on resources and how easy it is for editors to say: “Look, this is far too difficult; you may not get what you want, it is expensive, and what is more it may be unlawful.” If you look at Clause 3(2) of the Bill, and are thinking about running a story to do with armaments, as the noble Baroness, Lady Stowell, said—I think that she was probably referring to the Snatch Land Rover issue; she confirms that that was the case—then you might well say to yourself that this is highly risky, because we are going to run a story about something which would be of interest to a foreign power with which we might be in conflict. It is just that sort of thing which this, in the absence of some sort of tailored amendment to the Bill, would have the unintended consequence of not just putting a journalist at risk but of somebody simply saying that they are not going to do the story or spend money on this.
So I hope that the Minister, who is otherwise preoccupied at the moment, may be able to consider these matters carefully, knowing how important public interest journalism is. I should say that I received some briefing from the Guardian. Although IPSO regulates 97% of those publications that we receive, it does not regulate the Guardian, so this does not in any way influence the job that I have.
Lord Pannick (CB)
My Lords, I share the concerns which have been expressed in this debate about the breadth of Clauses 29 and 30, particularly in relation to public interest journalism, as expressed by the noble Lords, Lord Black and Lord Faulks, and the noble Baroness, Lady Stowell.
One of the problems is that Clause 29(2)(c) ensures that the foreign power condition applies merely because there is
“other assistance provided by a foreign power”.
That is an incredibly broad definition. The provision of information would potentially fall within the scope of that definition. There is also the concern, which has been explained by the noble Lords, Lord Marks and Lord Wallace, that the foreign power definition in Clause 30(1)(e) extends to a political party—not just to political parties generally but, as Clause 30(2) makes clear, to any party which has any member of the Government in a coalition. So it extends very broadly, particularly in Europe, to any number of political parties.
The noble Lord, Lord Marks, made the point that one of the mischiefs here is that there is no attempt to exclude governing parties in our allies—NATO countries, Australia, New Zealand and Five Eyes countries—which is quite extraordinary. The anomaly is even greater, because if the Committee looks at Clause 30(3)(a) there is a specific exclusion for any political party which is
“a governing political party of the government of the Republic of Ireland”.
I would be very grateful if the Minister could explain why there is that specific exclusion —not that I have anything against the Irish—but not for any political party that operates in our other allies, particularly NATO allies. The anomaly is even greater, because it is not beyond the realms of possibility that, in the next few years, Sinn Féin may be a political party that is part of the Government of the Republic of Ireland, possibly in a coalition.
None of this makes any sense. Could the Minister please clarify, explain and reflect on whether this is really a sensible way to proceed?
Lord Purvis of Tweed (LD)
My Lords, I wish very briefly to follow that excellent point, because the Government have not been clear in ironing out the anomalies in the definitions. The noble Lord, Lord Pannick, and others are absolutely right in agreeing with the noble Baroness, Lady Hayter, who raised this point.
The reality is that a junior party in a coalition Government, which might be under some form of political arrangement that is different from ours and which could be one of our sister parties, could be considered to meet the “foreign power condition” in the Bill. A person’s conduct could then fall foul of Clause 29(5) if that person
“intends the conduct in question to benefit a foreign power.”
I would like to benefit my liberal sister parties’ prospects in other countries by working with them on a philosophical basis, and vice versa. That is why we exist as political parties. The Bill would consider that conduct to be intending to benefit a foreign power. That surely cannot be right for an open democracy when we want to encourage political parties.
Not only that: before the aid cuts, we were spending considerable sums of money through the Westminster Foundation for Democracy to develop political party links. So we have on the one hand the Government funding the WFD, encouraging and in fact paying and providing support to parliamentarians to work with sister parties, and on the other saying under the Bill, “By carrying out the work that we’re funding, you’re also aiding a foreign power”, which is nonsense. At the same time, there is a concern that, under the definition in Clause 30(1)(c), a foreign public sector broadcaster, for example, could be considered a foreign power under the Bill, so any journalists working with, say, CBC in Canada would fall foul of the Bill because that would be an “authority” of a foreign power, unless specific changes are made.
There is also the point that my noble friend Lord Marks made. Part of the anomaly is that the Bill creates too many difficulties for journalists of state broadcasters to operate and potentially has a chilling effect on sister party collaboration, which the Government themselves seem to promote and support, but at the same time it does not include private sector enterprises that, although they are not formally an agency or authority of a foreign Government and a foreign Government is not responsible for their affairs, could include a private sector sovereign wealth fund of a state, which might or might not be listed on a stock exchange and which may or may not, in effect, be a private sector arm of the interests of a foreign power. So any interaction we have through the strategic interests of a wealth fund of a Gulf state, or of a private sector enterprise that may or may not be established and fully operational in the private sector but which our intelligence agencies say is, in effect, an arm of or has some interaction with the Communist Party of China, is not covered.
The anomalies in the “foreign power condition” need to be ironed out. These amendments will help in that way. I hope the Government will be able to provide greater clarification.
Lord Ponsonby of Shulbrede (Lab)
My Lords, we of course support the overall aim of the Bill. We also support the overall aims of the part of the Bill these amendments seek to address. The noble Baroness, Lady Jones, introduced this group, for which I am grateful. She said that she is the mother of a journalist; I am the father of a journalist.
Lord Ponsonby of Shulbrede (Lab)
No; I cannot respond to that gallantly, can I? I will plough on.
Interestingly, my son recently completed a master’s in journalism at City, University of London. He told me that the public interest part of the journalism course was the least attended, partly because there are fewer jobs in it, which I thought was interesting and worth reflecting on. It is a very important part of any journalist’s work, but it is not where the majority of students choose to study. I thought that was an interesting observation.
The amendments in this group relate to defining a foreign power for the purposes of its activity in the UK. The noble Baroness, Lady Jones, moved her Amendment 66A, which would ensure that journalists and civil society are not wrongly included. This debate could have spread over to the group we will discuss on Monday on the foreign influence registration scheme and how that affects businesses, universities and political parties. In a sense, we will revisit a lot of these issues. Nevertheless, noble Lords have made points that will bear repeating, because they can be repeated in that context.
The noble Lord, Lord Marks, tabled similar amendments to create exclusions in certain instances. Amendments 67 and 69 would expand the definition to include corporations working on the behalf of foreign Governments. It is worth reflecting on the Government’s previous inconsistent approach to Huawei in 5G networks, and their lack of understanding of the risks. I believe that this underlines a need for a more coherent strategy. Serious questions remain following the 2020 announcement that Huawei would be removed from UK 5G networks, which we believe was long overdue, about why it was given the go-ahead in the first place. The Huawei case was sadly illustrative of how, in the past decade, the Government have allowed our national security to become an afterthought, creating risks to it. We on this side of the House believe that the Government need to invest in homegrown alternatives to end our national dependence on high-risk vendors.
My noble friend Lady Hayter made a number of very interesting points about political parties, which were picked up by other noble Lords in the debate. I would be interested to hear the Minister’s answer to the points she raised.
The noble Lord, Lord Black, referred to the letter in the Times today to which he was a co-signatory. The noble Baroness, Lady Stowell, also spoke about the potential chilling effect of the Bill’s provisions as they are currently drafted. They both spoke about the importance of a public interest journalism.
The noble Lord, Lord Wallace, made a point that I think will be repeated on Monday but is well worth repeating. It is the problem of overreporting. That is a theme that has run through all the briefings which I have received and that I am sure all noble Lord have received. It a fear in the university sector, the business sector and political parties, and literally hundreds of NGOs are also concerned about this matter—but that is something that can be talked about on Monday, as I have just mentioned.
When the noble Lord, Lord Purvis, summed up, he put his finger on the main problem with this section of the Bill, which is defining the anomalies of political parties, whether they are in government or not, or are part of coalitions or are opposition parties, and the many sorts of relationships which all political parties have internationally and how that works with the points made by the noble Lord, Lord Black, about the importance of public interest journalism, and how that is a very international approach, often dealing with leaked information and illegal information, and how journalists are to be protected in pursuing that valuable work. So this is a complex area. I am sure the Minister will, as usual, be very careful in his answer, but I hope he retains an open mind, as he did on the previous group when we were considering issues raised in this Committee.
Lord Sharpe of Epsom (Con)
My Lords, I again thank all noble Lords who have participated in this debate. Amendment 66A seeks to exclude journalism and civil society activity from the foreign power condition unless the conduct is instigated by or is under the direction or control of a foreign power. I acknowledge the intention of the noble Baroness, Lady Jones of Moulsecoomb, to protect legitimate activity from being criminalised under the Bill with this amendment. However, the Government do not believe that the Bill criminalises legitimate activity and, as such, it is our view that this amendment is unnecessary.
The Committee will be aware that the foreign power condition provides a single and consistent means by which a link between a person’s activities and a foreign state can be drawn. Meeting the foreign power condition is not in itself wrong. It becomes relevant when the other elements of the offences to which it applies are met. As such, the Government do not believe there is a risk to those who engage in legitimate acts, such as journalism or forms of civil society activity.
Turning to the specifics of the amendment, we know that those with hostile intent seek to hide their activities under the appearance of legitimacy, and this amendment could therefore create a gap in our ability to prosecute such individuals. This amendment would mean that an activity carried out with the financial or other assistance of, in collaboration with, or with the agreement of a foreign power would not meet the requirements of the foreign power condition. As a consequence, where a state threat actor posing as a journalist has been engaged in harmful activity which is an offence under the Bill, they would not commit an offence even if we could show that they were receiving specific funding in relation to that activity from a foreign power. This would produce an unwelcome effect whereby those seeking to cause harm to the UK could pose as journalists or members of civil society groups or operate through proxies in order to make it more difficult to be prosecuted.
The Government understand that journalists and those conducting civil society activity can be acting wholly legitimately when receiving funding from a foreign power or working in collaboration with it. However, the other requirements for offences to be committed mean that those legitimate acts would not be captured. In answer to my noble friend Lord Black, I can be clear that this Bill targets wrongful activity from states, not whistleblowing —but we will be coming back to whistleblowing later in today’s session. I also hope that those comments reassure my noble friends Lord Black and Lady Stowell and, of course, the noble Lord, Lord Faulks.
I now turn to Amendments 67 to 71 on the meaning of foreign power, which were tabled by the noble Lords, Lord Marks of Henley on Thames and Lord Purvis of Tweed. The noble Lords have tabled an amendment to remove from the definition a political party which is the governing political party of foreign Government. The inclusion of governing political parties addresses situations where there is a dominant political party or parties within a country to such an extent that it may be difficult to disentangle whether harmful activities are being carried out on the direction of the ruling party or the Government. We know all too well that states seeking to exert their influence or cause harm to the United Kingdom will do so through a number of different vectors, and we do not wish to create a gap in our legislation which state actors could exploit.
Lord Marks of Henley-on-Thames (LD)
How then, if you seek to attack political parties that are effectively Governments, do you correspondingly exclude political parties that are not in any sense responsible for the activities of the Government, even though they may form a small part of such a Government? The point we made about coalitions is in point and illustrates one of the points we are concerned with, which is that, in a desire to encompass everything that ought to be encompassed, you pull into the net all kinds of fish that ought never to have been caught.
Lord Sharpe of Epsom (Con)
I of course understand where the noble Lord is coming from, but the point is that this relates to the activities of these political parties and those who are working for them. Therefore, I am not entirely convinced that it would be appropriate to exclude the smaller parties in, say, a coalition.
I was going to go on to explain why certain governing political parties in the Republic of Ireland have been carved out, in answer to the question asked by the noble Lord, Lord Pannick. A political party that is both the governing political party in the Republic of Ireland and a political party registered in Great Britain or Northern Ireland is excluded from the definition of a foreign power, as noted. This exclusion is included in recognition of the fact that there are political parties that contest elections in the Republic of Ireland and in the United Kingdom to ensure that the provisions in the Bill do not inadvertently impact cross-border politics.
A further amendment has been tabled seeking to add corporate or other entities.
Baroness Hayter of Kentish Town (Lab)
Is the Minister moving off political parties? If so, he has not answered any of the questions that I posed, and I hope he is going to do so before he moves off political parties. The idea is that we are going to call in political parties—and only governing parties, although under Schedule 4 they are the ones that are excluded, not opposition ones—but other countries do not necessarily have a definition of political parties in the way that we do. In fact, until PPERA, in 1998 or whenever it was, I cannot remember, we did not have a definition of political parties or a register of them. So, in other countries that do not have them, how on earth are you going to know who is a political party?
Apart from that, there is the question I put about whether they are in opposition or in government, and what the answer is on America. If one is trying to get at agents acting on behalf of a Government, all you have to do—I used to be general-secretary of the Fabian Society—is call yourself a think tank rather than a political party, and then presumably you can do the activity. So, if this is a way of try to get at organisations that work on behalf of Governments, only calling them political parties, of which in many countries there are no definitions anyway, is, I have to say, somewhat the wrong approach. Will the Minister give me answers to the questions I posed in my contribution?
Lord Sharpe of Epsom (Con)
I thank the noble Baroness for that. She will forgive me if I do not get involved in what is the correct, or legitimate, Government of the United States. I do not think that is for me to opine.
Baroness Hayter of Kentish Town (Lab)
It will be for the noble Lord or his successor to opine, because it is in the Bill. There is no secondary legislation attached to it about what the definition will be. This is Pepper v Hart. What is going to be taken is the Minister’s words at the Dispatch Box. If the Minister is saying that he cannot define which is the governing party in America, how do we know who we can meet and who we have to register?
Lord Sharpe of Epsom (Con)
As regards the registering point, the noble Baroness is—as the noble Lord, Lord Ponsonby, suggested—perhaps straying into the FIRS situation, which we will discuss at considerable length on Monday. I think that will deal with a number of the questions the noble Baroness has posed with regard to registration and so on. Can we come back to that on Monday, please?
As regards opining as to the Government of the United States, I choose not to do so purely because it would potentially be a political can of worms, but I acknowledge the fact that obviously there is a President who comes from a different party from the majority party in one of the two Houses.
Baroness Hayter of Kentish Town (Lab)
So there will be meetings that we can have now, and if—God forbid—Mr Trump wins, suddenly the parties with which we are allowed to talk will change because it is Mr Trump rather than Mr Biden. Is that really what the Minister is saying?
Lord Sharpe of Epsom (Con)
No, I do not believe that is particularly what I am saying. I suspect we will have to come back to this for precise definition purposes, and I am happy to commit to do so.
A further amendment has been tabled, seeking to add corporate or other entities to the foreign power definition. We believe this is unnecessary as it is already covered in the foreign power condition provision, which covers indirect links, under Clause 29(3). This explicitly provides that a person’s conduct could meet the foreign power condition if there is
“an indirect relationship through one or more companies”.
The legislation therefore covers cases where a person is receiving tasking through a company that is under the ownership, control or direction of a foreign power. It is vital that states are not able to circumvent the measures in the Bill by working through proxies to deliver harmful effects.
The noble Lord, Lord Ponsonby, asked specifically about state-owned companies and Huawei in particular. We have not included state-owned companies in the definition of a foreign power as these companies often have their own non-state objectives. Instead, the legislation captures circumstances where a person acts directly or indirectly
“for or on behalf of a foreign power”.
That includes cases where a person knows, or ought reasonably to know, that the activity they are conducting for a state-linked company is being carried out for or on behalf of the foreign power, or where they intend to benefit a foreign power. Offences may be committed by bodies corporate, including those established in other jurisdictions. In addition, the legislation provides that where an offence is committed by a company
“with the consent or connivance … or … due to any neglect”
of an officer of the company, that officer of the company may be guilty of the offence.
In answer to the noble Baroness, Lady Hayter, I have just mentioned that a number of the questions she raised and subjects she covered are more appropriately dealt with under the FIRS discussion we will have on Monday. That also applies to a number of the things raised by the noble Lord, Lord Wallace. As noble Lords know, that part of the Bill—Clauses 65 and 66 —was introduced late into the House of Commons, to which the noble Lord referred. I am sorry if the noble Lord, Lord Wallace, thinks I was frivolous as to the potential for right-wing threats to our national security. Just for the record, I am completely agnostic about from which end of the political spectrum threats are made to our national security.
Finally, noble Lords have tabled an amendment to exclude members of NATO and other nations, via regulations, from the definition of a foreign power. It is important to note that the National Security Bill focuses on harmful conduct undertaken by a person, not the foreign power they seek to benefit. Actively excluding certain states could create an unwelcome gap in the legislation, particularly given that we know that states sometimes look to act through proxies. These amendments, therefore, could lead to us being unable to take necessary and appropriate action against harmful activities. Noble Lords will wish to note the case of Daniel Houghton, the dual British-Dutch national who attempted to sell sensitive information to the Dutch intelligence services in 2010. Were NATO states to be excluded from the definition of a foreign power, cases like Daniel Houghton’s would not be captured by the offences and measures in the Bill.
For those reasons, the Government cannot accept these amendments and I ask noble Lords not to press them.
Baroness Jones of Moulsecoomb (GP)
My Lords, I am afraid I do not accept the Minister’s idea that these things cannot be criminalised, so I will bring my amendment back on Report. I thank noble Lords for contributing to my amendment, particularly the noble Lord, Lord Black, with his expertise—which goes way beyond mine. I ask the Minister for a meeting to discuss this, because it is quite a fundamental point and bears further discussion. In the meantime, I beg leave to withdraw.
Lord Wallace of Saltaire (LD)
My Lords, we need to come back to the question of a definition of a foreign power. The idea of a potential threat from Canada, Australia or the Netherlands, let alone the United States—which already has military forces in bases in this country—appears to be entirely disproportionate. We know there are serious threats from a number of hostile countries. That is what the Bill needs to focus on. If it spends a huge amount of time and demands a huge amount of effort from all those affected by it, reporting on the conversations they have had in Paris, Copenhagen, The Hague, et cetera, it will be less able to work out what is happening with Afghanistan and others—the real threats. That seems to be part of what is mistaken in the design of the Bill, and we need to come back to that before Report.
National Security Bill
Wednesday 11th January 2023
(1 year, 10 months ago)
Lords ChamberRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 68-III Third marshalled list for Committee - (9 Jan 2023)
Member’s explanatory statement
This amendment is recommended by the JCHR and would narrow the definition of foreign power threat activity to remove giving support and assistance (including support and assistance unrelated to espionage activity) to a person known or believed to be involved in offences under the Bill (but would retain conduct which facilitates or is intended to facilitate such offending).
Lord Marks of Henley-on-Thames (LD)
My Lords, in the absence of my noble friend Lady Ludford, I am moving Amendment 72. It is a short amendment and I shall speak briefly. Clause 31 deals with foreign power threat activity, which is relevant to a constable’s powers of arrest without warrant and detention powers under Clause 35. Indeed, such activity acts as a threshold for the exercise of those powers. Foreign power threat activity also acts as a threshold for the powers of search, disclosure orders, customer information orders and account monitoring orders by virtue of Clauses 21(b), 22 to 24 and Schedules 2 to 5 incorporated in the Bill by those clauses.
Foreign power threat activity is defined in paragraphs (a), (b) and (c) of Clause 31(1). I am afraid I have to read them:
“In this Part references to foreign power threat activity and to involvement in foreign power threat activity are to one or more of the following … (a) the commission, preparation or instigation of acts or threats within subsection (3)”—
that is, the major offences under the first part of this Bill—
“(b) conduct which facilitates (or is intended to facilitate) conduct falling within paragraph (a)”,
which I have just read. Finally, our amendment is directed to paragraph (c), which we say should be removed from Bill and which refers to
“conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraph (a).”
The reasons paragraph (c) should be removed are twofold. First, it makes no sense. Secondly, even if it did, the conduct described is far too vague and remote from the acts concerned in the offences described to make any sense at all or to make it worth retaining.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this is another JCHR-recommended amendment, ably spoken to by the noble Lord, Lord Marks. Its effect is to narrow the definition of foreign power threat activity by removing giving support and assistance to a person involved in offences under the Bill. The reason for the amendment is that the support and assistance become illegal if unrelated to espionage activity. As the noble Lord explained, its effect does not alter the lines which include facilitating such offending under subsections (1)(a) and (1)(b) of the relevant clause. His objection to paragraph (c) was that it does not make sense and is too vague. I take on board the legal points and his examination of the English in that paragraph, but the real point of this is to provoke a debate and discussion, to narrow the definition and encourage the Minister to explain more fully what is meant by the definitions set down in the Bill.
Lord Sharpe of Epsom (Con)
My Lords, Amendment 72 seeks to narrow the definition of foreign power threat activity by removing the conduct of those who give support or assistance to individuals, as has been noted.
The definition of foreign power threat activity is a vital part of the Bill, ensuring that the police have the powers they need in support of investigations into state threats offences. It is important that foreign power threat activity has sufficient breadth to allow our law enforcement and intelligence agencies to act where a threat is posed to the safety of the United Kingdom.
There will inevitably be overlap between facilitating on the one hand and assisting or supporting individuals on the other to carry out certain harmful activity under the Bill. However, it is important to retain both elements as they serve distinct purposes. We do not wish to create a gap in the legislation that prevents us being able to act against persons who assist individuals involved in harmful activity, and therefore we cannot accept this amendment.
Both noble Lords implied that it is casting the net too broadly to say that it is not necessary to identify a specific offence or act. However, given the harm that can arise from state threats activity, it is right that the Government can act to disrupt individuals during the early stages of their conduct. Therefore, it will not always be possible to determine the end goal of their conduct. Indeed, in some cases an individual may not have even decided the precise outcome they seek to bring about but, none the less, they have an intention to engage in state threats activity. We therefore want to ensure that the provisions are robust enough to catch criminals in these cases. Waiting until we have a full picture of the act they wish to commit could mean that we have to wait until the act itself is committed.
Additionally, I reassure the House that the reference to
“conduct which gives support or assistance”
under Clause 31(1)(c) relates specifically to conduct falling under Clause 31(1)(a), as is made explicit through the reference to paragraph (a). The Government’s view is that it is implicit that the conduct in question must be support in relation to acts or threats under Clause 31(1)(a), rather than support in relation to any unrelated activity. Thus, the provision does not risk bringing activity wholly unrelated to state threats activity into scope.
Lord Beith (LD)
Can the Minister explain that? That is the only thing I can see that is covered by paragraph (c) which is not covered by paragraph (b)—the provision of support or assistance in matters which are nothing to do with the likelihood of the individual being involved in conduct falling within paragraph (a). The Minister has stated that paragraph (c) does not have the effect of proscribing conduct which has nothing to do with the provisions in paragraphs (a) and (b), but I do not know on what he bases that confidence.
Lord Sharpe of Epsom (Con)
I base that confidence on the explicit reference to Clause 31(1)(a) in Clause 31(1)(c). With that, I ask the noble Lord to withdraw the amendment.
Lord Marks of Henley-on-Thames (LD)
I will withdraw it, but only on the basis that the Minister will consider this a little more carefully. As I have said, at the moment the clause seems to me unsatisfactory, and paragraph (c) ought to go. That would not damage the overall meaning of the clause at all, and I hope that the Minister will reconsider that before Report. With that, I beg leave to withdraw the amendment.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment provides that Clause 34(1) is subject to specific provisions in Clauses 3 and 15 about when conduct taking place outside the UK can constitute an offence under those Clauses.
Member's explanatory statement
This amendment is based on a recommendation from the JCHR. It ensures this Clause better complies with the right to a fair trial and the administration of justice.
Lord Marks of Henley-on-Thames (LD)
My Lords, I move Amendment 74 on behalf of my noble friend Lady Ludford. It is a very simple amendment which relates to Clause 36 and the power to exclude the public from proceedings. At the moment, the clause reads:
“If it is necessary in the interests of national security, a court may exclude the public from … any part of proceedings … under this Part, or … any part of proceedings relating to section 69A of the Sentencing Act 2020”,
which relates to the aggravating factors in sentencing so that we are concerned only with criminal proceedings under the Bill. The JCHR has recommended that the interests of justice take primacy over the interests of national security by substituting
“in the interests of national security”
with
“for the administration of justice, having regard to the risk to national security”.
The justification for that is that, when one is considering the exclusion of the public—which the JCHR has recognised as being of great importance—the interests of justice should take primacy. Of course, if the interests of national security are in conflict with what might normally be seen as the interests of justice, it is likely that the interests of justice will be served by giving way to the interests of national security. However, it is entirely wrong that the interests of national security should be the only interests mentioned in Clause 36, and this was the view taken by the JCHR—that the interests of justice should be mentioned first.
May I say a word or two about the Government’s approach to the recommendations of the Joint Committee on Human Rights? We sometimes feel on this side of the House—and I suspect in a great many quarters—that the recommendations of this objective, well-informed and impartial committee, which is appointed to consider the compliance of proposed legislation with human rights law and principles of human rights, is given far too little shrift by government. We would be very pleased to see a change in that approach, so that recommendations which are very carefully drawn up and researched, and usually in very modest terms, are properly respected. There is a fear that they are routinely disrespected on the basis that the Joint Committee is seen as an arm of the so-called human rights lobby, and treated with something like the Rice-Davies approach of, “Well, they would say that, wouldn’t they?”
That is frankly inappropriate. It is a criticism that is being felt more and more strongly and one that is surprising in light of the fact that many on the Government’s side of this House and the other place are broadly opposed to the continuation of our adherence to all the points of the European Convention on Human Rights. They justify that opposition by reference to the view that the common law and Parliament will always be there to defend human rights, but if the Joint Committee’s recommendations are given such short shrift, there can be little confidence in that assurance.
I accept that that is a digression, but it is an important digression, because my noble friend Lady Ludford’s amendments are directed to the recommendations of the Joint Committee on Human Rights and it is something I hope Ministers will bear in mind. I beg to move.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I was not planning to speak on this fairly narrow amendment. The noble Lord, Lord Marks, made all the points relative to the amendment itself. However, it is worth just endorsing his closing comments about the view of the Opposition and Liberal Democrat Benches that the Government are paying too little attention to the recommendations of the JCHR. It appears to be a hurdle to overcome to get over those recommendations. This is a good example; many of the recommendations made are very minor. I just wanted to endorse the point the noble Lord made about the importance of this committee’s work.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
I thank the noble Lords, Lord Marks and Lord Ponsonby, for their remarks. Turning first to the subsidiary point in respect of the importance of the reports of the JCHR, I can certainly assure all in the House that the JCHR reports are taken very seriously by the Government and all the recommendations are appropriately considered. I can say that, as a human rights lawyer myself, I fully appreciate the importance of the human rights considerations and the very valuable work done by the committee. I hope my remarks go some way to assuage the concerns that were outlined.
I turn now to the substantive amendment tabled by the noble Baroness, Lady Ludford. This clause replaces Section 8(4) of the Official Secrets Act 1920 and in so doing makes it more explicit that the exclusion of the public from proceedings must be necessary in the interests of national security. The Government consider that the approach taken in the drafting is appropriate given the highly sensitive nature of the material that may be required to be considered during court proceedings in relation to offences under the Bill. It is important to note that the decision to exclude the public from proceedings is taken by the court on application by the Executive, who are well placed to set out the risk to the courts. We consider that the judiciary is already well placed to assess the impact of any such decision on the administration of justice.
The words that this amendment seeks to add are, with respect, unnecessary. In England and Wales, for example, the Criminal Procedure Rules 2020 would apply in such proceedings which already have as their overriding objective that criminal cases are dealt with justly. Therefore, those rules require a court to have regard to the importance of dealing with criminal cases in public and the overriding interests of the administration of justice when determining whether to exclude the public from any part of proceedings. It is clearly right that this clause notes and provides the court with a clear basis upon which to exclude the public on grounds of national security, and that is all that this clause does. For those reasons, the Government cannot therefore accept the proposed amendment and I therefore invite the noble Lord to withdraw it.
Lord Marks of Henley-on-Thames (LD)
My Lords, I shall look carefully at the Minister’s response. For the time being I will certainly seek leave to withdraw the amendment. There may be room for further discussion—there may not. I accept that the overriding objective applies to criminal cases and to dealing with cases justly, but as regards whether it is not sensible that that should take primacy by a special mention in the Bill I am unconvinced at the moment. However, I will read what the noble Lord had to say. I therefore beg leave to withdraw the amendment.
Lord Davies of Gower (Con)
My Lords, I propose that the Committee adjourn for 10 minutes until 9 pm to accommodate a technical issue.
“Public interest defence(1) A person subject to proceedings for any offence under sections 1 to 5 of this Act may raise as a defence that the person reasonably believed the conduct alleged to constitute the offence was carried out in the public interest.(2) Where a defence under subsection (1) is raised, it is for the prosecution to prove beyond reasonable doubt that the conduct alleged was not in the public interest.(3) In determining whether such conduct was in the public interest the court must have regard to—(a) the nature of the alleged conduct;(b) the harm caused by the alleged conduct;(c) whether the manner in which the person engaged in the alleged conduct was in the public interest;(d) whether the person engaged in the alleged conduct in good faith;(e) whether the person engaged in the alleged conduct for personal gain;(f) the availability of any other effective authorised procedures for achieving the purpose of the alleged conduct and whether those procedures were exercised;(g) any other relevant feature of the alleged conduct.”Member's explanatory statement
This amendment provides for a public interest defence to the offences under Clauses 1 to 5 of the Bill.
Lord Marks of Henley-on-Thames (LD)
My Lords, I thank the Committee for its indulgence in allowing a 10-minute break. The technical issue involved was entirely mine. I am tempted to say that there was a reasonable defence. It may not have been a public interest defence and I certainly cannot describe it as lawful justification, but nevertheless—
Lord Marks of Henley-on-Thames (LD)
Yes, it was possibly a serious disruption.
We have all received a very large number of briefings calling for a public interest defence, and none of them has suggested that such a defence is a bad idea or that it would imperil national security. I record our thanks to all the organisations which have sent us these briefings, including the BBC, the NUJ, Index on Censorship, openDemocracy, Guardian News & Media Limited and Mishcon de Reya, among many others. The briefings have concentrated largely on the threat to investigative journalism posed by the criminal provisions in the Bill. We dwelled on these at Second Reading, in the first two days in Committee and, to some extent, earlier today, so I will not go into detail. Suffice it to say that the threat to investigative journalism of criminalisation and the accompanying very long sentences is real and chilling—chilling in that the threat will have a deterrent effect on investigative journalism and in that it represents a real and frightening, and not merely theoretical, threat to open democracy.
It seems to be generally agreed that these provisions risk breaching Article 10 of the ECHR, on freedom of expression, a concern that was expressed by the Joint Committee on Human Rights in its report on the Bill. The committee said, at paragraph 172:
“There seems to be a certain level of consensus that a whistleblowing or public interest defence is needed”.
It is also significant that a number of other countries, including our Five Eyes partners Canada, Australia and New Zealand, have some form of public interest defence to charges under similar legislation. However, it is not exclusively investigative journalism or even campaigning that is under threat. Those who expose wrongdoing by public servants or whistleblowing employees are equally at risk and may be equally deserving of an acquittal for an offence under this Bill after deploying a public interest defence.
It is for that reason that the public interest defence in our Amendment 75, in my name and that of my noble friend Lord Purvis of Tweed, goes further than protecting journalists alone. In so doing, it is close to the Law Commission’s recommendation in its 2000 paper, Protection of Official Data, which recommended that there should be a statutory public interest defence to unauthorised disclosure offences which should be available to anyone, civilians as well as journalists.
Therefore, our amendment would apply to all prosecutions for offences under Clauses 1 to 5 of the Bill, not just unauthorised disclosure offences, with which the Law Commission was concerned, but we regard that as right. Disclosure of restricted material is just as capable of being in the public interest as it is of assisting a friendly country’s intelligence service to apprehend or expose wrongdoing, as is entering a prohibited place to photograph or record corrupt transactions involving public servants. All can give rise to prosecution under the Act, and in each case there ought to be a public interest defence.
The defence we advocate is based on reasonable belief, so it relies on a test that is, in part, subjective—“Did the defendant believe their conduct was in the public interest?”—and, in part, objective: “Was that belief reasonable?” Juries are well used to applying that type of test and I suggest it is the appropriate one. By contrast, a wholly objective test of whether or not conduct was in fact in the public interest would impose a burden on juries to make what is essentially a political judgment, no doubt on the basis of conflicting evidence, expert and factual. That would not be the best test of the criminality of a defendant.
We have also maintained the principle that, once the defence is raised, it is for the prosecution to rebut it to the criminal standard of proof. That is the way our criminal law responds to a number of defences, reasonable self-defence being one such. We suggest it is the appropriate response. It would perhaps be different if we were concerned here with unauthorised disclosure by a member of the security or defence services who was bound by an agreed and binding confidentiality requirement. However, we are legislating here for criminal charges against private citizens, who, I suggest, are entitled to the benefits of the usual protections inherent in our criminal law.
In applying the test we advocate, juries would have to consider a number of factors set out in proposed new subsection (3) of the amendment. In formulating them, we have relied loosely, but not exclusively, on the factors mentioned in the Public Interest Disclosure Act 1998, which amended the Employment Rights Act 1996 for the protection of whistleblowers. These factors are designed to steer juries towards a balance between confidentiality and the public interest in disclosure. But we do not argue that these are in final form; at this stage, they are designed to give shape to what we would like to see in a public interest defence.
I repeat what I said the other day in Committee: there is no genuine democratic protection in the requirement that the Attorney-General’s consent should be obtained for a prosecution to be brought. That is a welcome safeguard, but its point is to avoid unnecessary and unmeritorious prosecutions. What is needed for the determination of guilt or innocence on a public interest defence is a trial before a jury, where the defendant has a fair chance to put their case that they reasonably believe that the conduct of which they are accused and which is said to be criminal was in the public interest.
I am grateful to the noble Lord, Lord Coaker, for his amendment but, unlike him though it may be, we say it goes nothing like far enough. We need a defence when the Bill becomes law, not merely an assessment of its possible merits. I note that, in the other place, the amendment of Kevan Jones MP, the Labour Member for Durham and a member of the Intelligence and Security Committee, was nothing like as diffident as that proposed by the noble Lord, Lord Coaker. I also note that Tom Tugendhat, for the Government, promised to engage further with the Opposition on this issue. I sincerely hope that the Minister gives a similar promise to consider the public interest defence, not just because of what we say here but because of the wide interest and concern about the importance of this expressed across the nation. The incorporation of the public interest defence in the Bill would address many of the concerns that these Benches and others have expressed about the dangers to personal liberty in this legislation. I therefore beg to move.
Lord Purvis of Tweed (LD)
My Lords, I will add very briefly to the comprehensive introduction of the amendments. I thank my noble friend for drafting the amendment and allowing us to debate it in Committee. My remarks relate to the concerns raised by the BBC—just one of the organisations that has been in touch—which I think are extremely significant. I have been very fortunate in my work as the foreign affairs and development spokesman for my party in being able to travel, including to conflict-afflicted areas. Our journalists and our BBC around the world are one of the jewels in our country’s crown. When they raise significant concerns, I think that there is a duty on us to listen to them very carefully.
With our free and fearless press in this country, I think that there is a dichotomy. I am sure that those in the intelligence community know that our free press and our openness make us more at risk; in fact, many journalists doing their job are at risk themselves in many areas. But we are a safer and more open and democratic country because of the press, and we have a higher standing in the world in the long term. So when the BBC raises concerns, as my noble friend indicated, highlighting the Law Commission’s comments about whether we are considerably less likely to not be complying with Article 10 of the ECHR, it is of concern for those recommendations to be ignored.
With the Bill, it seems as if we are now going to be in stark contrast with comparable legislation in other countries, including our closest intelligence partners in the Five Eyes countries. I would like for the Minister, in responding to this, to state why we go far beyond our Five Eyes allies in this regard.
There are a couple of other areas that the BBC raised: one is the criminalisation of the publication of material that is already in the public domain. With sentences of potentially life and 14 years, the chilling effect on journalists could be marked. I hope that that will be responded to very clearly by the Government. Those powers go beyond the Police and Criminal Evidence Act with regards to protections provided for journalistic material.
In Committee so far, we have raised the breadth of the Bill, combined with the extensive sentences that are open to it, and I believe that the chilling effect on our media will have a negative impact on our country overall. If they do not accept my noble friend’s amendment today—which I suspect the Minister will not—I hope that the Government will engage with him and with others who want to see the Bill work, but work by protecting the essence of our country, which is what my noble friend outlined.
Baroness Manningham-Buller (CB)
My Lords, I think this amendment has substantial problems. If I may, I will remind the noble Lord, Lord Marks, of what Article 10 actually says—I have borrowed the iPad of the noble Lord, Lord Carlile, which is still working, my iPhone having died. The second paragraph of Article 10, after talking about freedom of expression, says:
“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security”,
and a string of other things are added to that. I just remind the noble Lord of that qualification.
If the BBC and others are making such remarks, then of course we should take them seriously. I have not received all this briefing, but perhaps that is understandable. It is superficially attractive to have a defence of public interest, but let me explain to the Committee why it is really very difficult. From it, the risk of release of national security information is substantial. What does that mean? National security information includes information that can indirectly identify the sources of intelligence, whose lives may be at risk. It can identify sources and methods that are vulnerable and unable to be defended.
Lord Carlile of Berriew (CB)
My Lords, I share the view that I think is being proposed, at least implicitly, by those who tabled the amendment that nobody should be prosecuted if a prosecution would be contrary to the public interest. Indeed, I share the view that nobody should be prosecuted if their belief, however unreasonable, was that something was in the public interest. I would hate to see a wholly unreasonable person prosecuted for something that they believed was in the national interest if, for example, they suffered from a psychiatric condition that made their belief totally irrational.
I have to say that I believe that this clause does not achieve the purpose which it is purported to achieve. The noble Lord who opened this debate did say—I recognise this—that he is not claiming this is a perfect clause, but I suggest that, if we are to have a clause anything like this, it needs an awful lot of work done on it. As drawn, subsection (3) in effect means that a jury would have to decide, in part at least, whether what the defendant had done was or was not in the public interest and then go on to decide whether the belief that they had that it was in the public interest was reasonable. I think it is very difficult to draft a credible and usable clause that achieves the end that is aimed for.
Indeed, my belief is that the target of this amendment is wrong. The target should be that people are not prosecuted for offences that should not be offences. We should try to remove from this Bill those parts which tend to criminalise, for example, journalists, rather than using a clause of dubious validity and coherence such as this.
There are criminal charges, mostly regulatory offences and often strict liability offences, in which there is a defence of reasonable excuse. A defendant can raise the evidential burden that they had a reasonable excuse for certain activities, and the prosecution then has to disprove the claim of reasonable excuse. There are torts, for example in defamation, where a public interest defence is specifically provided for, and that has been heavily litigated, including a very important judgment that was given by my noble and learned friend Lord Hope in one relatively recent case.
However, so far as I am aware—and I am sure I will be corrected if I am wrong—I do not know of a criminal offence where a jury has to decide what was in the public interest, and I would urge those who believe that this is something that could be placed before a jury to have sympathy with the courts that would have to deal with this provision, because judges in every case have the very important responsibility of summing up the law to the jury, and they would have to describe to the jury a reasonable definition of the public interest. That would have to be done, under current practice, by judges in writing, handing a document, a route to verdict, to the jury—and I apprehend that this provision would create impossible difficulty.
I return with an apology to something that I said in an earlier debate this evening about the public interest. Subsection (3) actually does set out tests which I imagine are habitually applied by the Director of Public Prosecutions if he—it is he at the moment—is determining whether it is in the public interest for a prosecution to take place. That is the right location for this decision to lie. What is set out here is the responsibility of the Director of Public Prosecutions. I apprehend that, in the sort of case that those tabling this amendment have in mind, it would be extremely rare for the DPP to decide that it was in the public interest for a prosecution to take place. That is not the role of the jury, and in my view it would be a serious mistake to make the judgment of the public interest the role of a jury.
Lord Faulks (Non-Afl)
My Lords, I have very little to add to that brilliant exposition of the difficulties with this amendment. As I said in relation to a previous amendment, I am of course very concerned with any threat to public interest journalism, and therefore I have some initial sympathy with the idea of a public interest defence. But I am afraid that, the more I looked at it and thought about it, the more I was convinced that this was not the answer. As the noble Baroness, Lady Manningham-Buller, pointed out so cogently, Article 10 is not an issue here. Article 10 has always been a qualified right. There is no violation of the convention by the absence of a public interest defence.
I am particularly concerned about proposed new subsection (2). It seems to me that what is contemplated is that, if a defendant raises some prima facie case that they disagree with government policy, or whatever their general justification is for being in breach of one of the very serious offences to which this would apply, the prosecution will have to prove that the conduct was not in the public interest. It is difficult to know how that can be done without potentially disclosing matters that, in the interests of national security, it might be most unwise to disclose. In fact, it might even result in the prosecution not going ahead because the prosecution might take the view that it would be too damaging to disclose this. That itself would not be in the public interest in appropriate cases.
I echo what the noble Lord, Lord Carlile, said. A jury would be given a complex direction in writing. I can then only anticipate—I have had this experience myself, but not in this sort of case—that the jurors, who may be bewildered by a direction such as this, would ask a series of supplementary questions. What is meant by this? How do we respond to this? What if we agree with the defendant but do not think this? Et cetera, et cetera. It is difficult to conceive of this being a very satisfactory procedure, or indeed in the public interest.
So, although I sympathise with what lies behind this, I am concerned that the Bill could be altered more satisfactorily to protect journalists and whistleblowers. I am afraid that this is not the answer.
Lord Coaker (Lab)
My Lords, I rise to speak primarily to my diffident amendment, which is none the less an important one. I agree with much of what the noble Lord, Lord Marks, said and what he seeks to achieve in his amendment. As he said, it is based very much on what Kevan Jones MP said on new Clause 5 in the debate in the other place.
I am going to leave to one side the notes I had written for this, because it is such an important debate and discussion. The amendment I put down was just a probing amendment to see that it was debated, but now I can see the sense of it, because in the remaining time for the Bill we will not have the opportunity for hours of debate about what a public interest defence should or should not be. But it is not going to go away.
As the noble Baroness, Lady Manningham-Buller, eloquently told us—supported by the noble Lord, Lord Faulks, and others—there is a view that a public interest defence, if you are not careful, will compromise national security in the ways that were outlined. We cannot ignore that, but neither can we ignore the fact that many respected organisations fundamentally believe that the Bill as drafted will both cause a problem with respect to those who wish to act as investigative journalists, which none of us would wish to see compromised—I know that this will be debated later on the amendment on whistleblowing from the noble Baroness, Lady Kramer —and prevent somebody who works in a service exposing serious wrongdoing. The wrongdoing going on might be so serious that, on reflection, we would be pleased that they had brought it to the public’s attention. There is a real conflict here between those two points of view.
Nobody wishes to compromise national security or to curtail the opportunity for people to reveal things which are in the public’s interest. But having put a probing amendment down, it seems that my amendment is one way to try to wrestle with this problem in slower time, while we reflect on how we bring all this together. As I say, we cannot just dismiss all the institutions and organisations, including very respected people, who want a public interest defence. They include the Law Commission and many others such as Mishcon de Reya, who have sent us all a really informative argument for why there should be a public interest defence. They have pointed to various cases, some historic and some not so historic, to give examples of where a public interest defence may have helped.
Lord Murray of Blidworth (Con)
I thank noble Lords for a very interesting debate on a topic of considerable public importance. These amendments concern the introduction of a public interest defence to the offences in the Bill. Amendment 75 adds a PID to Clauses 1 to 5. I am very grateful to those who have contributed to this short debate, including the noble Baroness, Lady Manningham-Buller, and the noble Lords, Lord Carlile and Lord Faulks, with whom I find myself in agreement, particularly on their concerns about the practical consequences of this amendment, as well as on the concerns raised by the noble Lord, Lord Marks, on the application of Article 10 of the European convention. I therefore greatly welcome the display of expertise from all sides of the House.
It would be helpful for me to start by talking briefly about the genesis of these offences and the interaction with the Law Commission recommendation for a public interest defence. In this amendment, there is a significant risk of conflating the various Official Secrets Acts, so I will take a little time to clarify those Acts, because it is vital that we are precise in this context. Four Official Secrets Acts are in force: the 1911, 1920 and 1939 Acts, which deal with espionage, and the 1989 Act, which deals with unauthorised disclosures, often described as leaks.
The Law Commission, in its 2020 report, considered all four Official Secrets Acts. Starting with the 1989 Act, the Law Commission recommended the inclusion of a public interest defence, not in isolation but rather as part of a package of reforms to that Act. It is important to stress that the Bill does not seek to reform the 1989 Act, which remains in place as the relevant legislation to govern unauthorised disclosures of specified material; for example, in relation to security and intelligence, defence or international relations. For that reason, I can answer the very fair question from the noble Lord, Lord Coaker, as to whether this was a relevant or irrelevant issue with the clear indication that it is not relevant to this amendment. When asked about the omission of the reform of the 1989 Act from the Bill, the Law Commission made clear, in its oral evidence to the Commons committee for the Bill, that it did not expect one single piece of legislation to address all aspects of its report.
I turn to the 1911 to 1939 Acts, which this Bill replaces. The Law Commission made a number of recommendations with respect to reform of those espionage laws, but crucially did not recommend the inclusion of a public interest offence. Again, during its oral evidence to the Committee for this Bill in the other place, the Law Commission was clear that, in its view, the requirements of the offences take them outside the realm of leaks and into the realm of espionage. It is worth also noting, as the noble Baroness, Lady Manningham-Buller, correctly observed to the Committee, that within the security services themselves there are elaborate whistleblowing mechanisms already in place for the declaration of unlawfulness, as she has already outlined.
Let me put it very clearly on record that the offences in Clauses 1 to 5 of this Bill are not intended to have a chilling effect on legitimate whistleblowing. As I have said, the Committee has this evening already heard first-hand of experience of the mechanisms in respect of whistleblowing in the security services. The provisions in this Bill are about espionage, and I am sure that the Committee would strongly agree that espionage against the United Kingdom can never be in the public interest, although I appreciate that that is not what noble Lords are implying by tabling this amendment.
I am pleased to confirm that the Government are, of course, willing to continue to discuss the proper protections for legitimate activity, as the Committee has expressed and the noble Lord, Lord Purvis, in particular, has requested. The noble Lord, Lord Coaker, asked for further details on the Government’s efforts to keep whistleblowing guidance under continuing review, and I can confirm that that work is ongoing. No doubt it can be discussed further, in a similar way.
Lord Coaker (Lab)
I am sorry to interrupt, but just on the point about the guidance, where the Minister has confirmed that the Government are undertaking work to update it, what is the process and the timeline for that?
Lord Murray of Blidworth (Con)
I am afraid that I am unaware of the precise timeline—I will find out. If the matter is not discussed in relation to the Kramer amendment, obviously I shall write to the noble Lord in respect of it.
I turn to the offences themselves, and the aspects that we consider move them away from capturing legitimate activity. For the Clause 1 offence of obtaining or disclosing protected information, the activity has to be for a purpose prejudicial to the safety or interests of the United Kingdom. It is right that we are able to prosecute disclosures of protected information when it is clear that a person intended to harm the UK and was working for or on behalf of, or with the intention to benefit, a foreign power. Legitimate whistleblowing would not meet all the requirements of this offence.
The Clause 2 offence of obtaining or disclosing trade secrets is designed to tackle the illicit disclosure and acquisition of sensitive commercial information amounting to a trade secret for, on behalf of, or for the benefit of a foreign power. For the offence to be committed, the activity has to be unauthorised, and the person has to know, or ought reasonably to know, that their conduct is unauthorised. Someone who disclosed information in the course of using lawful and appropriate whistleblowing routes would not be conducting unauthorised activity.
The Clause 3 offence criminalises assisting foreign intelligence services. The offence can be committed in one of two ways: either by conduct of any kind that a person intends will materially assist a foreign intelligence service, or by conduct that it is reasonably possible may materially assist a foreign intelligence service and where the person knows, or ought reasonably to know, that that is the case. The material assistance must be material assistance in carrying out UK-related activities. The expression “UK-related activities” means activities taking place either inside the United Kingdom, or those taking place outside the United Kingdom which are prejudicial to the safety or interests of the United Kingdom. Legitimate whistleblowing activity should not meet the threshold for an offence under Clause 3, such as intending to materially assist a foreign intelligence service in carrying out covert operations in the United Kingdom.
I move on to the offences in Clauses 4 and 5, which criminalise harmful activity in and around prohibited places. It is right that we are able to prosecute relevant activity around the United Kingdom’s most sensitive sites where it is clear that such activity has been carried out to harm the United Kingdom. Activity carried out to harm the United Kingdom in this way cannot be in the public interest.
Lord Purvis of Tweed (LD)
The Minister knows that, on previous days in Committee, we have discussed the issue of how the interests of the United Kingdom are defined and how broad that is. Whom does he believe should be the final arbiter in defining what is in the interests of the country and in the public interest?
Lord Murray of Blidworth (Con)
The noble Lord’s question as I understand it is whether the decision about public interest is one for the police or for the prosecutor because, in reality, that is where the decisions would lie. Ultimately, if both those bodies were satisfied and a prosecution were brought, the issue would be one for the court.
It is our position that a public interest defence is neither necessary nor appropriate. However, it is important to point out that, even if the Government were to accept the case that the offences risked criminalising such legitimate activity, a public interest defence would not be an appropriate way to address this issue. As crafted, the proposed defence puts the onus on the Government to prove “beyond reasonable doubt” that the defence did not apply. This defence would therefore act as an open invitation to those who seek to conduct espionage against the United Kingdom, and disproving this defence would likely require the disclosure of further sensitive material and only serve to compound the original harm.
The consequence of this is that those who intend to harm the United Kingdom will be able to exploit this defence to continue conducting harmful activities in the knowledge of the prosecution difficulties that would be faced by the authorities. This would limit the effectiveness of the legislation in enhancing our ability to deter and disrupt harmful activity.
Amendment 120B, proposed by the noble Lord, Lord Coaker, would require the Minister to publish an assessment of the potential merits of introducing a public interest defence. As I have just laid out, the Government have extensively considered the merits, or otherwise, of such a defence, and this renders a review after the Bill’s passage unnecessary, for the reasons I have already set out. Thus, for all these reasons, the Government cannot accept the tabled amendments.
Lord Purvis of Tweed (LD)
Before the Minister sits down, I am conscious that, as the noble Baroness, Lady Manningham-Buller, mentioned, we will come on to the whistleblowing aspect, but the Minister was at pains to quote liberally from the Law Commission’s evidence to the Public Bill Committee in the Commons on this. I of course have read the evidence, as others will have done. I was interested when it came to the disclosure of information element, because Professor Penney Lewis told the Public Bill Committee:
“Indeed, we recommended a mechanism for authorised disclosures to an independent statutory commissioner, which would have appropriate investigatory powers to look into, for example, disclosures that might be embarrassing to the Government.”—[Official Report, Commons, National Security Bill Committee, 7/7/22; col. 52.]
Why are we not legislating for that in the Bill? The Minister seemed to have accepted everything that the Law Commission had said, but not this.
Lord Murray of Blidworth (Con)
It is clear, in the view of the Government, that those issues relate to the provisions found in the 1989 Act, which are not addressed in the Bill. While I note that evidence, it is not relevant to this amendment. As I have already said, I therefore invite the noble Lord to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, I will be asking for leave to withdraw this amendment, not on the basis that it will go away but on the basis that, first, there is room for further discussion, even though only a chink has opened up in what the noble Lord, Lord Murray, has had to say; and, secondly, on the basis that I accept that the amendment is not perfectly drafted and we would like to take further advice and further consider a number of matters in the drafting of the Bill. What I will say, very briefly if I can, about the amendment and the response of the Minister and the other speeches we have heard, is that this question has to be taken in the context of the introduction of the Bill.
There can be no doubt that the Bill will manifestly broaden the ambit of national security and protection legislation: first, because it is targeted not at individuals who have an obligation to the state but generally at citizens; and, secondly, in the way that the Bill is drafted. We talked about this a great deal last week, when we noted the inclusion of expressions such as, “know or reasonably ought to have known”, “conduct that it is reasonably possible may materially assist a foreign intelligence service” and all those peripheral expressions. Indeed, we note the use of the phrase “prejudicial to the interests of the United Kingdom” when we know “the interests of the United Kingdom” are determined by what the Government of the day believe those interests to be. All those broaden the ambit of these criminal offences.
I completely agree with the noble Lord, Lord Coaker, that this issue is not going to go away. All the briefings we have had from journalists and organisations tell us how important a public interest defence is. I completely take on board the point made by the noble Baroness, Lady Manningham-Buller, repeated by the noble Lord, Lord Faulks, and by the Minister, that Article 10 on freedom of expression is a qualified right. Of course, people of legal distinction can disagree, but it is entirely wrong to suggest that the Law Commission does not contain people of legal distinction.
If it were translated into a consideration of this Bill, because there is no material distinction on the disclosure points, I feel confident that the Law Commission would come out with the same recommendation as it did in 2020. We also have the recommendation of the Joint Committee on Human Rights in relation to a public interest defence. It is very difficult to argue that the fact that it is a qualified right under Article 10 does not mean that it would apply. Of course, we, the Law Commission and the Joint Committee on Human Rights have read the whole of Article 10 and understand the qualification, but the overwhelming point is the phrase
“necessary in a democratic society”.
Everything else is subject to that in the qualification.
Lord Faulks (Non-Afl)
Just so that I understand, is the noble Lord saying that the absence of a public interest defence, whether framed in the manner of this amendment or in a similar or a different way, means that the Bill would automatically be a violation of Article 10 of the European convention?
Lord Marks of Henley-on-Thames (LD)
As drafted, I fear that it would. Since we have had absolutely no indication that concessions will be made to all the amendments we discussed last week—I rather doubt that we will get them—it seems to me that investigative journalism will be seriously affected in a way that risks being a serious breach of Article 10. It might be saved by the qualification suggested by the noble Baroness, Lady Manningham-Buller, but I do not accept that that case is made out.
I entirely accept the noble Baroness’s point that the damage of publication cannot be recalled, but a balance must be struck which takes into account the interest in disclosure against the interest in secrecy. We emphasise the importance not just of free investigative journalism in a democratic society but of the control of wrongdoing. For my part, I cannot see anything in what the Minister said which comprehensively puts paid to the idea that there could be a cover-up of wrongdoing not possible for citizens to redress by disclosure without being subject to criminal proceedings under this Bill.
Baroness Manningham-Buller (CB)
I reassure the noble Lord that I do not believe that any of my former colleagues would want wrongdoing to be concealed. In balancing secrecy and the public interest, you have to analyse what secrecy is there for. Of course, secrecy can be used wrongly and attached to things which are not secret. However, I am talking about things where revealing the information could compromise the lives of individuals at that level. Making that judgment is pretty tough on a court, without knowing the full context. To defend against that, prosecutors would have to compound the damage. Of course, wrongdoing should never be covered up, but secrecy is not there just for the sake of it. It is there to protect lives and methods.
Lord Marks of Henley-on-Thames (LD)
I accept entirely that this is a very difficult issue and that the balance to be struck is very difficult. The noble Lord, Lord Coaker, mentioned the case of Clive Ponting, where there was undoubtedly government misinformation and wrongdoing. Clive Ponting was not a journalist; he was a former civil servant. In fact, he wrote books as well, including one on the truth about the “Belgrano”. Nevertheless, what he did was important. It is vital to our democracy that juries have the right—as one did in that case against the direction of the judge, because there was not a public interest defence—to say, “No, we will not convict because there has been wrongdoing.” A jury should not have to defy a judge and misapply the law because of the absence of such a defence to avoid covering up wrongdoing.
Of course I accept the point about drafting from the noble Lord, Lord Carlile, and that this amendment is not perfect. Indeed, it was he brought up the Ponting case at the very first instance in these proceedings. However, as the noble Lord, Lord Coaker, said, we cannot run away from drafting a public interest defence, if that is necessary, because the drafting is difficult. It is a different topic, but in Section 4 of the Defamation Act 2013 we have a defence of reasonable comment on a matter of public interest. I was on the pre-legislative scrutiny committee for that Act, and we considered very carefully how that would work. However, at that stage—although they are rarer now as a result of that Act—these were matters for determination by a jury, and a jury can determine such a public interest defence.
Lord Faulks (Non-Afl)
First, with great respect, jury trial was effectively abolished by the Act that the noble Lord is talking about. Secondly, it put into statutory form a so-called Reynolds defence in a civil claim. Here we are talking about prosecutions of criminal offences of the most serious sort. The analogy is not appropriate.
Lord Marks of Henley-on-Thames (LD)
I disagree—a fortiori, if such a defence is appropriate in a defence to a civil claim, it is appropriate in a defence to criminal proceedings that carry maxima of 14 years and life imprisonment. We may differ on that; nevertheless, of course I note that jury trial was abolished for defamation by that legislation. However, when we were considering the public interest defence, the abolition of jury trial was not then in mind; we had always had jury trials, and still can do in rare cases.
The only other point I wish to make is in answer to the noble Baroness, Lady Manningham-Buller. Of course, in the case of whistleblowers, there are other avenues to pursue for those employed by the security services, but there are two answers to that point. The first is that we are not just concerned with those employed by the security services, or those employed by anybody in particular. We are concerned with offences designed to be used and prosecuted against ordinary citizens. Secondly, we have included in our amendment—it is one of the best drafted parts—that one of the factors to be taken into account would be
“the availability of any other effective authorised procedures for achieving the purpose of the alleged conduct and whether those procedures were exercised”.
That will always be an important point, because it answers the point that you could have gone to an authorised body for the protection of whistleblowers.
This issue is not going to go away. I suspect we shall come back to it on Report, and that there will be a vote on it. The amendment may be in a very different form, but nevertheless, with these very serious criminal offences, I cannot accept that a public interest defence is not in the interests of the public and the nation. I beg leave to withdraw the amendment.
National Security Bill
Monday 16th January 2023
(1 year, 10 months ago)
Lords ChamberRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 68-V Fifth marshalled list for Committee - (16 Jan 2023)
Baroness Ludford
“(2A) The requirement under paragraph 1(2)(c) must not exceed a 14-hour period.”Member's explanatory statement
This amendment is based on a recommendation of the JCHR. It is designed to ensure that rights under Article 5 of the ECHR are not infringed, and therefore it sets a 14-hour limit on the time that the subject of Prevention and Investigation Measures could be required to remain in their residence.
Baroness Ludford (LD)
My Lords, in moving Amendment 76, I will also cover the other three amendments in my name—I am afraid I dominate this group 1, which is all concerning proposals made by the report from the Joint Committee on Human Rights.
Part 2 of the Bill introduces state threats “prevention and investigation measures”. I am not sure whether we are calling them STPIMs or just PIMs. Anyway, these are a set of restrictive measures that the Secretary of State could place on individuals who they reasonably believe are involved in foreign-power threat activity. Failure to comply with the measures imposed would be a criminal offence. Of course, these measures largely mirror the legislative scheme of the TPIMs—terrorism prevention and investigation measures—that can be imposed on those suspected of involvement in terrorist-related activity. There is an awful lot of experience, particularly on the Benches opposite, on that subject.
The intention behind the measures is that they should be applied to people believed to pose a significant threat but who could not be prosecuted. In fact, according to the Explanatory Notes, PIMs would similarly represent
“a measure of last resort”
applicable to those cases that, despite the wide range of new offences introduced by the Bill,
“cannot be prosecuted or otherwise disrupted.”
Clause 37 grants the Secretary of State the power to impose PIMs, while Schedule 7 sets out a wide range of requirements and restrictions that can be included, such as
“a requirement to reside at a specified residence”,
overnight curfews, exclusion from certain places or buildings, restrictions on travel, work and study, contact with others, use of phones and computers, et cetera. There is also daily reporting to a police station and GPS monitoring. So far so familiar, really, and there is a clear parallelism with TPIMs.
Amendment 76 specifically concerns the worries about the right to liberty guaranteed by Article 5 of the European Convention on Human Rights. It is the same, familiar range of concerns regarding ECHR and HRA rights—especially Articles 5, 6 and 8. Amendment 76 focuses particularly on Article 5, where concerns arise from the imposition of curfew measures. It has been established over many years of litigation arising from TPIMs—and, before that, control orders—that requiring a person to remain in their home for more than 16 hours per day is, rather unsurprisingly, likely to amount to a deprivation of liberty under Article 5. Curfews that last 16 hours or less could still engage Article 5 when coupled with other restrictive measures, particularly those causing social isolation such as separation from family.
The ECHR memorandum accompanying the Bill recognises the potential for Article 5 to be violated by a PIM, but it states that
“there are protections in place”
to prevent this, specifically the obligation on the
“Secretary of State … to act compatibly with the Convention rights”
and the same obligation applying to the courts. It is asserted that the judicial review process built into the Bill should serve as a protection against unjustified deprivations of liberty. Such protections, however, depend on the Human Rights Act which, under the Bill of Rights Bill as introduced, will be repealed and replaced. Many of us fear that the Bill of Rights Bill threatens to weaken the courts’ ability to hold public authorities to that Article 5 obligation.
The Joint Committee on Human Rights concluded that the simplest way of introducing
“A more effective protection against interference with Article 5 rights would be to include within the National Security Bill a strict limit on the number of hours for which a subject of Prevention and Investigation Measures could be required to remain in their residence”.
This amendment reflects the JCHR report’s suggestion of a maximum of 14 hours per day. The Government may have other ideas, which will be interesting to hear.
I will now speak to Amendment 77. The conditions in Clause 38, which focus on “foreign power threat activity” are defined broadly and include some behaviour which may not currently even justify arrest. In these circumstances, none the less, this Bill proposes the imposition of potentially long-lasting highly restrictive measures on an individual. While the measures are called “prevention and investigation measures”, the investigation element appears extremely limited. Clause 44 would require the Secretary of State to
“consult the chief officer of the appropriate police force”
regarding whether a prosecution is possible before imposing a PIM and for the police to “keep under review” the investigation of the individual’s conduct with a view to their prosecution for the duration of the PIM—which can be renewed for up to five years. But the Bill would place no obligation on the Secretary of State to take, or refrain from, any particular action after consulting with the police, so it appears to have no real consequences. It also does not specify any duty on the police to take action beyond keeping investigation under review; it does not actually require investigation.
Amendment 77 proposes that, given the intention for these measures to be used in cases that cannot be prosecuted or otherwise disrupted, it seems reasonable to put in a requirement that, having consulted with the police, the Secretary of State gets confirmation from them that prosecution is not realistic or feasible before a PIM is imposed. That appears to be consistent with the policy justification of this clause.
The conclusion is that the JCHR recommends that the Bill is amended to include such a provision. My other two amendments in this group are consequential, so I will close here. I am very interested to hear other views. I beg to move.
Lord Coaker (Lab)
My Lords, Amendments 76, 77, 78 and 79, in the name of the noble Baroness, Lady Ludford, enable us to discuss the state threats prevention and investigation measures. As she outlined, Amendment 76 seeks to set a 14-hour limit on the time that someone subject to such a measure has to remain in their residence. Amendment 77 would require the Secretary of State to receive confirmation from the police that prosecution is not realistic, rather than requiring only consultation before a measure is imposed, as outlined in Clause 44(1). These are simple but important amendments, as the noble Baroness, Lady Ludford, outlined, and the Government need to respond to them logically, particularly as they are recommended by the JCHR. In Committee last time, we all referred to the importance of the JCHR recommendations that come before us. It is particularly important that questions such as these are asked because, although we accept that STPIMs are a useful tool to have available, they impose intrusive restrictions on an individual, outside the criminal justice process, as civil measures.
In view of Amendment 76, if there is no time limit, what is acceptable? Are 20 or 21 hours acceptable? As the noble Baroness, Lady Ludford, pointed out, these are essentially curfews on an individual. Although they may be justified—no one is questioning the fact that sometimes they may be necessary—some thought from the Government about what we actually mean by the imposition of time limits or curfews on an individual, and how that might be arrived at, is important. Secondly, should we not always seek to prosecute, as Amendment 77 seeks to do? The police confirming that it is not possible is a real protection, while not compromising national security; again, that is the aim of all of us.
On the more general question of STPIMS, legal aid will be available to individuals but, if they are to challenge effectively, will individuals subject to such an order be fully aware of the reasons why it has been imposed and able to challenge the imposition of such measures? Who will oversee the use of these powers? Can the Minister reassure us that, in making such a decision on application by the Secretary of State, the courts will be given all the information that they need to properly inform their decision, and that they will not be used arbitrarily, out of frustration that a criminal prosecution cannot be pursued? That was a really important point from the noble Baroness, Lady Ludford: this is not a substitute for prosecution but something to be used where, for whatever reason, it is simply not available. But we need some reassurance that criminal prosecution will always be pursued as the first option.
We accept that there is a potential need for such measures, but, given their civil nature and the very real impacts on the liberties of individuals, even if necessary for national security reasons, they demand of us the need to be ever more vigilant when it comes to freedoms and human rights within a democracy. Like the noble Baroness, Lady Ludford, I look forward to the Minister’s response.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, I will first address Amendments 77, 78 and 79. These amendments would create a requirement on the Secretary of State to receive confirmation from the police that there is no realistic chance of prosecuting an individual before imposing a state threats prevention and investigation measure—an STPIM—on an individual under Part 2. It is our view that the current drafting would already achieve that aim. STPIMs are a tool of last resort in cases where prosecution is not possible. It is always the Government’s preference and priority to seek a prosecution against those engaged in foreign power threat activity, and where we can prosecute, we will.
Clause 44 reflects our commitment to prosecution and requires prior consultation with the police, before the imposition of a STPIM notice, in relation to
“whether there is evidence available that could realistically be used for the purposes of prosecuting the individual for an offence”
relating to state threats. The police must consult the relevant prosecuting authority before responding to the Secretary of State. The requirement to consult mirrors that in terrorism prevention and investigation measures—TPIMs—to which the noble Baroness, Lady Ludford, referred. Our experience of the TPIM regime is that, wherever it is apparent in the consultation that there is evidence available that means that a prosecution is feasible, such a prosecution is pursued over the imposition of a TPIM. We expect the same principle to apply in the STPIM context. I hope that that addresses some of the points raised by the noble Lord, Lord Coaker.
Furthermore, as set out in Clause 44(5), while an STPIM is in force, the police must ensure that the investigation of the relevant individual’s conduct is kept under review, consulting the prosecuting authority with a view to pursuing a prosecution if possible. Consultation is all about exploring whether there is available evidence that could realistically be used to prosecute an individual. However, the proposed amendments require the police to confirm that there is no available evidence. Changing the threshold in that way would mean that, in the event that there is limited evidence, but not enough feasibly to prosecute, we would limit our ability to use the STPIM as an alternative measure to protect the UK against individuals involved in state threats activity.
Although I understand the concerns raised by the noble Baroness, Lady Ludford, the consultation is meaningful. In each case where an STPIM is in force, the prospect of prosecuting that individual will be kept under review by the police, consulting the prosecuting authorities as necessary. The outcome of that review will be reported by the police to the Home Secretary, in accordance with their statutory duty. In some sense, that answers the point about oversight raised by the noble Lord, Lord Coaker. Where a prosecution is possible, that will be the action undertaken, rather than the imposition of an STPIM. As I have said already, if we can prosecute, we will.
I turn now to Amendment 76, which seeks to place a maximum limit of 14 hours on the number of hours an individual can be required by the Secretary of State to remain in their residence under the residence measure. It is important to note that, in each STPIM case, the facts will be different, and the specific measures will be decided on a case-by-case basis. Flexibility is therefore key to ensure that the most appropriate suite of measures can be imposed. Protection against interference with the rights of individuals under Article 5 of the European convention, as was referred to by the noble Baroness, is already provided for under the residence measure. Condition D, which must be met to impose an STPIM, outlines that the Secretary of State must reasonably consider that the individual measures applied are necessary to prevent or restrict the individual’s involvement in foreign power threat activity. That covers not just the imposition of the measure but the exact terms of the measure. In the case of the residence measure, that would include the number of hours an individual must reside in their residence. I hope I have therefore addressed the point raised by the noble Lord, Lord Coaker, in relation to the time requirement.
In addition, the court must agree at both the permission hearing and the review hearing to the number of hours, set by the Secretary of State, that the individual must remain in their residence—thus providing a good measure of accountability for the number of hours provided for in the order. The number of hours a person must stay at home will therefore be determined by the facts of the individual case. It is also worth noting that the individual subject to a notice has the right to apply for a variation of measures imposed both in the short term—for example, if there is a reason why they need to be out at different times on a particular day—and generally in the long term.
The noble Lord, Lord Coaker, asked who would oversee the imposition of the measures in this regime. Under Clause 54, there will be an independent reviewer of STPIMs, in the same way that there is a reviewer for TPIMs under the other terrorism legislation.
On whether the individual will know what they are accused of doing, they will have access to special advocates who will be able to access the sensitive information in a manner similar to that for TPIMs. The special advocates will have access to the sensitive information that builds the case against the individual and justifies the measure. There will also be a duty on the Government to share the information, as far as reasonably possible, with the individual themselves. With all these points in mind, the Government cannot accept these amendments and I invite the noble Baroness to withdraw Amendment 76.
Lord Carlile of Berriew (CB)
Can the Minister help the Committee by giving us an estimate of the scale of the problem? Do the Government expect a number of STPIMs which is roughly the same as the number of TPIMs in existence at present or do they expect more than or fewer than a handful? An assessment must have been made of these numbers.
Lord Murray of Blidworth (Con)
I am afraid I do not have that information to hand. My conjecture would be that it is fewer, but I will confirm the position and write to the noble Lord.
Baroness Ludford (LD)
My Lords, I thank the Minister for that reply. I also thank the noble Lord, Lord Coaker, for calling these amendments simple but important. I am grateful for his support.
On Amendment 77, I note the Minister’s assurance that he believes that the current drafting would achieve the aim of pursuing the possibility of prosecution, but obviously that incorporates not only a static but a dynamic possibility. I think the fear of the JCHR is that the wording, certainly in Clause 44(5), does not really imply any ongoing investigative mission, as it were. Saying “If we can prosecute, we will” has to mean that a certain re-evaluation takes place. But that is not all that Clause 44(5) says. It says that the chief officer of police must
“secure that the investigation of the individual’s conduct … is kept under review”.
It does not actually require any investigation, or any periodic investigation, so I am not really persuaded, despite the Minister’s reassurances, that that sense of a dynamic possibility of keeping the potential for prosecution under if not a permanent but certainly a periodic review is incorporated into the drafting of the Bill. We may come back to this at a later stage, but I am not entirely persuaded by the Minister.
Baroness Ludford
Member’s explanatory statement
This amendment is recommended by the JCHR and would extend the review function of the Independent Reviewer to cover Part 1 of the Bill in addition to Part 2.
Baroness Ludford (LD)
My Lords, I assure the Committee that this will not be a one-woman show all afternoon. I can be very brief on Amendment 80 because we will be hearing about Amendment 81.
The Bill establishes an independent reviewer in relation to PIMs under Part 2 and the JCHR felt that this, while a welcome additional safeguard, was too narrow and it was unclear why the independent reviewer’s role should be restricted to Part 2, because there are also significant concerns about how powers under Part 1 will be exercised. So we made a simple proposal, reflected in Amendment 80, recommending that the independent reviewer’s role should be extended to cover Parts 1 and 2 and that the Government should consider whether it could cover other core national security legislation.
As I say, I can be very brief because I tabled Amendment 80 before seeing Amendment 81, and we are about to hear from the heavyweights on this subject that they propose to make it even broader under further parts of the Bill. So I beg to move Amendment 80 but do not expect to say much more about it.
Lord Anderson of Ipswich (CB)
My Lords, my Amendment 81 is a bit wider than that of the noble Baroness, Lady Ludford, who is certainly a heavyweight in my book. I agree with what she has had to say about that.
Post-legislative scrutiny can take many forms, but where powers are exercised on the basis of secret intelligence, the options are more limited. Select Committees can do little, because they lack access to classified information. The Intelligence and Security Committee has that access, but its remit is focused on the intelligence agencies themselves. It is not equipped to review the operation by police and prosecutors of the new criminal offences in Part 1 of the Bill—or the new procedures in that part—or, indeed, to concern itself with the questions of damages and legal aid in Part 4.
The Independent Reviewer of Terrorism Legislation—its origins dating back to the 1970s—is the solution arrived at in one part of the national security landscape. The independent reviewer is an independent person with full security clearance—but without bureaucratic apparatus—reporting to government. Reviewers serve Parliament and the public by reviewing operational matters which, for national security reasons, neither they nor the usual inspectorates can scrutinise themselves. Their findings are often referred to by the courts and their recommendations taken on board by police, agencies and government.
The independent reviewer has spawned two imitators, in Australia and, more recently, in Ireland. I mention that because the independent monitor in Australia and the planned independent examiner in Ireland—the Bill has recently been published—are each entrusted with scrutinising the operation of national security law in its entirety, not just counterterrorism law. The same principle should apply here. The use of laws governing hostile state activity can be both as secretive and as sensitive as the use of laws against terrorism. That, no doubt—as the Minister said in the last grouping—is why the Government have already agreed to extend the jurisdiction of the independent reviewer to Part 2 of the current Bill, which is all about foreign power threat activity rather than terrorism.
Equally compelling, I suggest, are the arguments for independent review of Part 1. Part 1 is a complete recasting of the law against espionage, sabotage and acting for foreign powers. The offences and police powers are novel and untested; the risk of unintended consequences must be high. The offences will presumably be the subject of prosecutions. However, there is no mechanism for systemic oversight, either of the offences or of the far-reaching powers of entry, search, seizure and, in particular, detention, which are the subject of Clause 6, Clauses 21 to 26 and Schedules 2 and 6 to the Bill. Powers such as these can be controversial in their application: they are the meat and drink of the independent reviewer’s work.
Part 4 is all about terrorism and so falls even more naturally within the existing powers of the independent reviewer. History has shown the value of the scrutiny of the independent reviewer, not least in the years after 9/11, during which my noble friend Lord Carlile performed the role with such distinction. It is all the more necessary in this ever-questioning age. Indeed, something of this nature is a prerequisite for what has been called the “democratic licence to operate” that our secret state requires. The current independent reviewer, Jonathan Hall KC— who performs the role with imagination and acuity—has been consulted on this amendment. He is the obvious person to review Part 4 because of the terrorist connection. I suspect he could take on Parts 1 and 2 as well: our counterterrorism law is neither novel nor, for the most part, as controversial as it once was. But in case his apparently infinite energy should ever flag, my amendment—inspired by Clause 54, which it replaces—gives government the flexibility to appoint a different person to review Parts 1 and 2.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I do not have anything more to add other than to say that we support Amendments 80 and 81. The noble Lord, Lord Anderson, summed it up in his closing comments: the current Independent Reviewer of Terrorism Legislation, Jonathan Hall, has been consulted on this amendment and agrees that it would be a suitable way forward. I look forward to the Minister’s response.
Lord Murray of Blidworth (Con)
My Lords, Amendments 80 and 81 propose having an independent reviewer to cover more than Part 2 of the Bill. The Government have committed to consider this idea in the other place, and the speech made by the noble Lord, Lord Anderson, was compelling on this point.
The Government have been considering whether extending the oversight of the independent reviewer could be done in a way that does not duplicate or unhelpfully interfere with the responsibilities and functions of the existing oversight mechanisms governing both the UK intelligence agencies and the police. For example, we must consider how extending oversight of the Bill would interact with the Investigatory Powers Commissioner’s role in overseeing the powers referred to in Clause 27. Should we decide to extend oversight of the Bill beyond Part 2, it is important that we do not create any confusion or uncertainty as to the appropriate reviewer.
It is proposed that Part 4 of the Bill should be reviewed by the Independent Reviewer of Terrorism Legislation. Of course, Part 4 contains measures to freeze civil damages awarded to claimants seen as representing a real risk of using their award to fund acts of terror, and measures to restrict access to civil legal aid for convicted terrorists. As a result, these matters are already in the IRTL’s remit to review. An explicit commitment to oversight of Part 4 of the Bill is therefore unnecessary and would duplicate the Independent Reviewer of Terrorism Legislation’s existing discretion to review and report on terrorism-related legislation.
As a point of clarification on a point made by the noble Lord, Lord Anderson, the Government are not extending the purview of the Independent Reviewer of Terrorism Legislation to cover Part 2 of the Bill—rather, they are creating a new independent reviewer role entirely.
With these points in mind, while the Government cannot accept these amendments, we are committed to making a decision on extending oversight of the Bill at the next stage of its passage.
Lord Purvis of Tweed (LD)
With a glance at the impact assessment on this part of the Bill, the Government’s estimate is that there will be between four and 12 cases a year for the independent reviewer. Just for the sake of efficiency alone, it would make sense to extend a structure which is already in existence and operating well, rather than creating a new system which would have potentially a miniscule role—especially since the impact assessment says that it would be down to the discretion of the reviewer
“how much time they spend reviewing the STPIMs”.
Lord Murray of Blidworth (Con)
Obviously, the noble Lord makes a valid point, and I am sure it will feed into the department’s consideration about extending the oversight.
Lord Purvis of Tweed (LD)
I am grateful to the Minister, but it may assist the Committee to know what will happen next. It is welcome that the department will be thinking about this, but it would be good to have a bit of a steer as to what the Government intend to do before Report.
Lord Murray of Blidworth (Con)
We invite the proposers of the amendments not to press them; further information will follow.
Baroness Ludford (LD)
Well—my noble friend Lord Purvis of Tweed asked the obvious question of what happens next, and we got a rather obscure answer. I hope the noble Lord, Lord Anderson, will be able to tease out a little more about what the next steps might be.
I thought the Minister started on a rather encouraging note. I thought he was going to say, “Yes, Amendment 81 is jolly good, and we accept it”. I would imagine that it has been the subject of discussions and exchanges and so on, but the promise that came from the beginning of the Minister’s remarks was not really realised, or not realised at all.
In breathless anticipation of what the noble Lord, Lord Anderson, is going to say—I hope that I am not taking his name in vain, as it were—I beg leave to withdraw Amendment 80. I hope, however, that this is not the end of the discussion on Amendment 81.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment clarifies that agreements can be “foreign activity arrangements”.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, this group responds to the amendments tabled in relation to the political influence tier of the foreign influence registration scheme and separate amendments tabled regarding guidance on the scheme, impacts of the enhanced tier on the higher education sector and the exemption for legal activities. In addition, it introduces a number of minor government amendments to the scheme, which I will cover shortly.
Before I address the amendments and clauses specifically, let me say that we are not yet able to publish a policy statement relating to the power taken in Clause 77(1), which we committed to do in the Bill’s delegated powers memorandum. The Government are in the process of carefully considering feedback from industry and the important scrutiny in this House. As such, we believe that publishing a policy statement now would only muddy the waters when the Government’s focus is rightly on listening to Peers’ concerns.
It is the first duty of government to protect its people, the country they live in and the integrity of their democratic institutions. The political influence tier of the foreign influence registration scheme will play an important role in delivering on this agenda. Dialogue between policymakers and the rest of society is an essential feature of our democratic system. It provides parliamentarians and Ministers with important information and expert analysis, helping us to become more informed. It allows decision-makers and the public to be exposed to diverse opinions and voices, including from the international business sector. It can be a positive contribution to healthy and robust public debate, and will continue to be welcome in the UK.
However, when communications or disbursements are not transparent, it can lead to corruption or give certain groups an unfair advantage. It can be seen as a way for powerful interests to exert excessive influence on political and governmental processes, potentially at the expense of the British public. It is particularly important to be able to identify foreign influence. The UK Government and the British people are entitled to know when foreign interests seek to influence public policy and public opinion. We should be able to identify foreign influence and evaluate those contributions properly, including the aggregate impact over time. Some foreign lobbying presents risks to national security. Members of the Committee will have heard Ken McCallum, in his annual threat speech in November, discussing the challenge from state threats. He said:
“The West is in a contest in which our security, values and democratic institutions are at stake.”
The Intelligence and Security Committee discussed political influence and state threats in its 2020 Russia report, calling for a scheme like the one delivered through the political influence tier of FIRS, which we are debating here today. The political influence tier of FIRS will play a role in strengthening openness and transparency in those processes, with the additional aim of deterring foreign powers that wish to pursue their aims covertly through agents and proxies. Noble Lords will be aware that some foreign states increasingly seek to influence how we think, vote and feel. Such states view themselves as being in a long-term contest with the West and take a much broader view of what they are interested in than simply national security matters. Covert political influence from state actors can damage our democratic processes, institutions and wider societal cohesion.
The foreign influence registration scheme will require those acting covertly with malign intent to make a conscious choice between registering their activity and publicly declaring their provenance, or not registering and risking prosecution. This raises the cost of conducting such activity and will be a significant deterrent to those who seek to harm our democracy.
Before we move on to the main debate, I will very briefly explain the government amendments in this group. Amendments 82, 89, 99, 100, 101 and 102 make minor technical changes to ensure consistency in the use of “arrangement” and “agreement” across the foreign influence registration scheme provisions. These amendments will assist with the clarity and understanding of the scheme.
Government Amendment 92 amends the existing provisions regarding public communications in the political influence tier of FIRS. This amendment provides that where a public communication is reasonably clear that it is being made by a foreign principal on its own behalf, it will not need to be registered. The Bill already provides an existing exclusion from registration requirements where it is reasonably clear that the public communication is made at the direction of a foreign principal. This is in keeping with our commitment to ensure that the scheme is proportionate and does not impose any unnecessary burdens.
During the last day in Committee, the noble Baroness, Lady Hayter of Kentish Town, raised a number of questions regarding the foreign power condition, which we dealt with at some length last week, and the foreign influence registration scheme. I thank her for her letter and will deal with the core of her questions now, to ensure that this is on the record. On the question of whether a member of this House will need to register when entering arrangements, the responsibility to register under the political influence tier of FIRS will lie with the foreign principal carrying out the activity in the United Kingdom, or with the person in an arrangement with the foreign principal to carry out activities in the United Kingdom. There will be no requirement on the person whom the foreign principal is seeking to influence to register activities. As such, Members of this House would be required to register only if they entered into arrangements with foreign principals to carry out political influence activities in the United Kingdom. This applies equally for arrangements with any foreign entity, including political parties in government or in opposition.
There was also a question in relation to the foreign power condition of why “a governing political party” has been included in the meaning of “a foreign power”. It addresses situations where there is a dominant political party or parties within a country to such an extent that it may be difficult to disentangle whether harmful activities have been carried out on the direction of the ruling party or the Government. The noble Baroness posed the question of what constitutes a governing political party. It is right that this will vary in different countries. Clearly we cannot legislate for every different administrative structure. Rather, in criminal proceedings where this was an issue, the prosecution would have to prove beyond reasonable doubt that a political party was the governing political party based on the facts of the case. Therefore, any political party with no members holding posts in the Government would not be in scope. The definition in Clause 30(2) means that a political party is a governing party only if individuals within that party hold posts in the Government or part of the Government. For example, the Democratic Party runs the US Administration and sets the direction of government policy. It is therefore the governing political party in the US.
To omit Clause 30(1)(e) as the noble Baroness suggested and to rely entirely on the other aspects of the definition of “a foreign power” risks creating a loophole whereby sophisticated state actors could claim to act on behalf of the ruling party but not the Government. To be clear, foreign powers, including governing political parties of a foreign Government or their members acting in their capacity as a member, do not have to register their own activities. However, those in arrangements with foreign entities—including governing political parties—to carry out political influence activities in the UK will need to register those arrangements.
I will be listening very carefully to the remarks made on this group and will respond to the amendments directly in my closing comments. I look forward to this important debate.
Lord Ponsonby of Shulbrede (Lab)
My Lords, in his opening statement, the noble Lord said that the Government plan to publish a policy statement and that the reason they were not doing so now, in anticipation of Committee, was that they did not want to muddy the waters. Can I ask the noble Lord whether he plans to publish that policy statement and make it available before Report?
Lord Ponsonby of Shulbrede (Lab)
I thank the noble Lord for making that clear. It will have an impact on the way we address this whole group, because it is a very extensive group and many different groups from different sections of society have contacted us all, I suspect, and raised their concerns. I have been contacted by groups from business, the legal profession, universities and political parties. Some 400 NGOs have written to me, as I am sure they have to other noble Lords.
My Amendment 88, also in the name of the noble Lord, Lord Wallace of Saltaire, would ensure that guidance is provided on the foreign influence registration scheme. Other noble Lords have gone into more specific concerns and explorations of what particular definitions might mean.
I thought it might be most helpful in opening this group, in a sense, to raise two particularly powerful concerns that have been raised with me. I want to cite two groups that have contacted me. The first is the company AstraZeneca, which sent around an email that I thought it worth citing to show this company’s concerns, which illustrate other, wider concerns. It said:
“Clause 70, as drafted would, we believe, impose a requirement for persons in our overseas operations to register each and every dealing with not just Members of the UK Government … but also in Government Agencies such as the Medicines and Healthcare Products Regulatory Agency, The National Institute for Clinical Excellence, The Environment Agency and others where we have regular contact”
on medical issues. AstraZeneca is asking a very profound question about how far these requirements will go and how much impact they will have on its day-to-day business. The email goes much further, but that is the gist of the concern raised.
The other group that emailed me is the Law Society. Of course, all these groups, including the Opposition, support the broad aims of the registration scheme but are concerned about the practical impact and whether it will have a cooling effect on their ability to conduct their existing business. The Law Society email says:
“The Law Society supports the Government’s ambition to protect national security and ensure public safety. However, we are concerned that the proposals in this Bill could have serious implications for access to justice … Law Society members have shared significant concerns with us about the potential impacts of FIRS more generally. These include concerns … that the scheme risks damaging the UK’s largest exporting industry (financial and professional services) and its reputation as one of the world’s most attractive jurisdictions for cross-border business and trade and destinations for foreign investment.”
I have given just two examples, but there are many others. This whole scheme has raised a lot of questions in other sectors; we have heard about political parties and universities. I look forward to this being a wide-ranging debate and the noble Lord giving as full an answer as he can in summing up, but I am grateful for his confirmation that the policy will be available before Report so that, if we choose to, we will have ample time to take matters further.
Lord Anderson of Ipswich (CB)
My Lords, while I very much welcome the fact that this policy is under review, I hope your Lordships will agree, in view of the great interest that has been expressed in this subject outside this place, that we take the opportunity to express, at least in summary, the very grave concerns that some of us have about this part of the Bill.
In that spirit, I shall speak briefly to the five stand part notices in my name, signed also by my noble friend Lord Carlile, the noble Lord, Lord Wallace, and the noble Baroness, Lady Hayter. They would leave intact the enhanced tier, which I believe to be of real value for our national security, but if carried they would remove Clauses 66 to 70, the so-called primary tier of FIRS.
Baroness Hayter of Kentish Town (Lab)
My Lords, I declare my interests, as I did before, as a board member of the ABI and a member of the Labour Party.
I thank the Minister for his preliminary responses to my letters. Given that I sent them to him on a Sunday, I am immensely impressed that he has already given us some answers today, even though I found the answers staggering and more worrying. There is an expression about using a sprat to catch a mackerel; I rather think that the Government are using a whale to catch a minnow. They have this completely the wrong way around.
However, in the spirit of that very rapid response to my letter, I hope that on the specific issue of political parties the Minister will agree to meet, not just with the Labour Party but with representatives of the other parties, to discuss how this could work in practice, because some of the things he said about parties influencing other parties could have absolutely nothing to do with national security. The example I gave before was that, as a member of an international party organisation, we might indeed be thought to influence who would be chosen as, for example, president of the Party of European Socialists. That has absolutely no national security implications but, clearly, from what the Minister has said, it would be caught by this. So if, when he comes to respond, he could agree to meet with the political parties, that would be helpful.
Turning to what is in front of us, as the noble Lord, Lord Anderson, said, I have added my name to the proposition that Clauses 66 to 70 should not stand part of the Bill. I am very conscious of the fact—as I am sitting quite close to the noble Lord, Lord Wallace—that some of this sounds very much like familiar territory. Before the Minister was in the House, when I was on the Front Bench, I tried to amend the lobbying Bill to ensure that it included in-house lobbyists, not simply consultant lobbyists, which might have tackled some of issues that now concern the Government—that is, knowing who is lobbying Ministers. That surely is the important aspect of it, although the present Bill goes much further than that. The then Minister, the noble Lord, Lord Wallace of Saltaire, absolutely and I think very unwisely declined to take my amendments to give that Bill some real teeth. I think we got them past this House, but they were kicked back and he would not agree to them. I am therefore delighted that he is about to speak after me and I hope he will do a “mea culpa” at that point and admit that “we was right” and he was wrong.
However, today we are talking about far more than just lobbying—although it is interesting that that was how the Minister introduced this group. We are now seeing an attempt to set up an enormously enlarged register, compared with what was set up under the domestic Act. It would not only encompass dealings with a wide range of opinion formers or decision-makers, and in fact a large number of non-decision-makers, but require registration or reporting—the Minister’s answer to me earlier was about registration; I also asked about reporting—from a swathe of bodies and individuals from across the globe.
We have heard, as my noble friend has already mentioned, of concerns from business and academia, but there are also concerns from visiting party officials, international NGOs and many others. If I have read government Amendment 98 correctly, however—which we will come to in a later group—the list of UK persons with whom communication could be classed as a “political influence activity” covers our own employees, if you are lucky enough to have any. It also includes an officer, trustee or agent, and even some members of a political party, which could even include a constituency vice-chair, whom those of us in political parties know is quite a minnow within the political hierarchy. It could include an election candidate, even in a hopeless seat—not that Labour has any hopeless seats these days. Does that mean all election candidates? It is the most extraordinary catch-all that the Government are setting their sights on. We are going to come back to that list later, but it is relevant because it explains why we are concerned about the clauses that some of us would like taken out of the Bill.
As the noble Lord said, I referred last week to Clause 30 and political parties, even those coming from our close allies in NATO. They were defined as being “foreign powers”—although, as he said, there were some exemptions if you were in government. That means that Opposition parties seem to be in a worse position, even though they may have no power in that country, because they would have to register if they tried to influence any of us or our employees, local government and all sorts of other people. So we have more questions and, if the Minister agrees to a meeting, we could discuss what exactly they are trying to get at. Is it that all political parties are bad, or are we interested in the issues on which they are trying to lobby? It would be useful to know what exactly this is aimed to catch.
In relation to business, very serious concerns have been raised by member firms of the ABI, by banks, by the pharmaceutical industry, as we have heard, and by other major importers, exporters, service providers and investors. Needless to say, many of their overseas colleagues and partners will meet with influencers, opinion formers and decision-makers while they are here in the UK. That is not just visiting politicians but many of those who turn up, for example, at our party conferences or at seminars held by a wide range of organisations. While they are there, they tend to bump into people like you and me, because that is where we are also going. So, as soon as they come here and go to a meeting and find that one of us is there, they are liable to have to report that, even though that was not the purpose of their visit.
So the question really is: do the Government really, in the name of national security, want us to either ourselves record, or ask those people coming in to record, all those exchanges, on pain of criminal sanction if we fail to do so? I know this is an aside, but this is coming from a party that has perhaps not been too fussy about the amount of money it has taken from people with very close Russian contacts. It is a little bit odd.
The Minister did refer to Russia but why, if we are aiming at Russian influence, are we going for that enormous wide range? It was this Government who refused my attempts to stop expats being able to fund our political parties. Again, if we want to cut influence on our political parties, why not go at that and overseas money rather than try to catch all the exchanges that take place in everyday life?
Whether this is a whale rather than a minnow—or whichever way round—this feels to me not even like a sledgehammer to crack a nut, but like a great big sledgehammer aimed at a tiny seed. If the Government are worried about Russian, Chinese, ISIS or North Korean activities, why not go for them? Why are we looking at Swedish investors, Belgian NGOs, Dutch political parties, EU visitors, Spanish bankers or German academics, all of whom could be caught up in this?
Lord Purvis of Tweed (LD)
Before the noble Baroness sits down, would she perhaps give permission for us all to receive the Minister’s response to her letter? He is saying from a sedentary position that he will circulate it; if that is acceptable to her, it would be very helpful. He said at the outset that if we, as Members of this House, carry out activities for a foreign organisation of which we might be a member which receives direct support from a foreign principal—we could be a trustee of an organisation funded by the Gates foundation, for example, and there are many other examples—for us to engage with each other, we will now have to register. That is why I think the response to her letter could be so significant, as that is what I took from his comments.
Baroness Hayter of Kentish Town (Lab)
The Minister will understand that I cannot possibly answer this question because then we would have to record the conversation. To be serious, in fact, my letter to the Minister, which included a lot of questions, did ask that he circulate it to the Committee and not just to myself.
Lord Wallace of Saltaire (LD)
My Lords, my name is on several of these amendments. I should perhaps say that I welcome and support those in the name of the noble Baroness, Lady Noakes. Two amendments of mine are also concerned with ensuring that the interests of charitable bodies, commercial bodies, universities and policy researchers should be specifically catered for and excluded from some of the purposes of the Bill.
However, I want to talk more generally about Part 3 as a whole. I thank the noble Baroness for her back-handed compliment. There are, of course, parallels between the transparency of lobbying Bill in 2013 and this Bill. There were those who pushed me as the then Minister to exclude a substantial number of bodies and persons from that Bill; others were pushing for the inclusion of a lot more than we had. It was not easy to strike the appropriate balance between ensuring full transparency on what was going on and not pulling too many people into the net. The question of identifying who the lobbyists were was one of the more difficult elements with which we had to be concerned. On that occasion we agreed to pause the Bill.
I should also say that it was not simply the Labour Opposition; indeed, concern about that Bill was very much on the Cross Benches, led by Lord Ramsbotham, sadly no longer with us, and the noble and right reverend Lord, Lord Harries of Pentregarth. We paused the Bill for three months, consulted more widely and came back with amendments. The Bill was then carried in an improved form. It was not perfect; it is impossible for a Bill of that sort, or this sort, to satisfy all accounts because we are trying to strike a balance between a range of different objectives. It would be wise for the Minister to manage the policy statement and the pause for greater consultation; they should take up rather more time than is currently considered.
The Minister will have seen the Politico report last Thursday that suggested widespread concern in commercial and business circles about this Bill. The noble Lord, Lord Ponsonby, has already said how many comments and criticisms we have had from a range of different circles. I came to the Bill entirely from the point of view of think tanks, universities and the policy research sector. I had not expected to get such immediate responses from the City, law firms and others. We are now all aware of the widespread concern that the Bill will catch more than it was originally intended to. But there is more than that. I shall quote from one of the letters I have had: the Bill
“is essentially the proposed bureaucratisation of lawful and useful non-hidden international engagements. Influence is not covert just because it is not public: all policy makers and organisations rely on private interactions.”
I was thinking, as I looked at my newspaper this morning, what those Brits who will be attending the Davos Forum will do about what they report back, as one has private conversations with a range of people. Perhaps we should make sure that Keir Starmer and whoever else is going do indeed fill in all the forms as they come back.
Before I go further, I should comment on the Minister’s insistence, in our last sitting, that the Daniel Houghton case justifies the inclusion of the Netherlands alongside North Korea, China, Iran, Russia and others in the primary tier of foreign powers. I see that the case was in 2010. I have said at previous sittings that the issue of dual nationals and diasporas, both in Britain and elsewhere, is one of the complications of the Bill that I hope the Minister will address in our consultations. I mark, in passing, that Daniel Houghton was a Dutch-British dual national. He was a computer engineer employed by the SIS. He downloaded some SIS files and tried to sell them to the Dutch intelligence authorities. They immediately informed the British and he was arrested, convicted, given a 12-month sentence and served six months in prison. I am not sure that this one case justifies the imposition of the full regime on the Netherlands, in the same way that it is imposed on other countries.
I pick the Netherlands because traffic between it and the United Kingdom is probably closer than any other county apart from Ireland, even more than the United States, because it is so near. I recall being told by some senior Dutch politicians that a great many members of the Dutch elite have second homes in the south-east of England and send their children to British universities. I remember being told by a chief constable from North Wales Police that he needed to have more than one police officer who spoke Dutch because, when camper-vans break down in the summer, they need to have someone who can interpret. The extent to which British companies depend on the Netherlands has been increased by our leaving the European Union. I was told at a meeting of donors to my party the other week that several of them have opened offices or warehouses in the Netherlands to be inside the EU. It is not a country with which we have limited interaction.
To say that we need to have all the interactions which may involve political influence recorded is almost to suggest that, to find the needle in the haystack, you need to examine each strand of hay separately and then in time you will find the needle. You would of course destroy the haystack and damage the hay, and detract immensely from the normal business of the farm. To that extent, it is grossly disproportionate, and our concern with the Bill is that aspects of it are grossly disproportionate.
I read again through the supplementary Explanatory Memorandum over the weekend and I remain confused about many aspects of the Bill. I am worried about the imprecision of some of the language—the “informal” arrangements, the indirect control and those other phrases which, not being a lawyer, I do not entirely understand. I seek some reassurance from our legal colleagues that it is possible to make sense of some of these provisions. There is a reference at one point to the “scheme management unit”. I wonder if the Minister could tell us how large the Home Office thinks the scheme management unit will need to be when all these reports flow in. I suggest that it will need to be extremely large.
I am not entirely clear on how the specified persons come into the expanded bit. Can the Minister give us any rough idea of how many of the 190-plus UN member states it is envisaged would be specified by the Secretary of State in this? Would it be 10? Would it be 100, 150 or 190? That would clearly make a great deal of difference to the sort of regime which we are likely to have imposed. These are real concerns for those who are looking at the Bill from the outside.
The examples did not reassure me in understanding the Bill. Funding for UK think tanks is mentioned, as are NGOs from abroad attending all-party parliamentary groups and some of the activities of foreign academic institutions. All apparently come into the net. This requires much further consultation. We all recognise that there are serious foreign threats to this country, that some of these threats are new because technology and communications have enabled new methods of subversion, and that we need to deal with them. But we also recognise that the United Kingdom is an open society and an open economy, and we need to preserve the best aspects of our openness to the rest of the world. That is the balance that we have to strike.
One category left out appears to be multinational companies not controlled by foreign states, along with foreign foundations and the super-wealthy. I argue again that these are also, potentially, sources of severe foreign interference in UK politics which may well be hostile to UK interests. If one is talking about British interests in the broadest sense, as the Bill does, I recall that major tobacco companies have funded institutes in Britain to lobby against tighter control of tobacco selling and health regulation. Oil companies have funded think tanks and others to lobby against measures on, or even to deny, climate change. Foundations with political agendas have supported the establishment of new right-wing societies in British universities. Those are also threats which we should not necessarily ignore.
I suggest strongly to the Minister that, in view of the concerns which have been so widely expressed across the commercial and non-commercial worlds, we should take the time now to ensure that the Bill strikes the right balance, that we get it right and that we do not get it through necessarily as fast as the Government would have liked.
Baroness Noakes (Con)
My Lords, I have not previously taken part in this Bill because I claim absolutely no expertise in national security. However, like many noble Lords, I have received a number of representations and briefings on the foreign influence clauses from those who have major concerns about their impact on business life, which is an area where I have some experience. I have tabled Amendments 89A, 89B, 89C and 92A in this group to raise those issues.
I have considerable sympathy with those opposing the Question that the clauses dealt with in this group stand part of the Bill. I would have added my name had there been space. A number of those making representations were very clearly of the view that the best thing to happen would be for the clauses to be put to one side and for there to be a proper consultation on them to expose all the practical issues across the many kinds of organisations that other noble Lords have referred to in this group.
My amendments are more modest and targeted, because I recognise that legislative opportunities do not come very often for the Government to put a scheme such as this in place. If there is any opportunity to improve the Bill before it leaves this place, we ought to encourage the Government to do so. To that extent, I was much heartened by the words of my noble friend the Minister at the beginning of this group. I completely accept that, as the noble Lord, Lord Anderson of Ipswich, said, this is not the whole answer; if we are trying to completely remedy these clauses, they will need more than my amendments. However, my amendments are directed particularly at the commercial aspect. I will speak relatively briefly to them.
Amendment 89A seeks to restrict the scope of the political influence clauses to organisations which are under the control of a foreign power. In that sense, it is like Australia. Clause 66 currently applies to any foreign organisation whether it has any connection to a foreign power; hence it applies to absolutely all foreign-operated corporations, as has been said, such as commercial companies and many other non-profit organisations, NGOs and the like.
Take the example of a company formed in one of our international friends—for example, a member country of the EU. Let us suppose that that company is thinking of investing in the UK in something we really want them to invest in, such as a nuclear power station or renewables. This provision is going to put a lot of hurdles in that company’s way. That company will inevitably have to have conversations about regulatory issues, licensing issues, planning and visas for specialist staff, which will involve meetings with officials and government Ministers. At some stage, government decisions may be needed in order to encourage that company to complete its investment. These are ordinary commercial activities but, under the Bill as drafted, that company will have to register as soon as it starts to make arrangements—for example, when it engages UK-based advisers. Of course, UK-based advisers will also have to register if there could be any chance whatever that that EU company wants to do anything that could be deemed to be a political influence activity.
As other noble Lords pointed out, that sends a pretty terrible message to potential overseas commercial partners. The UK’s position as a desirable location for inward investment cannot be taken for granted, and it could be dealt a very severe blow if all foreign companies are treated like potentially malevolent actors. It is hard to see the public policy justification for drawing the boundary of the new requirements to include such companies.
My Amendment 89A would extend the ambit of Clause 66 to UK-incorporated organisations. At the moment, if the EU company in my hypothetical example had a wholly owned UK subsidiary, that company would not be caught if it carried out the activities on its own behalf, rather than on behalf of its parent. That does not seem logical because the substance is unaltered by the corporate structure. However, if a UK-incorporated company is controlled by a foreign power, I would have thought that the Government would want to be able to track its influence activities for the countries about which they have concerns. But, at the moment, Clause 66 does not seem to require it, and I hope that my noble friend the Minister can explain its subtleties when he winds up.
Both Australia and New Zealand have significant commercial carve-outs, designed to allow ordinary commercial activities to carry on. That is why I put down Amendments 89B and 92A, which are aimed more directly at excluding commercial activities. Amendment 89B quite simply exempts commercial activities from the definition of “political influence activity” in Clause 68, trying to bring it closer to the Australian or American systems.
My Amendment 92A also includes a power for the Secretary of State to exempt other activities that do not involve a risk to national security—other noble Lords gave examples of those other kinds of activities outside the commercial sphere. The noble Lord, Lord Anderson of Ipswich, tabled Amendment 92B to my Amendment 92A, and I agree with his amendment because it would lessen the need for a backstop power for the Secretary of State, although I still think that such a power would be desirable because we cannot decide in advance all those circumstances where it is clear that no national security interest arises.
My last amendment in this group, Amendment 89C, also concerns the definition of “political influence activity” in Clause 68(2). Under Clause 68(2)(b), general communications are not caught if they make it “reasonably clear” that the communication
“is made at the direction of the foreign principal”.
But this does not apply to communications to Ministers, MPs and the like—the specified people who are now in the new schedule. My amendment basically asks: why not? What is the harm in communications that are clearly signposted at the behest of a foreign principal? In my example, if a company from the EU were trying to approach individuals or officials, as opposed to putting out a general communication, but it was quite clear for whom it was acting, what evil are we trying to deal with by making that a political influence activity in the Bill?
My remarks have focused just on commercial activities, and I have really focused on only one aspect of them: inward investment. If we drag the whole of commercial life into this regime, it will, at best, end up with a lot of non-value adding bureaucracy. At worst, it will swamp the Home Office with a tsunami of precautionary registrations and could do real harm to our economic prospects. I feel that, at the moment, the effect of the Bill is a bit like putting up a big sign saying, “No foreign businesses here” at the gates to the UK. I look forward to my noble friend the Minister’s response, and, as I said, I was heartened by his initial remarks.
Viscount Stansgate (Lab)
My Lords, it is a pleasure to follow the noble Baroness, not least because I want to make some remarks about the effect on other areas of life. I agree with her that her phrase “non-value adding bureaucracy” is an understatement, and I sometimes wonder whether the Government understand quite how much they have unleashed with the clauses we are considering in this group. I will, briefly, direct my remarks to Amendment 88, which sets out areas where it would be useful for the Government to provide guidance.
A number of Members have had a wide range of briefs of various kinds, and I draw the House’s attention to one from the Russell group of universities. In effect, I am referring to section (a) of the new clause that would be inserted by Amendment 88. In that briefing, the universities say that they fully
“understand that working with international partners is not without risk and take their responsibilities to protect national security seriously.”
They point out that they already work with the Government. However, they go on to say that the requirements of the foreign influence registration scheme
“could include a range of international activities from student exchange programmes to research partnerships, many of which are already covered in existing legislation. The potentially duplicative and complex nature of this arrangement could limit opportunities for genuine international collaboration and risk deterring global partners, which would in turn hinder national and local R&D led growth.”
Just as the noble Baroness was talking about the adverse effect on business and inward investment, similarly universities are telling the Government and the House that there would be adverse effects on international research collaboration. The briefing goes on to say:
“If university activity is to be included, the system must be clear and simple to use with accessible guidance that will ensure universities will not be penalised”—
or criminalised—
“for misinterpretation or misunderstanding the system.”
As we are talking about provisions which have a criminal aspect to them, that matters a great deal.
The other point I bring to the House’s attention is about charities, which is reflected in section (b) of Amendment 88. The amendment was tabled by my noble friend Lord Ponsonby of Shulbrede and the noble Lord, Lord Wallace of Saltaire, who incidentally referred to the fact that even all-party parliamentary groups may be caught by this provision. In about half an hour, I am due to chair an all-party parliamentary group at the other end of this building, and I sometimes wonder whether, in future, we will have to register an enormous range of activity. The noble Baroness used the word “tsunami”, and that is something we would like to avoid.
I will look at charities from the point of view of the scientific community in Britain. Many key scientific societies in this country are charities, including the Royal Society and the leading sectoral scientific societies, such as the Royal Society of Biology, the Institute of Physics and the Royal Society of Chemistry. They also have extensive international networks. All are international in their nature, organising international conferences all over the world and with international links the like of which is hard to describe. Science is a very international business, and so it should be. We benefit from that, and I hope that, in future, we will not lose some of the benefits that we have hitherto had with Europe.
In drawing that to the Committee’s attention, I would like to know what the Government’s intention is in respect of the activities of scientific societies. I do not suppose for a moment that they were consulted on the Bill; I think that many do not even know that there is a possibility that they might be affected. The Russell group is an example of at least one organisation which has been on the ball. The activity of normal scientific life in this country stands to be affected by the Bill. I am very interested to hear the Minister’s reply on that point, because I wonder whether that was ever intended to be in the Government’s purview when bringing forward this legislation. I do not think that the activities of our scientific societies really run the risk to national security that might otherwise be implied, so for that reason that I bring the point to the Minister’s attention.
Lord Carlile of Berriew (CB)
My Lords, I absolutely support the remarks that have been made by numerous noble Lords on the primary intention of this part of the Bill, which surely is to deal with those covert and hostile activities which may be committed by, or on the behalf of, foreign Governments—or foreign entities connected closely to foreign Governments—which might damage the national security of this country.
Baroness Lister of Burtersett (Lab)
My Lords, I apologise for popping up at this point, not having taken part in the debates so far, but I was requested to do so by the British Academy, the UK’s national academy of humanities and social sciences, of which I am proud to be a fellow. I am also an academic who has in the past collaborated with colleagues from outside the UK in the area of social policy, which of course is trying to influence government.
I am sure I do not need to spell out the importance of international research collaboration, which was touched on by my noble friend Lord Stansgate, especially in the wake of the Science Minister’s speech last week which emphasised the importance of the Government’s global science strategy. Any such strategy requires international collaboration. The British Academy accepts that mechanisms to prevent foreign interference are necessary, but such mechanisms must safeguard the benefits of international research and protect academic freedom. It is worth just noting here what the Joint Committee on Human Rights had to say. It was concerned that this was introduced at such a late stage of the Bill’s passage that it could not comment properly on it, but it said:
“Any foreign influence registration scheme must contain adequate protections to ensure that it does not interfere unduly with democratic rights, including freedom of association and free speech.”
I think everything we have heard so today, other than from the Minister, suggests that it could interfere in that way.
Indeed, the British Academy argues that such mechanisms exist already and that FIRS would duplicate them in a way that creates totally unnecessary bureaucracy, which surely this Government, of all Governments, want to avoid. It is not helped by the lack of clarity in the wording, which was referred to by the noble Lord, Lord Wallace of Saltaire, with details left for secondary legislation. The effect, the British Academy argues, would be a significant negative impact on the ability of UK researchers to engage internationally, creating irreversible harm to the UK’s research and innovation standing. The academy is not prone to hyperbole.
As currently drafted, as we have heard, FIRS would entangle wide swathes of international activities and is likely to have a chilling effect on international collaboration, not just deterring those with malign intent—as referred to by the Minister—but probably having a much greater impact on those with utterly benign intent. I cannot believe for a moment that this is what the Government want, especially given that it would undermine their own aspirations to forge a global science strategy.
It is in the Government’s own interest to accept the British Academy’s recommendation that they withdraw Part 3—I think I am echoing what the noble Lord, Lord Carlile, said—and consult with it and other relevant organisations to cocreate a framework that is proportionate and reasonable, taking into account existing reporting and oversight mechanisms. The academy argues that research and innovation should be largely excluded from FIRS. Is this something that the Government are willing to consider? If not, why not? Will the Minister agree to take this away, have discussions with the British Academy and others and, ideally, withdraw Part 3 altogether as has been suggested or, at the very least, come up with something less harmful before Report? I am echoing other noble Lords in calling for a longer pause than currently envisaged. The more I have listened to today’s debate, the more horrified I have become at what this part of the Bill might mean.
Lord Clement-Jones (LD)
My Lords, I rise to speak to Amendment 103, and I declare my interests as set out in the register.
Like the noble Baronesses, Lady Noakes and Lady Lister, I am new to the Bill and have been provoked by briefings. Like others who have spoken today, I emphasise that I am absolutely no fan of this foreign influence registration scheme, which is far too broad in its application, as we have heard. I think it will be highly damaging to UK research and development, inward investment and British interests around the world. The noble Baroness, Lady Hayter, listed those who might get caught up in the scheme, and clearly very few of those have any connection at all with national security. I am delighted to support many amendments in this group and, in particular, the clause stand part notices that the noble Lords, Lord Anderson of Ipswich and Lord Carlile of Berriew, and my noble friend Lord Wallace have spoken to so cogently.
This has given us the opportunity to debate the flawed nature of the whole scheme. I will make some remarks about the impact on business and investment, which my noble friend Lord Fox would have made were he able to be here. We have heard powerful testimony from the British Academy, referred to by the noble Baroness, Lady Lister, and from the Russell group, referred to by the noble Viscount, Lord Stansgate, about the hugely detrimental potential impact of the Bill on the international research and development front. The British Academy rightly says that international collaboration is critical to the excellence of UK research and the Government’s aim to become a scientific and global science superpower. As it says, as currently drafted the FIRS will have a severely negative impact on the UK’s ability to engage with researchers internationally and on the ability of researchers in the humanities and social sciences to engage on critical public policy topics, and it will irrevocably harm the UK’s research and innovation standing. Strong words.
Under the scheme as currently proposed, at minimum, research universities will be smothered in red tape and, at worst, heavy criminal penalties in undertaking international research partnerships will be imposed. Bluntly, I must tell the Minister that his amendments add very little to the clarity of this scheme. The Minister’s letter about the intersection with the National Security and Investment Act, which we debated in 2021, was far from convincing. There is already a raft of other legislation relating to the academic technology approval scheme and export control, which impact on a university’s international activities. If this scheme, by mischance, does go through, it makes Amendment 104, in the name of my noble friend Lord Wallace, the absolute bare minimum needed. Both the Russell group and the British Academy make the case for clarity, non-duplication, proportionality and a high threshold for registration, none of which is currently present in the scheme.
A further cause for withdrawal of this scheme is the strong reaction from the business and investment community. That is why this stand part debate is so important. The ABI states very clearly that the current proposal for the FIRS
“risks placing significant reporting burden on insurers and long-term savings providers investing in the UK, with the potential to negatively impact the UK’s international competitiveness and attractiveness as a place to invest”.
TheCityUK says these proposals
“if passed unamended would have a chilling effect on inward investment into the UK”.
Lord Hope of Craighead (CB)
My Lords, perhaps I could just add a footnote to what the noble Lord, Lord Clement-Jones, said—not along the lines that this paragraph of the schedule should be withdrawn but to draw attention to what I think is a defect in it, which illustrates the point that some of the details of this scheme have not been thoroughly thought through.
The point I want to make arises under paragraph (5)(4)(d), which exempts, as part of an example of “legal activity”,
“acting as an arbitrator or mediator.”
The exemption applies only if the person acting as an arbitrator or a mediator is a lawyer within the definition provided in paragraph (5)(3). Many people who act as arbitrators in technical cases are engineers or architects—people who are not qualified as lawyers but provide a valuable service in the whole scheme of arbitration on technical issues. It is quite common to find a panel of three arbitrators where one is them, perhaps, is a lawyer and the others are people with particular skills. I do not understand why, if there is going to be an exemption in relation to acting as an arbitrator or mediator, it should not cover anybody acting as an arbitrator or mediator, whatever his or her qualification might be.
Perhaps the Minister could explain at some point why it is only in the case of lawyers that arbitrators or mediators are to be exempted from the requirement to register. It would be interesting to know the reason because, otherwise, we will inhibit commercial activities and that would seem to be undesirable. I throw this out just as an example of what was referred to by some commentators as a rather slapdash approach to drafting. This issue needs to be looked at so that we can understand exactly what the purpose of this exemption is.
Baroness Hayter of Kentish Town (Lab)
My Lords, as we are in Committee, I think one can intervene a second time. I just want to ask the Minister about one of the questions I put about political parties; I think it also arises now, from what the noble Lord, Lord Carlile, said. It concerns the confidentiality of all these masses of reports. What privacy protections will be there if this measure goes ahead?
Lord Purvis of Tweed (LD)
My Lords, the best estimate of cost is £47.8 million. The high estimate is £62.4 million. In addition:
“FIRS could discourage business activities if the costs of compliance are considered too high. There is a risk of negative reputational impacts from inclusion on a public register. Other countries may introduce reciprocal measures to regulate the overseas activities of government and businesses. Persons could be prosecuted if engaged in unregistered activity, even if the activity itself is legitimate.”
“Benefits were not monetised … While there are many entities which would fall within the definition of a ‘foreign principal’ or ‘foreign power’, it is difficult to determine how many people are being directed to undertake registerable activities on their behalf, or how many people would qualify for an exemption under the scheme … There is also a lack of understanding around how likely the positive and negative impacts are … it is not known how likely it is that the benefits or impacts will occur, or how significant they are likely to be. It is also important to note that much of this feedback was provided before the scope and exemptions within the scheme were finalised.”
“It is acknowledged that the number of people who would be affected by the scheme in terms of registration and familiarisation is unknown … Due to the offences and penalties associated with non-compliance with the scheme, organisations that are ultimately out of scope will still need to be aware of the FIRS regulations to ensure they are out of scope, both currently and for future activities … members of the public will need support in fulfilling their registration requirements.”
“There is a risk that the scheme may have a disproportionate impact on small or micro-businesses (SMBs). There is a risk that SMBs, without established regulatory compliance procedures, won’t register with the scheme and could then be prosecuted. It is not known how many SMBs will be in scope of FIRS … With more time, a more extensive commission could have been sent to departments.”
The high estimate is that more than 371,000 individuals will need to be familiarised with the scheme, but:
“Home Office anticipate that there will be a relatively small number of cases per year for FIRS (less than five).”
Those are all direct quotes from the Government’s impact assessment on this scheme from October 2022. That impact assessment is the least ringing endorsement of any piece of legislation that I have seen in this House for 10 years. More than 371,000 people will need to be familiarised with a scheme that will have five potential cases per year and, of course, the scheme was not consulted on. To be fair to the Home Office, I read the consultation document from 2021. The principle of a FIRS was in it, but this scheme was not. It is in many parts a direct lift from FARA in the United States, or the FIT scheme.
However, the Government have been very coy about the areas where they have not chosen to follow. The noble Baroness, Lady Noakes, indicated the commercial enterprises. The Government have not said why they chose not to follow the United States’ example of the exemption of bona fide commercial activity and other activity not serving predominantly a foreign interest. Therefore, the whole gamut of the points that she and others have made in this House will be covered by this scheme and not that scheme, but why is not indicated. In fact, the Government’s own impact assessment goes beyond that, saying that they do not know how many small businesses will be affected by it, yet the impact assessment of the overall Bill and of this scheme says that there will be 25 people in London operating the scheme at a cost of nearly £50 million. This spider’s web is a very expensive one, and not many hornets will be covered, as the noble Lord, Lord Anderson, said.
The other exemption that the Government have not indicated having referenced before concerns the US exemption on religious, scholastic, academic, fine arts or scientific pursuits. There has been no indication as to why the Government have chosen not to follow that route. There is not a bishop on the Bench, but any Anglican community in or established church from another country interacting with one of our bishops will have to register on this scheme, because there is no religious exemption for it. Any community in this country carrying out what they believe the Pope has asked them to do for campaigning, on what they believe are humanitarian grounds, will have to register under the scheme. Any of us, or any MP, who is encouraging others to support a Ukrainian NGO charity, as the noble Lord, Lord Carlile, indicated, asking us to support Ukrainians for the resettlement scheme will have to register on the scheme.
This is likely to be a scheme that helps oppressors around the world far more than it helps our Government to secure national security. It is no surprise to me that both Hungary and El Salvador cited with great enthusiasm the US scheme as a mechanism to find out what those in other countries are doing to encourage human rights and civil liberties at home.
Lord Purvis of Tweed (LD)
There are a few, but 25 members of the Home Office are going to be monitoring this database, and a fair amount of their time might be taken up with David Cameron’s and Tony Blair’s international activities. What was the reason for differentiating from the Australian scheme?
We have heard concerns about the British Academy, universities, INGOs and NGOs, trade, and those seeking contact with FDI and the ABPI. It will render the work of our Prime Minister’s trade envoys that much harder when any interaction with an entity from a country with which we are seeking a better trading relationship now has to register in advance their contact with a trade envoy, not only for perfectly legitimate activities but for activities encouraged by the Government. We have also heard the concern from the ABPI that it will have to register the preparation and planning of meetings beforehand.
At the start of Committee, I indicated that our Benches did not see this part of the Bill as having been properly prepared. The details have not been consulted on and we believe that the Government should pause it. We said at the start of Committee that it may find a better home in the Economic Crime and Corporate Transparency Bill, if it is being reworked. It may be that we move for this to go to a Select Committee for further consideration or to be taken out of the Bill. We do not want to disrupt the Government’s moves to improve national security or to weaken the ability of our country to have national security. We also do not want to weaken our interaction with trade, investment and human rights, or—I say this as someone with no faith—our proper interaction with many faith groups, which will now have to register all of this activity within the Bill.
I hope that the Minister will say today that the Government are going to think again, pause and come back, not just by saying that more information will follow but with a commitment to consult on the specific schemes and work with us to bring back workable solutions.
Lord Cromwell (CB)
My Lords, I apologise for not having participated in this debate earlier but, like other speakers, I have been provoked by listening to the contributions. The speeches tonight appear to be about either excluding certain categories or, in the case of the noble Lord, Lord Clement-Jones, trying to include a category in the scope of the Bill. The fact is that, if you start to specify organisations or types of organisations, you will include every organisation in the country, whether a business or arts organisation, a charity, a political party or any other group of people, because any organisation can host people who seek to bring influence of one form or another. It is the behaviour, not the organisation, that is the problem here. To suppose that registering organisations will defeat covert practitioners from seeking to exert influence is naive to the point of being dangerous. As many have suggested, the solution is to go away, redraft and come back with a shorter Bill that does not try to include every organisation, not only in this country but in every other country—any one of them could host a malign influence.
Lord Sharpe of Epsom (Con)
I thank noble Lords for their important amendments in this group and for the extensive and interesting debate. I would be very happy to meet the noble Baroness, Lady Hayter, and others from other political parties, as she wishes. As soon as the reply to her letter is written, I will circulate it.
I assure the Committee that I have heard the strength of feeling on this issue and the calls to remove the political influence tier completely. I will be taking this back to the department to agree the next steps required to address these concerns ahead of Report, while balancing the need for a mechanism that protects us all from malign foreign influence in the UK. At the risk of upsetting the noble Lord, Lord Carlile, further information will follow.
I should say this: there should be no doubt that those who comply with the registration requirements under FIRS, by being clear and open about whom they represent, are supporting the resilience of the UK and its institutions in the face of state threats. There is no suspicion around those who register with the scheme; they are doing the right thing. However, as I said earlier, this has been an extremely valuable debate and I am grateful for all the thought and expertise that went into these contributions. I reassure the noble Lord, Lord Wallace, that we are not singling out the Dutch; we are merely citing an example. This is about foreign influence.
I start by addressing the amendments tabled on the political influence tier of the foreign influence registration scheme. I have listened carefully, and several interesting points have been made. I have heard the concerns raised about the unintended consequences of the political tier, and the Government will consider these points carefully ahead of Report.
Today, we have heard calls to remove this part of the Bill and focus instead on amending existing lobbying laws. These laws have been designed to be suitable for the supervision of domestic lobbying where British citizens and residents have a right to participate in the political process, but they are inadequate for foreign influence, where the impact of undue influence presents a greater risk to our democracy, and therefore greater regulation is required.
This is reflected internationally, and it is not unusual for countries to have distinct lobbying and foreign influence provisions. For example, the US has a Lobbying Disclosure Act as well as foreign agent registration requirements. Similarly, the Australians have a lobbying register that is separate from their foreign influence transparency scheme. I hope that that goes some way to answering the queries on this from the noble Lord, Lord Purvis.
The United Kingdom is well behind these countries in understanding the impact of foreign influence, and both tiers of the scheme are required to rectify this. FIRS will allow the Government and the public to understand better the scale, nature and extent of foreign influence on our democratic institutions.
I refer noble Lords to the multiple calls in the other place at the point of the Bill’s introduction for a scheme to require transparency around political influence activities. Members of the other place have signalled their agreement that political transparency is essential. We also heard from the director of regulation at the Electoral Commission, who said in oral evidence:
“Any registration scheme that brings more transparency around who is seeking to influence those involved in our democracy can only be to the benefit of the confidence of voters.”—[Official Report, Commons, National Security Bill Committee, 7/7/22; col. 44.]
I know that noble Lords will agree that the British people need to be able to trust the institutions that serve them. It can only be right that the UK public and our democratic institutions are protected from covert foreign influence and better informed as to the scale and extent of foreign influence in our political affairs. I emphasise to noble Lords that the public, and Parliament, should know when these foreign political influence activities are taking place. Transparency is a source of strength. That is why we have included provisions in the scheme to make certain information public.
Those who register under the scheme will be playing an important role in supporting our efforts to strengthen the resilience of our democratic system and political institutions. While we are keen to work with business and other sectors to ensure a workable and easy-to-use scheme, the regulation of foreign communications or disbursements should not of itself be controversial for the reputable end of industry.
I reassure the Committee that the registration requirements will not be burdensome. Registering will require filling in a short online form. The scheme will not prohibit any activities carried out by foreign entities or on their behalf where these have been registered in line with the scheme’s requirements. We intend to consult widely and convene expert panels to produce targeted and practical guidance. That will be published ahead of the scheme going live to ensure that the public and business are clear on the requirements.
The noble Lord, Lord Anderson, asked about NGO workers abroad. The scheme will require the registration of political influence activities where they are to be carried out within the UK at the direction of any foreign power or foreign entity, or where they are to be carried out by a foreign entity itself. Where the activities do not take place within the UK, they will not be caught by the scheme. I think this also answers the question from the noble Lord, Lord Carlile, about the Ukrainian situation.
Lord Carlile of Berriew (CB)
I am grateful to the Minister for giving way. He may be missing a point but will correct me if I am wrong. The collection of funds for that scheme, along with a lot of the organising activity, is done within the United Kingdom. As the Bill stands, that surely means there has to be registration.
Lord Sharpe of Epsom (Con)
Well, as I have just said, I do not believe that it does. If I may, I will confirm that and come back to the noble Lord.
I will now turn to the amendments from my noble friend Lady Noakes. I commend her for the spirit in which they were made. The first of these, Amendment 89A, looks to constrain our definition of “foreign principal” in the political influence tier of the scheme. She is quite right to point out that the current definition includes all foreign powers and foreign entities, but I will explain why the scheme has this breadth and the ways we have constrained the scheme to compensate for it.
The amendment seeks to include only those foreign entities that are controlled by a foreign power, rather than all foreign entities, in our definition of “foreign principal”. In the development of the scheme, we considered this as an option. However, we have worked closely with our Australian partners and reviewed their submission to the parliamentary review of the foreign influence transparency scheme.
The Australians originally took a very broad definition of “foreign principal” to their Parliament. This was, through its passage, constrained to something akin to my noble friend’s amendment. However, this has caused the Australians significant challenges regarding compliance and enforcement. For FIRS to function as it should, it shall need to be crystal clear to people whether or not they are working for a foreign principal. With certain foreign entities, it can be very difficult to determine ownership and governance structures, and nearly impossible for a small business or individuals to know whether they are working for an entity owned or controlled by a foreign power. In their submission to their parliamentary review, the Australians have recommended that the “foreign principal” definition is broadened, in keeping with our proposals. To provide balance with the broad definition of “foreign principal”, we have drafted a narrower definition of “political influence activity” compared with the US and Australian precedents.
Lord Anderson of Ipswich (CB)
I am very grateful to the Minister. He has just mentioned for the second time the compliance burden. Earlier on, he said very reassuringly that all that would be required to register was the completion of a form. But does the Minister understand that one reason why so many people are so anxious about these provisions is that it is not simply a question of filling in a form? In addition, once you have done that, there is the ongoing and, apparently, permanent obligation to comply with any information notices, which can be given at any time, requiring information of any sort to be provided to the Government. This is against the background of an absence of statutory guarantees regarding confidential information, except for lawyers and journalists, and not even—I think I am right in saying—any indication in the Bill as to whether this register will be public. The Minister has spoken a great deal about transparency.
How is that consistent with a United Kingdom that welcomes foreign engagement? Can the Minister understand how reluctant responsible directors and trustees will be to advise engagement with United Kingdom Government authorities against the background of those potentially very onerous provisions, which are liable to cause administrative problems and render it impossible for them to keep private what is always intended to be private?
Lord Sharpe of Epsom (Con)
I reassure the noble Lord that the Minister absolutely understands exactly where he is coming from. I will come on to the confidentiality aspects of the question he just asked in a second.
The process will require information about those party to an arrangement, as well as a description of the arrangements and activities to be undertaken. We would not expect a detailed account of every activity to be undertaken either as part of an arrangement or by a foreign principal, but the full process will be set out in regulations, which will be laid before Parliament.
Lord Wallace of Saltaire (LD)
Are those regulations to be laid before Parliament before the completion of the Bill, or will we have to wait until after it becomes an Act?
Lord Sharpe of Epsom (Con)
I will come back to the noble Lord on that shortly.
I will go on to the commercial sensitivity aspects—in effect commercial confidentiality, mentioned just now by the noble Lord, Lord Anderson. We believe that ensuring that information can be publicised where it relates to the carrying out of political influence activities will help to strengthen the resilience of the political system, but Clause 77(2) allows the Secretary of State to specify or describe information or material that is not to be published. We intend this to include where publishing the information would, for example, threaten the interests of national security, put an individual’s safety at risk, or result in the disclosure of commercially sensitive information. The registration system will allow a person to flag where they think they meet such an exemption, which will not be considered by the scheme management unit.
In accordance with our data protection obligations, we intend for the information to be published to be limited to what is necessary to achieve the transparency aims of the scheme, particularly where that information is personal. I have heard all the concerns and, as I said, the Government will give further consideration to these points ahead of Report.
Lord Purvis of Tweed (LD)
That commitment is welcome. The Minister referred to the lack of a regulatory burden; I am following the point that the noble Lord, Lord Anderson, raised. However, the Government’s impact assessment says, in effect, that everybody needs to be familiarised with it because they will not know whether they are in scope. It says at paragraph 37, which I quoted earlier:
“Due to the offences and penalties associated with non-compliance with the scheme, organisations that are ultimately out of scope will still need to be aware of the FIRS”.
When it comes to domestic charities and NGOs, the impact assessment’s higher estimate of how many people will have to familiarise themselves with FIRS is 105,000 people. It will be an enormous regulatory burden on the domestic charity sector as to whether it knows to comply with it. Simply stating that it is a small online form is insufficient. On that point, I wonder why the Government have no estimate at all of how many small and medium-sized businesses will be captured by this.
Lord Sharpe of Epsom (Con)
The noble Lord has pre-empted the remainder of my speech to some extent, which I am afraid goes on for rather a long time; I apologise in advance for that. I will come on to the charities aspect in a moment. On the regulatory burden, I think I have been reasonably clear as to the simplicity we intend when it comes to complying.
The amendment from the noble Lord, Lord Anderson, would extend my noble friend Lady Noakes’s amendment to charitable activities, as was just described again by the noble Lord, Lord Purvis. I once more thank the noble Lord, Lord Anderson, for his scrutiny of the scheme. In essence, the question is: why is there not a charity exemption in the scheme and will this not make it harder for charities to carry out legitimate activity here in the United Kingdom? We believe that the ability of charities to campaign on issues relevant to their charitable mission is very important and crucial to our democracy. The scheme will not prevent this. It will ensure that the public are informed about the role played by overseas entities in this work, however.
We have also taken steps to minimise the potential burden on charities conducting legitimate activity as a result of FIRS. For example, making a public communication, campaign information or requests for support by a charity will be registerable only if it is not reasonably clear from the communication that it is made at the direction of a foreign power or entity. If such a communication is published for or on behalf of a foreign charity in its own name, it would not need to be registered. If it is published by a UK charity or PR firm at the direction of a foreign charity, it would not need to be registered if it is reasonably clear from the communication that it has been made at the direction of the foreign charity. I hope that is reasonably clear and has given some reassurance to the charitable sector.
Viscount Stansgate (Lab)
For the avoidance of doubt, have scientific societies in this country that are charities been consulted by the Government in respect of the legislation in any shape or form?
Lord Sharpe of Epsom (Con)
I assure the noble Viscount that I shall come to the substance of his comments and those of the noble Baroness, Lady Lister, shortly.
I turn to the probing amendment from the noble Lord, Lord Wallace of Saltaire, that provides for a public health emergencies exemption to the political influence tier. I agree that where an event such as a coronavirus pandemic arises, it is imperative that the sharing of key information does not face unnecessary regulatory red tape.
The scheme does not intend to impede the sharing of information relating to public health emergencies. Governments speaking to other Governments, and experts speaking with other experts, will not be caught by the scheme. Only where communication is carried out to influence a political matter will it be registerable. Where it is done to influence a political matter but the information is shared as part of an arrangement with the UK Government, the UK arrangements exemption will apply and no registration will be required. We would be happy to consider further the point that the noble Lord raised. As an aside to one of his other points, I say that the enhanced tier will be used only for those countries or entities responsible for the greatest state threats. I do not know how many that will be.
Lord Wallace of Saltaire (LD)
Does the Minister accept that issues of public health can often be highly political? One of my colleagues at the London School of Economics who was looking after a number of exchange students in what was then the Soviet Union was expelled from the Soviet Union for having collected some dust in a part of Ukraine where it was rumoured that there had been a nuclear accident. We all know that the provision of public information about Covid-19 in China has become highly political and highly sensitive. We cannot quite put things into neat categories in the way he suggests.
Lord Sharpe of Epsom (Con)
I do not think that I am putting it into a particularly neat category; I think I am leaving a large amount of room for this to be taken on a case-by-case basis. I repeat: only where communication is carried out to influence a political matter will it be registerable. Where it is done to influence a political matter but the information is shared as part of an arrangement with the UK Government, the UK arrangements exemption will apply. I think that covers it completely.
I turn to Amendment 88 tabled by the noble Lords, Lord Ponsonby and Lord Wallace, and Amendment 97 tabled by the noble Lord, Lord Wallace, as they both raise the important issue of guidance for higher education and other sectors. We recognise that clear, targeted guidance will be essential in support of the public’s understanding of the scheme’s requirements. I hope that the Committee will be reassured by what I said of our plans to convene expert panels to help develop the guidance. That will ensure that the requirements are clear for universities and higher education institutes. Throughout the development of this scheme, we have listened to the views of organisations from the university sector. We will continue to do so as we design bespoke guidance.
Therefore, I do not think that the proposed amendments are necessary. Although it is essential that the guidance is published ahead of the scheme going live, putting time limits on publication following the Bill’s passage may hamper the engagement we wish to carry out in producing the most helpful and targeted guidance.
Amendment 104, which is another amendment from the noble Lord, Lord Wallace of Saltaire, seeks to ensure that the higher education sector is not unnecessarily burdened by the enhanced tier of FIRS. I assure him that this has been considered in relation to FIRS. There is a clear difference between it and the National Security and Investment Act, the academic technology approval scheme, and the export control regime. The Government are clear that FIRS fills an gap in our current toolkit.
The focus of the enhanced tier is to provide scrutiny to the UK activities directed by foreign powers, and foreign power-controlled entities, where the Secretary of State considers it reasonably necessary to do so to protect the safety or interests of the UK. In the limited circumstances where there is a risk of duplication, we will work closely across government departments and potential registrants to keep the burden of registration to a minimum and inform our approach to using this tier of the scheme.
In essence the noble Viscount, Lord Stansgate, and the noble Baroness, Lady Lister, were asking whether this scheme would interfere in the work of academia and broadened it out to further bodies, such as the British Academy, as referenced by the noble Baroness, and the scientific bodies referenced by the noble Viscount. There is no intention for this scheme to interfere with the work of academia, or with relevant international collaborations. We have considered the feedback of the academic and higher education community on this point. Under the specified persons tier, a UK university would need to be acting at the direction of a specified foreign power or a specified foreign power-controlled entity before registration requirements could apply. It would not be enough for a foreign power or entity to simply provide funding in support of an activity at a university, for example through subsidy or donation. Nor could responding to a generic request from a foreign power or entity be considered as “acting at the direction of”.
Viscount Stansgate (Lab)
I will reflect on what the Minister says when I read Hansard. I am glad that bodies such as the British Academy will be consulted, and I hope that the named organisations I mentioned earlier will be consulted. If we take the case of an international conference, held in one of many states around the world, is it the Government’s view that that international conference, which may or may not be sponsored officially by a Government but nevertheless takes place in what may be considered an unfriendly country, brings about the type of involvement in this scheme on the part of individual people attending, or does it not?
Lord Sharpe of Epsom (Con)
My Lords, I thought I was very clear on the precise specified persons tier here. A UK university would need to be acting at the direction of a specified foreign power or a specified foreign power-controlled entity before registration requirements could apply. I think that covers the set of circumstances just outlined by the noble Viscount.
Lord Clement-Jones (LD)
The Minister spoke about universities. Did he mean the academics—any academic within the universities?
Lord Sharpe of Epsom (Con)
Yes.
Amendment 103 was tabled by the noble Lord, Lord Clement-Jones, to remove the exemption from the registration requirement in FIRS for lawyers providing legal activities. While I welcome the challenge, removing this exemption would risk undermining long-standing protections the UK has afforded to the provision of confidential legal advice and the equitable administration of justice. The exemption is available only to lawyers carrying out legal activity and so would not apply to other individuals carrying out legal activity.
I also reiterate what was said in Committee in the other place: that this exemption does not completely exempt legal professionals from engaging with the scheme. It does not cover all the activities that could be undertaken by a legal professional as part of an arrangement with a foreign principal. Activities that are not strictly legal activities, such as lobbying, for example, may still need to be registered. So, for example, if a lawyer were to enter into an arrangement with a foreign power to lobby a UK government Minister or parliamentarian on the UK’s foreign policy towards that foreign power, that would be registrable. The fact that the individual is a lawyer is not sufficient in and of itself to exempt them from registration.
Lord Clement-Jones (LD)
I heard what the Minister said about lobbying and the additional aspect of lobbying by law firms, but why is any exemption needed beyond what is contained in Clause 74, which covers legal professional privilege effectively—legal proceedings and so on—so that no confidential information needs to be divulged? Why is it not necessary that a law firm is acting for a foreign power or an entity controlled by a foreign power? Why should that be exempt?
Lord Sharpe of Epsom (Con)
I think I explained this in reasonable detail. It goes back to the sort of work the lawyers carry out. As I say, it is the long-standing protections that the UK has afforded—
Lord Clement-Jones (LD)
All the Minister is saying, in a highly circular way, is that it is in here because it has always been in here in some other forms of legislation. I do not think that is much of an answer.
Lord Sharpe of Epsom (Con)
In that case, I am very sorry to disappoint the noble Lord. I apologise for having spoken at such length.
Lord Hope of Craighead (CB)
I am not sure whether the Minister has picked up my point about arbitration. I am very sorry that I did not put down an amendment to direct attention to this, but it is quite an important point because London is a preferred seat for arbitration and many cases involving foreign powers and foreign-controlled activities. I have done a handful of arbitrations, but each one of them is within that category.
One of the features of an arbitration is the confidentiality of the process and the fact that the process exists at all. There are some cases where parties do not want it to be publicised that they are engaging in this process, because it would raise all sorts of questions, particularly at the home state of the foreign activity, the foreign-controlled entity or the foreign power itself. It is rather important to be sure that the ground is properly covered.
As an arbitrator myself, and a lawyer-arbitrator, I favour the exemption provided by paragraph 5, but I do not think it goes wide enough. That is my point: it would seem very strange if I, as a lawyer for a team of three arbitrators, did not have to register, but if the noble Lord, Lord Patel, was with me as an expert in his field, he would have to do so, and an engineer or an architect would have to do so as well. That really destroys the exemption. It is a serious point to look at, though I quite agree that it is a point of detail. I apologise for not having drawn attention to it specifically before.
Lord Sharpe of Epsom (Con)
I was about to attempt to address the question from the noble and learned Lord, Lord Hope, but unfortunately he is not going to like the answer, which is that I do not know. I will have to look into this and come back to him.
I appreciate the concerns that have been expressed by all noble Lords, and I thank all those who participated in what was clearly a very healthy and important debate. We will reflect carefully on the comments raised prior to Report. For the moment, and to that end, I ask noble Lords not to press their amendments.
Lord Purvis of Tweed (LD)
Since the Minister said he would go away and reflect on this debate, which may bring about substantial changes to what the Government are doing, what would be the point of his moving his amendments for the remainder of this part? It would save the Committee quite a bit of time if he did not move these amendments to the rest of the part that he said he is now going to consider.
Lord Sharpe of Epsom (Con)
My Lords, I am not sure it would save a huge amount of time, would it?
Lord Purvis of Tweed (LD)
It depends how long the Minister takes to move his own amendments. When he sums up his own amendments that he will be moving, he will be saying, “I am now going away to reflect on these and come back before Report”, so there is very little point in doing that.
Lord Ponsonby of Shulbrede
“Definition of “specified persons”Within 60 days of this Act being passed, the Secretary of State must make regulations under section 63 to define “specified persons”.”Member’s explanatory statement
This amendment means that the Government must define “specified persons”.
Lord Ponsonby of Shulbrede (Lab)
My Lords, Amendment 83 provides that the Government must lay secondary legislation to define “specified persons” within 60 days of Royal Assent. A specified person under this Bill is a person who engages another for foreign activity arrangements. The purpose of the amendment is to probe who that could involve and whether they must be representative of a national Government or state. This amendment is further intended to probe the unintended consequences of the FIRS scheme and to illustrate that the legislation as drafted creates uncertainty as to who it applies to.
The Government have also tabled amendments as part of this group to clarify that activities being carried out must be registered at the time that they are carried out. A separate government amendment in this group limits the circumstances when affirmative procedures must be used in relation to defining “specified persons”, removing a layer of scrutiny. I beg to move.
Lord Sharpe of Epsom (Con)
My Lords, government Amendments 85, 86, 87, 94, 95 and 96 are minor and technical amendments that will make it clear that a current—rather than a previous—registration, is required to meet the registration requirements of either tier of the foreign influence registration scheme. This will mean that, where previously registered activities are resumed, a current registration will be required rather than a person within scope of the scheme being able to rely on the fact that the activities had previously been registered. This will support the need for the register to remain accurate and up to date, providing the best possible insight into the scale of foreign political influence activities, and activities of specified entities.
Government Amendment 121 ensures that that the clauses are as clear as possible and accurately reflect our intent. To specify an entity on the enhanced tier, the Secretary of State will have a regulatory making power as per Clause 63. Under subsections (5) and (6) of Clause 92, this power to specify will be subject to an affirmative procedure. The amendment adds wording to clarify that the affirmative procedure applies where a new entity is being specified. Where an entity is being de-specified, or an already specified entity is being re-specified—for example, because it has changed its name—a negative procedure will apply, under Clause 92(4). This will ensure that both the specifying and removal of entities from the enhanced tier will be subject to the necessary level of parliamentary scrutiny.
Amendment 83 seeks to require the Secretary of State to define “specified persons” within 60 days of this Act being passed. “Specified persons” are defined within Clause 63 of the Bill; I therefore interpret this amendment as being intended to set a requirement on the Government to specify any entities to which the enhanced tier will apply within 60 days of the Act being passed. The specification of a person will mean that individuals or entities will have to register any arrangements with the specified person to carry out activities in the UK. It will also set a requirement for specified entities themselves to register their own activities. I am sure the House will recognise that these are far-reaching requirements, and it is therefore vital that the designation of a specified entity is done following appropriate consideration and on the basis of circumstances that exist at the time, and the most up-to-date and comprehensive evidence. A blanket requirement to designate all specified entities within 60 days would impede the careful case-by-case basis consideration that is required and would be a disproportionate approach to the specification of persons under this tier. I therefore do not believe that this amendment is necessary, and I encourage the noble Lord to withdraw it.
Lord Wallace of Saltaire
“(3A) Condition 2A is that the foreign power contributes, directly or indirectly, more than 25% of the annual revenue of the person.”Member's explanatory statement
This amendment adds an additional condition to determining if a person is controlled by a foreign power. It is intended to further increase transparency.
Lord Wallace of Saltaire (LD)
My Lords, some of my colleagues will probably feel that further discussion on Part 3 is, in a sense, almost redundant. The clear sentiment of the House is that Part 3, as it exists, is unfit for purpose, and that we need to pause the Bill to consult more widely and, in the light of those consultations, revise very considerably. That being the case, I merely wish to flag in my probing amendment some of the sheer difficulties of defining “foreign control”, and what is controlled by a foreign entity, using indicators of how far or otherwise it is indeed influenced by a foreign power or owner.
Noble Lords who read the football pages, as I occasionally do, will have noted the current controversy as to who actually owns Everton Football Club. The question is whether the real owner, carefully disguised, is a sanctioned Russian oligarch. If you cannot tell who actually owns Everton Football Club—the idea that you can carefully discover the foreign company based in Panama, itself owned by a controlling company that is partly in the Bahamas and partly in the Cayman Islands—it is not entirely clear how we might define who owns what.
The UK contributes a great deal to the confusion over who owns what. Our overseas territories and, to a certain extent, our Crown dependencies, and the way in which Companies House operates, often make it very difficult to discover even that companies registered in this country may be owned by a chain of other owners; the ultimate owner therefore becomes extremely unclear.
Lord Ponsonby of Shulbrede (Lab)
The noble Lord, Lord Wallace, has raised an interesting but complicated question to answer. He has given various examples of the complications involved in trying to identify the owners of companies. From my own experience as a part company owner and director, I did not know who the shareholders in my own company were, once the ownership was traced back. This is a very difficult and involved question, and I look forward to the Minister’s response.
Lord Murray of Blidworth (Con)
I thank both noble Lords for their contributions; it is indeed a complex issue. Amendment 83 seeks to provide that, where an entity receives 25% or more of its revenue from a foreign power, it can be considered as subject to control from a foreign power and eligible to be specified under the enhanced tier of the scheme. I commend the spirit with which this amendment has been made. The noble Lord’s aim of increasing transparency supports the objectives of the scheme, but it is vital that we strike the balance of proportionality.
It is important that we maintain a distinction between funding, or donations, and control. However, I hope the noble Lord will be reassured that where, in practice, funding does result in a foreign power directing or controlling the activities of the entity, a condition for foreign power control already given in Schedule 13 will still be met. Where this condition is met, it will be possible to specify the entity under the enhanced tier.
We recognise that it is imperative that this scheme maintains the flexibility to adapt, should a foreign power seek to take action to evade the scheme’s scope and requirements. Part 3 of Schedule 13 provides this necessary flexibility by allowing for the conditions of control to be amended for permitted purposes by regulation. For these reasons, the Government cannot accept the proposed amendment and invite its withdrawal.
Lord Wallace of Saltaire (LD)
My Lords, I foresee yet another bout of litigation over who really owns what as this is implemented. We have seen a fair amount of argument among different Russian oligarchs about who owns what, and what political influence may or may not have been involved, in the London courts. This is one of the many ways in which the Bill, in its current form, is not proportionate. This is, again, why we need to move slowly, carefully and cautiously as we complete our scrutiny of the Bill.
We must not put too much of a burden on the individual business man and woman, or the individual customer, but, at the same time, we must do our utmost to ensure that foreign money, as it comes into British politics and British political life, is identified as vigorously as possible. Incidentally, I am not convinced that the Bill does that, as I said in an earlier session. That is one of the ways in which the Bill needs to be strengthened rather than weakened. This will, I hope, form part of the discussions that we will have off the Floor, during the process in which the Government will produce their promised policy statement, and before we come to Report. I beg leave to withdraw.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment clarifies that the activities being carried out must be registered at the time they are carried out.
Member's explanatory statement
This amendment clarifies that the activities being carried out must be registered at the time they are carried out.
Member's explanatory statement
This amendment clarifies that the activities being carried out must be registered at the time they are carried out.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment clarifies that agreements can be “foreign influence arrangements”.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment inserts a reference to the new Schedule inserted by Lord Sharpe after Schedule 13.
Lord Sharpe of Epsom (Con)
My Lords, Amendments 90, 91, 93, 98, 122 and 123 insert senior leaders in the police and military, the mayors of London and of combined authority areas, and police and crime commissioners to the list of postholders who, if communicated with, trigger a requirement on the person doing the communication to register under FIRS.
State actors who pose a threat can and will seek to identify and target individuals who are relied on to inform decision-making by government. These amendments will require foreign principals, and those working on behalf of foreign principals, to be transparent where they are seeking to influence decision-making and political processes through the postholders listed. Requiring registration of these activities will shed light on the scale of the attempts to carry out this type of influencing and will allow for prosecutions where such activity is not registered. It will also provide a layer of protection for these postholders by providing a deterrent to hostile states seeking to act in this way to advance their own malign agendas and allow for postholders to inform themselves of who is communicating with them and why.
The existing list of potential targets of lobbying in Clause 68(2)(a) already includes senior officials. We consider that senior military and police officials fall into a similar category to senior civil servants; they are experts who are able to provide advice to Ministers on matters relating to government decisions.
Mayors are often senior political figures within their respective political parties whose views are likely to carry significant weight with Government Ministers, including when they are making government decisions. I hope that goes some way to answering the questions related to this matter from the noble Lord, Lord Purvis, in an earlier group. Mayors, alongside devolved and central Governments, form an important part of the UK’s political establishment and, as such, we believe it is appropriate to capture them within a scheme focused on political influencing activity.
Similarly, in their capacity as elected officials, police and crime commissioners also form a part of the UK’s political establishment and may be identified as being in a strong position to influence contacts within Westminster regarding government decisions.
We have listened to the concerns about the breadth of the FIRS scheme, but we do not believe that adding these individuals would disproportionately expand the scheme. This is because communication with these individuals will be registerable only when it is for the purpose of influencing one of the existing persons or matters at Clause 68(3); for example, communication with a combined authority mayor for the purpose of influencing a local government decision, as opposed to a UK government decision, would not require registration.
These measures seek to tackle scenarios where postholders are being targeted by foreign principals seeking to indirectly influence government decisions and other political processes. While we consider it important to include these postholders, it is vital that the scheme remains proportionate. For this reason, we have taken the decision to limit these additions to the mayors of London and combined authority areas, as opposed to all mayors, and limit the ranks of the police and military officials included to the most senior.
These amendments also amend the power to add further to this list. Amendment 98 provides that the Secretary of State can by regulations specify a person “exercising public functions”, rather than
“persons exercising functions on behalf of the Crown”,
as in the original drafting. This reflects the fact that the list is not only of persons who are exercising functions of the Crown but includes persons carrying out wider public functions. This amendment will allow the necessary flexibility to future-proof the list of those who may be targets of political lobbying. Any regulations made under this power will be thoroughly scrutinised by Parliament through the affirmative procedure. I ask the Committee to accept these amendments. I beg to move.
Lord Evans of Weardale (CB)
On the extent of the schedule of those to be included, unless I have misunderstood or misread, there does not appear to be any reference to senior members of the security and intelligence services, who I do not think fall into any of the other categories. Could the Minister explain whether I have misunderstood or if that is a deliberate exclusion, and what any reasoning might be?
Lord Purvis of Tweed (LD)
My Lords, it is an intriguing question. I like the idea, as a concept, that any of these organisations which plan to meet with leaders of our intelligence services have to put that on a public register. To assist in transparency, that might meet the Minister’s case. In fact, if we do that, it might mean that we do not need the whole scheme for the other 300,000 people. It is an intriguing point. My questions about who is not covered are far less exciting than whether the intelligence community comes into it.
The Minister said he responded to my point but, with respect, I do not know why the Mayor of London is included but the Lord Mayor of London is not. I do not know why The City of London Corporation would not be included. I would have thought, if this is to do with political influence on our country’s interests, the Lord Mayor and the corporation and City of London represent an absolutely prime area where political influence could be sought over policy. I do not know why that is not included.
I do not know why the mayors of Tees Valley and North of Tyne are included but the leader of Glasgow City Council is not. If it is to do with ensuring a sensible way of operating, then, with the greatest respect to the mayor of the 600,000 people in Tees Valley, to include them in this because they are susceptible to foreign influence seems a bit odd when the leader of the council in Edinburgh, the capital city of one of our four nations, is not. I do not know how long this schedule will last, since the Minister says he is thinking about it and coming back, but, in the meantime, if he can respond to that point I would be grateful.
Lord Sharpe of Epsom (Con)
My Lords, I will have a go. I thank the noble Lord, Lord Purvis, very much for those comments. These amendments simply seek to add senior leaders in the police and military, the Mayor of London, mayors of combined authority areas and police and crime commissioners, as I have said, to the list of potential targets of communication by or on behalf of foreign principals.
I refer back to a statement I made in my opening remarks. We think it is important to include these postholders but we wish for the scheme to remain proportionate. For that reason, we have taken the decision to limit these additions to the mayors of London and combined authority areas, as opposed to all mayors, and limit the ranks of the police and military officials to include the most senior. The point about the mayors is surely a good one: they are politically elected and members of political parties. They therefore have significantly more political influence, I would argue, than the Lord Mayor of London, for example.
As regards the definition—
Lord Purvis of Tweed (LD)
What about the corporation? I am grateful to the Minister, but there is a quite considerable amount of executive authority in the City of London Corporation when it comes to what could well interact with the interests of the United Kingdom. So perhaps the Minister might reflect on that.
Lord Sharpe of Epsom (Con)
I will absolutely reflect on that but, as I say, they are not politically elected persons, as the noble Lord will know. As regards his example of a foreign defence contractor talking to somebody of the rank of brigadier, having had our lengthy discussions earlier I would have thought that they would be captured under the corporate side of the Bill. The effect of this amendment would be that foreign principals, or those in arrangements with them, would be required to register communication with these postholders, as well as those in the existing list, if it were conducted for the purpose of influencing one of those persons listed in Clause 68.
In answer to the other question about senior members of the security services, I believe that is captured under “senior civil servants”, but I will confirm that and come back to the noble Lord. For now, I ask that the House agrees this amendment.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment removes the list of persons in clause 68(2)(a). Those persons are now listed (with additional persons) in the new Schedule inserted by Lord Sharpe after Schedule 13.
Member’s explanatory statement
This amendment provides that public communications are not within clause 68(2) if it is reasonably clear they are made by a foreign principal.
The Deputy Chairman of Committees (The Earl of Kinnoull) (CB)
I cannot call Amendment 92B, as it is an amendment to Amendment 92A.
Amendment 93
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment removes definitions that are no longer needed in clause 68 because the terms they define have been removed by Lord Sharpe’s amendment to clause 68, page 46, line 30.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment clarifies that the political influence activities being carried out must be registered at the time they are carried out.
Member’s explanatory statement
This amendment clarifies that the political influence activities being carried out must be registered at the time they are carried out.
Member’s explanatory statement
This amendment clarifies that the political influence activities being carried out must be registered at the time they are carried out.
Lord Sharpe of Epsom
“SchedulePublic officialsMinisters
1 A Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975).2 A Northern Ireland Minister (within the meaning of section 68).3 A Scottish Minister.4 A Welsh Minister (within the meaning of section 68).MPs etc
5 A member of either House of Parliament.6 A member of the Northern Ireland Assembly.7 A member of the Scottish Parliament.8 A member of Senedd Cymru.9 An employee or other member of staff of a person within any of paragraphs 5 to 8.Local government
10 The Mayor of London. 11 A mayor for the area of a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009.Political parties
12 An officer, trustee or agent of a UK registered political party (within the meaning of section 68).13 A member of such a political party who exercises executive functions on behalf of the party.Election candidates
14 A candidate at an election for a relevant elective office (within the meaning of section 37 of the Elections Act 2022).15 A candidate at an election for a relevant Scottish elective office (within the meaning of that section).Civil servants
16 (1) A member of—(a) the Senior Civil Service;(b) the Northern Ireland Senior Civil Service;(c) the Senior Management Structure of Her Majesty’s Diplomatic Service.(2) A person who serves the government in a position in the civil service of the State and whose appointment to that position meets the requirements applicable to that position set out in section 15(1) of the Constitutional Reform and Governance Act 2010 (special advisers).(3) A person appointed to a position in the Northern Ireland Civil Service by a Northern Ireland Minister (within the meaning of section 68) and whose appointment to that position meets the conditions set out in section 1(3) and (4) of the Civil Service (Special Advisers) Act (Northern Ireland) 2013 (c. 8 (N.I.)) (special advisers).Military personnel
17 (1) An officer subject to service law who is of or above the rank of commodore, brigadier or air commodore.(2) In sub-paragraph (1), “subject to service law” has the same meaning as in the Armed Forces Act 2006 (see section 374 of that Act).Police
18 The chief constable or deputy chief constable of a police force maintained under section 2 of the Police Act 1996.19 A police and crime commissioner.20 A person of one of the following ranks of the metropolitan police force—(a) Commissioner of Police of the Metropolis;(b) Deputy Commissioner of Police of the Metropolis;(c) Assistant Commissioner of Police of the Metropolis;(d) Deputy Assistant Commissioner of Police of the Metropolis.21 The Commissioner of Police for the City of London or an Assistant Commissioner of Police for the City of London.22 The chief constable or deputy chief constable of the Police Service of Northern Ireland.23 The chief constable or a deputy chief constable of the Police Service of Scotland.24 The chief constable or a deputy chief constable of the Ministry of Defence Police. 25 The chief constable or deputy chief constable of the British Transport Police Force.26 The chief constable or deputy chief constable of the Civil Nuclear Constabulary.Persons exercising public functions
27 (1) A person exercising public functions who is specified by the Secretary of State in regulations.(2) “Public functions” means functions of a public nature—(a) exercisable in the United Kingdom, or(b) exercisable in a country or territory outside the United Kingdom by a person acting for or on behalf of, or holding office under, the Crown.”Member’s explanatory statement
This new Schedule expands the list of persons, communication with whom is capable of being a political influence activity. It includes the persons previously listed in clause 68(2)(a), and additional persons.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment clarifies that the exemption for UK arrangements applies to agreements and arrangements within the meaning of “foreign activity arrangement” or “foreign influence arrangement”.
Member’s explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to Schedule 14, page 180, line 15.
Member’s explanatory statement
This amendment adjusts the definition of UK arrangements to include agreements.
Member’s explanatory statement
This amendment clarifies that the exemption for news-related foreign influence arrangements applies to agreements and arrangements within the meaning of “foreign influence arrangement”.
National Security Bill
Wednesday 18th January 2023
(1 year, 10 months ago)
Lords ChamberRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 68-V Fifth marshalled list for Committee - (16 Jan 2023)
Lord Murray of Blidworth
Member's explanatory statement
This amendment clarifies that the power in clause 77(1)(b) relates to the onward disclosure of information provided to the Secretary of State under clause 72 or 73.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, Clause 77 allows the Secretary of State to make regulations about the publication and sharing of information provided through the foreign influence registration scheme. Amendment 105 clarifies that power at Clause 77(1)(b) and provides for the Secretary of State to make regulations about the onward disclosure of information registered or provided under the foreign influence registration scheme. The amended provision will enable the Secretary of State to provide clarity in respect of what data can be lawfully shared where necessary. I therefore ask the Committee to support this amendment. I beg to move.
Lord Carlile of Berriew (CB)
My Lords, we are being asked to approve something that relates to regulations that we have not seen, and we would ask the Government to review the way in which they are approaching the passage of this part of the Bill. We need to see not just draft practice or draft regulations but the regulations themselves.
The way in which this part of the Bill has been generated—and I do not want to repeat a discussion that we had two days ago—means that there is a great deal of uncertainty about what is intended. I hope that the flexibility that was indicated by Ministers on Monday will be extended to how such information is disseminated. I hope that we will get an undertaking that, before Report, and not on the day that Report begins, we will see the regulations and other documents that will indicate the architecture and detail of whatever parts of FIRS are going to be retained.
Lord Coaker (Lab)
My Lords, I agree with what the noble Lord, Lord Carlile, has just said, and I shall say a bit about it myself, in a few remarks on the government amendment. As the Minister said, the amendment clarifies the power in Clause 77(1)(b) and deals with the publication and disclosure of information provided by the Secretary of State under Part 3 on registration. Can the Minister say a little about what is not to be published? As the noble Lord, Lord Carlile, has just pointed out to the Committee, all this is to be done by regulations—and, I emphasise, done by regulations under the negative procedure.
Information provided by the Minister about foreign activity arrangements and foreign influence arrangements could, as the DPRRC said, be both politically and commercially sensitive. There will also be practical matters of significant political interest around these matters, given their relationship to national security. What sort of thinking is going on about what may or may not be published? Will those whose information is to be published be told in advance of publication and have any right of appeal? Again, as the noble Lord, Lord Carlile, said, why should Parliament not be able to have a more direct say in what sort of information should be published? That point was made by the DPRRC, which called for these regulations to be made, at the very least, under the affirmative procedure, to give at least some degree of scrutiny for this Parliament. I ask the Minister again to reflect on why negative procedure is being used for these regulations and not, at the very least, affirmative.
Lord Murray of Blidworth (Con)
I thank both noble Lords for those contributions. I can, of course, reassure the noble Lord, Lord Carlile, who will be aware that my noble friend Lord Sharpe committed in this House that a policy statement would be published ahead of Report.
On the points raised by the noble Lord, Lord Coaker, clearly the drafting of the regulations will necessarily follow the shape of the scheme, which is reflected in the final version of the statute. Therefore, it would not be appropriate at this stage to have draft regulations to consider. As to the appropriate method by which the regulations should be approved, it is the Government’s view that the negative procedure is appropriate for these minor and technical regulations, given what they do to enable the disclosure of information provided to the department in accordance with the scheme.
Therefore, for all those reasons, we submit that this is a minor and technical amendment that simply clarifies the purpose of the power, and that it is intended specifically to enable the Secretary of State to make provision through regulations for the onward disclosure of information registered under FIRS, and I therefore ask the Committee to support this amendment.
Lord Pannick (CB)
Perhaps I could press the Minister on this. He said that there will be a policy statement before Report. The noble Lord, Lord Carlile, was asking whether we can see the draft regulations. I entirely understand the Minister’s point that the final version of the regulations will need to await the passage of the statutory scheme, but why can the department not produce draft regulations which will inform discussion on Report?
Lord Murray of Blidworth (Con)
At the moment I fear I cannot commit to providing draft regulations. It may be that there are some, but it may be that to draft regulations prior to Report would be too time-consuming.
Lord Carlile of Berriew (CB)
I am sorry to intervene again, but does the Minister not see that this is illustrating the whole mistake in producing important legislation arising from amendments made in Committee in the House of Commons? If this part of the Bill had been drafted in the normal way, by parliamentary counsel with time to develop it and to consult, it would have been perfectly simple to produce draft regulations in time for Report in the House of Lords, which is nearly at the end of the legislative process. Is this not really just a guilty plea to having had insufficient time to prepare a Bill that came to this House based on an idea which was not even government policy?
Lord Murray of Blidworth (Con)
I note the noble Lord’s views on the topic, but we are where we are. Obviously, the department will take away what he says and endeavour to meet his reasonable request.
Lord Coaker (Lab)
I say to the Minister, before he sits down, that in view of what the noble Lords, Lord Pannick and Lord Carlile, have said, it is not satisfactory. We do not have a policy statement, we cannot see the regulations and, when the regulations are passed, the Government will pass them through the negative procedure. I would have thought, at the very least, given the worries and concerns that have been raised, that the affirmative procedure, as the Delegated Powers Committee said, in these circumstances in particular, might be something the Government would consider. I ask the Minister to reflect on that.
Lord Wallace of Saltaire (LD)
I hope the Minister will agree to draw the attention of his department to the debate held in this House last week on delegated legislation and to the very strong sense across the whole House, including on his Benches, that this House is meeting a Government who give us less and less information about regulations and prefer to leave more and more out of Bills so that Ministers may act as they are. This is an abuse of Parliament and should not be pursued further. That message is particularly important for a Bill such as this, and the Government should consider it.
Lord Murray of Blidworth (Con)
I have no doubt that the department will reflect on those points. We are all very aware of last week’s debate, in which the Leader participated.
The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)
A decision has been taken through the usual channels to combine the next two groups, commencing with Amendment 105A and including the following list commencing with Amendment 106.
Clause 82: National security proceedings
Amendment 105A
Member’s explanatory statement
This amendment restricts the definition of ‘national security proceedings’ to correspond with the ordinary meaning of that phrase, and not merely because some national security-related evidence has been adduced. It also prevents a public body from avoiding accountability by categorising proceedings as ‘national security proceedings’.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am grateful for the explanation that these two groups have been combined. I spent some time today wondering why they could possibly have been separated, since they both concern the topics of a reduction in damages and freezing powers and damages. We are now dealing with all the amendments to Clauses 82 and 83 and the stand part objections to Clauses 82 to 86.
I have Amendment 105A in group two. It is what I might call an exemplar amendment, by which I mean that it is directed at one of the issues on which these provisions on the power to reduce damages under Clauses 82 to 86 are unacceptable. I say at the outset that I fully support the objections to any of these clauses standing part of the Bill, advanced by my noble and learned friend Lord Wallace of Tankerness, my noble friend Lord Purvis of Tweed and the noble Lord, Lord Pannick. I shall therefore speak at this stage on the amendments in group three as well, which relate to the reduction, freezing and forfeiture of damages proposed by Clauses 82 to 86.
I will make three points. First, these clauses are vindictive, because they are not clearly targeted towards achieving the end at which they are aimed but instead represent a far wider knee-jerk attack on the civil rights of those affected. Secondly, they are unnecessary, because existing statutory powers and legal principles are already in place to achieve that end. Thirdly, they would represent an insidious restriction of the rule of law and an unwarranted grant of effective immunity for government from legitimate action taken by citizens to recover damages for proven unlawful actions by government agencies.
I turn to my first point: that the provisions are not targeted at the end which they are intended to achieve. The aim of these provisions is described in the impact assessment. Based on the Conservative manifesto commitment to
“do all we can to ensure that extremists never receive public money”,
the impact assessment says that, to achieve this aim,
“civil damages reforms will address the risk of awards of large sums of damages paid out in civil court claims being used to fund and support acts of terror and whether damages are appropriate where a claim in a national security case concerns a claimant’s involvement with terrorism.”
The first of those aims concerns the use of damages awards, which we say can be addressed by freezing orders under existing legislation, to which I will turn in due course. But the second presupposes a link between the claimant’s conduct and the award of damages.
Lord Pannick (CB)
My Lords, I have added my name to many of the amendments in these groups. I declare an interest as a practising barrister in public law cases, occasionally in cases concerning natural security.
I entirely agree with the powerful speech that the Committee just heard from the noble Lord, Lord Marks. The award of damages for civil wrongdoing is one of the primary means by which the court remedies the wrongdoing and deters future wrongdoing. That the award of damages is central to our system of justice is confirmed by Clause 83(6), which recognises that the court may not decide to reduce damages to a claimant under the Human Rights Act. By seeking to allow a reduction in damages for non-human rights cases, these clauses would introduce a lesser standard of justice.
I am very unclear why what is unacceptable for a human rights case should be thought acceptable for other civil litigation. That is especially so when the concerns which the Government have about paying damages when they are found to be liable are most likely to arise in cases which do concern human rights violations: cases where the allegation is made—and for the purpose of this clause we must assume is proved to the satisfaction of the court—that the state has been complicit in acts of torture or murder, perhaps by undercover officers. Such grave acts can be and are pleaded as human rights violations.
I appreciate that the Government are keen to remove legal liability, including human rights liability, for claims based, for example, on UK military action abroad, but if liability were to be excluded for such alleged conduct, there would be no need for provisions on damages. Why deal with this by reference to the remedy rather than to liability?
These clauses are not even concerned with a case where the terrorist’s wrongdoing had a causal connection with the Crown’s conduct, which forms the basis of the Crown’s liability for its wrongdoing. Clause 83(4)(a) makes it clear that there is no need for such a causal connection. In any event, as the noble Lord, Lord Marks, correctly explained to the Committee, existing legal principles would apply in such circumstances. Therefore, I need to be persuaded by the Minister that there is any principled basis for these clauses.
Lord Purvis of Tweed (LD)
My Lords, the noble Lord, Lord Pannick, and my noble friend have comprehensively outlined why both these clauses are unnecessary in law but also go far beyond what is necessary and will be damaging in practice. I need not add very much other than to say that I have put my name to the amendments that my noble and learned friend Lord Wallace of Tankerness, who was unable to be with us today, has put down with regard to Clauses 82 to 86 stand part and, as my noble friend indicated, the other amendments that would seek to reduce the impact.
The clauses undermine considerably mechanisms for holding government to account, as the noble Lord, Lord Pannick, said, through civil claims. In addition to seeking a remedy, such claims have been positive in changing policy and practice. Therefore, the impact of the clauses, as Reprieve together with the other bodies referred to by my noble friend have indicated, could be to allow Ministers and officials to avoid paying damages to survivors of torture and other abuses overseas.
Lord Hacking (Lab)
My Lords, I am also in receipt of an excellent briefing from Reprieve, which was covered excellently by the noble Lord, Lord Marks—so much so that I am left with nothing further to say on that issue.
However, as I am currently the only Member on the Labour Back Benches, I want to put on the record that I wholly oppose the concepts contained in Clauses 82 to 86. They would allow Ministers and officials to avoid paying damages to survivors of torture and other abuses overseas; they would also give Ministers certain rights to reduce those damages under Clause 83. I just want to put a stake in the ground, as it were, behind the noble Lord, Lord Coaker. I hope that I speak for my colleagues on these Back Benches in saying that I wholly support what the noble Lord, Lord Marks, described to your Lordships so excellently. That is my stake in the ground.
Lord Faulks (Non-Afl)
My Lords, I add a couple of queries which I hope that the Minister can help with.
Clause 83(5) provides that:
“Where the court would award damages … of a particular amount, the court must decide whether, in light of its consideration of the national security factors, it is appropriate for it to reduce the amount of damages (including to nil).”
How is a judge supposed to decide whether it is appropriate? The national security factors are listed but perhaps, by way of an example, some illustration can be given to the Committee to help us understand what this legislation has in mind. Incidentally, I note at Clause 83(7)(b) the various other defences in common law to which the noble Lord, Lord Marks, referred—that is, ex turpi, volenti and contributory negligence—are reserved anyway. The question is whether anything further is needed. An explanation of why these provisions are needed would certainly help the Committee.
Lord Coaker (Lab)
My Lords, I thank the noble Lords who have spoken. I very much appreciated the introduction by the noble Lord, Lord Marks. It was very carefully explained and helpful to the Committee. The only thing that I will disappoint him with is that, having heard his Latin pronunciation, I have decided that mine is not as good and so will leave it out.
Some of my remarks will be more general but none the less will ask the Government for justification—with respect to the clause stand-part debates rather than the individual amendments. The noble Lord, Lord Faulks, is absolutely right to ask what the court should take into consideration when determining what the level of damages should be, if it is to reduce them, even down to nil. The Minister in the other place talked about care costs. That is my point. It would be interesting to know what the Government’s thinking is. My remarks are mostly not as specific as those of the noble Lords, Lord Marks and Lord Pannick, but raise some of the more general points that the Government need to justify these clauses and to clarify why we must agree them in their current form. I am very grateful to my noble friend Lord Hacking, whose stake in the ground gives me hope for the future and makes me realise that I am not alone when I stand here. I appreciate his support.
Amendment 105A, moved very ably by the noble Lord, Lord Marks, raised a number of important concerns around the provision—or reduction in provision—of damages in national security cases, including, as the amendment probes, whether a public body could avoid accountability by categorising proceedings as national security. As I said, I want to address the clause stand parts but also Schedule 15, to get some clarity around the Government’s thinking.
Before anybody reading this in Hansard categorises it in a way that it should not be categorised, I make it clear that none of us in this Committee or indeed in this Parliament wishes to see damages used to finance terrorism or in any way to allow individuals or groups to benefit from them. That is the motivation behind Clause 83 and one that none of us could disagree with. However, it is important to consider how we do that. As the noble Lord, Lord Pannick, said, it is particularly important for us to do this because many people read our proceedings and so it is important that they understand the debate. The Explanatory Notes point out in stark terms, and more clearly than the Bill does, that:
“Clause 83(1) provides that the duty applies where the liability of the Crown has been established”.
The JCHR report uses even more strident language. It says this applies where the Crown, Government or state—whichever you want to call it—has been proven in court to have “acted unlawfully”. We are talking about a situation in which damages are reduced in cases where the guilt of the Crown has been proven. That is no doubt why many of us will tread carefully in this area: the state has been proven guilty and we are passing legislation that would enable the Government to further reduce damages. This is difficult territory but, with respect to terrorism and damages, it is none the less territory that we need to go to. It is true that certain human rights cases are excluded—those brought under Section 7(1)(a) of the Human Rights Act 1998—but other cases are not. As I have said, even where the court has established that the state is in the wrong and the state has been found guilty of wrongdoing with respect to an individual, and the clause applies, the state can seek to reduce those damages.
How can the Government reassure the Committee that this clause cannot be used to allow the state to avoid accountability? As I have said, of course public money should not be used to fund terrorism via the damages awarded but, as the noble Lord, Lord Marks, pointed out, the clauses seem to be drawn so broadly that potentially deserving victims may be excluded. How will the Government avoid that and ensure that the limitation of damages applies only to those who have committed wrongdoing involving terrorism, which I understand to be the point and purpose of the amendment of the noble Lord, Lord Marks, and the amendments of others?
We do not wish to see innocent bystanders caught up in a terrible situation to be excluded, but the current drafting of these clauses at the very least implies that, if there is any evidence related to any unspecified national security or intelligence services issue, the damages could be reduced or taken away completely. The Law Commission points out that this could lead to the state introducing national security evidence to avoid paying damages under the provisions of the Bill laid out in Clause 82(2)(a). Can the Minister detail for the Committee why these provisions are necessary? What additional powers do they make available to a court? Can a court not already take into account whether a claimant is deserving or not and whether there are concerns about the potential misuse of any such moneys or damages awarded to them? A point raised in the other place is that this must not be a slippery slope. Could the requirement to reduce damages from terrorism, because of our obvious horror, ever be extended to other areas where we are also horrified—for example, paedophile cases?
I have other points and questions for the Minister on Schedule 15 and other clauses in this group. Are these provisions based on experience from some existing cases, where the Government think this has happened and needs to be stopped, or are they being introduced in anticipation of it happening in the future? If they are not based on existing cases, what are the limitations of the existing legislation, on which the Government have evidence that they can present to the Committee to show why we need this new legislation?
In the other place, for example, the Government were asked what the problem is with existing legislation related to the financing of terrorism. We already have legislation that deals with reducing or removing damages that are used to finance terrorism. I think the noble Lord, Lord Pannick, also made that point, unless I misunderstood.
The freezing orders under Schedule 15 are possible for two years and can be renewed for a further period, before leading to potential forfeiture. Can the Minister explain what the term “real risk” means, for example in paragraph 1(4) of Schedule 15? If it is a standard of proof, as real risk is in the future, how will the court determine it? Will the court require actual proof to allow freezing orders to be made, or will it make a subjective judgment about something that may happen, the real risk that may occur, in the future?
The Parliamentary Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
I thank noble Lords very warmly for their contributions, which were pertinent and challenging as ever. I shall make three introductory points. First, there is perhaps—and I put this as lowly as I can—a tension between those who say that this approach is wrong in principle and, on the other hand, those who say it is already covered by the general law. If it is covered by the general law, it cannot be wrong in principle. There seems to the Government to be an opposition in those two propositions.
Secondly, it is said that these provisions are intended to introduce a high level of impunity for the security services, generally reduce their accountability and effectively put them beyond the law. That is not the case, because in this legislation the decision is for the court—it is for the court to decide what to do. It does not give immunity to officials, the security services or the Government. It is a matter for the court. Essentially, this legislation is spelling out what the position is in relation to persons who have been involved in terrorist wrongdoing. It is saying in explicit terms that, where that situation arises, the court should consider—and I emphasise the word “consider”—whether damages should be reduced to reflect that wrongdoing. It is perfectly true that, at common law, such an argument could already be made, at least in theory; depending on which Latin tag you chose to use or whether you refer to the contributory negligence Act or other general principles, the argument can be made. But the point of these provisions is to spell that out in very clear terms so that the general public and potential claimants know what the position is, and one is not left to argue what can sometimes be obscure and difficult questions of common law in particular cases.
Thirdly, the overriding purpose—we can discuss the exact wording—is to convey a message. The message is that the United Kingdom is not a soft touch for those involved in terrorist wrongdoing when they come to claim civil damages. That is a message particularly directed to those beyond the seas who may be tempted to bring, and have in the past brought, proceedings in the UK courts when these kinds of situations have arisen. It is to make the civil position clear. By the same token, we have provisions relating to freezing and forfeiture which protect any damages that are awarded from subsequently being used for terrorist purposes. That is the overriding framework, as it were.
On behalf of the Government, I entirely reject the suggestion that these provisions are intended to introduce a high level of impunity for the security services or to avoid accountability, because it is ultimately for the court to decide. This is limited to national security proceedings, and the conduct of any public bodies will still be fully subject to scrutiny by the court.
With that general description, I shall try to deal with the various points which have been raised. I come first to Amendment 105A, put forward by the noble Lord, Lord Marks, which seeks to introduce an exclusion in cases where the evidence or submissions to the court about national security are merely incidental to the civil claim in question. While completely understanding the objective behind the amendment, the Government believe that it is not necessary, for three reasons.
First, national security proceedings are very clearly defined in Clause 82(2), and it is very hard to construe that definition as including a case where national security was for some reason de minimis to the proceedings concerned. Secondly, it is, in the Government’s view, hard to imagine in practical terms a situation in which a person involved in terrorist wrongdoing brings a case against the Crown, and the Crown has presented evidence or made submissions about national security, but national security is merely incidental to the issues in the case. It seems to the Government that it is most unlikely that such a situation would arise. Thirdly—this is a fundamental point that I have already made—
Lord Marks of Henley-on-Thames (LD)
The Minister simply has not answered the point that this provision in the Bill refers to “at any stage” of the proceedings, and any stage of the proceedings could be a disclosure stage, an interlocutory stage or an interim stage, where documents are sought to be withheld for reasons of national security that do not go to any major issue in the proceedings and are merely incidental. The Minister has simply not answered that. If he would like to do so, I would be grateful.
Lord Bellamy (Con)
I will further reflect on the question, but it seems to the Government that that specific example is unlikely to bite, as it were, on the duty of the court in the particular circumstances that we are considering, because ultimately it is up to the court to consider whether a reduction of damages is appropriate. If it were the case that, technically speaking, you could argue that national security proceedings on the face of the statute were in some way involved because there had been an earlier discovery application but it had no material impact on the remainder of the case, one could reasonably assume, and the Government do assume, that the court would not proceed to reduce damages on the basis of something that had nothing to do with the real issues.
We will always reflect and consider further, because it is very important to get the drafting right, but at the moment the Government are unconvinced that this amendment is necessary and believe that the protections, and in particular the role of the court, are sufficient to deal with the concern that the noble Lord, Lord Marks, has raised. That, I think, is the answer to Amendment 105A.
Lord Anderson of Ipswich (CB)
The Minister rightly emphasises the very high degree of discretion that is given to judges under Clause 83. The core of it is Clause 83(5), which allows a judge to take a view on whether it is “appropriate” for the amount of damages to be reduced. I wonder what the Minister thinks of the point that to give judges such a wide discretion is perhaps to give them a poisoned chalice. Judges did not, so far as I know, ask for this power. Does the Minister agree that they could be strongly criticised were they to fail to exercise the power to reduce damages, even in cases where it would be consistent with normal legal principles, including the principle of fairness, not to reduce them?
Lord Bellamy (Con)
The question asked by the noble Lord, Lord Anderson, highlights the tension I referred to a moment ago. It is very difficult to say on the one hand, as is being said, that the courts have this power already and that they are perfectly capable of exercising it, whether under the 1945 Act or ex turpi causa, et cetera, and on the other hand to say that it puts them in a difficult position and that they will be criticised if they do not exercise it. I think I can say this: the overall intention of this legislation is not to alter or downgrade a principle of law that is already inherent in the common law and in our various jurisdictions; the purpose is to spell out that principle in this legislation so that no one has any doubt that it applies in terrorist cases. That is the main purpose of this clause. We are, to an extent, simply reflecting where we are, but clarifying where we are.
Lord Pannick (CB)
Can I press the Minister a bit further on this pivotal point? I respectfully suggest to him that he is asserting two conflicting principles. If I understand him correctly, he is saying, first, that the purpose of these provisions is to convey a message but, secondly, that we do not need to worry about it because it is all a matter of judicial discretion. But the judges will have to decide these cases. How are they to decide? How are they to apply their discretion? What message are they expected to convey? While I am on my feet, I remind the Minister that it was, I think, Samuel Goldwyn who said that if he wanted to convey a message, he used Western Union. That is perhaps a relevant principle for Ministers to bear in mind in relation to legislation.
Lord Faulks (Non-Afl)
Before the Minister answers, and so that he does not have to go over old ground, I will intervene. In the Government’s case, the judges will have a new power that is needed because the existing defences of ex turpi and volenti are not adequate. I think that is the case the Government are making, but I respectfully submit that a judge needs a bit of help as to how he or she is to approach this case. When judges are given discretionary powers—for example, under the Limitation Act—they are given a long list of things to take into account or something that makes their job easier. I am putting myself in the position of a hypothetical judge looking at this clause, knowing that it apparently adds something to the existing common law and asking myself how I would approach this. I wonder whether there might be reflection and a judge will be given more guidance as to how he or she should approach this very difficult and delicate task.
Lord Bellamy (Con)
My Lords, perhaps I can take this point under advisement, because it is not yet spelled out in the statute and I am reluctant—on the hoof, as it were—to put words into the mouths of judges who would go about it in due course. One can imagine that one would draw inspiration from certain aspects of the existing law, but that is to go further than the statute already provides, so perhaps the Government can consider this point further.
I return to the broad thrust of the Bill and come to the stand part notices. I have tried to explain the importance of the message. Western Union is perhaps a slightly outdated way of conveying a message these days, but there are times when primary legislation is important to clarify the legal position, and this is one of those cases.
Before I pick up the specific points that have been made, in relation to the freezing and the forfeiture, the essential point is that these provisions bite at the moment the freezing order was made. You do not have to go to Horseferry Road Magistrates’ Court or Highbury Corner to get an order. It bites straightaway and is done by the same court that was dealing with the damages in the first place. It is more efficient to deal with the same court. Although there are other powers, as noble Lords rightly point out, in the Government’s view this is the right mechanism.
To come to the point made by the noble Lord, Lord Coaker, about why we do not just take the whole lot straight off, these exceptions for care costs and so forth, this is intended to be a measured structure. You start by simply freezing for the first two years, then you have another go at it after a second two years, then, finally, if after four years there is still “a real risk”—I will come to real risk in a moment—that is the moment when the forfeiture power kicks in. It is to give people time to persuade the court that there is no risk, as it were. That is thought to be a measured and proportionate approach to this problem.
The Bill provides that the freezing and forfeiture apply only in part to the damages if the court so orders, so that if, for example, medical expenses or care costs have to be met out of the damages, the court can provide for that. It does not have to take away the whole lot all at once. It can have regard to the needs of the claimant in that context.
That is the essential structure. It is to remove the risk of the money simply being spirited away at the press of a button, down a hole to an offshore haven before the courts can move to make sure that the money remains safe. Again, that is a power of the court, not of the Government or the security services. Therefore, in our view it does not lead to an undermining of the principle of access to justice or any other relevant right. To take another important point raised by your Lordships, it certainly does not take away the human rights damages. There are no circumstances in which it affects human rights damages in any event; that is a sort of entrenched position under the Human Rights Act. But that does not prevent a court taking into account circumstances in relation to other claims where the court considers that a reduction would be justified. Even in relation to human rights cases—I am sure plenty of people here will immediately put me right if I am wrong—the European Court of Human Rights reduces damages in certain circumstances when it does not think that the claimant is fully deserving of a particularly large award because of the conduct of the claimant in question.
That is the general outline and why we say that the whole structure is balanced but proportionate. It extends to involvement in terrorist-related offences. It is not limited to terrorist convictions because of the quite obvious difficulty, particularly in terms of parties that are abroad, in managing to apprehend them, bring them to this country, prosecute them and secure a conviction. Cases have been brought by persons abroad known by the security services to have been involved in terrorist activities but not subject to a conviction in this country. That is why we have to make this a little wider than people who have been convicted of terrorist offences.
For the reasons I gave in relation to the message, the provisions are not limited to circumstances in which one should confiscate the damages because of the risk of them being used in terrorist activities. One should reduce the damages because of the conduct of the claimant, which is a normal, civil law situation. I do not mean civil law in the sense of continental civil law, but it is the normal situation in the common law.
Lord Carlile of Berriew (CB)
I must admit that I was more favourably disposed towards some of these provisions, but the Minister has convinced me that I was wrong. He has told us that these provisions are unnecessary. They are in effect a very long text message, which apparently the public are going to consider over their breakfast tables, reminding judges of what the existing law is. Is he comfortable with using this House and this legislation for that purpose?
Lord Bellamy (Con)
My Lords, I feel that this is the first time that I have ever convinced the noble Lord, Lord Carlile, that he is wrong. The answer to the question is yes, the Government are entirely comfortable with the need to make explicit what to a large extent is implicit but rather undefined and diffuse in our legal system. This measure gives us a clear code in terrorism cases to provide a framework for the judge to consider what he should do about damages. I accept that the question of guidance for the judges is an open point, but let us reflect on that. The purpose is to provide a clear framework in terrorism cases.
Lord Faulks (Non-Afl)
With respect to him, the Minister is quite right: the application of ex turpi is very uncertain. There is a great deal of authority, and it is difficult to predict in particular cases whether they are going to rely on it. However, if there is going to be a statutory scheme then I return to my point: it needs to be a lot clearer so judges know how they are supposed to apply it.
Lord Hope of Craighead (CB)
I wonder if I may add a thought. One of the words that strike me in Clause 83(5) is “must”. If I were a judge at first instance, I would have to explain my decision, so I would have to say that I had applied my mind to the various factors. Having looked at the factors, I am still left in the dark as to what principle I should apply. I can look at them and understand them, but why should they affect the award? I do not think a list of factors is needed if the Government can explain the principle that should be applied. Is it that a kind of quasi-immunity should be given because of these various factors—some sort of overriding principle in favour of the Government’s security measures and so on that should be applied? I cannot devise that myself, but a list of A, B, C and D is not going to be helpful. We already have the factors there; it is the trigger, what the principle is that leads to the decision that the damages must be reduced, that is important. Otherwise, a first-instance court might say, “I’ve considered the factors and I can’t see any reason why the damages should be reduced”, and an appeals court will say, “Well, that’s perfectly right”, and we are left without any significant advance in this legislation. I hope I have made my position clear. I do not like lists of factors very much, but I like to have guidance as to principle.
Lord Bellamy (Con)
I can say that the principle is certainly not for the judge to be asking himself, “Should I be protecting the Government or the security services from actions for damages?” I am not drafting the Bill, and I will further consider the matter, but I would imagine that it is something like how far the claimant brought the situation on himself. That would be an ex turpi causa or contributory negligence type of consideration. However, I do not want to pre-empt the discussion any further, standing on my feet thinking aloud, because I hear what is being said: we want further precision as to how the courts are to go about this.
Lord Purvis of Tweed (LD)
I think the Committee is now in a bit of a bind. The Minister stated a few moments ago that the Bill is now a clear code and explicit, but he is unwilling to tell the Committee even some basic elements of what guidance for a judge might exist. We do not know now how to proceed on the basis of this before Report, especially in the case of the specific question that I asked.
The Minister has also stated, exactly from the Government’s perspective, what the guidance for judges is. He talked at the opening of his remarks about demonstrating that
“the UK is not a soft touch for those involved in terrorist wrongdoing”.
It is very clear from what the Minister said at the Dispatch Box what the intent is. If the judge is not to take into consideration what the Minister stated, we are in a bit of difficulty.
My specific question here, and I hope the Minister can be specific in an answer now, relates to the concern that was raised that the national security factor in Clause 83(3) is broad, and that a foreign power can state that the claimant was involved in terrorist activities in a foreign country. If that is used by a party under the national security factor, my reading of that is that the judge must now take that into consideration. Surely that cannot be right.
Lord Bellamy (Con)
My Lords, on that last point, I would need some notice of that question. It is not a point that I have so far had to consider.
It is the case that the court would have to be satisfied on the civil standard that that the claimant had been involved in terrorist wrongdoing. In accordance with normal statutory principles of construction, there would have to be some nexus between the United Kingdom and the terrorist wrongdoing. It is hard to imagine a case in the UK courts where there was terrorist wrongdoing without any nexus to the UK. That is as far as I can go.
I will see if I can get a bit further, if your Lordships will permit me. As far as the general position is concerned, when I said the Government wanted to say that the UK was not a soft touch, I meant that the provision makes it clear that in civil proceedings against the security services of the United Kingdom one has to be aware that the judge will consider whether the damages should be reduced. That is all I meant by that. I did not mean to say, and I do not think I can reasonably have been construed as saying, that the intention was to protect the security services from unwarranted claims for damages. The underlying principle is, I think, that if a terrorist person has brought it on himself then that should be considered, but let me reflect further on the relevant questions that noble Lords have asked.
Lord Hope of Craighead (CB)
Would the Minister consider the wording in Clause 83(4)(a) that says there
“need not be a causal connection”?
You can find that there is a connection, but it need not be a causal connection. I can understand that if there were a causal connection then one might get around to thinking that the damages should be reduced but, if there is not a causal connection, why should you consider a reduction in damages at all? That is one of the reasons why I am looking for a principle that gets over the point that a causal connection is not necessary. What else is there?
Lord Bellamy (Con)
The causal connection point is to do with whether there are national security factors in the first place. As to general question of what the court is to do, and whether we should have further guidance or precision in statute, that is perhaps a matter that we will need to come back to on Report to see whether we can get any further clarity.
Lord Pannick (CB)
May I test the Minister’s patience by asking him to reflect on one other matter? He said, rightly, that in assessing damages in human rights cases the court is entitled to have regard to the conduct of the claimant, yet this clause does not feel it necessary to provide any message or guidance to judges in human rights cases. I ask him to reflect on why the Government nevertheless think it necessary to send a message to provide guidance in non-human-rights cases.
Lord Bellamy (Con)
I certainly undertake to reflect on what further guidance can be given on how the courts should go about this exercise.
I have taken up too much of your Lordships’ time and am conscious that I have not perhaps dealt with everything I should have. As I think I have said, the overall intention is not in any way to undermine mechanisms for holding the Government to account, or to allow Ministers and officials to evade scrutiny. I fully agree with the noble Lord, Lord Coaker, that we absolutely have to tread carefully. I hope that this package is a balanced one, and I invite noble Lords not to press their amendments.
Lord Marks of Henley-on-Thames (LD)
My Lords, we have had a worthwhile and detailed debate in which the Government have been pretty hard pressed on the detail of these clauses. I am bound to say that nothing I have heard suggests to me that these clauses are in fact defensible. They introduce a very important and, we say, objectionable new power. It is not merely a power but, because of their mandatory nature, a duty to consider reduction in damages—the power being to reduce damages where there is no connection required between the conduct of the claimant and the reduction in damages. That is entirely novel.
If I may go on from there to consider a point made by the Minister fairly early in his speech, he said that those of us who criticise these provisions must face the fact that there is a tension between that criticism and the reliance we place on existing law. The reason why his position falls and why there is a tension is precisely that, under the existing law—as in the point made a moment or two ago by the noble Lord, Lord Pannick—it is the claimant’s conduct that leads to the reduction in damages. The point made by the noble and learned Lord, Lord Hope, was that there is express exclusion of the requirement for the claimant’s conduct to be responsible in these provisions before a reduction in damages is ordered. The security factors may be entirely irrelevant conduct, as far as the award of damages is concerned, but nevertheless lead to the requirement to consider reducing damages.
I suspect that the noble Lord, Lord Bellamy, because of his being so conversant with the common law, got into some difficulty when answering my question on disclosure. He said it is unlikely that consideration of evidence that came to light in a disclosure application would have any bearing on the claimant’s conduct and therefore would lead a court to reduce damages. That is to fall into the trap of ignoring the effect of these provisions where no causal connection is required.
In answer to the other central point made by the Minister, that this is not about giving impunity or immunity to the Government because it is for the courts to decide, that leads the Government directly into the difficulty that these provisions are mandatory. As has been said a number of times, if a judge is faced with a mandatory provision that requires him to consider a number of factors and decide whether to reduce damages, he cannot blithely go on to say, “Well, I looked at the factors and I’m simply going to ignore the legislation”. He then either gets into the point the noble and learned Lord, Lord Hope, made—that he is giving no effect to the legislation at all and it is a cypher, because a Court of Appeal might agree with that—or he is simply falling into error because he is not applying the legislation. It is a very difficult conundrum to face.
The central point made where the Government have got into such difficulty is that originally raised by the noble Lord, Lord Faulks. He said that there is no guidance whatever in Clause 83(5) as to how and on what principle the judge is to approach the question of whether damages should be reduced. Ultimately, the Minister was forced into the position of saying, “I’m not quite sure—I’ll take it under advisement and we may come to some conclusion about it”. Frankly, and with the greatest respect to the Minister, that is simply not good enough. This Committee needs to know what principles are to be applied to the exercise of an entirely new and, we say, entirely objectionable power.
The reality is that this point cannot be escaped from, as was said by the noble Lords, Lord Anderson, Lord Pannick and Lord Faulks, and the noble and learned Lord, Lord Hope. My noble friend Lord Purvis has again said that in an intervention. The problem is that this legislation is to be aimed at using damages to fund terrorism. That would be properly achieved, as the noble Lord, Lord Coaker, pointed out, by using the powers to freeze damages in a responsible way when there is an actual intention to use the damages to fund terrorism. It is exactly the point that the independent reviewer, Jonathan Hall KC, made: that it was dealt with by the existing legislation under the 2001 Act.
I cannot for the life of me therefore see why lowering the threshold achieves anything meaningful that is just, because it is unjust and the threshold under the existing legislation is the proper one to apply for something as serious as depriving somebody of damages or even freezing their damages. This legislation is weakening and altering other legislation in an unnecessary way, by introducing new powers that are objectionable, and therefore it ought to go.
The Minister has said that he is going to take this away and think about it. At this stage, therefore, I could not sensibly press my amendment and we would not ask for votes at this stage on clauses standing part. However, I really suggest that the Government are now under an obligation to consider whether any of these provisions are necessary at all or whether they wish to abandon them. In saying that, I beg leave to withdraw my amendment.
Baroness Ludford (LD)
I will speak to the question of whether Clause 87 should stand part of the Bill, which is in my name. I am grateful to the noble Lord, Lord Pannick. I will also speak to the question of whether Clause 88 should stand part.
Many aspects of this Bill are problematic. This Committee on Monday debated one of the biggest aspects—the proposed foreign influence registration scheme—and has just been debating another on damages. I apologise for my unavoidable absence, which meant that I did not speak to the amendment in my name, but it was very adequately covered by my noble friend Lord Marks and subsumed in a very interesting global debate. I venture to suggest that no aspect of this Bill is so lacking in validity or is so stupidly—if I may say so and that word is not unparliamentary—counter- productive as the proposal to deny for 30 years civil legal aid to anyone convicted of a terrorist offence.
The first problem is that in their ECHR memorandum to the Bill, the Government claim that Article 7 of the ECHR, which bans retrospective penalties, is not breached because this is an administrative measure only. However, their argument involves an acknowledgement that the aim of this denial of civil legal aid is symbolic. They say:
“the aim of the measure is symbolic, in that the purpose of the restriction is to reflect the significance of the bonds with the State and society that are broken by the commission of terrorist offences.”
Should we be making law on such a basis? How can it be legal to make law which is to achieve a symbolic purpose? Surely a clash with the ECHR would beckon. Perhaps that is one that this current Government, unfortunately, might welcome.
The second problem is the rule of law challenge regarding access to justice. The report of the Joint Committee on Human rights cites the evidence from the Law Society:
“It is fundamental to the rule of law that our justice system rests on the clear principle that every judgment relies on the merits of the case brought before the court. We should not automatically be excluding people from legal advice and support because of unrelated convictions. To do so will diminish access to justice in our country and could affect the objectivity of our legal system.”
I suggest that that is a very important point. It is not as if the cohort to be affected is simply those convicted of serious terrorist offences, because it is defined broadly, catching some more minor and historic offending—indeed, some which might not be considered terrorist activity at all. It could include the offence of failing to disclose a suspicion that another person is fundraising or money laundering for terrorist purposes. As it covers any conviction, it could also affect individuals given less severe sentences, such as a referral order. It could also bar from accessing civil legal aid individuals convicted of an offence which has since been abolished. The Law Society highlighted to the JCHR that it could affect
“a person fleeing from domestic abuse who is prevented from accessing an injunction against their abuser, and protection for their human rights, because of a twenty-year old conviction for a terrorist offence.”
The ramifications are very wide. The former Attorney-General Sir Jeremy Wright said during the Second Reading debate in the other place:
“I do not think we have ever before contemplated determining someone’s eligibility for civil legal aid based on previous criminal behaviour.”—[Official Report, Commons, 6/6/22; col. 603.]
That was a previous Attorney-General. This sets out a serious question about the basis for these proposed provisions denying civil legal aid.
The third point is about the practical implications. These were raised by the current Independent Reviewer of Terrorism Legislation, Jonathan Hall KC. He said:
“Even symbolic restrictions may have practical consequences. No released terrorist offender is going to reoffend merely because their access to civil legal aid is restricted. But legal advice and assistance is relevant to securing help on housing, debt and mental health. A homeless terrorist offender, or one whose mental health needs are unaddressed, will present a higher risk to the public. There is a risk of unintended consequences.”
Do we want to seek to reintegrate people who have committed offences in the past? If we do, denying civil legal aid perhaps 20 or 30 years later for something like housing or debt problems does not seem the right way of going about it. As Jonathan Hall said, it is highly counterproductive. He said:
“A terrorist offender who goes back into society and lives quietly presents a rosier prospect than one who needs perpetual monitoring.”
Those are the practical consequences. This may be some great symbolic declaration, and I am afraid we are a bit too familiar with that sort of symbolism from this Government. In practice, it is counterproductive.
My fourth and last point is that it is counterproductive as it will create more bureaucracy. This was also highlighted by the Law Society. It is going to create large volumes of bureaucracy for the Legal Aid Agency. As far as I know, the Legal Aid Agency is under the remit of the Ministry of Justice. There are certainly other Ministry of Justice agencies affected too. I think before recess we discussed the probate service. I unfortunately have had experience of that myself in the last few years when I was bereaved. There are other agencies under the Ministry of Justice which are seriously struggling to deliver a decent service to the public. Is it a good idea in those circumstances to create more bureaucracy for another agency in the justice family?
It creates more bureaucracy because the Legal Aid Agency will have to confirm whether every applicant for civil legal aid has a previous conviction for terrorism and do lots of digging to find out information about this person. As the JCHR says,
“This may significantly increase the cost to the public purse, while it is unclear how this measure would contribute to public security and safety … Clauses 62-63 do contemplate a lesser form of legal aid, Exceptional Case Funding”,
but this is, in the view of the Law Society
“a very bureaucratic process”
which
“puts in place a significant obstacle to access to justice given the extra work and uncertainty”.
It is not much of a safeguard or a backstop.
All in all, I hope that I have persuaded the Committee that, on four grounds, the denial of civil legal aid to people because they have been convicted of a terrorist offence—I am not saying that they are good people—is against the rule of law principles and has practical consequences which are counterproductive, bureaucratic, costly, and so on. We are driven to the conclusion that their whole purpose, as with so much of what the Government seem to be doing these days, is to send some kind of symbolic message, but it does not withstand examination as having any merit at all.
Lord Pannick (CB)
I have added my name to the proposal from the noble Baroness, Lady Ludford, that Clause 87 should not stand part of the Bill. I am very grateful to her for so clearly setting out objections to the clause. I declare my interest as a practising barrister acting in public law cases, including representing clients on legal aid.
Noble Lords will know that civil legal aid has been much reduced in scope over many years by successive Governments of different complexions, and many of us regret that that is the case. But where civil legal aid is still available, it helps to ensure the protection of the vital legal rights of individuals and their families; for example, in relation to community care, debt where your home is at risk, homelessness, domestic violence and welfare benefits. It therefore follows that a proposal by the Government to exclude eligibility for legal aid, for reasons that are wholly extraneous both to the nature and merits of the litigation you are seeking to bring and to the financial needs of the individual, need to be very carefully scrutinised.
Under Clause 87, a terrorist conviction, which is a very broad concept indeed, leads to the exclusion of eligibility for legal aid irrespective of whether the court that sentenced the terrorist conviction considered the offence sufficiently serious to merit a lengthy custodial sentence or, indeed, any custodial sentence at all. I appreciate that there are some exceptions in Clause 87, but not by reference to the gravity of the terrorist offence. Clause 87 would also exclude eligibility for legal aid irrespective of the relevance of the terrorist conviction to the legal proceedings for which the individual seeks legal aid.
Can the Minister explain to the Committee why the Government think it is appropriate that a woman who has, some years earlier, received either a non-custodial sentence or a short custodial sentence for a terrorist offence should thereafter be precluded from obtaining legal aid if she claims to be the victim of domestic abuse or if she is homeless? How can that possibly be justified? The Government have previously said that the provisions are justified because they impose consequences for people who have broken their bond with society—that is the phrase used by the Government. Murderers, rapists and paedophiles are not excluded from legal aid for their housing or domestic violence proceedings because of their previous conviction, so how can it be justified to exclude on this absolute basis a person who has been convicted of a terrorist offence, irrespective of the gravity of that offence?
There is a reason why murderers, rapists and paedophiles are not excluded from legal aid and it is very simple: we recognise, and have done so since the legal aid system was instituted by the Labour Government in 1949, that legal aid is vital to the effective protection of basic rights for individuals. I would not normally associate the Minister with crude gestures, because he is far too civilised for that, but this provision is a crude gesture which is inconsistent with basic concepts of the rule of law. It is quite indefensible and has no place in a government Bill.
Lord Anderson of Ipswich (CB)
My Lords, I have very little to add to the powerful speeches the Committee has already heard, but, as a supplement to what the noble Lord, Lord Pannick, has just said, I will remind the Minister of two other facts.
First, terrorist offences are by no means all at the top end of seriousness. Schedule A1 to the Sentencing Code includes offences such as
“inviting … support for a proscribed organisation”
which may no longer be concerned with violence, as a number are not, and
“failure to disclose professional belief or suspicion about”
the commission of terrorist offences by others. Those are offences on which the clauses bite.
Secondly, even for those offences which are serious enough to merit a period of imprisonment, recidivism rates for released prisoners are—I think in most developed countries, and certainly in this one—very much lower than the recidivism rates for ordinary crime. Professor Andrew Silke calculated in 2020 that the recidivism rate was around 3% for those who had committed terrorist offences and been released between 2013 and 2019.
I hope that the question the Minister will address is why that particular category of offence merits the removal of a right enjoyed by everybody else, including people convicted of murder, rape and the other most serious crimes that our law knows.
Lord Marks of Henley-on-Thames (LD)
My Lords, there is one simple principle that everybody has referred to in the debate: access to justice. I will be brief.
If the principle still stands that cases that are still in scope of legal aid with sufficient merit ought not to be restricted by lack of means to bring them—that principle underlies the availability of legal aid—it should not be undermined by the removal of legal aid from cases that have merit and ought to be brought. What is particularly invidious about these clauses is that the restrictions on the grant of legal aid apply to all cases that might be brought by an individual to whom the clauses apply. As has been pointed out, that is entirely irrespective of whether the cases have any connection with any past terrorist activity or whether they are good or bad, and irrespective of who might be affected by them; for example, members of an individual’s family might lose their rights in a housing case brought against a defaulting landlord where housing conditions were making that tenant’s children ill. These are blanket restrictions that are entirely inappropriate.
As the Committee will know, eligibility for legal aid is governed by a merits test in every case. If a case does not stand a reasonable chance of success, legal aid is not available. There is a financial eligibility test, which means that legal aid will be available only if an applicant is unable to fund litigation. These provisions are positively designed to deprive of legal aid a claimant who might otherwise secure it. A claimant who, by definition, has a good case, would otherwise be eligible on the basis of the merits test, and who cannot afford a lawyer would be deprived, under these provisions, of any legal representation before the courts, even though, as the noble Lord, Lord Pannick, said, the claimant’s case may be utterly irrelevant to any present or past wrongdoing and vice versa. As the noble Lord, Lord Anderson, pointed out, the gravity of the terrorist offence relied on may be low. That is a denial of access to justice which we simply should not countenance, and I suggest that the Minister should not countenance it either. It is, quite simply, wrong.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will speak briefly to Amendment 115 in this group, where we call for an assessment of the impact of Clauses 87, 88 and 89 to be published before they come into force.
It has been a powerful but relatively short debate. I shall not repeat the points that have been made, mostly by the noble Baroness, Lady Ludford, with her four grounds for opposing the clauses standing part. I wanted to reinforce the point made by the noble Lord, Lord Anderson, when he said that the gravity of the offence may be low. I can talk directly to that because, as a sitting magistrate, I have dealt with terrorist incidents that involved graffiti. The defendant in the case pleaded guilty to graffiti but, because of the nature of the graffiti, was charged under the Terrorism Act. We went ahead and fined that offender, but it was an offence under the Terrorism Act.
We have been relooking at Clause 87. Would that sort of example of a terrorist conviction be caught under the provisions, and would that individual who pleaded guilty to a terrorism offence of graffiti lose his right to civil legal aid in the decades to come?
Lord Bellamy (Con)
My Lords, perhaps I can briefly explain, first, the Government’s view of the principle behind the provision, then come later to the detail of how it operates. In the Government’s view, looking at it as a matter of principle, through their actions individuals who commit acts of terrorism seek to threaten and undermine the very democratic institutions that are at the heart of our democracy in this country. It is right that persons who have committed acts of terrorism against democracy should be subject to a different approach when it comes to granting civil legal aid. The different approach is, in this case, that these provisions do not entirely deprive a “terrorist” of civil legal aid, because exceptional case funding remains available. That is granted in around 75% of the cases in which it is applied for, so we have a safety net there. The practical effect of what is proposed is that those with the relevant terrorist convictions follow a different route from others. In other words, the automaticity of legal aid is somewhat different if you have committed a terrorist offence.
Apart from the question of principle—and that is the principle that the Government are advancing—the questions that have arisen in this debate essentially focus on two issues, or sub-issues. First, have we drawn the definition of terrorist offence too widely, catching very minor incidents, such as the graffiti incident put forward by the noble Lord, Lord Ponsonby, or the relatively minor terrorist offences to which the noble Lord, Lord Anderson, drew attention? Secondly, are there particular circumstances, of which domestic abuse is one, where there should be some exception to be made, and where it is going too far to have this blanket restriction, and there are obvious cases where there could be a fully justified grant of legal aid on the normal procedure, rather than forcing someone to go for exceptional case funding? On both those points, I shall undertake to reflect and to look at the underlying impact of these provisions—but the general principle is as I have outlined.
Lord Purvis of Tweed (LD)
The Minister makes his case as to the general principle but, if that is so strong from the Government’s position, why does it relate only to England and Wales?
Lord Bellamy (Con)
The noble Lord, from a Scottish perspective, asks a relevant question. I shall have to take that under advisement and see, but I suspect that it is because there is a different legal regime in Scotland.
Lord Purvis of Tweed (LD)
I look forward to the Minister’s letter. This Bill applies to everywhere—but, of course, there is separate legal aid legislation in Scotland, which I scrutinised when I was on the Justice Committee in the Scottish Parliament. If the case is so strong for the whole United Kingdom, I am not sure why this is. If he is writing to me, could he add something on the concern about whether this provision is consistent with the commitments in the Good Friday agreement? Does this provision also apply to Northern Ireland, with regard to the permanent removal for all those who previously were beyond the restrictions before the convictions were made, as in the Bill?
Lord Bellamy (Con)
As far as I know, it is not the intention to apply this measure to Northern Ireland, but I shall write to the noble Lord to confirm the Government’s position.
Lord Hacking (Lab)
Many years ago, I used to sit on a legal aid committee. What worries me is the responsibilities that will be placed on all legal aid committees that will have this provision in front of them. One wonders, therefore, whether there should be special representation for the person applying for legal aid, and how that is going to be run. But this is a practical problem, and I ask the Minister to reflect on the practical side of the issue.
Lord Bellamy (Con)
My Lords, I shall certainly reflect on the practical side. This would be a decision for the director of casework at the Legal Aid Agency. The noble Baroness, Lady Ludford, rightly raised the question of the practical “bureaucracy” associated with the proposal, and we are working with the Legal Aid Agency to see how it can be most conveniently implemented, with minimum disruption.
Baroness Ludford (LD)
My Lords, I shall be brief, because I know that noble Lords are waiting for the Statement. I thank the Minister for his reply. His first point was that the Government wanted to address the unique situation where, they contend, the people envisaged —those who have committed terrorist offences—have threatened to undermine our democracy. Other noble Lords who have contributed to the debate and who I very much thank, including the noble Lords, Lord Pannick and Lord Anderson, talked about other extremely serious offences such as murder, rape and, I think, manslaughter. Why just terrorism? Personally, I think that the offence of rape undermines the principle of our modern society, which should exist, about equality between men and women, the dignity of women and our rejection of abuse of women. Apart from very serious terrorist offences, I might judge a rapist on a more serious basis than someone who gets a fine for graffiti, for example, presumably in support of some proscribed organisation. Therefore, I do not think that the argument is very sound, if I may say so.
Lord Davies of Gower (Con)
My Lords, I advise noble Lords to keep an eye on the annunciator for further information regarding the resumption of the Committee.
National Security Bill
Wednesday 18th January 2023
(1 year, 10 months ago)
Lords ChamberRead Full debate National Security Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 68-V Fifth marshalled list for Committee - (16 Jan 2023)
Lord Purvis of Tweed
“Report on actions taken in response to the ISC report on RussiaWithin six months of the passing of this Act, the Secretary of State must lay before Parliament a report on the effect of the action taken by the Government in response to the recommendations of the report of the Intelligence and Security Committee of Parliament on Russia (HC 632 of Session 2019–21).”Member's explanatory statement
This new Clause requires the Secretary of State to report to Parliament on the actions the Government has taken in response to the report of the Intelligence and Security Committee on Russia.
Lord Purvis of Tweed (LD)
My Lords, I move Amendment 112 and will also speak to Amendment 118. I will introduce the amendments, but my noble friend Lord Wallace of Saltaire will also speak on this group. Amendment 118 is a probing amendment designed to be helpful for the Government and to allow the Minister to inform the Committee about what their views are on the interaction of the Bill—what will be the National Security Act—and the work of the highly regarded Intelligence and Security Committee of Parliament. In many respects, it makes absolute sense for the provisions under the Bill to fall within the oversight and scrutiny of the Intelligence and Security Committee. Obviously, as it is a parliamentary committee, and because of its remit, there are ways that it will interact with the Bill, but I would be grateful to know whether the Government would support that.
Amendment 112 links to what was a remarkably prescient report from 2020. When I re-read the recommendations of the Intelligence and Security Committee report on Russia before Committee, I found that it highlighted in an almost spooky way many of the practices and approaches of Russia that have come to bear, a year on since the aggression against Ukraine. The amendment seeks for there to be an update from the Government, not just as a response to the recommendations of the committee, which were provided in July 2020 and which I read with interest, but on the ongoing actions as a result. The report had a mixture of seeking clarifications and seeking action, so I would be grateful to know where the Government are with some of the recommendations.
It was interesting to note that the committee report sought clarity on the overseeing of the strategic direction and co-ordination by the National Security Council. It has been re-shaped twice in recent months: Liz Truss got rid of it and changed its operation into a standardised Cabinet sub-committee; I understand that Prime Minister Rishi Sunak has now restored it to what it was previously, but this is an opportunity on the record for the Minister to state exactly what the National Security Council is, how it is composed, and how it will interact with the implementation of the Bill. If he wishes to write to me on that point rather than respond today, I would be very happy.
The committee report highlighted in particular some issues directly linked with the Bill on the powers of the Electoral Commission, as we have discussed previously in Committee. We still believe very strongly that the committee’s recommendations on enhancing the powers of the Electoral Commission are valid, and an update on the Government’s position on that would be helpful. The committee also asked for action to be taken on election material and digital imprints; there has been considerable debate about this, but it would be useful to know how that will be operational. The committee also asked for protocol on social media providers, when it comes to hostile state acts. That was one of the areas where the Government noted the recommendations, but I would be grateful to know what action has been taken.
Finally—I know that my noble friend will be referencing this—the committee went into some detail scrutinising illicit finance and the fact that London has been a laundromat. It highlighted some areas that would be needed for action, notwithstanding that it was positive that the Government, in some respects, have brought forward this legislation in response to the ISC’s report. But there are still unanswered questions with regard to how we are operationalising the need to reduce the scope for illicit finance. Now we have economic crime Bill No. 2: the Government dragged their feet somewhat in bringing the first economic crime Bill to us, but we have the first and the second.
I want give one statistic which is illustrative of what I and certainly my noble friend have been highlighting for a number of years regarding the scale of the issue in London. All along the way, the Government said that we were overestimating the impact of illicit finance, not just from Russia but particularly from Russia. I have debated with the noble Lord, Lord Ahmad, all the Russian sanctions that were put forward. I have welcomed them all, and in some respects they have not gone fast enough, but we have worked together collegiately across all Benches, including the Labour Party. The statistic that I have seen, which the Government published in their anti-corruption work, was that the amount of Russian money in September 2021 that was frozen— not seized—was £44.5 million. That is a substantial sum of course, but we felt that there was more illicit finance operating through London. The most recent figures, since sanctions have been put in place against Russia over the last year, show that that figure is now £18 billion. The gap between £44.5 million and £18 billion highlights the scale of the issue that we were warning against; the Government say that those warnings were unnecessary.
I do not expect the Minister to have any of the details to hand, and I would be grateful if he would write to me giving more information and a breakdown of the difference between the £44.5 million and the £18 billion. That is a colossal sum of money. The Government have found a reason to freeze, as a result of the Russian aggression, assets in London, but that is a very clear example of why there is more to know about the extent of illicit finance through London, and I will be grateful if the Minister will provide more information about that. I beg to move.
Lord Wallace of Saltaire (LD)
My Lords, my name is on Amendment 113, and I commend the intentions of the amendments put down by colleagues on the Labour Benches.
What we are talking about here is how we alert the public to the nature of the threat. The Security Minister in the Commons indeed said that one of his greatest concerns in approaching this Bill was to make the public aware of the threats which we face. In the Minister’s absence, one of his colleagues on the Bench, the noble and learned Lord, Lord Bellamy, said that the overriding purpose of several clauses in the Bill is to convey a message. He said that this is above all a declaratory Bill, rather than a Bill which actually intends to do things, but these amendments are about the Government failing to send a message and, indeed, preferring not to talk about some of the threats which we face. After all, the Bill should alert us not only to the nature of the threats but to where those threats are most likely to come from. I note that the Minister said very little about Russia and not that much about China, North Korea or Iran but did his best to defend the idea that what we regard as friendly foreign powers should be included in our potential concept of threats, as if the message of this Bill should be “Beware of foreigners, particularly those associated with Governments whether democratic or not”. I hope that is not the intention of the Bill, but that is what it looks like at present.
The ISC report states very clearly that there are a number of threats—of course it is concerned with Russia —and that
“it is … the Committee’s view that the UK Intelligence Community should produce an … assessment of potential Russian interference in the EU referendum and that an unclassified summary of it be published”.
The Government have refused to do that, and the only statement in their response about why not is that they have received no evidence of successful interference in British politics, which means that they are aware of a whole range of attempts to interfere in British politics. It might be quite helpful to inform political parties and the public about what those could be.
The Government’s July 2020 response to the ISC’s Russia report is very interesting in a range of ways. It has a section which it entitles
“Defending UK Democracy from Foreign Interference”
and flags up the new defending democracy programme, which was established in 2020, about which, so far, Parliament has been told remarkably little. The Security Minister made a speech about it some weeks ago which was not that much more informative, but he assured us that the defending democracy task force had held its first meeting in November last year, two years after July 2020. I think it would be helpful in informing and alerting the public if we were all told a little more about the defending democracy programme and the defending democracy task force.
The Government’s response goes on to state:
“The Committee will also be aware that … the Government has concluded that it is almost certain that Russian actors sought to interfere in the 2019 General Election.”
The public were not told about that very much either. We all understand that this is mainly because the interference was towards the Conservative Party and the Conservative Party has many links with Russia, Conservative Friends of Russia and so on, which it prefers not to spell out, which may be partly why we are talking about so many other different countries. We remember Boris Johnson’s attempt as Prime Minister to hobble the Intelligence and Security Committee. Thankfully, that has now passed, but the issue of foreign interference in UK politics and public life is an important part of what we are focusing on and should receive more attention.
I have on a number of occasions in recent years argued for a proper review of the golden visa scheme—the tier 1 investor scheme. The Government finally closed it last year and promised to conduct a review. Instead of publishing that review, we had a Written Statement on 12 January 2023 with which the Minister will be familiar because the Statement to this House is in his name. It has no reference to national security risks under this programme. It talks entirely about illicit finance and criminal effects, and in a short two pages it says really very little about the problem as a whole. It states:
“The route attracted a disproportionate number of applicants from the countries identified in the UK’s National Risk Assessment of money laundering and terrorist financing 2020 as particularly relevant to the cross-border money laundering risks faced and posed by the UK.”
The Statement does not say, as the Wikipedia entry on Ben Elliot says, that Ben Elliot raised £2 million in and around the 2019 general election from Russians resident in Britain who were close to the Putin regime. That is something which ought to concern us and about which the Government certainly ought to have been a great deal more concerned. The ISC Russia report indeed talks about the growth of a community of “enablers” in London to service the Russians who had penetrated British political and public life. Ben Elliot’s company, Quintessentially, was one of the leading aspects of this and declared that it specialised in servicing Russian clients.
I stress this not simply to raise a particular name but, after all, he was co-chairman of the Conservative Party—with James Cleverly, the current Foreign Secretary—for 18 months, so we are getting fairly close in to influence and interference here with someone who was described as the Tories’ main fundraiser. Much of this was informal, of course, but the Bill talks a great deal about informal arrangements.
These amendments ask for proper information to Parliament, a stronger role for the Intelligence and Security Committee—which the last Prime Minister but one attempted so ignobly to cut down—and the publication of the review of the golden visa scheme so that we can understand just how far these people penetrated into British public and political life. I remind the Minister that the ISC Russia report says at one point that the penetration of rich Russians into British society and public life had gone so far that it was difficult to disentangle and that we now had to be concerned to mitigate those risks rather than to remove them.
All that the Government say on illicit finance and money laundering in their response to the ISC Russia report is:
“The Government agrees that the transparency of information about political donations is important.”
They then go on to talk about links to Members of the House of Lords. They say nothing about the duties of political parties to ensure that they know where they are getting donations from. No doubt we will come back to this before and during Report.
There are a number of holes in what needs to be done in the Bill to make sure that we strengthen our national security against foreign interference. I trust that the Minister will have some good answers and will come back to us off the Floor to discuss some of these concerns further.
Lord Coaker (Lab)
My Lords, I will speak primarily to my Amendment 120A but I thank the noble Lord, Lord Purvis, for his Amendment 112, signed by the noble Baroness, Lady Smith, which raises some extremely important points around the Russia report published by the ISC in 2020 and the frustration that many of its recommendations either have not been implemented yet or simply will not be implemented by the Government. It would be helpful for the Committee and for us all to know the Government’s intention with respect to all that. As the noble Lords, Lord Purvis and Lord Wallace, said, many important points were raised and it would be interesting to see the Government’s view on that. With respect to the noble Lord, Lord Wallace, and Amendment 113, some very important points were made about tier 1 visas, where all that has got to and what progress we have made.
Amendment 116 from my noble friend Lord Ponsonby, which has been referred to in passing by other Members of the Committee, deals with reporting on disinformation originating from foreign powers. I think it was the noble Lord, Lord Wallace, who referred to the issue of how far this country is witnessing attacks from foreign powers that wish to pollute and infect our system, whether businesses or our electoral system. It would be interesting for us to know the extent of that and what the Government are doing about it—as far as the Minister can say within the constraints of this.
It is a question worth asking, because one of the things I think the public want to know is who is responsible for co-ordinating the activity across government to ensure that our country is protected. Is it MI5? Is it GCHQ? Is it the various security parts of different departments? Who brings all that together? I think it is legitimate and does not compromise national security in any way to ask who is responsible for that. How is the activity co-ordinated between a national level, a regional level and a local level? The integrity of all our databases requires action not only in Westminster but in a rural village in the middle of nowhere. Those are legitimate questions, and I think the public would like to know about that.
What is the Government’s view of how far they can inform the public of the threat, in so far as the public can then help with respect to maintaining their own security and, by doing so, that of our country? That was the purpose of Amendment 116. It is obviously a probing amendment, but it seeks to understand something about the scale of the threat we are facing regarding this information and what can be done about it.
My Amendment 120A—which I should say at the outset is supported by my noble friend Lord West, who for personal reasons is unable to be with us, and, as I understand it, by the ISC—would require the Government to revise the memorandum of understanding between the Prime Minister and the Intelligence and Security Committee to reflect any changes to the intelligence and security activities undertaken by the Government as a result of this Bill. In other words, it seeks to update the ISC’s remit to ensure that it has the power to effectively scrutinise intelligence and security activity that will be taking place across government under this new national security regime.
Alongside the Justice and Security Act 2013, the ISC’s Mo outlines, among other areas, the ISC’s remit and the organisations that it oversees. This includes the expenditure administration policy on operations of the agencies, as well as several organisations that form part of the intelligence community. The Bill modernises the offence of espionage and creates a suite of new tools for the intelligence community and law enforcement to defend the UK against state threats.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I thank noble Lords very much for contributing to this relatively short debate. Let me first address Amendments 112, 117 and 120A.
Amendments 112 and 117 seek to impose on the Secretary of State a duty to implement the recommendations of the ISC’s report on Russia and to produce a report setting out the action taken. The Committee will already be aware that the Government published their response to the Russia report on the same day that the report itself was published, 21 July 2020. All the recommendations that could be identified within the report were addressed.
On the point just made by the noble Lord, Lord Coaker, a majority of the ISC’s recommendations had already been implemented by the Government before the report was published: for example, those covering co-ordination of government work on Russia, close working with international partners, and continued exposition and attribution of malign Russian activity. The then Home Secretary reiterated this in a Statement made in the other place on 17 January 2022. I also say that there is ongoing engagement with the committee on these recommendations. The Bill is itself a part of that response, by introducing effective new tools and powers for the police, and security and intelligence agencies, to use against the sophisticated range of threats and actors that we face in the modern day.
I turn to Amendment 118, explained by the noble Lord, Lord Purvis, as a probing amendment. Section 3(2) of the Justice and Security Act already provides, as the noble Lord, Lord Coaker, has just noted, for the ISC to make reports
“as it considers appropriate concerning any aspect of its functions.”
This provides the ISC with the ability to report on aspects of the Bill which fall within its remit. Furthermore, the amendment as proposed might be taken to imply that the ISC requires explicit legislative nomination to conduct oversight work on a relevant area of security and intelligence policy. The Government therefore cannot support this amendment.
Amendment 120A seeks to mandate the Prime Minister to update the memorandum of understanding between the ISC and the Government. The Committee will be aware that the MoU is subject to continuous review, as again noted by the noble Lord, Lord Coaker. We welcome the ISC proposing changes that it would like the Prime Minister to consider, whether due to this legislation or other aspects of its security and intelligence remit. The Prime Minister will consider the proposed changes in due course. The MoU itself states that it is important to avoid duplication. Some of the organisations that the ISC has proposed that its remit should include are very new, and there are discussions under way regarding whether they are best overseen by other parliamentary Select Committees.
I am sure that answer will not particularly please the noble Lord, Lord Coaker, but I hope he would accept that it is a reasonable answer, given the current state of affairs.
Lord Wallace of Saltaire (LD)
My Lords, I apologise for interrupting. I am sure the Minister recognises the damage which was done to the relationship between the ISC and Parliament, and to maintaining public trust, by the various manoeuvres while Boris Johnson was Prime Minister. There was the delay in the publication of the Russia report and the attempt to have a chair appointed by the Prime Minister rather than elected by the committee, et cetera. We need to be reassured—and by “we” I mean Parliament and the interested public—that the ISC has a very clear and respected role, and is not subject to the whims of changing Prime Ministers.
Lord Sharpe of Epsom (Con)
My Lords, with the greatest respect, this is a different Government and we have moved on. The ISC very much has the respect of certainly this part of the Government. If I may say so, I have answered the principal question that was being asked: the Prime Minister will indeed consider the proposed changes in due course.
Lord Coaker (Lab)
I understand that the Minister is saying that the Prime Minister will review it, but does he agree with me that it would help if the Prime Minister actually met the ISC? The Intelligence and Security Committee annual report states:
“Since its establishment in 1994, and for 20 years thereafter, the Committee met annually with the Prime Minister to discuss its work, report on key issues … However, the Committee has not had a meeting with a Prime Minister since December 2014. In the previous Annual Report, we stated that we would seek a meeting with the Prime Minister this year; unfortunately, despite requests for suitable dates, we are yet to receive a response from the Prime Minister. The Committee urges the Prime Minister to meet with it as a priority.”
May I ask the Minister to take that message to the Prime Minister? If he is looking at reviewing the MoU in due course, it might help him to meet with the committee.
Lord Sharpe of Epsom (Con)
The noble Lord makes a very fair point. I will certainly make sure that that message is conveyed. As I have said, the Government do not think it would be appropriate at this point to mandate the Prime Minister to update the MoU as proposed, therefore we cannot support this amendment.
I now turn to Amendment 113. The Committee will be aware that the Government committed to a review of visas issued under the route between 2008 and 2015. The Home Secretary made a Written Ministerial Statement on 12 January setting out the findings of that review, including that the review had identified a minority of individuals connected to the tier 1 investor visa route who were potentially at high risk of having obtained wealth through corruption or other illicit financial activity and/or being engaged in serious and organised crime. The Government have set out the findings of the review of the operation of this route and acted to close it. I think it was in February 2022. I therefore submit that the amendment is not necessary.
I note that the noble Lord, Lord Wallace, was selectively quoting back to me various aspects of the WMS. I might selectively quote back to him—I suppose I am quoting myself here. I also said:
“Given the importance of ensuring the independence of the law enforcement process I am unable to say more on the operationally sensitive work being taken forward in this area. Whilst unable to comment specifically due to operational sensitivity of work - as an example of the range of actions we are taking I can say that we have already sanctioned 10 oligarchs who had previously used this route as part of our extensive response to Russian aggression in the Ukraine.”
I think that gives answers as to why we have perhaps not commented in the detail the noble Lord would like.
The noble Lord, Lord Wallace, has also accused me of not talking enough about certain states and talking too much about our allies. He, I think, suggests that this is for party-political reasons. I am disappointed that the noble Lord, Lord Wallace, would think so little of the Government Front Bench in this House. I gently remind him that, when I am talking about our allies, I am usually responding to questions he has asked me.
I say to the noble Lord, Lord Purvis, that I am afraid I do not have all the stats he asked for about Russian money, but I will endeavour to find them. I do not know if they sit within the Home Office, but I will find out where they are, and I will happily write to him.
Lord Wallace of Saltaire (LD)
My Lords, I apologise if I have gone—as the Minister is advising me—a little far. The point I am making is that the lack of distinction in “any foreign power” is one of the fundamental faults in this Bill. The ISC Russia report on several occasions refers to the threats mainly coming from China, Russia, Iran and the Democratic People’s Republic of Korea. That is what I understand as well, although I am well aware that there are other potentially hostile states. One of my strongest memories is watching a demonstration outside the Libyan embassy and a policewoman being shot. These things happen; there are hostile states out there. However, that does not mean we cannot distinguish between allies with whom we work and open societies, and those from which there are likely to be threats. It is very important that we do so.
Lord Sharpe of Epsom (Con)
This Bill does exactly that. We have been talking about FIRS over the last couple of days—the foreign influence registration scheme. There are different tiers specified in that. There is no doubt that this Bill acknowledges where our principal threats come from. Other countries, unfortunately, are also sometimes used as proxies. That is another discussion we have had at considerable length from this Dispatch Box with various noble Lords who have raised that point. I think it has covered very widely exactly what the nature of the threats are and where they come from.
Lord Purvis of Tweed (LD)
My Lords, I am grateful for the Minister’s thorough reply, notwithstanding some of his responses, which he prefaced by saying that he knew they would disappoint the noble Lord, Lord Coaker.
Lord Purvis of Tweed (LD)
The noble Lord is a very cheerful person for someone who is disappointed. One of the telling facts he highlighted was the difficulty of the committee having an annual meeting since 2014—that speaks for itself. I am grateful to the Minister for saying that he is going to take that message back.
I am also grateful that the Minister has committed to provide some more information, which is quite helpful. On the issue of the tier 1 visas and golden visas, we are in a slightly ridiculous position where we have a discrepancy between what should be on the public record as to who received them and what is on the public record as to who is sanctioned. However, the Government are refusing to put the two together and to say who they are, which means we will have difficulty learning lessons as to how this came about, why they were able to secure the visas and what they have done. If the Minister is writing to me with more information, I would be grateful if he could state who is currently under sanction by the UK and has received a tier 1 visa. That would be very helpful information to receive.
I am grateful for the information on the co-ordination and the security council, and for the other information that the Minister provided. With Amendment 120A from the noble Lord, Lord Coaker, and my amendment, I think we are aiming for the same destination but with a different route. I think that the Minister said that the ISC would be able to scrutinise the implementation of all national security aspects of this Bill. If I have taken that incorrectly from the Minister, I am happy for him to correct me on the record. However, I think that we will pursue that aspect. As the noble Lord, Lord Coaker, and my noble friend, said, we want national security to work and, for that to be done, proper scrutiny by the committee of Parliament needs to be facilitated, with no gaps across the whole panoply. National security is complex and multi-departmental, and a whole-government function, as the Government say—and I respect that—between BEIS, DCMS, the Cabinet Office, the Treasury and FCDO. This is a complex area, and the committee is best placed to do it, but it must be equipped to do it. We may want to return to this issue after we have reflected on the Minister’s responses. In the meantime, I beg leave to withdraw the amendment.
Lord Purvis of Tweed
“Ministerial appointments: official advice(1) The Cabinet Secretary must publish a memorandum in respect of any ministerial appointments made by the Prime Minister, where advice or concerns were communicated to the Prime Minister by civil servants that the appointment may be counter to the safety or interests of the United Kingdom including because of potential influence from a foreign power.(2) A memorandum under this section must set out that advice or concerns were communicated to the Prime Minister by civil servants, and in respect of which ministerial appointments. (3) A memorandum under this section may not include details of the advice or concerns, where the Cabinet Secretary considers that inclusion of those details may be prejudicial to the safety or interests of the United Kingdom.”Member's explanatory statement
This new Clause requires the Cabinet Secretary to publish a memorandum in circumstances where the Prime Minister made a ministerial appointment and where advice was that the appointment may be counter to the safety or interests of the United Kingdom.
Lord Purvis of Tweed (LD)
My Lords, this is an amendment which I really did not think it should be necessary to debate, on ministerial appointments by a Prime Minister, where that appointment may raise issues to do with the safety, security and interests of the United Kingdom. The amendment seeks clarification from the Government on the ability for there to be transparency in the operation of the Ministerial Code, but also where there is concern about ministerial appointments.
This is not a partisan point, because we know as a matter of fact that a Home Secretary was sacked because of a significant security breach. The guidance on security of government business was breached considerably, and Liz Truss sacked Suella Braverman, who admitted a breach of government security guidelines. I recognise that none of the material that was shared on a private email system was marked “secret”, so with regard to national security considerations, on the face of what was sent to an incorrect recipient but also what was intended to be sent, it was not secret or top secret. They were not classified documents, and I respect that fact. However, the recipient’s employer—because one of the emails was sent to a member of staff of an MP—replied to Suella Braverman saying:
“Simply asking my team to delete this email and ignore it is not an acceptable response to what appears, on the face of it, to be a potentially serious breach of security … You are nominally in charge of the security of this nation, we have received many warnings even as lowly backbenchers about cyber security.”
The fact that that Minister was then reappointed for political purposes within a matter of days has been well rehearsed. The Minister has responded to this issue in Questions in the Chamber, and the noble Baroness, Lady Neville-Rolfe, also responded, saying:
“Everyone deserves a second chance.”—[Official Report, 22/10/22; col. 1558.]
I know for a fact that not everybody who will fall foul of some of the significant offences under this Bill will receive a second chance—or that some officials will receive it. But it would be useful to know whether there are security concerns about the appointments of Ministers.
The second thing I say concerns something that did not happen but could easily have happened. A Member of this House, the noble Lord, Lord Lebedev, was appointed under considerable concern about security situations. He was appointed to Parliament by Boris Johnson. He could very easily have been asked to be a Government Whip or a Minister: that is not a stretch of the imagination. What is the situation then, when security concerns have been raised about the appointment of a Member to Parliament but there is no mechanism for transparency about concerns about ministerial appointments? I do not besmirch any existing Ministers: these are two factual situations; one is regrettable, of course; and the other has not happened but could easily have happened. Therefore, my amendment seeks clarification as to what mechanisms are in place for it to be transparent when there have been concerns about an individual being appointed to a ministerial position, so that those concerns can be made public. I beg to move.
Lord Sharpe of Epsom (Con)
My Lords, I thank the noble Lord for speaking to Amendment 114, which seeks to require the Cabinet Secretary to publish information concerning ministerial appointments in scenarios where officials have indicated that the appointment of a particular individual
“may be counter to the safety or interests of the United Kingdom including because of potential influence from a foreign power”.
The Government cannot accept this amendment because the appointment of Ministers is a matter solely for the Prime Minister, in line with his role as the sovereign’s principal adviser. It is critical to the functioning of government that any conversations that occur around appointments are able to take place in confidence. There is a long-standing practice to protect that confidentiality. Without the ability to speak freely on matters that will be personal and sometimes sensitive, particularly where they may include matters of security, the ability of officials to provide meaningful advice ahead of an appointment will be critically undermined. The National Security Bill is concerned principally with the conduct of state actors working for foreign powers or with an intention to benefit a foreign power. Not only is the Bill not the appropriate vehicle for such a change but the Government also firmly believe that any information relating to ministerial appointments and procedures is not appropriate for publication. The Government therefore ask the noble Lord to withdraw his amendment.
Lord Purvis of Tweed (LD)
I am grateful to the Minister, and I am not entirely surprised by his response. I think the Government’s concerns regarding confidentiality and protecting Civil Service advice were addressed in the amendment. In fact, it explicitly states that information would not be provided within the memorandum, but that security considerations had been raised should be in the public domain. I hear what the Minister said; we will explore this in the other avenues. In the meantime, I beg leave to withdraw.
Lord Coaker
“Assessment of interaction with the Official Secrets Act 1989The Secretary of State must publish an assessment of how this Act relates to the Official Secrets Act 1989.”Member’s explanatory statement
This amendment intends to probe to what extent the Bill furthers the government’s objective to update the Official Secrets Act 1989.
Lord Coaker (Lab)
I will not keep noble Lords too long on this amendment. There are a couple of points I wish to make and a couple of questions to ask. I say at the outset that Amendment 119 is a probing amendment, obviously, but it allows us to discuss reform, or not, of the Official Secrets Act 1989. As we know, this National Security Bill does not deal with that, but earlier Official Secrets Acts of 1911, 1920 and 1939, which deal with espionage. In that sense, this Bill represents a missed opportunity and leaves many unanswered questions which simply cannot be ignored, questions which Amendment 120 in the name of the noble Baroness, Lady Kramer, setting up an office of the national security whistleblower, also seeks to address.
In the Government’s consultation document for the state threats legislation reforms, it is clear that changes to the Official Secrets Act 1989 appear to be on their way. Is it correct that they will reform the Official Secrets Act 1989 as soon as possible? If they will, can the Minister give any indication of what “as soon as possible” might mean—other than “as soon as possible”?
Lord Hacking (Lab)
My Lords, I again find myself the only Back-Bencher of my party in the Chamber. This time I cannot claim to be speaking on their behalf, although last time I intervened I felt that I had sufficient support from Labour Members who were not here to be able to speak at large on behalf of the Back-Benchers.
I have an entirely technical point. My noble friend Lord Coaker has tabled an amendment which he described to the House and in the Marshalled List as being intended to probe
“to what extent the Bill furthers the government’s objective to update the Official Secrets Act 1989.”
Of course, in Schedule 16, at the end of the Bill, we see what the Government are doing about repealing—or otherwise—previous Acts, going right back to the Official Secrets Act 1911, as my noble friend Lord Coaker mentioned.
As I say, this is a technical matter. I do not ask for it to be dealt with this evening, but perhaps the Minister’s officials and advisers could look at this. When the Bill was before the House of Commons, the Law Commission gave oral evidence and then submitted written evidence. In that written evidence, it took up the issue of the Official Secrets Acts 1911 and 1920 and commented on their provisions. The Law Commission said, in its recommendation 9:
“The offence of doing an act preparatory to espionage should be retained. Save for that, section 7 of the Official Secrets Act 1920 should be repealed.”
If we turn to Schedule 16, we learn that the Bill proposes to repeal those Acts in their entirety. The question is, therefore, why the written report of the Law Commission is not being followed. There are great complications when you start having to sew old legislation into modern legislation, and as I have complained before, the legislative process has become too complicated. This is not something to be answered now. The Minister can be relieved of having to give any explanation at the moment, but I wondered if it could be carefully looked at.
Baroness Kramer (LD)
My Lords, I thank the noble Lord, Lord Coaker, for his supportive words on the key aspects of my Amendment 120. Obviously, I have not participated in the broader issues of the Bill, but I think I can say on behalf of my colleagues that we are very impressed by his amendment. The probing character of an amendment, certainly in Committee, is a very important tool to try to get responses from the Government.
Given the late hour, I want to focus specifically on my Amendment 120. We heard at Second Reading—in a sense, it has been repeated at various points in Committee; I have been following this a bit in Hansard—how concerned former leading members of the intelligence community are about the consequences of public disclosure. I think the Government have echoed that. There is one very good way to avoid public disclosure, and that is to have an excellent whistleblowing regime and process. That is exactly what my Amendment 120 seeks to do. I understand that my amendment is not ideally drafted, but my goal is to generate a proper and, I hope, fruitful discussion. That is one of the reasons I am rather sad that those former leading members of the intelligence community are not in their places today, but perhaps they will pick up this issue afterwards.
Baroness Kramer (LD)
Yes, they were here earlier.
My preference would be to create an overarching office of the whistleblower covering all public and private activity, as I have proposed in my Private Member’s Bill. However, failing that, I suggest that much more immediate action could take place within the security and intelligence services.
Whistleblowers are essential in any and every field of activity. People err and power is abused, and whistle- blowing is both the best deterrent and often a necessary step to cure. But organisations so often welcome whistleblowers in their speeches, and perhaps in very general policy terms, but not in the practical reality.
I have to keep a good distance from sources because here in the House of Lords we do not have the power to protect their confidentiality. But over and again, the message comes that, in the security and intelligence services, various schemes—not all, but various and significant ones—are actually dysfunctional. Retaliation happens and is not exceptional, in the form of career destruction and the threat of the use of the Official Secrets Act—it may be entirely inappropriate, but it is a very frightening threat. Follow-up and proper investigation rarely happen. Instead, wagons are circled and retaliation begins.
In this, I have to say that the intelligence agencies are really no different from so many other parts of the public sector. We have to look only at the experience that the Metropolitan Police is currently going through to realise that there is a certain inbred complacency in many organisations. They are certain if you ask them that they have excellent processes in place, but then some event triggers and exposes problems that have lain underneath for a long time.
At Second Reading, I gave an example of a whistle- blower who spoke out using the existing systems to expose evidence that key equipment was being sourced from a hostile foreign power. That person is still suffering the price of a destroyed career.
Also at Second Reading, in explaining that he had worked with the intelligence community for more than 40 years, the noble Lord, Lord Ricketts—I think quite unwittingly—gave another, even more serious illustration of the dysfunctional nature of the system. Referring to the earlier speech that day of the noble Lord, Lord Tyrie, and his reminder that in regard to extraordinary rendition
“Britain appears to have been involved in at least 70 cases, according to the 2018 ISC report”,
the noble Lord, Lord Ricketts said,
“in my experience, the men and women of the intelligence community were profoundly shocked by the revelations of what had happened in those fraught months and years after 9/11.”—[Official Report, 6/12/22; cols. 137-39.]
I am sure that some people, including the noble Lord, Lord Ricketts, were profoundly shocked, but with at least 70 cases, a significant number of people, including those at senior level, must have known, knew it was wrong and either decided or were persuaded to do nothing, because of misguided loyalty, a culture of cover-up and fear that retaliation would destroy their careers.
Speaking out is frightening, disloyalty being the least of the accusations that typically follow. Each person to pluck up the courage to speak out needs to know exactly who they can go to to speak safely and how they can initially do it—most of them wish to do so anonymously initially. They cannot turn for information or advice to a colleague, as that exposes who they are. They cannot go to a senior person, as that exposes who they are. They should never look on the intranet or internet because that is traceable. Even in the health services, nurses use burner phones to report wrong behaviour. A whistleblower has to be absolutely confident that the person they speak to has both the will and, even more importantly, the authority to follow up and investigate an act. That is what whistleblowers look for.
However, it is much more than that. Confidentiality, which is often seen as the greatest protection for a whistleblower, is almost impossible to sustain once an investigation process starts, because the issue and the information themselves direct anyone who is interested to the identity of the whistleblower. So it is absolutely crucial that any person or body that a whistleblower goes to can provide them with protection or, where things go wrong and there is retaliation, with redress.
Lord Wallace of Saltaire (LD)
My Lords, I wish to stress the importance of how the Bill, when it becomes an Act, will relate to the Official Secrets Act. I am almost in a minority in my own family in not having signed that Act, although I note, looking at the dates, that the version my wife signed in 1979 was the 1939 version, and the version my daughter signed is rather more up to date. It is worth noting that it was 28 years from the first Official Secrets Act to the first revised Act in 1939, and 50 years from then to the second revised version, in 1989. We are now approaching 34 years since the last revision. As the Law Commission suggested, we really need to update the Official Secrets Act.
Part of the disappointment that many of us have with the Bill is that it takes the place of what might have been an effective revision of the entire Official Secrets Act. We all know what happens with legislation in this House. The time taken up for the Bill as it becomes an Act will mean that it will be another four or five years before we get round to a proper revision of the OSA.
I say this to the Minister: part of the argument for taking our time as we complete this Bill is that, for the next four or five years, this is probably it in terms of legislation dealing with this whole area of national security. So we need to make sure that it is well considered; that it addresses our current, changing threats; and that it feeds into and informs the public debate for those who need to understand these things. It should not be rushed. I hope that, in Committee, the Minister has got a real sense of the disappointment and discontent at the quality of the Bill as it now stands. I look forward to our discussions and hearing about the wider consultations that now need to take place before this Bill finishes its time in this House.
Lord Evans of Weardale (CB)
My Lords, I must confess to being rather puzzled by some of the detail in Amendment 120 in the name of the noble Baroness, Lady Kramer. When I got to proposed new subsection (4), I assumed that the office was intended to be a regulatory body ensuring that the whistleblowing arrangements with regard to national security were appropriate; however, it subsequently became clear in proposed new paragraph (b) that it was intended to be the whistle- blowing channel. Those seems like slightly different roles to me.
I am also puzzled as to why there is a proposal here for a whistleblowing channel that is in fact very narrow. It relates only
“to the commission of an offence under this Act”.
I would have thought that, if there was a need for a whistleblowing channel—
Baroness Kramer (LD)
Perhaps I can help the noble Lord. Amendments must be written to be in scope; it is sometimes quite limiting.
Lord Evans of Weardale (CB)
I thank the noble Baroness very much for that clarification; in that case, the amendment certainly needs some amendment itself.
I am also puzzled as to the route proposed that any disclosure, particularly from one of the intelligence agencies, can go to any public authority. Again, that seems a surprising route for a whistleblowing channel for somebody in the intelligence and security agencies.
More particularly, and more importantly, I absolutely fail to recognise the culture of cover-up that the noble Baroness, Lady Kramer, cites. Having worked in the Security Service for 33 years, I am confident in saying that, far from there being a culture of cover-up, there was in fact a strong willingness to speak up, as far as I could see. There was strong and, at times, fairly heated internal debate on some of the ethical matters that have been cited in this debate. So I do not believe that the characterisation of the intelligence agencies we have just heard in any sense accurate. Although the noble Baroness, Lady Manningham-Buller, gave the complete list of everybody to whom a member of the agencies could go, I think that almost anybody in the agencies would recognise their ability to go to the internal ethics counsellor—a role that plays an important part in actively encouraging debate of these issues—who has a direct right of access to the director-general of the day; I am sure that that would still be the case. That role has now extended from the Security Service to the other intelligence agencies. Also, it was clear and straightforward how you obtained the contact details for the external counsellor who acted as a whistleblowing channel directly outside the service. Of course, that was put in place specifically because of previous concerns that there was no such provision, and it was reflected in the legislation of the day.
I feel that the detail of this amendment is not clear —certainly not to me. The need for this amendment has not been made clear, in my view, because it is based on a rather misleading characterisation of the internal culture of the intelligence services. In my experience, there has been considerable focus on ethical matters and the ability internally to debate those.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, I thank Members of the Committee for all their speeches. Amendment 119 seeks an assessment of how the Act relates to the Official Secrets Act 1989. As we set out in last week’s debate, the new espionage offences in Part 1 of the Bill replace and reform the existing provisions in the Official Secrets Acts from 1911 to 1939. They carry strict tests for a person to be caught within those sections. For example, the first two offences apply when a person is acting for, on behalf of, or with the intention to benefit a foreign power. This is distinct from the Official Secrets Act 1989, which covers unauthorised disclosures by Crown servants and government contractors. As the Committee knows, the Government are not reforming the 1989 Act through the Bill, as has been observed this evening. Under the existing law, it is possible that a person making a damaging disclosure could commit both the espionage offence in the Official Secrets Act 1911 and an offence under the Official Secrets Act 1989.
Pausing there, I thank the noble Lord, Lord Hacking, for his contribution in relation to the 1911 Act. The difference, drawn out in the fact that you could commit both an offence of espionage under the Official Secrets Act and an offence under the 1989 Act, will continue to be the case. It is possible that a person could commit an offence under two pieces of legislation simultaneously and be charged in relation to both. That is not a matter unknown in the criminal law. Any overlap between the espionage offences in the Bill and the Official Secrets Act 1989 allows us to prosecute damaging acts in the most appropriate way. Where a person commits both a 1989 Act offence and an espionage offence under the Bill, the charging decision would be taken by the Crown Prosecution Service in accordance with the Code for Crown Prosecutors, as is always the case. CPS prosecutors select the charges that they consider are most appropriate on the facts of each case, and to reflect the nature of the wrongdoing. I hope that this explanation reassures the Committee that the Government have carefully considered the interaction between our new offences in the Bill and those in the 1989 Act.
The noble Lord, Lord Coaker, raised a question regarding reform of the 1989 Act, and I will address it directly. The Government’s view is that the Official Secrets Act 1989 is an essential part of our ability to protect national security and sensitive information. However, the views and concerns raised by stakeholders in response to our public consultation for the Bill, including those in favour of not reforming the Act at all, highlight the complexity of the legislation and the wide variety of interests that should properly be considered before pursuing any reform. Given its complexity, we are also concerned that reform of the Official Secrets Act 1989 at this time may distract from the Government’s package of measures in the Bill to counter state threats, and prevent us from providing law enforcement and the intelligence agencies with the tools that they need now directly to tackle these threats. Accordingly, we do not have any immediate plans to pursue reform of the Official Secrets Act 1989, but will continue to keep that position under review. The matters raised by the noble Lord, Lord Wallace, are well considered. Issues such as whether to increase maximum sentences under the Official Secrets Act 1989 would be considered as part of potential reform proposals and would be viewed in the round with the measures of sentences in the Bill.
Amendment 120 tabled by the noble Baroness, Lady Kramer, proposes the establishment of a new office for the national security whistleblower. We are told that the aim of such an office would be to protect whistleblowers who make disclosures related to offences under the Bill where disclosures are considered to be in the public interest. Of course I pay tribute to her in her ongoing work and efforts to champion the important cause of whistleblowing. The Government are committed to ensuring that our whistleblowing framework is robust, and I confirm that the business department intends to carry out the promised review of the existing framework, and that further details will be set out in due course in relation to that.
Lord Purvis of Tweed (LD)
I am grateful to the Minister. He is aware of the point I raised earlier in Committee, which, as he correctly pointed out, pertained more to the Official Secrets Act in respect of the authorised disclosure of information. The Law Commission’s recommendation is clear—that there should be an independent statutory commissioner, to which individuals can go, who has investigatory powers—but the Minister says that there are no plans to reform the 1989 legislation.
We heard from the noble Lord, Lord Evans, and earlier from the noble Baroness, Lady Manningham-Buller, that they do not recognise this culture, but the Law Commission came to its own view and its own recommendation. Do the Government accept that recommendation but then say that they are not going to do anything about it, or will we have to find a way to bring together the disclosure of information and the points that my noble friend raised? The Law Commission’s recommendation was perfectly clear, and it was not besmirching the culture within the agencies. It was a very clear recommendation.
Lord Murray of Blidworth (Con)
Indeed, the Law Commission made a recommendation about a potential reform to the 1989 Act. As I have already said, that is not the purpose of this Bill and will be a matter for a future reform, which will not be conducted immediately, as I already explained in answer to the point from the noble Lord, Lord Coaker. The Law Commission’s recommendation will have considerable weight but, at this stage, I cannot prejudge any government decision in relation to the 1989 Act.
In last week’s debate, the noble Lord, Lord Coaker, asked about the Government’s plans to update internal whistleblowing guidance. I can confirm that the Government regularly keep this guidance under review and, last year, they updated it to include specific reference to how to raise an issue that would require disclosure without breaching the Official Secrets Act 1989. The updated internal guidance has been shared across departments and agencies, with confirmation from all Whitehall departments that a review of their own processes and procedures has been undertaken or is planned.
Across government, organisations have also continued to undertake activities further to develop a safe and supportive culture for raising concerns. Over the last year, the majority, including all 17 Whitehall departments, have undertaken communications through awareness-raising events and campaigns, including an annual “Speak Up” campaign.
We of course understand that journalists have a specific and important role to play in holding government to account in our democratic society. We also understand that responsible journalists do not want unwittingly to put lives at risk or compromise national security. That is why we have robust processes in place which enable journalists to mitigate the harm caused when considering the publication of potentially damaging information.
For example, during the Government’s public consultation on the Bill, several media stakeholders commented on the value of the Defence and Security Media Advisory Committee—the DSMA—which alerts the media to the consequences of disclosing certain types of information and provides advice on how to mitigate damage, while leaving editors to judge whether to publish or broadcast. A number of editors already engage with this valuable process when considering the publication of sensitive information, and we encourage them, and others, to continue to do so.
The Government are committed to ensuring that these channels are safe, effective, and accessible. Accordingly, for the reasons I have just set out, the Government, with regret, cannot accept the tabled amendments and invite their withdrawal.
Lord Coaker (Lab)
My Lords, I will be brief, but will start by thanking the Minister for his response and all noble Lords for their contributions to this short but important debate. I am grateful to the Minister for following up on my question from last week about what was happening with the updating of guidance for people in departments across government who wish to raise concerns. But frankly, the headline from what the Minister has said is that the Government have kicked the reform of the Official Secrets Act 1989, which was never particularly on the immediate horizon, into the long grass. That is deeply disappointing because, irrespective of one’s view, the issues of the public interest defence and people being able to come forward—whistleblowers, if you want to call them that—will not go away. Reforming the Official Secrets Act would have enabled us to debate that and come up with an Act that is relevant to 2023 and beyond. As I say, it is deeply disappointing that the Minister has effectively kicked that reform into the long grass, and that is the headline from this response to the amendments. With that, I beg leave to withdraw my amendment.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment provides that regulations under clause 63 attract the affirmative procedure only if they specify a foreign power or other person not already specified. Regulations revoking a specification will be subject to the negative procedure.
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to clause 68, page 46, line 30, which omits the regulation making power in clause 68.
“(fa) regulations under paragraph 27 of Schedule (Public officials);”Member's explanatory statement
This amendment provides that regulations under the new Schedule inserted by Lord Sharpe after Schedule 13 are subject to the affirmative procedure.
Lord Sharpe of Epsom
“(1A) His Majesty may by Order in Council provide for any provision of this Act other than section 20 to extend (with or without modifications) to the Sovereign Base Areas of Akrotiri and Dhekelia.(1B) An Order in Council under subsection (1A) may make consequential, supplementary, incidental, transitional or saving provision.”Member's explanatory statement
This amendment confers power to extend the Bill to the Sovereign Base Areas of Akrotiri and Dhekelia. Clause 20 is excluded from the power because clause 20 is extended to the Sovereign Base Areas by clause 95(1)(b).
Lord Sharpe of Epsom (Con)
My Lords, Amendment 124 creates the power to extend any provision in the Bill with or without modification to the sovereign base areas of Akrotiri and Dhekelia in Cyprus by way of Order in Council. The provisions of the Official Secrets Acts 1911 and 1920 extend to the sovereign base areas, and this amendment will allow provisions of the Bill to be extended to the law of the sovereign base areas. This would ensure that harmful activity that the Bill addresses can be prosecuted in sovereign base areas when conducted there.
Clause 20, which provides for the aggravating factor to apply to some service offences in the Armed Forces Act 2006, has been excluded from this power given that it is already being extended to the sovereign base areas though Clause 95(1)(b).
I end by putting on record that the Government consider that any references in this Bill to the sovereign base areas will not in any way undermine the provisions of the 1960 treaty concerning the establishment of the Republic of Cyprus between the United Kingdom, Greece, Turkey and Cyprus. I therefore ask the Committee to support the inclusion of this amendment.
Lord Purvis of Tweed (LD)
My Lords, I have very little to say with regard to the government amendment. I recognise the Government’s sensitivity to the ongoing issue of the politics within Cyprus.
As this is the last group in Committee, I thank the Ministers today, the noble Lords, Lord Sharpe and Lord Murray, and the noble and learned Lord, Lord Bellamy, for their willingness to engage. As my noble friend Lord Wallace indicated, there is a lot of work to be done in persuading the Committee that the measures in the Bill will meet the Government’s intent. There are some key areas of the Bill where we are looking for more information. I think the noble Lord, Lord Murray, indicated on an earlier group that he is reflecting and that there is more to follow. We await the correspondence from the Ministers. We are very happy to meet Ministers before Report. I say from these Benches that it might be advisable for the Government not to be in a rush to schedule Report, so that there can be proper thinking on the many aspects of the Bill about which we have highlighted problems.
National Security Bill
Wednesday 1st March 2023
(1 year, 8 months ago)
Lords ChamberRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 88-I(a) Amendments for Report (Supplementary to the Marshalled List) - (28 Feb 2023)
17:31 - Division on Amendment 4 - Ayes: 79 / Noes: 226 - Amendment 4 disagreed.
17:44 - Division on Amendment 18 - Ayes: 82 / Noes: 212 - Amendment 18 disagreed.
17:57 - Division on Amendment 18A - Ayes: 155 / Noes: 209 - Amendment 18A disagreed.
19:12 - Division on Amendment 51 - Ayes: 209 / Noes: 170 - Amendment 51 agreed.
21:24 - Division on Amendment 80 - Ayes: 73 / Noes: 141 - Amendment 80 disagreed.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, before I speak to the amendments in this group, I would like to talk about some of the reasons why we are introducing them. Some of our amendments have been brought forward to reassure noble Lords and others that the offence will not capture the genuine work of journalists. We have listened to the concerns raised by the media sector and noble Lords in the House, and some of these amendments are a direct response to them.
The Government have heard from media stakeholders who believe that they could no longer hold the Government to account and that these clauses could inhibit the publication of articles critical of the UK’s defence or security response. I want to address those concerns directly. The Government are committed to defending our freedoms—values which define us and make us who we are. Few are more fundamental to that than freedom of the press. There is no intention to stifle or censor the media’s ability to expose or shine a light on issues. That is the proper role and function of the media and why the UK is such a strong advocate of media freedom globally.
Before we get into the details of individual provisions, I remind the House that these provisions replace the existing law in the Official Secrets Act 1911. We have been provided with a number of examples of journalistic reporting that have been cited as part of the case that more must be done to protect journalists in this Bill. Even were the Government to accept that any of these examples could hypothetically be caught by any of the offences, the same would be true of the existing laws. Accordingly, great comfort should be taken from the fact that no prosecutions of journalists have taken place under the espionage laws to date. I want to confirm again, on the record, that the focus of the Bill is on protecting the UK from threats from foreign states and those acting against UK interests, not interfering with the free press.
I begin with the amendments focusing on “ought reasonably to know”. The phrase was said to be unclear, with concerns raised that it could be interpreted as imputed knowledge, thereby catching those who engaged in specified conduct unwittingly—who did not know but are told that they should have known. I would like to strongly emphasise that this is not the Government’s intention and we do not consider that the current formulation would be interpreted by the courts in this way. However, we have considered the concerns raised on this issue, particularly the useful contributions in Committee from the noble and learned Lord, Lord Hope, and the noble Lord, Lord Marks. We agree that it would be helpful to clarify the meaning. These amendments therefore clarify that the prosecution must look at what matters were known to the individual at the time in determining whether that individual ought reasonably to have known something.
I now turn to amendments which all relate to the offence of materially assisting a foreign intelligence service. The amendments that the Government have put forward update the offence provided for in Clause 3(2). These amendments are similar to the ones put forward in Committee by the noble Lord, Lord Marks. The effect of these amendments is that the wording
“it is reasonably possible may”
in both Clauses 3(2)(a) and (b) would be replaced with “is likely to”, which in this context we see as meaning a real possibility. In order to ensure consistency across the clause, Amendment 13 also updates the relevant wording in Clause 3(3).
The Government have tabled amendments in response to a point raised in Committee by the noble Lord, Lord Pannick. These would add protections for lawyers, ensuring that any genuine legal activity will not be captured under the Clause 3 offence in the Bill. I beg to move.
Lord Marks of Henley-on-Thames (LD)
My Lords, I thank the Minister for the helpful explanation of the many government amendments in this group. I thank him and the Government also for the considerable movement they have made in response to criticisms made by me and many others at Second Reading and in Committee of the breadth of the offences under Part 1. We are very grateful to the Government for the comprehensive way in which they have listened to our criticisms and moved towards positions that we have taken.
In particular, the troublesome phrase “ought reasonably to know” has been clarified by the qualification that what a defendant ought reasonably to have known falls to be judged having regard to other facts known to that defendant. Furthermore, in Clause 3, as the Minister explained,
“conduct that it is reasonably possible may materially assist a foreign intelligence service”
becomes conduct that “is likely to” materially assist a foreign intelligence service.
I welcome the new strengthened review provisions introduced by the new clause proposed in Amendment 85, in place of the old Clause 56. These and other concessions in the amendments moved by the Government allay many of our concerns.
However, there is one area left untouched that we say is still completely wrong: the failure to tighten up the definition of the
“interests of the United Kingdom”.
That is the subject of our Amendments 2 and 3, and the corresponding amendments wherever the phrase
“safety or interests of the United Kingdom”
appears. I note the word “or”: the interests of the United Kingdom alone are enough to qualify. It is principally in support of those amendments that I speak now.
We are concerned about the interests of journalists, and that is the title of this group. I do not accept what the Minister said when he suggested that it was permissible to rely on the fact that journalists have not in the past been prosecuted under security legislation. That may as a matter of fact be true, but it is neither safe nor good legislative practice to rely on it without tightening up the legislation so as to prevent such prosecutions succeeding.
Lord Black of Brentwood (Con)
My Lords, I will speak to Amendment 18 in my name, supported by the noble Baroness, Lady Stowell, the noble Lords, Lord Stevenson and Lord Faulks, and to a number of government amendments that touch on the same issue. I declare my interest as deputy chairman of the Telegraph Media Group, which is a member of the News Media Association, and as director of the Regulatory Funding Company. I also note my other interests in the register.
One of the leitmotifs that ran through discussions on this Bill in the other place, and through Second Reading and Committee here, has been its impact on independent journalism, particularly investigative reporting, as the noble Lord has just said. I do not need to rehearse all those arguments on this subject, which have been well covered and widely reported. Indeed, it has attracted attention and criticism from international media freedom groups deeply concerned about the global impact of this legislation.
The crux of the argument is really very simple and arises mainly from the wide definitions of offences in Clause 3, which potentially criminalise aspects of investigative reporting. That in turn—this is the major worry—produces a powerful chilling effect on investigative reporting by responsible journalists. I appreciate that there are government amendments, which I am going to come to, but as it stands an offence punishable with heavy criminal sanctions and sentences is committed if someone
“knows, or ought reasonably to know, that it is reasonably possible their conduct may materially assist a foreign intelligence service”.
That would cover a wide range of reporting, whether about sexual assaults on board a nuclear submarine, Chinese influence in the UK, bullying by intelligence officers, an innocent photograph of a nuclear power station or huge investigations such as the Panama Papers.
The problem is that, when journalists start investigating a story, they cannot possibly know where it will lead and whether their reports might
“materially assist a foreign intelligence service”.
They should not be criminalised for what they ought to have known, even if what they actually did know at the time is taken into account. It is too nebulous and such a low bar that much reporting could be caught. Editors and reporters would far too often be forced to stop an important public interest investigation because of the fear of breaking the law and individuals facing prison sentences.
As I said in Committee, I have never believed that the new offences in this Bill would be used regularly to imprison journalists, and I do not believe that is what the Government intend. But the risk, the uncertainty, the lack of clarity in the law and the chilling effect are there. As a result, the damage to the public interest is there.
To echo the noble Lord, Lord Marks, the Government to their great credit have listened to concerns set out so clearly in Committee by colleagues across the House in the debate on the amendment tabled by the noble Baroness, Lady Jones, and others. The Security Minster Tom Tugendhat has underlined his own strong personal commitment to media freedom. He, my noble friend the Minister and their officials have been extremely helpful and constructive in discussions with colleagues here and with the media industry to try to resolve these issues.
Government amendments tabled for Report to Clause 31 are an improvement on the Bill and I support them. They go some way to ameliorating the difficulties by changing “reasonably possible may” to “is likely to”, which brings helpful clarity. But I believe that, without a very clear signal from the Government that the purpose of their amendments is to ensure that public interest journalism is outside the scope of their Bill, on their own, they do not go far enough.
The reason for this is that lack of clarity in the criminal law is always the enemy of investigative reporting. Uncertainty as to whether something will end up in a lengthy jail sentence for a reporter of editor is anathema to media freedom. Here we have—even with the government amendments—lack of clarity and uncertainty, and a chilling effect from the wording that judges journalists for what they ought to have known.
Relying on the courts to interpret vague legislation is not good enough when it comes to media freedom, because we have all seen where that ends. There must be no ambiguity which would force the prosecuting authorities and courts to have to second guess the intentions of Government or which would allow a future Government not committed to freedom of expression to use the same prosecuting authorities and courts to suppress scrutiny of their actions.
Consider this not unusual scenario. It happens not infrequently that an investigation by a newspaper relating to a matter of national security looks as if it may end up criticising or embarrassing the Government or intelligence services. During the course of such a wholly legitimate investigation in the public interest, the editor of a newspaper receives a call from someone who says, “Publish this and you’ll be assisting a foreign intelligence service”. The editor and reporter have no way of knowing whether that is true or is just an attempt to stop an investigation. In such circumstances, the risk of prosecution because they “ought reasonably” to have known that they were assisting a hostile power will deter them from publication. Simply put, if you do not know what constitutes “conduct” amounting to a criminal offence, you are unlikely to pursue a story touching on national security issues. Even with the government amendments, that still therefore leaves a profound chilling effect.
I understand that the Home Office and the security services need “conduct” to be drawn sufficiently broadly in Clause 3 to protect the public in a wide range of circumstances—something we all want—but that is why, at the same time, it must be made unequivocally clear that genuine journalistic activity is not within the ambit of prosecution.
The purpose of my amendment is therefore to provide clarity and certainty by ensuring that those working on articles or investigations for publication by recognised news publishers—a term already defined by government in both this Bill and the Online Safety Bill—have a defence to rely on if they are threatened with prosecution for conduct that they must necessarily engage in during the course of their work. This simply codifies in the Bill the Government’s stated intention in regard to journalism, and is a straightforward, practical amendment to deal with the problems that have been identified throughout the passage of this legislation.
I have consistently said that I wholeheartedly support this Bill. National security is the primary task of government and one which this House takes incredibly seriously. However, all legislation of this sort is a balance between competing rights and responsibilities. Noble Lords will know that, 80 years ago, President Roosevelt set out his four freedoms. The fourth was freedom from fear, which is what this Bill is all about. We should not be fearful of the terrorist, the bullet or the bomb, or of a cyberattack, and this Bill rightly strengthens the armoury available to the state to deliver that. However, Roosevelt’s first freedom was freedom of expression—the source of all other liberty. He recognised, as so many after him, that a balance needs to be struck. This amendment seeks to do that by ensuring that this vital Bill protects the public interest that springs from investigative reporting at the same time as it protects the security of the public. In doing so, it would send a powerful signal to the rest of the world about the commitment of our Parliament to free speech—a global responsibility that we must take very seriously.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is a pleasure to follow the noble Lord, Lord Black. I read up on him and it says online that he is a passionate defender of press and media freedom, and free speech. I think we might be coming at these things from different directions, but on these things we agree. I declare an interest as the mother of a journalist. I care very deeply about this issue of press freedom; it is a ditch I will die in—which looks likely, perhaps, today.
The Minister said he has heard from the media. I have heard from the media as well, and it has been quite interesting hearing what journalists have to say about this particular Bill. For example, only today, the Sun journalist Mr Harry Cole texted me to highlight stories that he broke that could have criminalised him. That is quite a useful example. One of the stories was, of course, Matt Hancock in his office with his then girlfriend—perhaps not a matter of great state concern, but at the same time it showed a carelessness on behalf on members of the Government for laws that they had brought in.
The government amendments in this group are proof that your Lordships’ House can force the Government to recognise errors in their legislation—of which, of course, there are always a lot. As I said at Second Reading and in Committee, the offences in the Bill are simply too broadly drawn; they risk ensnaring far too many innocent actions, turning them into serious criminal offences. I am glad the Government have now conceded that point, including a recognition that current drafting risks harming journalists alongside numerous other legitimate actors, such as charities and non-governmental organisations.
However, while the Government’s proposed amendments will tighten the offence, they still do not sufficiently protect innocent people from falling foul of these laws. That is why I have tabled Amendment 72, which would protect journalists unless they did something on the orders of a foreign power. This strikes a much better balance. It does not grant a total exemption, which would allow actual spies to claim they were journalists, just as it would not allow the Government to brand actual journalists as spies.
I like Amendment 18. It is not as good as my Amendment 72, but it has slightly more elegance. I strongly support it and hope that the noble Lord will press it to a vote. I do not want to take any glory for him but, if he chooses not to because he trusts the Government’s assurances, I would feel compelled to put his amendment to the vote myself.
I have been in a lot of legal briefings recently on several Bills, and all of them included phrases from the Government like, “Oh, you’ve got to trust us on this”, “Really, we assure you”, and “You can trust us”. Quite honestly, who trusts the Government any more? I bet millions of people do not—I certainly do not. I want something in the Bill that actually protects journalists.
Baroness Stowell of Beeston (Con)
My Lords, I will add a few remarks to what has already been said in the debate. My noble friend Lord Black comprehensively and powerfully set out the case for his amendment, which I support and have added my name to.
I emphasise that, like everyone else, I think, I support the Bill. It may be of interest to noble Lords to know that I signed the Official Secrets Act when I was just 18 years old, on my first day as a junior secretary in the Ministry of Defence. I knew very little about the world that I had entered, but it was impressed upon me from the start that I would be in possession of information that could endanger lives. I learned from an early age about protecting any information that could be weaponised against the UK or our citizens.
I also learned that part of what makes us such a powerful and important nation is our freedoms, especially our free press. I learned that it is critical that we do not do anything that risks journalists not being able legitimately to expose serious failings or wrongdoing by government or public servants, especially when those government failings themselves could threaten the lives and well-being of British citizens.
In Committee, we heard some powerful examples that could be at risk of being exposed in the future, for the reasons that were set out. That is why I believe it is essential that we do not legislate to protect our national security in a way that could stop journalists doing their legitimate job, however inconvenient to Ministers or public servants the results of this sometimes are. Journalists should not be threatened with prison for exposing the truth about ineptitude, incompetence or corruption within government, whoever is in power.
I echo what my noble friend Lord Black and the noble Lord, Lord Marks, said about the commitment of my noble friend the Minister, his ministerial colleagues and officials across Whitehall, who have given time and effort in trying to find a way forward. As the Minister laid out, the Government have come a long way towards addressing the concerns expressed during debates in Committee. Like others, I support all of the amendments that my noble friend tabled on behalf of the Government.
However, as my noble friend Lord Black explained, we need to go a little further and provide greater clarity than the Government’s amendments if we are to avoid a chilling effect on journalism, which could so undermine the public interest. That said, I fear that my noble friend the Minister may be unwilling to accept our amendment. That troubles me, because a Bill on national security and how a new offence could apply to journalism is not one on which I would like to see the House divided.
I can see why the Government might be struggling with the amendment or to come up with something else that provides the clarity that we need. As unthinkable and unlikely as it may be, I suspect that there is a fear within Whitehall that a journalist working for a recognised news publisher could collude with a foreign state seeking to do us harm and use this as a defence to get away with it.
I say to the noble Baroness, Lady Jones, that I want to listen to what my noble friend the Minister says at the end of the debate. It is important that we give him the opportunity to speak very clearly about this. I remind my noble friend that his words at the Dispatch Box are incredibly powerful in legal terms if they are made deliberately with the purpose of ensuring that there is complete clarity and no ambiguity when it comes to the intention of legislation.
If he will not accept this amendment, I want him to be very clear about the explicit limits of this offence. Can he put beyond any doubt that no journalist doing a legitimate job of exposing wrongdoing and failure by the state will be caught by this future Act of Parliament —if that is what it becomes—if they are not working on behalf of a foreign Government or agency? As I said, I want to listen to him, and I urge the noble Baroness, Lady Jones, my noble friend Lord Black and the rest of the House to do the same, because that is what I will do.
Lord Faulks (Non-Afl)
My Lords, I declare my interest as the chairman of the Independent Press Standards Organisation. I have also added my name to Amendment 18. I have very little to add to what has already been said by those who have spoken in the debate. The noble Baroness, Lady Stowell, has given a very good summary of the ruling of Pepper v Hart, although there first has to be ambiguity for the Minister’s words to have particular effect. None the less, I entirely agree with her that we will listen with great interest, as indeed will the media in general, to what the Minister has to say, to see whether he can give the assurance that is genuinely needed.
All I will add to what noble Lords have said already is that public interest journalism is genuinely under threat. It is very expensive to undertake, and editors can easily be deterred by the possibility of a wild goose chase. It would be an additional impediment to their encouraging proper journalism if they felt that one of their journalists or their publication was in some danger of finding themselves contravening the provisions of this very important Bill, which I also support in all respects. That is why this is a very significant group of amendments. As the noble Lord, Lord Black, said, citing Roosevelt, freedom of expression is fundamental. The press and the recognised publishers reflected in this amendment represent a very significant part of that freedom, and I hope that, in the Minister’s response to this group of amendments, we will get the reassurance that is so badly needed.
Lord Purvis of Tweed (LD)
My Lords, I have added my name in support of my noble friend’s amendments seeking further clarity on
“the interests of the United Kingdom”.
I remind the House of the very significant penalties that are associated with these offences. Since this is my first opportunity on Report, after speaking in Committee, I thank the Minister and his team for listening, and not just listening but acting, engaging with us on these Benches and bringing forward amendments that we believe will make the Bill fundamentally better. Ministers have been true to their word in acting, and I appreciate that. The way the Minister and his officials have conducted themselves is to be commended, and I put that on the record so that it is perfectly clear.
The area that is outstanding, however, as my noble friend indicated, is that we still retain a concern that simply referring to “interests” and relying purely on the judgment within the 1964 Chandler case is insufficiently wide. As I stated in Committee, I am in a significant minority in not being a lawyer but, from reading the judgment in Chandler, which I remind the House also related to nuclear and defence policy, the only reference the Government have given to highlight what the case law definition would be of
“the interests of the United Kingdom”
is a defence and security interest. That is the only reference to the only case the Government have referred to. Therefore, it is not a significant leap to simply state in the Bill that this legislation is linked to security and defence interests. Without that, as my noble friend indicated, there is a concern that any government policy of the day that is not associated with defence interests, but is nevertheless activity that is directed by a foreign power, could be covered within this. Therefore, we still believe that there is a case for that to be defined.
I hope the Minister will respond to that point and say whether the Government are open to having further clarification of how “interests” are going to be defined, rather than just relying on that individual case. The reason I believe that that will now be necessary is because of one of the welcome concessions by the Government, which is to have an independent reviewer. We will come to government Amendment 85 later, but there will be a reviewer of this part of the legislation. For that reviewer to do their job properly—and we have noted reviewers and former reviewers in the House today—clarity on the Government’s intent regarding these interests will be important for the reviewer to look at the proper functioning of the legislation. I hope there will not be a grey area where there needs to be clarity, as the noble Lord, Lord Faulks, indicated.
My second point is that I welcome the Government seeking to narrow the area of information known to someone who is likely to fall foul of this legislation. Journalism is incredibly important. Unlike the noble Baroness, Lady Jones, I do not have friends at the Telegraph or the Sun to message me—we on these Benches do not often receive friendly messages from those journals—but I defer to her contacts with the Sun. Of course, she raises an important point in the context of what we debated last week in Grand Committee, the situation in Iran. We know that not only, as the noble Lord, Lord Faulks, indicated, is free, fair, impartial and independent journalism under threat around the world, but journalism is under threat in this country. There are countries that are persecuting journalists for operating within this country; therefore, the strongest defences for journalism are important. We believe very strongly that my noble friend’s Amendment 79, on a public interest defence, will provide a very sound defence for journalists carrying out their activities.
I have a question for the noble Lord, Lord Black. My understanding of the way that his Amendment 18 is written is that it would also cover whistleblowers. We have made the case for there to be protection for whistleblowers but, as I read his amendment, the defence is for a person who is not necessarily a journalist, but the intent is that the action will be for
“publication of material by a recognised news publisher”.
As I read it, Amendment 18 is therefore not limited to journalists. There may be unintended consequences that we may consider positive but the Government may not. I do not know whether the noble Lord, Lord Black, will an opportunity to respond, so I ask the Minister whether his interpretation of Amendment 18 is that it could include whistleblowers. The main result may be to protect those who have a public interest defence in operating within all these parts. We will debate this in the next group on Amendment 79. I hope that will be our opportunity to draw the ditch—if not die in it—fight our case and divide the House on ensuring that there is a defence for journalists and a proper public interest defence for those carrying out legitimate activities not to be captured by this Bill.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I shall be very brief. I thank the Minister for his explanation of the Government’s amendments. We recognise that they have come a long way since Committee. The amendments in this group seek to address the unintended consequences of offences for journalists and NGOs. Concerns have been raised throughout the Bill that the legitimate activities of journalists, such as the possession of leaked information, could lead to their prosecution. The main focus of today’s debate is Amendment 18 from the noble Lord, Lord Black. It aims to give a specific offence, whereas our Amendment 79B calls for an assessment of the impact of this group.
Given the significant concessions made by the Government, I will not divide the House on Amendment 79B and we will abstain on Amendments 18 and 72 if they are moved to a vote. However, I understand the point made by the noble Baroness, Lady Stowell, when she said that she would listen to the Minister, deliberate and see what will be done. I do not know whether the noble Baroness, Lady Jones, will press Amendment 18 to a vote even if the noble Lord, Lord Black, chooses not to. Either way, the Labour Party will abstain on those votes.
Lord Sharpe of Epsom (Con)
My Lords, I thank noble Lords who have spoken in this debate for their very warm words. The strength of opinion highlights how important journalistic freedom is, and the Government take it extremely seriously. Whistleblowing will be dealt with in the next group, so if the noble Lord, Lord Purvis, allows, I will not deal with it in my response.
I am very grateful to my noble friend Lord Black for his amendment and for his general comments in support of this Bill. As I have said, we have listened to concerns raised by the media sector and noble Lords. The Government’s amendments are a direct response to them. I will endeavour to provide the clarity that my noble friend Lady Stowell asked for.
On my noble friend Lord Black’s amendment, the Government cannot accept a defence linked to the definition of a recognised news publisher. Rather than taking activity out of scope, the defence would act as a way for foreign powers, particularly those seeking to cause the UK harm, to avoid prosecution under this clause and engage in harmful espionage activity. If a journalist is deliberately colluding with a foreign intelligence service in relation to their UK-related activities, such as by revealing intelligence capabilities that could be exploited by that intelligence service, it is absolutely right that they should face criminal sanction.
I acknowledge that the amendment seeks to provide a targeted protection for journalists by referencing “a recognised news publisher”. The Government have serious concerns that any individuals working under the cover of journalism in foreign media organisations operating in the UK would be able to abuse this provision. Even if hostile state actors did not currently use journalistic cover to engage in espionage, having a defence such as this would almost certainly encourage them to do so. This defence would apply even if the conduct in question was probably against the public interest. This is simply not acceptable; it would give foreign states a back door to commit espionage. Accordingly, the Government cannot accept this amendment and I ask my noble friend not to move it.
However, I want to reassure the media sector that publication of an article that was critical of the UK Government, and which might incidentally be capable of assisting a foreign intelligence service, would not fall within the scope of this offence; nor would the handling of materials in the course of genuine journalistic activities, nor likely the other offences in this Bill. For an offence to be committed under Clause 3, an individual would need to engage in conduct intending
“to materially assist a foreign intelligence service”,
or know, or should have known given the information they had at the time, that it was likely that such conduct would do so.
The Government may profoundly disagree with the conclusions of some journalists, but we will not hide behind the criminal law to suppress genuine competing views and it is almost inconceivable that genuine journalism will be caught within the threshold for criminal activity. My noble friend raised some specific examples and there are many—for example, those relating Snatch Land Rovers a few years ago—but the Government do not consider that the publication of an article that was critical of the UK Government, and which incidentally might be capable of assisting a foreign intelligence service, would fall within the scope of this offence. I think it is worth repeating that.
Many of the examples that have been provided in various articles are stories which relate to terrorism. No journalist has been prosecuted for an offence under terrorism legislation. Even where examples are relevant to state threats activity, no journalist has been prosecuted for an offence under the Official Secrets Act. This Bill will be no different and the Government do not accept the view that it criminalises the activity described in the media.
The test of material assistance is key. To be “material”, the assistance to the foreign intelligence service must be important, considerable or in a significant way. As with all criminal offences, it is the specific circumstances of the case that will be important and will be a matter for the prosecuting authorities, but we would expect prosecutions to involve those with known links to foreign intelligence services, including evidence of a relationship, tasking or payment. Absent these links, the Government struggle to envisage even the most provocative piece of journalism meeting the threshold for the offence.
The noble Lord, Lord Purvis of Tweed, noted the Statement made last week on Iran International, and many noble Lords will have read it; it highlighted the potentially lethal operations of the Islamic Revolutionary Guard Corps taking place in the UK. Far from criminalising the important work of journalists, this offence is intended to protect Iran International, and others who live and work here, from such direct attacks on our people and values.
I turn to amendments tabled by the noble Lord, Lord Marks, with regards to security or defence interests under Clauses 1, 3, 4, 8, 12 and 14. These amendments seek to narrow the definition of “interests of the UK” to ensure a focus on the protection of national security and defence interests, alongside economic security interests. Similar amendments were tabled in Committee, so I will reiterate the concerns the Government continue to have with these changes, as they remain relevant. Narrowing the interest element to cover only security or defence interests significantly moves away from the “safety or interests of the UK” test that already exists and is understood within current espionage legislation. I am afraid these amendments move away from the status quo by creating a test with an unduly narrow focus on national security. While the noble Lord importantly made specific reference to interests pertaining to the UK in its economic security, these amendments continue to not include other critical UK interests relating to public health or, for example, the preservation of our democracy.
The noble Lord, Lord Marks, referred to the case of Chandler v DPP, as did his colleague the noble Lord, Lord Purvis. “Safety or interests of the UK” has been considered by the courts to mean the objects of state policy, determined by the Crown, on the advice of Ministers. We expect this interpretation to carry forward to the new legislation and there are safeguards in place to prevent the Government using this legislation inappropriately—for example, by deciding that somebody is acting against government policy but where there is no national security impact.
Each offence under this legislation includes a test that must be met in order for the offences to be committed. For example, for a person to commit a Clause 1 offence, they must obtain or disclose information that is protected for a purpose
“that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom”
and the activity must be conducted for, on behalf of or with the intention to benefit a foreign power. This limits the type of conduct capable of being caught under this offence, and in particular the foreign power condition ensures that there is a state link. Designing the offence in this way clearly focuses the offence on harmful state threats activity.
I now turn to Amendment 72, tabled by the noble Baroness, Lady Jones of Moulsecoomb, and signed by the noble Lord, Lord Pannick. The most concerning consequence of this amendment is that where a state threats actor, acting under a proxy, has been engaged in harmful activity, which was an offence under the Bill, they would not commit an offence even if it could be shown that they were receiving specific funding in relation to that activity from a foreign power. The House will note the references to “state threats”, “foreign powers” and “national security”. Much as the amorous adventures of Matt Hancock may be of interest, clearly none of those falls in the scope of this offence.
It is no secret that those with hostile intent try to hide their activities through genuine means, and through this amendment there is a real risk that they could operate through proxies in order to make it more difficult to be prosecuted. It is therefore clear to see that narrowing the scope of the foreign power condition will have a damaging impact across the Bill. The Government considers this amendment would create unnecessary loopholes for state actors to exploit.
I would like to remind the House that the Government amended Clause 31(2)(c) in the other place to put it beyond doubt that there needs to be a clear link between the conduct and any assistance or funding from a foreign power for the condition to be met. It is the Government’s view that this puts the focus on the foreign power, ensuring that financial or other assistance from the foreign power is caught only when it is provided to enable the person to carry out the conduct, not when it is just any financial or other assistance.
I would also like to make it clear that Clause 31(2)(d), which concerns activity carried out in collaboration with, or with the agreement of, a foreign power, requires the foreign power to be actively involved in that collaboration or agreement; it does not cover cases where a person’s activities align with state objectives. The Government therefore ask the noble Baroness, Lady Jones, not to press her amendment.
To conclude, as all speakers have noted, the Government have moved a very long way in ensuring that journalistic freedoms are not being unduly encroached in this Bill, so I hope noble Lords will accept our amendments and withdraw or not press theirs.
Lord Black of Brentwood (Con)
Before my noble friend sits down, I will offer one point of clarification. I will of course respond to the chair when called to do so after the next group, but I want to say that I am very grateful for the assurances he has given about the scope and intent of the Bill with regard to responsible reporting. My noble friend has made clear that Parliament’s intent in passing the Bill is not to interfere with the free press or investigative journalism and, on that basis, I will be withdrawing my amendment.
“(1A) Section (Public interest defence) applies to any offence under this section.”Member’s explanatory statement
This amendment, and others in Lord Marks’ name, are connected to Lord Marks’ amendment after Clause 38 (Public interest defence) to apply a public interest defence to the offences under Clauses 1 to 5 of the Bill and to offences under Section 5(6) of the Official Secrets Act 1989.
Lord Marks of Henley-on-Thames (LD)
My Lords, this group concerns the public interest defence which is contained in Amendment 79 in my name, and the names of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Garnier, to whom I am very grateful for their help, counsel and support. I am not sure that the noble Lord, Lord Pannick, has made it here so far because he is in court, but I expect him shortly, although he may not speak.
Our amendment would introduce a public interest defence to offences under Clauses 1 to 5 of the Bill, together with the amended Official Secrets Act defence, amended by Schedule 17 at paragraph 5. The group also contains associated amendments, together with Amendments 18A and 79A, tabled by the noble Lords, Lord Coaker and Lord Ponsonby.
Although, as discussed in the last group, the Government have made a number of welcome concessions since Committee in tightening up the offences set out in the Bill, there has been no concession on a public interest defence. That is despite the repeated strong calls in the press and elsewhere, from many quarters, for such a defence; and despite the fact that such a defence is available in our Five Eyes partners and that the Law Commission recommended one here in 2000, and so did the Joint Committee on Human Rights. Each expressed the view that the lack of such a defence risked our being in breach of Article 10 of the European Convention on Human Rights.
While the Government may not have moved, we have. Amendment 79 is significantly changed from the amendment I tabled in Committee, in large part to meet the reservations expressed on my amendment in that debate. First, the burden of proof has been changed. The amendment in Committee would have imposed the burden of proof on the prosecution to disprove the offence once it was raised, and to do so to the criminal standard of beyond reasonable doubt. Some noble Lords thought that this imposed on the Crown a burden that would be too difficult to discharge in a security-sensitive context. While I am doubtful that that is the case, I accept the point, and I also accept the difficulties of proving a negative. So our amendment now imposes the burden on the defence to prove its case on the balance of probabilities—the civil standard that is usually applied in these cases.
Baroness Manningham-Buller (CB)
My Lords, before we get on to the substance of the Bill, perhaps I might just correct something that the noble Lord, Lord Marks, said that I said in Committee. I did not speak for the protection of the lives of intelligence officers, such as I once was. I was speaking of concern for the lives of human sources who give us intelligence at the risk of their lives and those of their families. That was the concern I highlighted. There was no worry about my own safety; I was talking about those sources.
Lord Garnier (Con)
After that intervention, the noble Lord, Lord Marks, had better watch out for his safety.
I begin by thanking the noble Lord, Lord Marks, one of the co-signatories of Amendment 79, for explaining the arguments behind it with such clarity and so dispassionately. I appreciate that he, along with many others, has invested a lot of time and thought in it, and I am somewhat of a latecomer to this particular party.
I have put my name to this amendment, along with those of the noble Lords, Lord Marks and Lord Pannick, not because I think the Government will accept it without question—clearly they will not—but because the question of whether such a defence should be available has long since arrived, and it is certainly possible to say that it is almost too late for us to start debating it now.
The noble Lord, Lord Marks, said that the Labour Party’s stance and its inability to whip its members to support this amendment in the Lobby was a shame. I am afraid that I will be the subject of shamefulness as far as the noble Lord, Lord Marks, is concerned, because I will not push this to a Division, and if others do, I am afraid that I will not join them. However, the reason why I think this debate is important is that, as I said before, it has not been had before, and certainly not in relatively recent memory. That may seem illogical but let me do my best to explain.
I realise that, in matters of national security, no Government, of either of the main parties, and certainly not a coalition Government, will cut and paste an amendment emanating from outside the Government. I can see that the noble Lord, Lord Evans of Weardale, and the noble Baroness, Lady Manningham-Buller, are in their places. I know from my time as a law officer, who had from time to time to consider matters to do with the Official Secrets Act, that the security services, as well as the lawyers who work for them, do not initiate prosecutions under the Act unless there is both a clear public interest in a particular prosecution and sufficient evidence to warrant it. It is my experience and clear recollection that they were all strict adherents to the rule of law in general and the provisions of any relevant statutes in particular, and wanted them applied lawfully and dispassionately in every case. In every case I dealt with I had their support and they had mine in ensuring that things proceeded with propriety and that no shortcuts were taken.
I therefore follow the previous debate on the first group and come to this amendment with a high degree of realism and more than academic or theoretical interest, albeit in a spirit of inquiry, to see where the Government’s thinking is on the matter. Clearly, anything that looks as though it may make the lives of those who want to damage our national interests less difficult, or make prosecutions in the right cases more difficult, must be considered with care, and will, at least initially, be likely to alarm those charged with the day-to-day care of our security. However, I hope that the arguments in favour of this amendment have been heard and that, once they have been digested, the Government will take some time to respond as fully and as openly as they can. My purpose today is to provoke that discussion, not to embarrass the Government. Nor is this group of amendments an opportunity to debate Clause 31 and the foreign power conditions, although Clause 31(3) and (6) clearly need careful attention. As I said at the outset, my intention is to raise the public interest issue firmly in Parliament.
Lord West of Spithead (Lab)
Perhaps I might intervene. Ships alter course and go in all sorts of directions. There is a general trend, of course, and the general trend of the “Belgrano” and her group was towards a sudden pincer that would have attacked our force. That was why she was sunk—quite correctly. It was the right decision. In the context of this amendment, I would not want that to be confused.
Lord Garnier (Con)
I would not describe the noble Lord as a young man in a hurry although, had he waited just a second or two, he would have discovered that he and I might be in closer agreement than he might otherwise have imagined. But there we are. Let us ignore for the moment the direction in which the ship was going, understand that it was sunk and understand that Ponting disclosed that it was going in a particular direction when the Government had announced it was going in another. That is the end of that little anecdote. I am grateful to the noble Lord for his intervention. In my view, the short point is that it was an enemy ship that was generally threatening our ships. We were at war with Argentina. Argentinian warships were at risk of being sunk if they came within range of British Armed Forces. I do not have any particular sympathy for the Argentinian ship—albeit of course that it led to the most appalling loss of life for many Argentinian sailors.
However, it is not satisfactory for juries faced with a case where they think that a conviction on the evidence before them is unjust to be forced to bring in a perverse verdict in breach of the judge’s clear direction on the law and how it applied to the facts of the case. I suggest that this amendment is conservative with a small “c” and not a traitor’s “get out of jail free” card. The burden of proof is on the defendant to demonstrate that the disclosure was in the public interest and that the factors set out in proposed new subsection (3) are met. It would not allow for someone to disclose national security information because they thought that their view of the world was more attractive than that of the Government or the security services, or out of greed; nor would it allow for a Snowden or a Wikileaks scenario where vast swathes of information were dumped into the public domain.
If, for example, there was a better way of dealing with the sensitive information—noble Lords should look at proposed new subsection (3)(f)—the defendant would be hard pushed to persuade the jury that public disclosure was in the public interest. In my view, the proposed amendment accepts reality and prevents juries bringing in perverse verdicts in order to achieve informal or dishonest justice. A law that is not respected or is avoided by perversity, perhaps following some intellectually dishonest advocacy, is not worth having. In an era of electronic media, when information gets out pretty much immediately across the world in vast quantities, it may be better to inhibit desperados and attention seekers by getting them to think about what they will need to prove to found their public interest defence.
It seems to me that we can either carry on pretending that perverse verdicts do not happen—and swiftly change the subject when they do—or face up to reality and legislate sensibly for a really very unradical public interest defence that will neither bring down the state nor damage respect for the rule of law.
Lord West of Spithead (Lab)
My Lords, although I sympathise with Amendment 79, which seeks to protect those who act genuinely in the public interest, I do not support it, for a number of reasons.
First, although I accept that, in its comprehensive 2020 review relating to the protection of official data, the Law Commission recommended that a public interest defence be introduced, that was in relation only to the Official Secrets Act 1989. Its recommendation did not suggest that such a defence should be incorporated into the rest of the Official Secrets Act regime, which is what in effect this Bill seeks to replace.
Secondly, in any event, the risks of introducing such a defence need to be carefully considered and balanced against the benefits of potential alternative approaches. This includes the creation of an independent commissioner to receive and investigate complaints of serious wrongdoing, which the Law Commission also recommended.
Thirdly, any introduction of a public interest defence needs to form part of a wholesale reform of the Official Secrets Act 1989, which this Bill does not seek to do. As I said at Second Reading, the ISC was disappointed to see that the Government were not reforming that Act. I will not repeat what I said then, other than to say that it is a very significant missed opportunity. That is particularly so because the Government have accepted the need to change the OSA for years, and this Bill represented a clear legislative route to do it.
Lastly, this amendment is very broadly drafted. It would introduce a public interest defence into a range of offences that do not require one, such as the offence of assisting a foreign intelligence service. For those reasons, I cannot support it.
Baroness Jones of Moulsecoomb (GP)
My Lords, I recognise the Government’s argument that these spying offences need to be broad enough to capture the wide range of illicit activities that foreign powers may undertake to harm the UK. However, if that is so, equally broad defences are needed to protect innocent people who may become ensnared in the broad definition of the offences. Amendment 79 in the name of the noble Lord, Lord Marks, is absolutely vital; it must be in the Bill.
I want to respond to the Minister’s comments in our debate on the previous group. I heard his reassurances about journalistic freedom, which I am sure were very sincere, but promises can be broken. Ministers move on. Governments move on. Commitments can be forgotten. I just do not think that, if it is not in the Bill, it can be held to be the law.
Lord Evans of Weardale (CB)
My Lords, I acknowledge the changes that have been made to Amendment 79 since it was introduced in Committee, but I still do not feel that it would be appropriate and right for us to accept it. The noble Lord, Lord West, has pointed out a number of the reasons why, but I emphasise that we are being invited to introduce a public interest defence for what is, straightforwardly, espionage on behalf of a foreign service. I do not believe that we need to provide a public interest defence when an individual obtains and provides protected information on behalf of a foreign power while recognising that this is prejudicial to the safety of the United Kingdom.
I also recognise that the amendment extends to the Official Secrets Act 1989 but, again in support of the noble Lord, Lord West, I say that, if we are to change that, we must do so in a careful and deliberate fashion and bring forward legislation to do so. The 1989 Act does not deal with espionage on behalf of a foreign intelligence service. It is drawn up for different purposes. Therefore, it is separate from the issues that we are considering regarding the Bill. More broadly, it remains extremely dangerous to encourage or to lead individuals to believe that there is a public interest defence to the disclosure of highly sensitive information. Any one individual is unlikely to be able to make an accurate assessment themselves of whether their declaration and their disclosure is damaging to national security. That must be considered carefully, and it is not something for an individual official, however senior, to take on themselves. Therefore, any legislation and any amendment that might encourage them to do so is misguided.
Also, once a disclosure has been made, it cannot be withdrawn. Even though there may be benefit in prosecuting an individual for having done it, that does not stop the damage that has already been done. Therefore, we must have care not to lead people into believing they will be able to defend themselves having already made a disclosure, because the damage will have occurred.
Finally, on the question of evidencing damage, I recognise that the change in the burden of proof is a significant change to the amendment. Nevertheless, we are then faced with a situation where a person who has been accused of this offence will be trying to argue that they did not cause damage. In so doing, they are likely to adduce more evidence and more contextual material which might itself be damaging. It is not clear that this makes it easier in terms of the evidence or that it makes the prospect of prosecuting people for harmful activity any easier. For these reasons, I do not support this amendment. I hope that the House agrees.
Lord Purvis of Tweed (LD)
I have a question on a point of clarification. I understand the point that the noble Lord makes regarding those offences which may be at the direction of a foreign power, as in espionage. However, the Bill contains offences that are not necessarily at the direction of a foreign power. His point would mean that my noble friend’s amendment would offer no public interest defence for those offences in this Bill which are not under the direction of a foreign power—as in, not espionage offences.
Lord Evans of Weardale (CB)
If I am being invited to comment on whether I would support a different amendment, I say that might well be the case. However, I do not support the amendment that is before us.
Lord Ponsonby of Shulbrede (Lab)
My Lords, throughout the passage of the Bill, concerns have been raised that legitimate acts in the public interest could lead to prosecution under the Bill. The Government have insisted that a public interest defence could legalise instances of espionage or sabotage. The noble Lord, Lord Marks, has said that he will press his amendment to establish a public interest defence. While we in the Labour Party support this in principle, we believe that the amendment is too broad and that it could in effect legalise espionage. We believe that there need to be appropriate safeguards built into any future legislation.
Further to this, we believe that the amendment of the noble Lord, Lord Marks, fails to implement the Law Commission’s recommendations; that was a point made by my noble friend Lord West. I will instead press Amendment 18A, in the name of my noble friend Lord Coaker, to a vote; that is for a consultation on the introduction of a public interest offence, which we believe can establish some mechanism for addressing the concerns of the House. We believe that the amendment is a tighter and more focused approach than the alternative of the noble Lord, Lord Marks. To address wider concerns on whistleblowing, we have also tabled Amendment 79A to establish an independent statutory commissioner, although we will not press it to a vote in due course.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, this group of amendments covers the introduction of a public interest defence—a PID. This topic has been debated at length throughout the passage of the Bill. As the House will hear, the Government agree with the criticisms of Amendment 79, just elucidated so clearly by the noble Lord, Lord Ponsonby.
I thank all noble Lords for their remarks during this debate, especially the degree of involvement we have had in the development of the Bill generally, as noted by the noble Lord, Lord Purvis, on the last group. However, it is right to say that the amendment does not address the issues that arise, and the Government therefore cannot accept it. As I set out during the debate in Committee, the offences in the Bill target harmful activity from foreign states, not whistleblowing or public interest journalism. Our view, therefore, is that a public interest defence is not only unnecessary but risks significantly undermining the utility of the provisions in the Bill.
The Government’s principal position is that a public interest defence in relation to espionage is not appropriate. While we note the changes made to the amendment, this does not change the Government’s view on the matter. Notably, the risk with a public interest defence is that, at the point that the defence comes into play, the harm will already have been done. Seeking to rebut any form of public interest defence in criminal proceedings risks only compounding the damage. This, of course, is a point already eloquently made by the noble Lord, Lord Evans.
Furthermore, the proposed public interest defence for onward disclosures of information obtained via the espionage offences in the Bill, as has been proposed here, is inherently damaging to the national interest. I also entirely agree in this regard with the noble Lord, Lord Evans. To permit onward disclosures of this information under any circumstances would significantly undermine the weight we are affording to these offences.
The questions posed about the Law Commission’s recommendations relate to the Official Secrets Act 1989 which is not, as we discussed in Committee, the topic of reform in this legislation. We have heard strong views and concerns raised about the 1989 Act in our public consultation, and we need to take time to give proper consideration to those concerns. Therefore, we are not reforming the Official Secrets Act 1989 in this Bill.
It is clear to us that reform is complex and engages a wide range of interests. It is only right that proper due consideration should be given to the concerns that stakeholders have raised in the consultation. Furthermore, we need to prioritise delivery of our wider package of measures to tackle state threats and ensure that our law enforcement and intelligence partners have the tools that they need to keep us safe from those seeking to do us harm. We do not want the complexity of Official Secrets Act 1989 reform to distract from this. To that end, I agree with what the noble Lords, Lord West and Lord Evans, said.
I turn to the points raised in the previous group by the noble Lord, Lord Purvis, in relation to whistleblowers. We say that there are sufficient safeguards for whistle- blowers in the espionage offences. For the offence of obtaining or disclosing protected information, that activity has to be for a purpose prejudicial to the safety or interests of the United Kingdom. If an individual uses appropriate whistleblowing routes, their conduct would not meet this requirement—a point powerfully made by the noble Baroness, Lady Manningham-Buller, when these amendments were being considered in Committee.
For the offence of obtaining or disclosing trade secrets, the activity has to be unauthorised. Using appropriate whistleblowing routes would not meet the requirement for unauthorised activity. Moreover, there is a damage element to the offence in Clause 2(2)(b). For the offence of assisting a foreign intelligence service, the person has to know or reasonably ought to know that their conduct may assist a foreign intelligence service in carrying out UK activities or intend their conduct to do so. This is very different from reporting something to an appropriate regulatory body as a whistleblower.
It is not the case that there is a reliance upon juries in the place of a whistleblowing defence, as the noble Lord, Lord Marks, appeared to contend. The role of a jury, when advised by the judge, is to determine whether the defendant is guilty or not guilty based on the evidence presented during the trial. This takes up many of the points raised by my noble and learned friend Lord Garnier in his speech a moment ago. This is an integral tenet of our justice system and applies in 1989 Act cases. This does not mean that the Official Secrets Act 1989 legislation is deficient. There is, of course, no statutory public interest defence in the 1989 Act, and therefore it is already clear in the law that juries should not acquit a defendant on the basis that they consider that the public interest in making a disclosure outweighs the damage caused by the disclosure. The Government are clear that we do not consider the introduction of a public interest defence in the Official Secrets Act 1989 to be appropriate. It is not the safest or most appropriate way for an individual to raise a concern of wrongdoing and have it rectified. It is already possible to make disclosures of information that are not damaging without breaching the 1989 Act.
However, the Government have heard and understand the concerns that the Bill could inadvertently capture genuine journalistic activity, as we discussed in the previous group. Even if the Government were to accept that these offences risk criminalising such genuine activity, a public interest defence would not be an appropriate way to address this. This sentiment was echoed by the noble Lord, Lord Carlile, during the debate on the public interest defence in Committee, for which I am grateful. Indeed, a public interest defence would create loopholes that hostile actors would use to commit espionage against the United Kingdom.
As the noble Lord, Lord Evans, was quite correct in saying, the difficulty for whistleblowers is that they have an imperfect picture of the available information. It is not for the whistleblower to determine the extent of potential damage caused by the disclosure in the public interest.
The question of damage was raised in the debate. It was suggested that a damage requirement should be added to these offences. The Government’s position is that this would significantly undermine their utility. The type of activity described in the offences is inherently damaging. For example, in Clause 1, if an individual discloses protected information to a foreign power or otherwise on their behalf or for their benefit with a purpose
“prejudicial to the safety or interests of the United Kingdom”,
this is inherently damaging. Including a damage requirement would mean that we may need to prove the damage caused by disclosure in court. This, of course, would risk compounding that damage further. If we could not prove that damage in court, for example, because the risk of compounding the damage was too great, a person could freely provide protected information to a foreign power with the intention to prejudice the United Kingdom.
I already noted the potential risks and loopholes that could be created and exploited. This is not a defence in relation to Clause 3(2). The Government have extensively considered the arguments for and against a public interest defence but have concluded that the risk this could cause to the United Kingdom and the fact that this would undermine the purposes of the Bill mean that such a defence is not appropriate. Therefore, there is no need for an assessment and formal consultation on the inclusion of such a defence as tabled by the noble Lord, Lord Coaker, at Amendment 18A and the Government do not accept that amendment. As the noble Lord, Lord Purvis, noted, there have been significant changes to the oversight provisions in the Bill. It is correct that this amendment should be viewed in light of those changes in position by the Government.
Instead, we say that the focus should be on ensuring that the drafting of the requirements and offences in the Bill is sufficiently tightly drawn to ensure that genuine activity, including by journalists, is not in scope. This is why the Government have responded by tabling amendments to the provisions in Part 1, as stated a moment ago by my noble friend Lord Sharpe. This includes clarifying the phrase “ought reasonably to know” and the amendments to Clause 3. For these reasons, the Government cannot accept the tabled amendments.
I move now to Amendment 79A, which proposes the establishment of a new office for the national security whistleblower. I am grateful for the indication from the noble Lord, Lord Ponsonby, that he will not be pushing the matter to a vote but let me outline the government position in relation to that. This proposal differs from that debated in Committee in this House. The Government’s view remains that such a role is not required in relation to these offences. As I set out in Committee,
“The Government are committed to ensuring that our whistle- blowing framework is robust, and I confirm that the business department intends to carry out the promised review of the existing framework, and that further details will be set out in due course in relation to that.”—[Official Report, 18/1/23; col. 1913.]
We have just debated how the Bill targets hostile activities for and on behalf of foreign powers. I have been explicit that this legislation is not targeting the genuine work of journalists. By extension, it is therefore clear that the Bill does not target genuine whistleblowing. Consequently, a whistleblowing office in relation to this Bill misunderstands the aims of the legislation. Again, I refer the House to the Committee stage, when I and the noble Baroness, Lady Manningham-Buller, set out the options available where an individual has a genuine need to raise a concern and I shall not repeat those here. The Government are committed to ensuring that these channels are safe, effective and accessible. For these reasons, we cannot accept the tabled amendments. I am grateful to all noble Lords for their contributions.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am very grateful to the Minister for his response to these amendments, but it has disclosed a very sharp distinction between those of us who believe that a public interest defence can do no harm and a great deal of good, and those who do not. We regard as a complete mischaracterisation of the public interest offence the suggestion that it is likely to encourage or enable espionage or other disclosures that would be damaging to the national interest. By way of contrast, we see the presence in this Bill of a proposed series of absolute offences—as discussed by the noble and learned Lord, Lord Garnier—where there is no defence for journalists, no defence for campaigners acting innocently, no let-out for whistleblowers and no protection for members of the public. We are concerned by a system that relies on perverse acquittals rather than acquittals according to law. Therefore, I beg to test the opinion of the House.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment changes the test for when a person commits an offence under Clause 3(2).
Member's explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.
Member's explanatory statement
This amendment changes the test for when a person commits an offence under Clause 3.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to Clause 3, page 3, line 25 and his second amendment to Clause 3, page 3, line 27.
Lord Sharpe of Epsom
“(ba) as a lawyer carrying on a legal activity, or”Member's explanatory statement
This amendment creates a defence to the offence in Clause 3 for lawyers carrying on legal activities.
Member's explanatory statement
This amendment clarifies that the defence in subsection (7)(c) applies where a person assists a foreign intelligence service carrying out UK-related activities in accordance with an agreement with the UK.
“(8A) In proceedings for an offence under subsection (2) it is a defence to show that the person engaged in the conduct in question was acting with a view to publication of material by a recognised news publisher as defined in Schedule 15.”
Baroness Jones of Moulsecoomb (GP)
My Lords, I would like to test the opinion of the House.
“(9A) Within six months of this Act being passed, the Secretary of State must consult, and publish a report of that consultation, on proposals for a public interest defence in relation to an offence under subsection (2).”Member's explanatory statement
This amendment requires the government to formally consult on the introduction of a public interest defence for offences committed under Clause 3(2).
Lord Ponsonby of Shulbrede (Lab)
My Lords, I wish to test the opinion of the House.
Lord Sharpe of Epsom
““lawyer” has the meaning given by paragraph 5(3) of Schedule 15;“legal activity” has the meaning given by paragraph 5(4) of Schedule 15;”Member’s explanatory statement
This amendment defines terms used in Lord Sharpe’s amendment to Clause 3, page 4, line 13.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.
Lord Carlile of Berriew
Member’s explanatory statement
Clause 97 (amended by the Government) adequately reflects the context and importance of Sovereign Base Areas to UK national security and defence, and allows for Orders in Council, with appropriate modifications, to extend Part 1 to the Cyprus SBAs. This is consistent with other UK legislation to date.
Lord Carlile of Berriew (CB)
My Lords, we move from the rather contentious issues of the last two groups to a little bit of sunshine, for this group is all about Cyprus. It is slightly technical, but the point of principle is easily stated, so I will deal with the technicalities first—but not before I have stated that I am very fortunate to have as companions on this amendment my noble friend Lord Anderson of Ipswich and the noble Lord, Lord Wallace of Saltaire.
Clause 97 of the Bill has been helpfully amended by the Government. It deals with the extent of applicability of the provisions of the Bill outside the United Kingdom. Subsection (2) states:
“His Majesty may by Order in Council provide for any provision of this Act other than section 22 to extend (with or without modifications) to the Sovereign Base Areas of Akrotiri and Dhekelia”.
That seems pretty straightforward, so it would appear from that that there is a proper procedure—an Order in Council which could be modified and which would bring into the Bill those sovereign base areas of Akrotiri and Dhekelia. On the other hand, if one turns to Clause 7, which is headed “Meaning of “prohibited place””, the definition of a “prohibited place” means Crown land in the United Kingdom, or the sovereign base areas of Akrotiri and Dhekelia, which are used for UK defence and other purposes. It seems to me, and to those of us who have put our names to this amendment, to be nothing more than a mistake.
Originally Akrotiri and Dhekelia, the sovereign base areas, were included in the Bill; the Government very sensibly changed their mind by amending the original Clause 97, but they failed to remove the part of Clause 7 that includes Akrotiri and Dhekelia. As the signatories of these amendments, we simply wish to apply some consistency to the Bill and remove those sovereign base areas, understanding, of course, that there is every potential in appropriate circumstances—and I can imagine circumstances which could be appropriate— for the extent of the Bill, apart from Clause 22, to be extended to those sovereign base areas.
I should say to your Lordships that this is not a declaration of an interest—it is the opposite, because I made the coffee myself. I had the pleasure of a visit from Andreas Kakouris, the High Commissioner of Cyprus—a very able, interesting and delightful person, and a very modest and diffident person on these issues, along with a very senior and able member of his staff. I know that other Members of your Lordships’ House have been approached by the High Commission, and so have the Government; one of the reasons why the High Commissioner came to see me, and other members of your Lordships’ House and the other place, was that he had the impression that the very simple point he was trying to make had not been fully understood by the Government.
I will remind your Lordships that Cyprus has a very new President, Nikos Christodoulides; he has formed his Government and his Cabinet members are there to see—Members can look them up on the internet if I am boring them. Not a small number of them, I am delighted to say, have legal qualifications obtained in the United Kingdom, and therefore one can safely assume that they are able at least to see both sides of some problems—but they do not see one side of this problem. The new President and his predecessor have already formed significantly close relations with the United Kingdom Government, and at a diplomatic level the High Commissioner emphasised to me the pleasure he had gained from the quality of the relations that he, his previous Government and his new Government had been able to make with the United Kingdom Government—and particularly with the Foreign, Commonwealth and Development Office.
But they are understandably sensitive to the sovereign base areas being put in Clause 7 of this Bill in a way that makes them feel like some outer province of the United Kingdom, which they are not. They are, as all your Lordships will know, in the European Union, they are very west-leaning and they understand the problems that there are. There are problems in relation to economic issues in Cyprus, including the nature of investors and so on, and they are very sensitive to that. But they do not understand why they have to be treated in a way that is insulting not to the Government, because they are people who do not feel insults and just want the right thing to be done, but to the population of Cyprus. Apparently, the Cyprus Government have received significant representations to that effect.
Lord Anderson of Ipswich (CB)
My Lords, I declare my connection with the Government of Cyprus, as detailed in the register, and, like my noble friend Lord Carlile, I have spoken to the High Commissioner about this. Clause 97, as the noble Lord, Lord Carlile, has said, is a sufficient and constitutionally appropriate way to apply legislation of this Parliament to the SBAs. In light of that power, like my noble friend I have difficulty in understanding why it continues to be thought necessary for Clause 7, by its definition of “prohibited place”, to apply Clauses 4, 5 and 6 to the SBAs directly.
The noble Lord, Lord Carlile, has said nearly everything, so I will make just two points, addressing what I have seen to be arguments that the Government have sought to make in respect of these clauses. Firstly, there is said to be a partial precedent in Section 10 of the Official Secrets Act 1911—well, what may have been appropriate at the height of empire is surely not appropriate now. Secondly, it is said that these clauses are evidently not intended to apply in the SBAs, as may be seen from the fact that the police powers in Clauses 5 and 6 are vested only in UK officers; yet the phrase “prohibited place” in each of those clauses is clearly defined as including the SBAs. The impression given by those clauses is that powers in the military areas, and indeed in adjacent areas lived in and farmed by local people, are vested in British constables.
That impression may not respond to realities on the ground, but it is certainly unfortunate, and I hope the Minister will do what he can to dispel it, hopefully by accepting these amendments.
Lord Wallace of Saltaire (LD)
My Lords, my name is also on these amendments, and I have also spoken with the High Commission; my noble friend Lord Purvis has spoken to both the Minister on the Front Bench and to the noble Lord, Lord Ahmad, in the Foreign Office. If I have an interest to declare, it is that 25 years ago I worked on the Cyprus conflict and discovered a fair amount about the complexities of Cypriot politics—and they are no less complex today than they were then.
I will make a number of domestic comparisons. This is in my experience very much a Home Office Bill; it does not appear to take into account diplomatic niceties or the sensitivities of other states. We have some bitter experience in this country of sensitivities about sovereignty and the attempts by other states to exert legislative authority over this country, in relation to the EU. We are still being told that the European Court of Justice has imperial ambitions, and that we had to regain our sovereignty because it was trying to legislate for us, about our country.
Beyond that, of course, we have US bases in this country. I am very familiar with RAF Menwith Hill, which is close to where I live in Yorkshire, and I know a fair amount about RAF Mildenhall. The Minister will remember that when it appeared that the wife of a US serviceman at RAF Mildenhall was trying to evade British law by claiming diplomatic immunity and then going to the United States, there was a campaign of outrage in the Daily Mail, the Daily Telegraph and others over this incursion into British sovereignty.
I remind the Minister that the agreements between the UK and the United States over US bases in this country are extremely discreet: the details have not been published; they are renewed every 10 years without parliamentary debate; and the two countries negotiate quietly about the conditions under which they operate. They do not involve Congress legislating with reference to these extraterritorial bases in the United Kingdom. Indeed, if Congress were to legislate with reference to RAF Mildenhall, RAF Menwith Hill and other bases, I am sure that the Daily Mail, the Daily Telegraph and others would be outraged on our behalf at this apparent imperial incursion into British sovereignty.
I am conscious that Cypriot domestic opinion has as many elements, from the right to the left, as we have in this country. Of course, it would be a populist, nationalistic, mischievous campaign to provoke a public outrage in Cyprus about this apparent incursion into Cypriot sovereignty, but we in Britain now have some hard-won and bitter experience of how easy it is for populist and mischievous politicians to cause nationalistic outrage.
These references are not necessary. Clause 97 is enough. I hope that the Minister will take advice and consider that the Government should withdraw the references to the sovereign base areas in these other clauses. I repeat: Clause 97 is enough. The good will of the Government of Cyprus, and of the public in Cyprus, is important to this country, and we should not offend them.
Lord Murray of Blidworth (Con)
My Lords, this group covers a variety of related topics. The House has heard only about the amendments pertaining to the sovereign base areas, but I will address the other amendments advanced by the Government. The group covers amendments to the meaning of “government department” and changes to Schedule 2 to the Bill, and it deals with the amendments on the sovereign base areas, which I will come to in a second.
I start with a query raised by the noble Lord, Lord Purvis, in Committee. The question at the time was whether the reference to “government department” in the meaning of “Crown interest” in Clause 7 may include the departments of the devolved Administrations. It is the Government’s intention that any reference to “government department” within Part 1 of the Bill, including those falling under “Crown interest”, applies only to government departments of the United Kingdom. This means that we are not seeking to extend the meaning of “government department” to the devolved Administrations. I hope that this goes some way to settling the noble Lord’s concerns.
The Government have also made a number of changes to Schedule 2 to the Bill. In Committee, they made an amendment so that the Bill makes explicit provision that a Schedule 2 production order can be made to a judge without the subject being given notice of the application in advance. Currently, sub-paragraph (d) of condition 5 of the search and seizure powers at paragraphs 9 and 25 of Schedule 2 outlines that this condition may be met if the service of notice of an application for a production order may seriously prejudice an investigation. Without further change, this condition is no longer operationally effective because a warrant for search and seizure would not be granted in instances where the use of a production order more generally, which had been given without notice to a judge, would prejudice an investigation.
This group of amendments therefore closes the gap by bringing condition 5 closer to the equivalent provisions of Schedule 5 to the Terrorism Act 2000, which sets out that the use of a production order would not be appropriate because an investigation may be seriously prejudiced unless a constable can secure immediate access to the material. It is important to stress that it has always been the Government’s position that the use of production orders should be considered in the first instance, resorting to a warrant where such an order is not appropriate to the investigation.
Finally, government Amendment 60 simply makes it clear that Acts of Adjournal made in relation to the production order powers in part 2 of Schedule 2 would be made by the High Court of Justiciary in Scotland. This is already the case within the current drafting, and we seek only to make this clear. Government Amendments 55 and 59 simply add the offences under Schedules 3 and 4—which were added to the Bill in Committee in the Commons—to the list of offences for which the powers of entry, search and seizure in Schedule 2 are not available.
I now turn to the amendments tabled by the noble Lords, Lord Anderson of Ipswich, Lord Carlile of Berriew and Lord Wallace of Saltaire. These amendments seek to remove references to the sovereign base areas from the prohibited places provisions in Clauses 7 and 8 of the Bill. The sovereign base areas are critical for UK defence and include a unique governance structure among the overseas territories given that the administrator, who is also the commander of British Forces Cyprus, has all the executive and legislative authority of the Government of the UK overseas territory.
Lord Wallace of Saltaire (LD)
Is the Minister classifying the sovereign base areas as having the same relationship with Britain as overseas territories? I was not aware that the SBAs were formally overseas territories.
Lord Murray of Blidworth (Con)
Clearly, the SBAs are a special structure, as set out in the 1960 treaty. As I say, they have a unique governance structure which I have already described. The unique context of the SBAs is precisely why we are including the option to extend the legislation to the SBAs in their entirety.
The thought behind these amendments is that the power in Clause 97 to extend the legislation to the SBAs is sufficient on its own. I understand the thinking behind this. However, these references are quite distinct and achieve different aims. References to the SBAs in Clauses 7 and 8 ensure that harmful activity taking place in respect of prohibited places will be prosecutable under UK law, in UK courts, only where it constitutes an offence under Clause 4. It is important to stress that the offence under Clause 5 cannot be committed in the SBAs, as this clause does not apply outside the United Kingdom. Similarly, the police powers under Clause 6 are conferred only on constables under UK law, and as such cannot be used in the SBAs. This inclusion of the SBAs maintains the status quo, given provisions of the Official Secrets Act 1911, which already cover prohibited places in the SBAs as part of His Majesty’s dominions.
Clause 97, however, creates a power to extend any provision in Part 1 of the National Security Bill, with or without modification, to the SBAs. Should the power be used, the provisions will then form part of SBA law, and this would allow harmful activity to be prosecuted in SBA courts. Removing references in Clauses 7 and 8 to the SBAs would mean that those sites were no longer protected under UK law. That would reduce the protections currently afforded to them under the Official Secrets Act 1911, which will of course be repealed through this Bill. Furthermore, it is critical that these protections are afforded under UK law given that there is no guarantee that an Order in Council would be made so as to extend this part of the Bill to SBA law, leaving those sites potentially without any legislative protection. To reiterate the point I made in Committee—
Lord Wallace of Saltaire (LD)
My Lords, an Order in Council can be made by His Majesty’s Government. I do not understand when the Minister says that there is no guarantee that such an Order in Council could be made. I hope he is not suggesting that the Government might forget to do so.
Lord Murray of Blidworth (Con)
The point, as the noble Lord will appreciate, is that the Bill should endeavour not to leave any potential vacancies which would potentially deprive the SBAs of applicability to this very important statutory provision. I reiterate the point I made in Committee that the Government consider that any references in the Bill to the sovereign base areas will not in any way undermine the provisions of the 1960 treaty, concerning the establishment of the Republic of Cyprus, between the United Kingdom, Greece, Turkey and Cyprus.
To address the point raised by the noble Lord, Lord Wallace, I can confirm that the Foreign, Commonwealth and Development Office and the SBAs were consulted extensively throughout the Bill’s development and agree on its conclusion. I therefore disagree with the noble Lord that relying solely on Clause 97 would cause no harm.
I hope this explains the need to maintain the references in Clauses 7 and 8 and why the Government cannot accept the tabled amendments.
Lord Anderson of Ipswich (CB)
The Minister has given us an explanation and I accept that the reference to a constable is to a United Kingdom constable, but Clause 6 gives the constable the power to clear people out of prohibited places. Why is it necessary for United Kingdom law to apply? Why is it not enough that this power should exist under the Order in Council applicable to the SBA? Since only the United Kingdom constable is covered in Clause 6, how can it possibly be necessary to define “prohibited place” for the purposes of Clause 6 as including places outside the United Kingdom? I just do not understand it.
Lord Murray of Blidworth (Con)
The Government take the view that it is necessary to have the matter protected in UK law in addition to SBA law, and that, I am afraid, is the answer.
Lord Purvis of Tweed (LD)
The Minister was careful when he said that the SBAs and the FCDO were consulted by the Home Office on bringing forward this decision. I would assume that one department would consult another in its own Government with regards to a Bill—I think we can take it as read that the Home Office should have consulted the FCDO. The point that the noble Lord, Lord Carlile, made was that there was no consultation with the Government of Cyprus, which is embedded in the principles of the establishment treaty in 1960. That is why there is a problem with it.
With regards to the further point from the noble Lord, Lord Anderson, if it is only a UK constable, and only within UK domestic law, who enforces it within the SBA area? Who enforces it within the adjacent area to the SBAs, given that the measures are much wider than simply activities here in the UK? Who enforces it there?
Lord Murray of Blidworth (Con)
As I hope I have already made clear, it is only Clause 4 that applies. Clause 6 does not apply in this context.
Lord Carlile of Berriew (CB)
My Lords, I am afraid I am very puzzled as a result of the Minister’s reply.
First, I think he was suggesting that the Government of Cyprus had been fully consulted. If he was suggesting that, all I can say is that that is the opposite of what I was told, and what the noble Lords, Lord Purvis, Lord Wallace and Lord Anderson, and everybody else who has been spoken to has been told. Secondly, why did the Government change Clause 97? Clause 97 provides for the powers earlier in the Bill to be operated within the SBA following an Order in Council. Are the Government saying that the justice provisions in the SBA are inadequate in some way? I can tell your Lordships that those of us who live around the legal profession know an awful lot of people who go and do cases and even sit as judges in those places, and that is not what they have found on the whole.
I would suggest that the Minister’s reply was insensitive—if I can be forgiven for using that word—and injudicious, and I invite the Government to consider it between now and the coming into law of this Bill. I am not going to press this to a Division tonight; I am not going to ask for the opinion of the House. But I feel a strong sense of dissatisfaction at the explanation, such as it is, that has been given. I beg leave to withdraw the amendment.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment clarifies that “Crown interest” includes interests belonging to a government department of the United Kingdom only.
Member's explanatory statement
This amendment clarifies that “Crown interest” includes interests held in trust for His Majesty for the purposes of a government department of the United Kingdom only.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment reduces the burden of proof on the defendant from a legal burden to an evidential burden.
“(5A) A person is taken to have shown a matter mentioned in subsection (5) if—(a) sufficient evidence of the matter is adduced to raise an issue with respect to it, and(b) the contrary is not proved beyond reasonable doubt.”Member's explanatory statement
This amendment clarifies how the burden of proof may be satisfied in relation to the defence in subsection (5).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment removes an amendment to the Online Safety Bill which makes an offence under Clause 13 a priority offence.
Lord Sharpe of Epsom (Con)
My Lords, Amendments 40, 41 and 50 relate to the offence of foreign interference.
Amendment 40 makes a procedural and technical tweak to address changes to the timetables of this Bill and the Online Safety Bill. The addition of foreign interference to the list of priority offences in Schedule 7 to the Online Safety Bill is government policy, which has been agreed at every stage of this Bill since its introduction. Designating foreign interference as a priority offence under the Online Safety Bill would disrupt state-backed disinformation targeted at the UK through the duties imposed on platforms by the relevant provisions in the Online Safety Bill.
However, now that the National Security Bill has overtaken the Online Safety Bill in its parliamentary passage, we must address the procedural challenges posed by this change to respective timetables. Government Amendment 40 will remove the reference to the Online Safety Bill from Clause 13(8) of the National Security Bill. The Government will then seek to add the offence of foreign interference to Schedule 7 to the Online Safety Bill via an amendment to that Bill. The effect of this amendment will be exactly the same as the current approach; it is simply the change in timetabling that means this amendment is necessary.
Government Amendment 41 clarifies the scope of the foreign interference effect contained within Clause 14(1)(a) to ensure it is not misinterpreted. Foreign interference includes interference with rights and freedoms that are protected under domestic law, such as freedom of speech. We know that foreign states have sought to intimidate or threaten diaspora communities with punishment to prevent them engaging in lawful protest activities. We want such activity taking place in the UK to be covered by the offence of foreign interference. Government Amendment 41 simply changes the wording in the offence to “in the United Kingdom” as opposed to
“as it has effect under the law of the United Kingdom”.
This will ensure that it is not misinterpreted to have a broader effect than we intend. It does not change our policy or affect the operational utility of the offence.
Amendment 50 is minor and does not introduce new policy. It simply reinforces the Government’s intention behind what is originally meant by “political decisions”.
Some concerns have been raised that references to proceedings in Parliament in both the offence of foreign interference and the foreign influence registration scheme risk creating unhelpful ambiguity about the prohibition on impeaching or questioning proceedings in Parliament contained in Article 9 of the Bill of Rights. The Government’s position is that such references did not and could not displace provisions in the Bill of Rights and were not intended to do so. However, we have amended the provisions to ensure there can be no suggestion of interference with privilege.
To address these concerns, government Amendment 48 removes references to proceedings of the UK Parliament and devolved legislatures from the definition of “political processes”. A key element of foreign interference is the infiltration of our democracy, including the institutions and processes which uphold our democracy. The other amendments we have tabled therefore seek to ensure that the offence still protects against such interference.
Amendment 49 adds to the definition of “political processes” a reference to
“the activities of an informal group consisting of or including members of”
the relevant legislatures of the United Kingdom. The policy intention remains the same—to capture foreign interference in Parliament targeted at the heart of our democracy—but we are achieving it in a slightly different way. I will briefly explain how we will do this.
The majority of what we wish to capture in relation to interference with Parliament will be covered by the effect in Clause 14(1)(b)—the limb relating to public functions—as MPs and other officials within Parliament will be exercising their public functions. It is right that we seek to criminalise activity where, for example, somebody is acting for a foreign power and threatens violence to affect how a person exercises their public functions.
However, with this amendment we ensure that we also capture activity that is part of our democratic processes but which does not have official status within Parliament. We have therefore added reference to informal groups, which will include APPGs, to the definition of “political processes”. Foreign powers seeking to interfere in political processes through those who do not have public functions—for example, an external secretariat—will continue to be caught by the offence.
I turn briefly to government Amendments 42 and 44, which give effect to the new approach I have outlined, with Amendment 44 relating to the “legal processes” limb. They give effect to the new approach such that those interference effects apply otherwise than in the exercise of public functions. Government Amendments 43 and 47 are consequential amendments following from the change in definitions.
Taken as a whole, the amendments do not introduce new policy but simply reinforce the existing policy on the interference from foreign states that this offence is designed to protect against. I therefore ask noble Lords to support the inclusion of these amendments and beg to move.
Lord Carlile of Berriew (CB)
My Lords, I will speak to Amendment 51, which stands in my name and those of the noble Lord, Lord Wallace of Saltaire, the noble Baroness, Lady Hayter of Kentish Town, and my noble friend Lord Evans of Weardale.
This is about transparency. When the electors go to an election, obviously they consider the policies that are placed before them. They also consider the personalities that are placed before them, because they are voting for an individual to carry out the important and valuable role of their Member of Parliament. They also should be entitled to enough transparency to judge the ethical matrix in which each political party operates, as represented by the individuals who stand as candidates. This moderate and temperate Amendment 51 is an attempt to improve the knowledge that voters have about the ethical matrix of the political parties that stand behind the candidates they are able to vote for and have to choose from.
We know that there are problems about the ethical matrix of political parties. Sometimes it is not their fault, because outside forces, hostile actors from foreign countries, make interventions into elections—for example, via the internet—in an attempt to slant the vote in one direction or another. However, there is also a serious risk—I accuse no party of impropriety in this respect, at least for the purposes of this contribution to your Lordships’ debate—that foreign actors, foreign powers, may seek to influence an election, for example by making substantial donations to that party’s election fighting fund which enable it to fight the election at an advantage compared with other parties.
I will not go back to my days as a very happy Liberal and then Liberal Democrat MP and talk about the disadvantage we always started from because we had less money than the other parties. However, we were always worried, in those days at least—I am sure it is still the same today—by contributions that might have come from foreign powers and that would give an even greater advantage, concealed from the electorate, to those political parties.
So what this amendment seeks to do is protect us from the likes of Putin’s cronies, who might, one way or another, find their way to dinners, contribution events and even meeting people in this great building. We seek to establish a register. In effect, each political party would have to create a policy statement which meant that they were obliged to disclose at least the outline of contributions made by a foreign power—we are not talking about rich foreigners or wealthy businesspeople but about a foreign power which has a political reason for trying to influence the result of an election, either made directly or through an intermediary.
Baroness Hayter of Kentish Town (Lab)
My Lords, one of the reasons for supporting the amendment, to which I have added my name, as the noble Lord, Lord Carlile, said, is the Government’s recent change which allows long-term expats to continue to be on the UK electoral register and therefore to be permitted donors to UK political parties. This means that someone living —for the sake of this argument—for 40 years in, say, Russia, to take the example just given, can be on the electoral roll here. A British subject, living for 40 years in Russia, can now be on the electoral roll here, with no checks or questions asked, and that person can then donate money to a British political party—no names, no pack drill, and importantly, of course, no checks whatever on the source of the money they are able to donate to a British political party.
PPERA—the Political Parties, Elections and Referendums Act, as most of us know—requires parties to check only that the donors are “permissible”; no checks are needed on the source of their funds. They are not even required to carry out enhanced due diligence on donors operating in high-risk countries which are listed in the money laundering and terrorist financing regulations 2022. There are no obligations on political parties to do the due diligence that we would expect of anyone else handling money from any of the countries on that list.
Incidentally, that is very, very different from those of us—well, all of us in this House—who are PEPs under the AML rules. Indeed, at this moment in the Moses Room the financial services Bill is being discussed, which is trying to reduce the extraordinary number of hoops that we and our children all have to go through in our banking activities because of our presence here. However, Russian-based UK citizens, who long ago gave up paying taxes of any sort here, can donate money, without any question as to its provenance, to a UK political party, surely influencing our democracy way beyond some of the other minor activities that this Bill seeks to make transparent—an issue we will return to later.
Amendment 51, tabled by the noble Lord, Lord Carlile, would capture any possibility that the money could come from a foreign power. As the amendment states, it would include donations made through an intermediary. We on this side would certainly like to know the source of donations made from outside the UK to a political party, whether in government or opposition, or to a party with no elected Members.
The noble Lord, Lord Sharpe, has been very helpful on this Bill. To our surprise, in Committee, he claimed that our existing electoral law has
“a stringent regime of controls on political donations to ensure that only those with a legitimate interest in UK elections”—[Official Report, 21/12/22; col. 1166.]
can donate. I question that in respect of someone who has been out of the country for that long, does not use any of our services and does not pay our taxes. Even more, do we check the legitimate interests of those long gone who can put in money from another source?
I trust that the Government have now looked again at what was a rather complacent reply and that they share our interest in revealing full details, including instigating proper checks. I hope that they will therefore accept Amendment 51. As the Minister knows, it has the full support of the Electoral Commission. I hope that he would welcome a duty on political parties to check the true source of donations and assess the risk of accepting money from overseas, particularly from those on the list of the AML regulations. Rather along the lines of “know your customer” which the banks have to do, there should also be a “know your donor”. This should be a culture in all our political parties. It would mean assessing the risk that donors might pose, especially those from overseas countries. There would be an enhanced due diligence on new donors and proper recording of such checks.
I received a letter from the Minister today which I think has not yet been shared with the House. It says that it is in the national interest to have greater openness about the influence on British politics by foreign powers. We agree. Amendment 51 would ensure that all overseas donations were openly made and disclosed.
Lord West of Spithead (Lab)
My Lords, I support Amendment 51, which would help increase the transparency and accountability of our political system. The ISC’s Russia report of 2020 recognised that the UK had clearly welcomed Russian money, including in the political sphere.
The Government have previously assured the House that the protections within the electoral financing laws are “sufficient”. However, as other noble Lords suggested in Committee, there are clear differences between the requirement on companies to undertake due diligence when receiving foreign money and that on political parties, which have no such duties. This would help close the gap.
I note that the amendment requires a political party to publish a policy statement within three months of the passing of the Bill. The Secretary of State also has three months to produce the accompanying guidance. It may be advisable for the Secretary of State to publish the guidance before political parties are required to produce their policy statements. I simply raise that as a practical point. It does not affect my support for the amendment.
As regards the government amendments, it is not clear why they seek to exclude parliamentary proceedings from the definition of political processes, thereby moving them outwith the scope of any new foreign interference offence. I appreciate that the Government have said that it is to clarify that the Bill does not intend to interfere with parliamentary privilege, but I do not see that the answer is to remove the concept entirely.
To commit the foreign interference offence, one needs to conduct “prohibited conduct” which has an “interference effect”. “Prohibited conduct” includes a variety of unacceptable behaviours—from a criminal offence to threatening to damage someone’s reputation or causing financial loss. Surely, it is critical to prevent any foreign interference in parliamentary proceedings which involves a person conducting such unacceptable behaviour. Perhaps the Minister could explain how including parliamentary proceedings in the foreign interference offence would undermine parliamentary privilege, given the need for the prohibited conduct of the offence to apply. Even if the amendment is warranted, could the Minister explain why the Government have not replaced it with wording similar to that in Clause 70, as amended. This refers to interference with
“a Member of either House of Parliament, the Northern Ireland Assembly, the Scottish Parliament”
rather than “parliamentary proceedings”, which would ensure that no gap was created.
Lord Wallace of Saltaire (LD)
My Lords, the all-Peers letter which the Minister sent to us on 28 February states clearly and strongly that what we need is in this Bill is
“transparency on which foreign powers are influencing our politics”,
which it states
“is vital to defending our democracy”.
This reasonable amendment fills one of the loopholes left in the Bill. We are all concerned about the integrity of our elections. We are conscious that foreign donations are part of what can undermine that integrity.
The Minister may have had drawn to his attention a letter in yesterday’s Financial Times which points out that the new proposals for a football regulator include among its duties the need to ensure stronger due diligence and checks on the sources of wealth of those who wish to buy or own football clubs. It is anomalous, to say the least, that we should have stronger checks on people who wish to buy British football clubs than on people who wish to give sometimes very large sums of money to British political parties. I remind the Minister that the question of Arron Banks’s very large donation to the Vote Leave campaign is still being litigated in the British courts. We still have no assurance as to the origins of that donation, since he has refused to give one.
I support what the noble Baroness, Lady Hayter, has said, by reminding the Minister that there are now 100,000 British citizens living in the United Arab Emirates—some of whom already donate to British political parties. It would be quite easy for some of those to become intermediaries for the sovereign powers concerned. Other wealthy British expatriates live in Thailand, Singapore or Hong Kong. Their business depends heavily on the Chinese economy and state.
It is entirely desirable, reasonable and appropriate to ensure that British political parties play their part in mitigating the risks of foreign interference in British elections by being required to show that they are conducting careful risk management in accepting donations from overseas. There have been a number of instances in recent years of which we are all aware. Some of them were touched on in the ISC report on Russia. It is clear that such management has not been in place. It ought to be. I hope that the Government will accept this amendment as a means of filling this loophole.
Lord Evans of Weardale (CB)
My Lords, I declare an interest as the chair of the Committee on Standards in Public Life. In 2021, my committee reviewed the regulation of electoral finance. I have to tell the Minister that “stringent” was not what we concluded as to the rigour of the arrangements in place. We felt that there were a number of loopholes which could quite easily be remedied. We made recommendations to that effect. Regrettably, the Government decided that they did not wish to accept any of those recommendations; therefore, the loopholes are still there.
I have added my name to Amendment 51 because it is a modest step in the right direction. The rules that apply to the financial services industry and, as appears likely, are shortly to apply to the football industry are considerably stronger than those that apply to our elections. A modest step in this direction would not provide a high level of assurance that money from illicit sources of various sorts might not reach the electoral process, but at least it is a step in the right direction.
It is important that we should take that step because we know that the electoral system in this country and in other western democracies has been under attack. It is vital to maintain public confidence in the electoral system; it is still pretty good. The Electoral Commission publishes regular research on attitudes towards the electoral system. At the moment, we are in a reasonably good place, but it is very important for the health of our democracy that we retain that public support. This is a small step in that direction. I have been scratching my head to work out why, as the noble Lord, Lord Carlile, said, any political party would not support this for the integrity of our electoral system. It is not massively bureaucratic or intrusive. I look forward to hearing the Minister’s reply.
Lord Coaker (Lab)
My Lords, I rise briefly to say that we very much support Amendment 51 in the name of the noble Lord, Lord Carlile; were he to push it to a vote, we would certainly support him in that Division.
I do not want to repeat much of what has been said by my noble friend Lady Hayter and the noble Lords, Lord Carlile, Lord Wallace, Lord Evans and Lord West. However, I think that the noble Lord, Lord Evans, was right to say that, although this is a modest amendment, its consequences are quite serious. There is no doubt that people are concerned about some of the issues that they have read about in the papers around foreign interference in elections and the funding of political parties. One of the things that we often debate in this House is confidence in our democracy and democratic system, including the threats to them and the erosion of that confidence. Sometimes, these may be small steps but they are important ones that can contribute in our trying to do all we can to protect our democracy. People are worried about foreign interference in elections and the integrity of our democratic system.
It is right to point out, as the noble Lord, Lord Evans, did, that, through this Bill, we are requiring significant steps to be taken by businesses, organisations, industry, financial services and all sorts of other bodies to ensure that they conform to certain regulations that protect our national security. It would be right for them to ask, “Why is there one rule for us but another for political parties?” It is quite right that this amendment is supported; I hope that the noble Lord, Lord Carlile, will seek to test the opinion of the House and that his amendment is supported by the majority of Members, because it is an important step in protecting the integrity of our democracy in the way that noble Lords, particularly my noble friend Lady Hayter on the Labour Benches, pointed out.
Having said that, I want to ask one practical question with respect to many of the amendments that the Government have brought forward, which, by and large, we support. I want to deal with Amendment 49, the explanatory statement for which says:
“This amendment adds to the definition of ‘political processes’ the activities of groups such as all party parliamentary groups.”
I understand the bit about all-party groups but the implication there is in “such as”. Are the Government saying that the amendment is relevant to other groups? If so, can the Minister explain that to us?
With that, as I say, I very much support Amendment 51 in the name of the noble Lord, Lord Carlile, because it is very important.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords who have spoken on this group.
I will start, if I may, by addressing the question from the noble Lord, Lord West, by repeating something that I said in my opening speech; I think it goes some way to answering him. The majority of what we wish to capture in relation to interference with Parliament will be covered by the effect in Clause 14(1)(b)—the limb relating to public functions—as MPs and other officials in Parliament will be exercising their public functions. It is right that we seek to criminalise activity where, for example, somebody is acting for a foreign power and threatens violence to affect how a person exercises their public functions. I hope that answers his question.
In answer to the question from the noble Lord, Lord Coaker, about Amendment 49, let me say that he is completely right. The reference to
“the activities of an informal group”
in this amendment is, as I think noble Lords know, designed to capture interference activities in APPGs by foreign powers. We are seeking to capture interference whether or however any person participates in the activities of these informal groups. We expect that to cover MPs and people external to Parliament and government who participate in the actions of such groups, but we also envisage informal groups to include things such as “friends of” groups. The use of the term “acting in that capacity” ensures that we do not capture things such as parliamentary book clubs but instead focus on those caught, such as the 1922 Committee, although they could also be covered by the public functions limb of the test. I hope that clears this up.
I know that Amendment 51 is a duplicate of a previous amendment, now tabled by the noble Lord, Lord Carlile. The Government do not believe that this amendment is necessary, I am afraid. I was going to quote myself and say again that UK electoral law already sets out a stringent regime of controls, but I am slightly more reluctant to do so after hearing the comments from the noble Lord, Lord Evans. However, we believe that our regime ensures that only those with a genuine interest in UK elections can make political donations and that political donations are transparent.
I will go into more detail on this point, if I may, because I believe that the noble Lord’s ethical matrix is already in existence. It is already an offence to attempt to evade the rules on donations by concealing information, giving false information or knowingly being involved in an arrangement to facilitate the making of an impermissible donation. This provides a safeguard against impermissible donations via the back door. Political parties must already report all donations over a certain value to the Electoral Commission; these are then published online for public scrutiny. Political parties are by law required to undertake reasonable steps to verify whether a donor is permissible and obtain their relevant details for the reporting requirements. Donations that do not meet the permissibility tests or are unidentifiable must be reported and returned to the Electoral Commission, which also produces guidance outlining how the recipient of a donation can undertake these checks.
As I say, UK electoral law already sets out a regime of donation and spending controls to safeguard the integrity of our democratic processes, so only those with a genuine interest in UK electoral events can make political donations; they include UK-registered electors, UK-registered companies, trade unions and other UK-based entities, as well as otherwise eligible donors such as Irish citizens who meet prescribed conditions and can donate to parties in Northern Ireland. Parties and other campaigners are prohibited from accepting donations that are not from a permissible or identifiable donor. The failure to return such a donation either to the donor or, as I just described, to the Electoral Commission within 30 days of receipt is an offence; any such donations must also be reported to the Electoral Commission. The Elections Act 2022 introduced a restriction on ineligible foreign third-party campaigning above a £700 de minimis threshold.
The transparency of electoral funding is obviously a key cornerstone of the UK’s electoral system. All political parties recognise that third-party campaigners and candidates must record their election spending and report it to the Electoral Commission or their local returning officer; that information is publicly available. For transparency, all donations to political parties and campaigners must be recorded and certain donations must be reported to the Electoral Commission; as I said, these include donations from impermissible donors and donations from the same permissible source that amount to over £7,500 in one calendar year. To ensure transparency, donation reports are published online by the commission for public scrutiny.
To register as an overseas elector, a British citizen has to present ID. However, it is a long-standing principle first introduced by the Committee on Standards in Public Life in 1998 that, if you are eligible to vote for a party in an election, you are also eligible to donate to that party. We believe that overseas electors are important participants in our democracy, but it is only right that they should be able to spend in UK elections in the same way as other UK citizens registered on the electoral roll.
I think that this is a reasonably comprehensive set of rules. There may be some debate as to whether it qualifies as a stringent regime but the fact is that donations to political parties from foreign powers, whether they are made directly or through an intermediary, are illegal. Political parties already have a legal duty to check that all donations they are offered are permissible.
In closing, I very much thank noble Lords for engaging so constructively in this debate. I ask the noble Lord, Lord Carlile, not to press his amendment in this group and ask noble Lords to support the Government’s amendments.
Lord Wallace of Saltaire (LD)
Before the Minister sits down, I just want to check one thing with him. He said that overseas electors will have to present ID. I was involved in the passage of the now Elections Act, which does indeed provide stronger, more limited ways in which correct ID has to be presented by people voting in person in British elections. However, I do not recall extra requirements around the presentation of ID for people who are resident overseas and wish to vote.
Lord Sharpe of Epsom (Con)
I think that I made it reasonably clear that to register as an elector overseas, you must present ID.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment clarifies the scope of subsection (1)(a).
Member's explanatory statement
This amendment restricts Clause 14(1)(d) to participation in political processes otherwise than in the exercise of public functions. The exercise of public functions is caught by Clause 14(1)(b).
Member's explanatory statement
This amendment reflects the changes to the definition of political processes by Lord Sharpe’s amendments to clause 14, page 12, line 36 and clause 14, page 13, line 1.
Member's explanatory statement
This amendment restricts Clause 14(1)(e) to participation in legal proceedings otherwise than in the exercise of public functions. The exercise of public functions is caught by Clause 14(1)(b).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to Clause 14, page 12, line 27.
Member's explanatory statement
This amendment removes from the definition of “political processes” proceedings in the UK Parliament, Scottish Parliament, Northern Ireland Assembly and Senedd Cymru.
“(e) the activities of an informal group consisting of or including members of—(i) one or both of Houses of Parliament,(ii) the Northern Ireland Assembly,(iii) the Scottish Parliament, or(iv) Senedd Cymru,(acting in that capacity).”Member's explanatory statement
This amendment adds to the definition of “political processes” the activities of groups such as all party parliamentary groups.
Member's explanatory statement
This amendment clarifies that the definition of “political decisions” includes decisions taken by a Minister of the Crown or a government department.
Lord Carlile of Berriew
“Foreign interference in elections: duties on political parties(1) A UK-registered political party must, within three months of the passing of this Act, publish a policy statement to ensure the identification of donations from a foreign power (whether made directly or through an intermediary), and must keep that policy updated in accordance with guidance issued under subsection (2). (2) Within three months of the passing of this Act the Secretary of State must publish guidance on the provisions of this section.(3) A UK-registered political party must provide the Electoral Commission with an annual statement of risk management that identifies how risks relating to donations from a foreign power (whether made directly or through an intermediary) have been managed, and what measures have been put in place by the party to such effect.(4) In this section, “UK-registered political party” means a political party registered under Part 2 of the Political Parties, Elections and Referendums Act 2000.”
Lord Carlile of Berriew (CB)
My Lords, I am very grateful to all those who have contributed to this debate. It is notable that around the House, apart from the Government Front Bench, everyone has spoken in favour of this amendment and nobody from the Conservative Party chapel, as it were, has spoken against it.
I was particularly taken by the metaphor from the noble Baroness, Lady Hayter, about knowing your donor—KYD. It is analogous with KYC—knowing your client—which, as she said, is universally applied by businesses these days when they receive funding from abroad.
The Minister is trying to be as helpful as he can. However, can I say kindly to him that he has missed the point of this amendment? Amendment 51 seeks to place an overarching responsibility on political parties to say how they will deal with direct or indirect foreign donations if they are offered to them. That makes it much easier for a candidate or a party official to say, “Sorry, we can’t take that because it’s in our statement of principle as to what we do”. Even though this is a relatively modest step, it would enhance the transparency of an honourable political process. We have lost some ground, compared with some other European countries in particular—not just western European countries but some central European countries too—in the transparency that we offer in elections. People are uncomfortable about it and the media are hounding on it.
With that in mind, and despite the blandishments of the Minister, I wish to test the opinion of the House. I beg to move.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.
Member's explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.
““Crown employment” ;”Member's explanatory statement
This amendment incorporates into Clause 17 a definition of “Crown employment” (by reference to Clause 3).
Lord Sharpe of Epsom
“(v) Schedule 3 (disclosure orders);(vi) Schedule 4 (customer information orders);”Member's explanatory statement
This amendment adds offences under Schedules 3 and 4 to the list of offences to which the powers in Part 1 of Schedule 2 do not apply.
Member's explanatory statement
This amendment adjusts the test for the grant of a warrant under paragraph 9, to align with paragraph 12 of Schedule 5 to the Terrorism Act 2000.
Member's explanatory statement
This amendment adjusts the test for the grant of a warrant under paragraph 9, to align with paragraph 12 of Schedule 5 to the Terrorism Act 2000.
“(c) the investigation may be seriously prejudiced unless a constable can secure immediate access to the material.”Member's explanatory statement
This amendment adjusts the test for the grant of a warrant under paragraph 9, to align with paragraph 12 of Schedule 5 to the Terrorism Act 2000.
“(v) Schedule 3 (disclosure orders);(vi) Schedule 4 (customer information orders);”Member's explanatory statement
This amendment adds offences under Schedules 3 and 4 to the list of offences to which the powers in Part 2 of Schedule 2 do not apply.
Member's explanatory statement
This amendment clarifies that an Act of Adjournal made under paragraph 24(1) of Schedule 2 would be made by the High Court of Justiciary and would be without prejudice to the general power in section 305 of the Criminal Procedure (Scotland) Act 1995.
Member's explanatory statement
This amendment adjusts the test for the grant of a warrant under paragraph 25, to align with paragraph 29 of Schedule 5 to the Terrorism Act 2000.
Member's explanatory statement
This amendment adjusts the test for the grant of a warrant under paragraph 25, to align with paragraph 29 of Schedule 5 to the Terrorism Act 2000.
“(c) the investigation may be seriously prejudiced unless a constable can secure immediate access to the material.”Member's explanatory statement
This amendment adjusts the test for the grant of a warrant under paragraph 25, to align with paragraph 29 of Schedule 5 to the Terrorism Act 2000.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment adds a reference to Northern Ireland legislation to a defined term.
Lord Beith
Member's explanatory statement
The purpose of this amendment is to clarify that any immunity from prosecution conferred by this Clause does not extend to the activities of the Armed Forces in general, but only to those activities carried out in support of the Intelligence Agencies.
Lord Beith (LD)
My Lords, the amendment to which I will speak was designed to limit the scope of the immunity which the Bill originally proposed to activities in support of the intelligence services, rather than extend it right across the Armed Forces. However, we now have a change, which I will come to in more detail; we are no longer discussing an immunity, thank goodness, but a statutory defence.
Intelligence gathering is difficult, and in the world of intelligence it is quite difficult to avoid breaking the law sometimes. When you are dealing with a hostile state or terrorist organisation, trying to get information from it which it does not want you to have can be quite complicated. There are ways of dealing with the issue, such as a public interest decision by prosecutors not to press a charge, or the expectation that such a charge would not be pressed. That needed to be backed up by authorisation at the highest political level for action which could be politically embarrassing or worse. No such authorisation should be given to torture, rendition to torture or other serious international crimes.
In the Bill, the Government presented us with a blanket immunity, precluding prosecution and unsupported by any specific ministerial authorisation, with no exclusion of torture or other egregious offences. So I strongly supported the suggestion made by my noble friend Lord Purvis, which has now been adopted by the Government, to strike out Clause 30 and replace it with a statutory defence based on the existing domestic provision. That is government Amendment 66 in this group. It is a lot better than the original Clause 30, but still raises some of the same questions.
First, will there be any change to the system of ministerial authorisation at Secretary of State level for activity which might be covered by this clause? That ministerial authorisation is a very important part of the system and its absence would be very damaging. Clearly a general immunity dispenses entirely with any need for it; I was extremely worried about that consequence. Some of the decisions which have to be taken are quite political in character; if an agency were discovered doing something contrary to the law of another country, as well as to our own, very serious political embarrassment could result. So it is in many ways a political decision, and there should be a process by which it can be made.
Secondly, why are we using the National Security Bill to confer a statutory defence not just on intelligence activity, but on any action which is
“the proper exercise of a function of the armed forces”?
In other words, we are creating a new defence for actions on the battlefield, or in a counter-insurgency operation, in areas in which international law is potentially involved. This has very significant consequences for those who break it.
When I first examined the original clause, it seemed to me that the Government were trying to embrace, within an immunity, those members of the Armed Forces who were engaged in intelligence work alongside the three civilian agencies. This would include military intelligence, both uniformed and civilian personnel—now, of course, I think that more fully recognises that the fourth pillar of UK intelligence operations, the military intelligence itself, is brought within the purview of the Intelligence and Security Committee. But I expected that the Government were trying to cover other Armed Forces personnel deployed to assist the intelligence agencies, which they do in a variety of ways. My Amendment 65 was designed to limit the coverage to those groups. But it appears, from the more explicit drafting of the Government’s new clause, that they intend the statutory defence to apply to any proper exercise of the functions of the Armed Forces. I find it surprising that we should attempt so fundamental a change in the law governing the Armed Forces on a tail-wind from a piece of national security legislation.
Lord West of Spithead (Lab)
My Lords, I speak in relation to Clause 30 and the different amendments being proposed, including the government amendment that seeks to insert a new clause to replace Clause 30 and the amendments that I have tabled on behalf of the Intelligence and Security Committee of Parliament, which seek to amend the government amendment.
Our efforts have been on the basis that everybody in both Houses is working to ensure that our men and women in the intelligence agencies, often working in extreme danger to tight timelines, are provided with appropriate protections. This does not mean an exemption from the safeguards in place regarding behaviour. I should say at the outset that, as noble Lords will understand, I will not comment on behalf of the ISC in relation to the applicability of the clause to the Armed Forces, since that falls outside the ISC’s remit. The ISC has focused on scrutiny of the clauses that relate to the intelligence community.
To our mind, the original version of Clause 30 provided a rare exemption from liability for the intelligence community when working abroad and is completely unacceptable. Not surprisingly, it received fierce criticism from across both Houses. Concerns included that there is already a reasonableness defence under Section 50 of the Serious Crime Act 2007 and that the agencies can already seek immunity from liability for activity undertaken abroad under Section 7 of the Intelligence Services Act 1994. The ISC was concerned about the lack of a proportionality requirement, the absence of an oversight mechanism, the breadth of the immunity provided and the potential damage to the reputation of the intelligence community.
In the Commons, the Bill Committee recognised that there might be classified information underpinning the Government’s rationale for the clause that could not be disclosed to it, and the Government therefore committed to provide the ISC with that evidence. The ISC considered that classified evidence, and I outlined the committee’s conclusion at Second Reading. The ISC found that Clause 30 potentially identified a legitimate problem since, despite the existing legislative protection, there might still be a risk of criminal liability for junior members of the intelligence community, even when they acted appropriately, and that this could potentially have an operational impact.
While the ISC therefore sympathised with the aim of the clause, it was firmly of the view that Clause 30, as written, was not appropriate. While the existing mechanism to avoid liability may not be entirely comprehensive, there was simply no justification for incorporating a broad automatic exemption with such limited accountability. At Second Reading, I noted that the ISC had been given an assurance that the Government were developing an alternative approach to meet its concerns.
Before I turn to the ISC’s view on the detail of the amendment that the Government have now tabled, I want to touch on the Home Office’s handling of this matter. Following the constructive session with the intelligence community on Clause 30 ahead of Second Reading in the Lords, where the committee provided a series of recommendations to improve the clause, the ISC’s chair wrote to the Security Minister requesting that the Government provide the ISC with a draft of the amendment in advance of it being formally tabled, with sufficient time for it to scrutinise it and make any further recommendations. This was with the intention of ensuring that the amendment was appropriate to the problem and would therefore not attract the same fierce criticism from this House as the original Clause 30. Our intention was to help. Indeed, we are working, as I have said, on the basis that everyone in both Houses is working to ensure that our men and women, who often work in extreme danger to tight deadlines, are provided with the appropriate protections while incorporating the required safeguards and maintaining a sufficient level of accountability and oversight.
However, the ISC received no response from the Security Minister or any other Home Office official for almost five weeks. The draft amendment was finally received on 21 February, but was then immediately tabled on 22 February, despite the committee being scheduled to discuss it with the intelligence community on 23 February. This left the ISC with no time to consider the amendment. The Government clearly tabled it as a fait accompli, with little regard for appropriate parliamentary engagement. This is in spite of the Government’s commitment in Committee to continuing to work with the experts in this House, and those in other places, to reach a consensus on Clause 30.
At Second Reading, I referred to the catalogue of problems relating more broadly to the handling of this Bill which have seriously undermined effective parliamentary scrutiny. I emphasised then that the Bill, which is about our national security, is too important to be handled in such a chaotic manner, yet the Government seem to continue to ignore these concerns. The Home Office’s failure to engage is disgraceful—and I say this with some sadness, having been a Home Office Minister for some three years.
The ISC is the only organisation which can scrutinise the classified evidence underpinning the rationale for Clause 30 on behalf of Parliament and the public. The Government need to stop treating the ISC and wider Parliament like the enemy. Effective parliamentary scrutiny must be taken seriously by the Government. We should be working together, constructively, to ensure that the Bill is as effective as possible and in the best interests of the country; having talked with the Minister, I think that is now beginning to happen. However, I take this opportunity to put on record that the Home Office’s complete failure to abide by its commitments made in this House to engage with the ISC is in contrast to the efforts of the intelligence community, with whom the ISC has continued to have constructive discussions on Clause 30 and the rest of the Bill.
I turn to the detail of the clause. In the ISC’s view, this amendment is certainly an improvement when compared with previous versions. It has changed the automatic exemption to a more limited defence using similar wording to the defence in Section 13 of the Bribery Act. Rather than an automatic carve-out from liability, this will require the facts of any case to be put forward and considered properly in a court. The amendment also introduces a level of accountability. The head of each intelligence service is required to ensure that their service has in place arrangements designed to ensure that the relevant activities are necessary for the proper exercise of their functions. These arrangements must also be to the Secretary of State’s satisfaction, which introduces a level of ministerial accountability.
Nevertheless, we are not quite there yet. The ISC still has concerns and questions that need to be answered. First, there is a glaring omission of any requirement of proportionality in the new defence. As the amendment is currently drafted, for the agencies to use this defence they need to demonstrate only that their activity was necessary; it is not explicit that their activity needs to be proportionate. There is therefore no need for the nature and likely consequences of any activity to be reasonable. In short, it appears that the intelligence community could avoid liability even where an act was entirely disproportionate or unreasonable.
I note that this defence is based on the intelligence community’s defence to bribery offences in Section 13 of the Bribery Act 2010. However, the bribery offence is rather less serious than those being considered here. This clause provides a defence to assisting or encouraging any offence overseas, however serious. There is therefore a much stronger case for a proportionality requirement to be explicitly set out in this defence.
I have therefore tabled two amendments on behalf of the ISC to subsections (2) and (3) of the proposed new clause inserted by the government amendment explicitly to incorporate a proportionality requirement. The Government may seek to argue that this introduces greater uncertainty or that the criminal law does not generally put proportionality into legislation. However, these are not sufficient reasons for completely omitting a concept of reasonableness from a defence to assisting serious offences overseas. There must be an appropriate level of accountability.
The Government may also argue that this addition is unnecessary as proportionality is already implied in the defence, specifically within the words
“proper exercise of any function”
of an intelligence service. If that is the case, the Minister needs to state this explicitly from the Dispatch Box to ensure that the courts take this into consideration.
While the ISC has sought to amend only the government amendment to address the proportionality question, as that is the most serious, it also has a number of other questions that should be answered. In particular, it is not clear whether this new defence is connected to the internal arrangements that must be established by the head of each intelligence service to ensure that activity undertaken by their service is necessary. Specifically, can an activity which is necessary but does not comply with these internal oversight arrangements be considered as falling within the proper exercise of an intelligence service’s function?
Given that the purpose of requiring these arrangements is to ensure that there is a layer of senior official accountability, it is vital that all activity undertaken by the intelligence community complies with these internal safeguards. Where an act does not comply with these arrangements, it should fall outside the definition of “proper exercise” of the intelligence community’s functions, automatically preventing the intelligence community using this defence. If this is the case, the Minister should say so explicitly from the Dispatch Box.
The third point the Minister might wish to assure the House on is precisely what those arrangements are. They are not defined in the defence and are therefore too vague. For this uncertain wording to be acceptable, the Minister must set out what the arrangements include and what principles are incorporated within them. Do they, for example, incorporate the principles of necessity and proportionality throughout? Do they simply include general internal risk management procedures within the agencies, or do they also incorporate specific policies such as the Principles, which relate to the detention of and the passing of intelligence relating to detainees, for example? Again, the Minister needs to confirm this explicitly from the Dispatch Box.
A further important question is the extent to which this defence has an impact on existing legislative provisions for oversight. In Committee in the Lords, in response to questions from the noble Lord, Lord Carlile, the Minister said that Clause 30 as originally drafted would mean that, in some cases, authorisation by the Secretary of State will no longer be a requirement. I want to pause on the significance of those words. Despite previous assurances that Clause 30 would not have any impact on ministerial accountability or oversight of the intelligence community, the Government admitted in this House that the ministerial authorisation for encouraging or assisting offences overseas, for example Section 7 warrants under the Intelligence Services Act 1994, would sometimes no longer be required. That is astonishing and I am sure that many in this House find it extremely concerning. It shows that the Government were willing fundamentally to undermine existing ministerial accountability and oversight, which is already set out in statute and provides a vital check on the significant powers wielded by our intelligence community.
We do not expect our intelligence community to be acting inappropriately. On the contrary, it shows how justified Parliament’s concerns were in relation to this clause and how important it is to resolve them. It also demonstrates the need for clarity as to exactly how the new defence will have an impact on existing accountability legislative measures before we approve it. I would therefore welcome the Minister’s confirmation that, unlike the previous exemption, this new defence will not lead to fewer ministerial authorisations sought by the intelligence community or less daily oversight from Ministers and/or judicial commissioners of intelligence community activity.
These four issues are those which the ISC is most concerned about. We have also noted that, as drafted, the burden of proof falls on the prosecution rather than the defence, which makes it more favourable to the intelligence community than the defence in Section 13 of the Bribery Act. However, there are many fine legal minds here who I am sure will know a lot about this, and I bow to their experience on that subject.
In conclusion, the government amendments to Clause 30 recognise that the defence is significantly better than the exemption that was previously provided, so we are more pleased with it. It will help to protect the junior members of our intelligence community, who work tirelessly to protect our country. We cannot let the Government’s poor handling of the Bill affect our consideration of the substantive issues. As the clause stands, the ISC has three concerns on which it requires assurances from the Minister today. We have already notified the Home Office as to what they are, so I trust that the noble Lord has come equipped to speak on those three points.
To recap, they are, first, that the proper exercise of a function of an intelligence service already incorporates proportionality; an act could not be within the proper exercise if it is not proportionate. Secondly, what is the meaning of the arrangements that the heads of each intelligence service are expected to establish? What do they consist of and what principles do they incorporate? Third, we require assurance that proper exercise is connected to the internal oversight arrangements that each intelligence service head must ensure exists, so that an act could not be considered within the proper exercise of a function if it does not comply with the oversight arrangements.
Lord Anderson of Ipswich (CB)
My Lords, I will speak to Amendment 68 on the supplementary sheet in my name and that of the noble Lord, Lord Carlile. The immunity that preceded this Clause 30 may have been doomed from the moment the noble Baroness, Lady Manningham-Buller, began her speech in Committee by saying that
“it seems to me that it is wrong in principle for members of the security and intelligence services to have immunity from the law”.—[Official Report, 11/1/23; col. 1452.]
She was right. That was just one reminder of how fortunate we are in the calibre and integrity of our intelligence chiefs, including those who have found their way into your Lordships’ House.
We now have a further statutory defence which would bite on encouragement or assistance of foreign crimes, which, although unreasonable and thus outside the scope of the existing Section 50 defence, is none the less considered necessary for the proper exercise of a function of an intelligence service or the armed services. A defence is, as has been said, in any view more acceptable than an immunity. But the likely marginal gain of this one seems limited, and its purpose is obscured.
So I ask the Minister in this new context to deal with the issue which, as we have just heard, the ISC did not look at. Why is this defence so broad in its application to the Armed Forces? The Minister indicated in Committee that the immunity was
“confined very much to the intelligence support by the Armed Forces”.—[Official Report, 11/1/23; col. 1458.]
We all know that the Armed Forces sometimes deploy in support of intelligence work overseas by the agencies. We also know that the Intelligence Corps has its own abilities for the gathering and analysis of intelligence. That is captured by my amendment, though perhaps not by that of the noble Lord, Lord Beith.
What justification is there for extending this new defence to activities of the Armed Forces that are not intelligence related? Exceptions to the rule of law should be tightly controlled. Why should service personnel be exempt from the same law that applies to the rest of us outside the special circumstances of intelligence? From the debate in Committee, I understood those were the only circumstances thought relevant. I hope the Minster will be able either to explain this or to accept my amendment to his amendment. In the light of what we have just heard from the noble Lord, Lord West, the Minister also has a great deal of explaining to do in relation to the important points that he raised.
I would like to make two comments on Amendment 67, in the name of the noble Lord, Lord West. I have two reservations about it. Necessary and proportionate is the test, and I would have thought that conduct that is necessary and proportionate is also reasonable, and therefore would benefit in any event from the Section 50 defence. I just wonder how much this really adds.
Secondly—I defer to more experienced criminal lawyers than me, of whom there are at least two in the House—the concept of proportionality could be quite a complicated one to explain to a jury. I am not sure I can think of any other criminal offence in which that concept exists. Proportionality in law, as I recall, is a four-part test, explained by the Supreme Court in the Bank Mellat case. That might rather complicate the route to a verdict. However, those are technical points.
The objections raised by the noble Lord, Lord West, are very serious. It is in the interests of the agencies to co-operate to the very fullest extent with the ISC. It is in the interests of all the rest of us, and I am quite sure it is in the interest of the Home Office as well. It is very distressing to hear that that did not happen in this case. So, in view of the serious points that the noble Lord made, and despite my rather lukewarm feelings about his amendment, I shall listen very carefully to what the Minister has to say in response. I sense that perhaps this is a discussion that will need to continue.
Lord Carlile of Berriew (CB)
My Lords, I rise briefly, I hope, to say that, first, I agree with everything that my noble friend just said and will not repeat it. Secondly, I regard Amendment 66 to be a considerable improvement on what we were faced with before we started the Bill. Indeed, it is not a provision that provides immunity, it is evidence-based, it has a strong public interest element, but it is not perfect. One of the complaints I have received—only anecdotally but from authoritative sources—is a lack of understanding, among fairly senior public servants, of why the Secretary of State no longer carries any responsibility for the sort of decisions referred to in Amendment 66. The requirement in its subsection (5) that the Defence Council must ensure that the Armed Forces must have various arrangements in place is welcome as far as it goes, by why are Secretaries of State being eased out of any level of responsibility for decisions of this kind? I am not sure there is total confidence, among the kind of officials I have referred to, in the Defence Council to be as definable a source of responsibility as the Secretary of State.
Lord Purvis of Tweed (LD)
My Lords, I understand that our order of business has been changed today. The Government Whip did not consult our Front Bench and, for those of us who had engagements during the dinner-break business, I think it is a discourtesy not to have at least consulted the Front Benches of other parties about changing the order of business.
That said, I welcome the government’s amendments. The noble Lord, Lord Anderson, is absolutely right. The noble Baroness, Lady Manningham-Buller, had indicated her hope that there would be government amendment in this area, and I thank the Minister for listening during Committee and for bringing forward these amendments. In Committee, I went to some lengths to outline what domestic procedures are in this area. The noble Baroness, Lady Manningham-Buller, asked something I thought was rather threatening: if she could have a quiet word with me outside the Chamber during the hour for other business we had then. I am glad to say now that I will accept that and bring the Minister with me, because there may be an element of consensus on a more sensible way of dealing with concerns raised about immunity for, potentially, very serious crimes committed overseas.
I am grateful that the domestic practices will now be considered similar to extraterritorial processes, acknowledging that there have been distinct differences. My questions, to some extent, are linked with those raised by the noble Lord, Lord West, on how this will be operated. In Committee, I highlighted the Government’s Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees. I referenced the Ministry of Defence joint doctrine publications, and I highlighted the Security Service guidelines that had been released in a trial, and we now know more about them. There are a number of existing sets of guidance for the Cabinet Office, from the MoD and within the security services themselves on how, as the amendment states,
“arrangements designed to ensure that acts of a member of the service to which a provision of Schedule 4 applies are necessary”.
I would be grateful if the Minister could outline how guidance will be put together that will be for both domestic activities and now those in regard to defence under this part, whether that will be made public, and how it will interact with MoD guidance to address the similar concerns of my noble friend Lord Beith and the noble Lord, Lord West.
We know what MoD joint doctrine says regarding detainees overseas, but we do not know the principles that will apply to these new areas. Therefore, we need clarification on what they will be. I welcome the Government’s move. There needs to be further illustration of how it will be operable, and I hope the Minister will be able to provide that and give an indication of when guidance will be put together and will be published.
Lord Coaker (Lab)
My Lords, this is a really important debate. Government Amendment 66 is a considerable improvement on what we had before, with respect to Clause 30. We have heard from noble Lords about their belief in that and their pleasure that we now see Amendment 66 before us. As my noble friend Lord West—I will come back to him—the noble Lords, Lord Anderson and Lord Carlile, and others have mentioned, there are still questions that the Government need to answer. I very much look forward to the Minister’s response, particularly to my noble friend Lord West, who very effectively laid out the fact that although the ISC welcomes the new clause proposed by Amendment 66, there are still some important questions for the Government. It is extremely important that the Government put their answers on the record, so they are there as testimony of what the Government expect of how the new Clause 30—as it will be—will operate.
The point made by the noble Lord, Lord Anderson, about the inclusion of the Armed Forces in this deserves a proper answer from the Minister. It is good to see the Armed Forces Minister here to have heard the noble Lord.
My noble friend Lord West laid before us how we got here, the relationship between the Home Office and the ISC, and the lack of a speedy response to some of the requests, which have led to some of the difficulties we have seen. If people had attended the committee, spoken to the committee and discussed with the committee —even if some of those discussions may have been difficult—some of these problems would have been resolved. Yet we have debate in the other place, debate here, and now it is only on Report that we get to a position where we seem to be on the verge of achieving what we all want.
I go back to a point I find quite astonishing, referring to the Intelligence and Security Committee’s annual report. My noble friend Lord West pointed to the lack of Home Office response. I lay this before each and every one of you: when do noble Lords think was the last time the Prime Minister went along? Do not answer that—there is no need to shout out. It is quite astonishing to read in the annual report that, despite repeated requests, no Prime Minister has been to the Intelligence and Security Committee since 2014. That is absolutely disgraceful. The committee was set up by this Parliament to oversee intelligence and security matters and to receive intelligence at a level we cannot be briefed on—quite rightly—and, despite repeated requests, the Prime Minister has not gone. How can a Prime Minister not go to the committee set up by Parliament to discuss matters of intelligence? I find it incredible.
A few weeks ago, I asked the noble Lord, Lord Sharpe, why this has not happened. The Government say, “The Prime Minister has been very busy over the last few weeks”, and he has been; he has been not just to Belfast but to numerous other places, including Parliament, to meet various groups. Why has it not been possible to meet the Intelligence and Security Committee? This is incredibly serious.
Lord Beith (LD)
I put it to the noble Lord that this is not a formality. The point of the Prime Minister meeting the committee is that it can draw attention to failings or problems that it cannot publicly disclose. The only route by which those failings or problems can be brought to account is by direct contact with the Prime Minister.
Lord Coaker (Lab)
I could not agree more with the noble Lord, and that is why it is so incredible that no Prime Minister has discussed that with the committee since 2014. I say this in relation to my noble friend Lord West’s points about the failure of discussion and people’s failure to involve the committee at an early stage. Had that been done, we would have avoided much of the debate and controversy over Clause 30 or, now, government Amendment 66. My noble friend Lord West mentioned this on behalf of the committee, and I mentioned and highlighted yet again the failure of the Prime Minister to meet it since 2014, which is simply and utterly unacceptable. Something needs to be done about it, and the Prime Minister needs to hear this—I know that the Minister will take this forward.
This is a really serious matter. I could not believe it when I read it, and I do not believe that many noble Lords here would either, as the noble Lord, Lord Beith, reminded us. According to the report, this was a regular occurrence:
“Since its establishment in 1994, and for 20 years thereafter, the Committee met annually with the Prime Minister to discuss its work”.
But, despite repeated requests for suitable dates, we are yet to receive a response. This is unacceptable, and it is why we get the sort of situation that we had with Clause 30.
Notwithstanding that, I thank the noble Lord the Minister and the Armed Forces Minister for their engagement in bringing forward Amendment 66, which is a considerable improvement on what went before. I note the change from automatic exemption to the reasonableness defence. No doubt the Minister can address the issues and questions that my noble friend Lord West raised on proportionality and other areas. It is important that the point of the noble Lord, Lord Anderson, is also addressed. With that, we welcome Amendment 66, but we also look forward to the reassurances that my noble friend Lord West seeks on behalf of the Intelligence and Security Committee.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords who spoke in this debate on Clause 30, the Serious Crime Act 2007 amendment. Before getting into the detail, I very much thank the noble Lords, Lord Beith, Lord West, Lord Ponsonby and Lord Purvis, and the noble Baroness, Lady D’Souza, for their amendments tabled in advance of today’s proceedings. I also thank the noble Lords, Lord Anderson and Lord Carlile, who have consistently shared their time and expertise with me and my team, across a range of national security matters.
I also extend my gratitude to the Intelligence and Security Committee, which recently took the time to write to the Home Office on this measure and cast a keen and critical eye, with officials, over the Government’s amendment tabled for today. I carefully noted the comments of the noble Lord, Lord West, as did my right honourable friend the Security Minister, who sat on the steps when he made them. I will obviously make sure that we reflect on that internally. I say to the noble Lord, Lord Coaker, that my noble friend the Leader of the House heard his comments, and I am sure he will reflect them back to the Prime Minister, but I am not responsible for the Prime Minister’s diary, so I cannot go further than that at this point. However, we will return to this subject in group 12, when the ISC MoU will be debated.
The Government’s shift in approach on the SCA amendment reflects our maintained commitment to ensuring that individuals working for UKIC and the Armed Forces are protected when conducting their proper activities in service to this country. The Government’s amendment replaces Clause 30 with a new clause that provides a defence for acts that are offences under Part 2 of the SCA by virtue of the extraterritorial provisions in Schedule 4. This defence would apply to those carrying out the functions of UKIC and the Armed Forces in supporting activities overseas; that is, it will be a defence for a person to show that their act was necessary for the proper exercise of a function of an intelligence service or the Armed Forces. I will shortly go into more detail on the Armed Forces, at the behest of my noble friend from the Ministry of Defence, so please bear with me.
As noble Lords will be aware, the current reasonableness defence in Section 50 of the SCA would cover encouraging or assisting crimes domestically. We believe that it is right that this new defence is limited to where UKIC and the Armed Forces are supporting activity overseas. The territorial applicability of this measure is identical to that of the original clause. This is because the acute issue caused by the SCA offences, and therefore justification for this amendment as presented to the ISC, relates to support to key international partners’ activity overseas.
The defence provides UKIC and the Armed Forces with more reassurance than the current reasonableness defence, in that the defence is based around the proper exercise of the functions of UKIC and the Armed Forces, rather than the more subjective requirement of proving “reasonableness”. We must remember that the tasks we ask these individuals to undertake, and the operational arrangements we have with our international partners, are ever more complex.
We still do not think it is appropriate that a potentially junior member of the agency or Armed Forces should be faced with the legal burden of proving that their activities were reasonable. Instead, the new defence imposes an evidential burden of proof on the individual to raise the defence. Once the defence has been raised, the legal burden would be on the prosecution to disprove it. It must be remembered that this amendment does not change the position for an individual who acts outside of those proper functions; they would remain liable for any wrongful acts. I believe that this strikes the right balance of providing appropriate protection while also having a clear route by which there can be proper legal consideration of any potential wrongdoing.
Noble Lords will now see an explicit responsibility on the heads of agencies and the Defence Council to ensure that their respective organisations have in place arrangements designed to ensure that acts of a member of their service that would otherwise be an offence under the SCA by virtue of Schedule 4 are necessary for the proper exercise of their functions. To be clear, that means that an act could not be considered within the “proper” exercise of a function of an intelligence service if it does not comply with the “arrangements” set by the relevant heads or the Defence Council.
In addition, the Government propose that there is ministerial responsibility for these arrangements; that is, the relevant Secretary of State must consider that the arrangements put in place by the heads of agencies and the Defence Council are satisfactory. Nothing in this proposed defence will change the current compliance and oversight arrangements, such as the Fulford principles and Overseas Security and Justice Assistance guidance, which is monitored by the Investigatory Powers Commissioner’s Office—
Lord Beith (LD)
On that point, there is a world of difference between the necessary task of a Minister satisfying himself that adequate arrangements exist within an agency—indeed, such arrangements have existed for years—and the Secretary of State being made aware of a potential action and required to approve of it, or prevent it from happening, once he has considered the major political implications it might have. If the system does not extend to that role in relation to individual actions, it will be severely deficient.
Lord Sharpe of Epsom (Con)
I will turn to ministerial responsibility if the noble Lord will bear with me. In fact, I am going to do it now. The Government propose that there is ministerial responsibility for these arrangements; that is, the relevant Secretary of State must consider that the arrangements put in place by the heads of agencies and the Defence Council are satisfactory. I have already said this, but there is more to say on the subject. Nothing in this proposed defence will change the current compliance and oversight arrangements, such as the Fulford principles and Overseas Security and Justice Assistance guidance, which is monitored by the Investigatory Powers Commissioner’s Office—IPCO—via regular inspections and regular scrutiny by the ISC. I will return to this in a second.
I now turn directly to the amendments tabled by the noble Lords, Lord Beith, Lord Anderson and Lord Carlile, which, in short, seek to do two related things: to restrict the activities covered by the defence for the MoD to those which are related to intelligence activities, and—in the case of the amendment of the noble Lord, Lord Beith—to restrict the defence to apply to the MoD only where it acts for UKIC.
I will now speak on behalf of the MoD and my noble friend Lady Goldie, who has sat through this debate. With reference to the Armed Forces, the amendment will enable more effective co-operation with our international partners. It will address operational challenges and remove the personal risk that trusted and dedicated individuals face for carrying out their proper official duties, whether as serving members of our Armed Forces or as intelligence officers within our UK intelligence community.
The amendment is principally concerned with addressing risks arising within an intelligence-sharing context, a primary activity of UKIC. What is perhaps less understood is the criticality of intelligence activity from an Armed Forces perspective, with intelligence sharing often forming a necessary part of wider co-operation with our allies. I assure noble Lords that the amendment is about clarifying the law and removing liabilities which sit onerously with individuals going about their lawful and legitimate duties.
The UK is committed to the rule of law and we would never collaborate or share information with a foreign partner with the intention of supporting unlawful activity overseas, but the SCA amendment does not change that. All aspects of the activities of our Armed Forces will continue to be bound by the relevant law of England and Wales and of international law. There will be no change to the UK’s international legal obligations, including under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and on assisting an unlawful act under Article 16 of the International Law Commission’s Responsibility of States for Internationally Wrongful Acts.
This defence will apply only where activity is necessary for the proper exercise of a function of the Armed Forces, and any individual found to be working outside the proper functions of the Armed Forces will remain liable for those actions. Actions not in compliance with the MoD’s robust internal policies and processes, again such as the Fulford principles and the OSJA Guidance, which are designed to ensure that MoD officers do not knowingly support unlawful activity, would not be in the proper exercise of a function of the Armed Forces.
I turn to the amendment tabled by the noble Lord, Lord Anderson. My noble friend Lady Goldie thanks him for the opportunity to discuss this with him. I understand that, because of a technical omission, he may not move his amendment tonight, but my noble friend Lady Goldie has—
Lord Anderson of Ipswich (CB)
As a point of correction, the omission has been remedied and the amendment is on the supplementary sheet.
Lord Sharpe of Epsom (Con)
My noble friend Lady Goldie has not been able to discuss that with our right honourable friend the Secretary of State for Defence, who is currently abroad, but she undertakes to do that and to engage with him on his return.
I turn to the amendment in the name of the noble Lord, Lord West. I am grateful for his contribution at Second Reading, where he confirmed that the ISC recognised that the government amendment identified a legitimate problem. This proposed amendment seeks to insert proportionality into the defence we are proposing in Clause 30. The objective of proposed new Section 50A is to provide clarity on how an individual working for UKIC or the Armed Forces can defend against a case in which they face personal criminal liability for the SCA offences.
For the reasons outlined previously, the Government consider that the existing reasonableness defence in Section 50 of the SCA does not achieve this, given we would be asking a jury to consider what is reasonable in the complex operational circumstances in which our intelligence agencies and Armed Forces work with our international partners to protect the United Kingdom. The Government consider that inserting a proportionality requirement would have the same effect, in that it reduces the clarity of the defence, which not only does not achieve the objective of providing greater certainty to those who are carrying out vital work to protect us all but complicates a defence which is currently based on the functions of the organisations concerned. On that basis, we think that explicit reference is best left out of the defence, and we therefore cannot accept this amendment.
However, to be clear, considerations of proportionality are a crucial component of operational planning and delivery, and core to many of the legal frameworks with which UKIC and the Armed Forces are required to comply. Any joint working with a partner must be in accordance with domestic and international law, including relevant principles of reasonableness, necessity and proportionality. Where the intelligence services or Armed Forces do not apply proportionality consistently with their legal or policy obligations, that would not be a proper exercise of their functions. To be completely clear, a person’s lack of compliance with their legal and policy obligations could be considered by the prosecution and would impact the availability of the defence —that includes proportionality.
Arrangements in place ensure that UKIC and the Armed Forces apply rigorous safeguards, standards and internal processes for determining that activity is lawful and properly exercised. The arrangements include the following: operational decisions are recorded, taken at appropriate seniority and made with the benefit of advice from specialist legal advisers to ensure compliance with domestic and international law; all personnel receive mandatory training on their legal obligations; policy documents set out specific requirements for different activities, including what authorisations are required and how to decide whether activity is necessary, reasonable and proportionate. Compliance with these requirements ensure that acts are within the proper exercise of the functions of the organisation concerned.
Some of these policies have been published, such as the Fulford principles, where the passing and receipt of intelligence relates to detainees, the compliance of which is assessed by the Investigatory Powers Commissioner’s Office, as I have already noted. Arrangements can also go beyond pure legal considerations, with ethics counsellors in post to discuss the difficult decisions we sometimes take when balancing risk.
To go back to Secretaries of State, they are accountable for the work of the intelligence services and the Armed Forces in Parliament. A central part of their obligations will remain authorising the required operational activity at the appropriate time.
Lord Purvis of Tweed (LD)
The Minister knows that, in Committee, I quoted quite a lot from the OSJA human rights guidance, which I have before me. It also addresses the fundamental point of my noble friend Lord Beith. Both the security service guidelines—which are not published, but about which we know because of judicial processes—which categorise the means by which authorisations have to be secured, and the OSJA Guidance outline the risk assessments that officers must go through. They conclude that, if there is high risk, ministerial approval is necessary. The Government’s amendments do not state categorically that authorisations and ministerial approvals will be necessary for breaches of the SCA offences. Can the Minister confirm that it will be the case that, if there are breaches of the SCA which are forecast through risk assessments and during the processes, ministerial authorisations will have to be provided?
Lord Sharpe of Epsom (Con)
My Lords, I cannot confirm that from the Dispatch Box, but I will write to the noble Lord with the appropriate clarification. I do not actually have a copy of the OSJA Guidance in front of me, but I appreciate the points he is making.
I return to the third concern raised by the noble Lord, Lord West. I can confirm that, where a member of the intelligence services or the Armed Forces conducted activity that did not comply with the arrangements—namely, the rigorous safeguards, standards and internal processes that I described earlier—this breach of the arrangements could be scrutinised by the proper oversight mechanisms; for example, an error would be reported to IPCO for a breach of the Fulford principles. It could be considered by the prosecution and would impact the availability of the defence. I also assure the noble Lord that the introduction of this new defence, in and of itself, will not lead to fewer ministerial authorisations sought by the intelligence services or to less daily oversight from Ministers and/or judicial commissioners over intelligence activity. I know that he asked me for an explicit reassurance on that point.
I conclude by saying that, for the reasons I have outlined, the Government cannot support the amendments tabled by noble Lords against Clause 30, and therefore ask noble Lords not to press their amendments. I also ask the House to support the new SCA defence amendment tabled by the Government.
Lord Anderson of Ipswich (CB)
The Minister has been helpful, but I hope he can be more specific. When does he think the encouragement or assistance of an overseas crime, conduct which is penalised by the Serious Crime Act 2007, might be necessary for the proper exercise of a function of the Armed Forces, other than in the intelligence context? For my part, I am quite prepared to accept that it may be necessary in the intelligence context; what I have not heard from the Minister is any suggestion of any other context in which it might be necessary, yet he asks me to withdraw my amendment, which would limit the application of the defence to the intelligence context. It may be that his answer will be in what I think he said about the noble Baroness, Lady Goldie, needing further time to consult ministerial colleagues, but if I am to withdraw my amendment, and those discussions have not yet taken place, what assurance can he give as to possibly bringing back the issue at Third Reading?
Lord Sharpe of Epsom (Con)
My Lords, I go back to what I said to the noble Lord in previous debates on this subject: the activity is restricted to intelligence activity, and as such I believe that the amendment is eminently sensible. However, we cannot accept this current amendment, but the Government will take a very careful look at this apparent gap and will consider the best way to close it.
Lord Beith (LD)
My Lords, that was a very interesting final remark from the Minister. I hope it will prove to have some substance, otherwise we are left with legislation that I do not think can be interpreted in the way the Minister describes it. I am quite puzzled, but he has shown willing, so I hope he pursues it. I express my gratitude, particularly to the Minister for the Armed Forces for the care she has applied to this matter—we had a very detailed discussion with her and her officials—and to the Minister who is answering this debate, particularly for the amendment that gets rid of the awful Clause 30 and gives us something that is certainly a significant improvement in its place.
I still have perhaps three areas of particular anxiety in addition to the definitional point that the noble Lord, Lord Anderson, raised about “in support of intelligence”. One is the very fact that we are changing the law about what happens on a battlefield and what happens in a counterinsurgency, apart from the context of the discussion about the use of our Armed Forces in the non-intelligence world. This does not seem to be a good way to legislate. There would have been people involved in and engaged with the legislation if that is what it had been generally about, if it had been applying to the Armed Forces, but that is a rather unsatisfactory feature and not one that we can change at this stage.
I found what the noble Lord, Lord West, said about what happened between the ISC and the Home Office profoundly worrying. It really was disgraceful. I trust the accuracy of what he said and I am sure it can all be correctly documented, but that really is no way to deal with intelligence. Accountability for intelligence in the democratic context has always been quite difficult. The ISC has been developed over decades to provide a good mechanism to deal with that. When it is treated in that manner, it really is very serious and I hope the Minister has recognised that and is determined to go back to the office and really make a noise about this. It is just not acceptable and should not be acceptable to either House of Parliament.
My final worry, which I think can be resolved without statutory means but certainly remains, is the ambiguity about whether Secretaries of State will authorise significant measures that could fall within the scope of the new clause. In my view, it is an essential part of the system that agencies have the backing of a senior Minister when they engage in particularly difficult tasks, and that senior Ministers know what they are doing and are aware of what is being undertaken. If there is a political or legal risk, then Ministers should be aware of it. It is one thing to have a very good internal system—and I believe the agencies have good internal systems now—but quite another to be sure that, at the highest political level, there is both knowledge and authorisation. Frankly, if I were the head of an agency, which I have never been, my instinct would be to try to set up such a system, because otherwise the agency will always get the blame, even when the Secretary of State should have taken responsibility and might even have come to a different conclusion. I think that, over time, we need to make sure that Secretaries of State are sufficiently closely associated, otherwise they drift apart and agencies live in a world of their own. That is not how it should operate. But that, as I say, could be resolved without further legislation if there is determination to resolve it. On that basis, I beg leave to withdraw the amendment.
Lord Sharpe of Epsom
The arrangements which must be in place by virtue of subsection (4) or (5) must be arrangements which the Secretary of State considers to be satisfactory.””Member’s explanatory statement
This amendment replaces Clause 30 with a new Clause which provides a defence for extra-territorial offences under Part 2 of the Serious Crime Act 2007.
Lord West of Spithead
Member’s explanatory statement
This amendment seeks to incorporate a proportionality requirement into the overarching defence.
Lord West of Spithead (Lab)
My Lords, I think our concerns have been assuaged by what the Minister said at the Dispatch Box and I think we should be pleased that we have done something that is going to be very useful for our intelligence services in the future. This is a very difficult, complex area. I have been involved in intelligence not as long as the noble Baroness, Lady Manningham-Buller, but probably for about 40 years and it is a very difficult area. It is always dancing on pinheads, I am afraid, but I think we have achieved something here, so I am delighted. I shall not move my amendment.
Lord Anderson of Ipswich
Member's explanatory statement
This amendment would restrict the application to the armed forces of the new defence to charges under Part 2 of the Serious Crime Act by limiting it to the exercise of intelligence-related functions.
Lord Anderson of Ipswich (CB)
Given the Minister’s undertaking, I shall not move the amendment.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.
Lord Wallace of Saltaire
Member’s explanatory statement
This amendment is connected to the amendment to page 23, line 40 in the name of Lord Marks of Henley-on-Thames.
Lord Wallace of Saltaire (LD)
My Lords, this amendment comes with Amendment 75, which is the substantive amendment. I suppose I should declare a certain underlying prejudice as I start: more than 30 years ago, when I was in charge of research at Chatham House, the international affairs think tank, when we worked with departments across Whitehall on foreign policy issues, we found that the Home Office was the most resistant to the idea that foreign interests had to be taken into account. I have a vivid memory of a conference at Chatham House convened on behalf of the Metropolitan Police with police from the Netherlands, Belgium, France, Spain and elsewhere, at which a number of Home Office civil servants stood in a corner of the room during lunch rather than talk to foreigners. I am sure, 30 years later, that the Home Office is far better than that, but I think there is a problem of how the Bill, as it becomes an Act, looks to our closest friends and allies.
The aim of the Bill is to guard against foreign interference in British politics and British life by hostile foreign powers—above all, by China, Russia and Iran, but also other non-democratic states that want to undermine open societies and democratic government. Yet the definition of “foreign power” does not discriminate in any way between the more than 190 foreign powers with which the UK maintains political, economic and social relations, except for Ireland as a special case. I understand that there have been critical comments from within the US Administration and several European Governments. Yesterday, the German party foundations were speaking to my noble friend Lord Purvis about their worries about being caught by the new red tape which this threatens to impose on them.
Baroness Hayter of Kentish Town (Lab)
My Lords, I will speak to Amendment 74 in my name. It deals with the definition of “foreign powers”, which clearly is a key part of the overall Bill.
However, I first need to talk about this part of the Bill in relation to FIRS, which we will cover next week—or maybe the week after, or the week after that, given the rate at which we are going; I hope not. I need to do that because the definition of a foreign power in Clause 32 determines who will be covered by the scheme we will come to later. In doing so, I make it clear that I greatly welcome the changes to FIRS contained in the government amendments, which again we will come to later, as they take account of the arguments made in Committee.
However, there is an anomaly that remains which particularly worries me. Many external political parties, including those from friendly states—not only NATO, as the noble Lord, Lord Wallace, mentioned, but New Zealand and Australia—will find themselves subject to registration and reporting requirements on issues completely unrelated to Government policy, let alone security issues. This is the National Security Bill we are discussing, not a lobbying Bill. These states will be caught on issues that have nothing to do with government policy or security.
Clause 32(1)(e) defines a foreign power as a political party whose members form the Government. At the moment, that would mean, for example, the Democrats in America, the Labour Party in New Zealand and Australia, and En Marche!—or whatever it is now called—in France. The Minister will know better than I do which of the Conservatives’ close associates are also in Government in various countries and therefore would be caught by this. The definition in Clause 32 covers the whole Bill, which might be appropriate for some parts of the Bill but certainly not for Part 3. The registration and reporting of activities in Part 3 has an enormous number of requirements—if we leave this definition to cover that—for political parties on non-security issues.
Assuming the Minister’s amendments go through, perhaps most worrying is the new Clause 70(3)(d), which means that FIRS covers any communication by a relevant overseas party—one whose members form the Government—which could affect, or is about,
“the proceedings of a UK registered political party”.
Stop and think about that. This will cover a political party in a friendly country having to register its activities in this country. The Minister will immediately pop up and say, “No, not if they do it directly—only if they do it through a third party”, but that is what happens, as we do these things through third parties. For us, it means if a fellow member of a sister party that is in Government—I do not know if the Conservatives call their friendly parties “sister parties”, but we always use the phrase—uses a consultancy, for example, or a PR firm, to ask us to support the change in the venue for the next Party of European Socialists Congress, or our work on the environment or an equality manifesto, the publication of something in a newspaper, an ad about a disaster or anything completely internal to our party-to-party relationships; but if is done by an intermediary, it becomes reportable to the Government, not of our political persuasion at the moment, of course, and published.
I doubt that is what the Government want because this is not about transparency now. We are into Big Brother land. I ask the Minister whether, if members of a party in Government, not the Government itself, contact any of us—if you look at Schedule 14 it could be not only us but, for example, councillors, even candidates, mayors via a conference organiser or a public affairs adviser—about any issue, such as a free trade agreement or a completely non-government issue such as an upcoming internal seminar being run between parties, where we tend to use intermediaries such as conference organisers, and they want to invite a party member as a speaker, it would have to be reported because it is via an intermediary. That is how I have read it and it is what he said when we had a very helpful meeting: if you use an intermediary, it is reportable.
Similarly, if party staffers from the party in Government organise a stall or a workshop at a party conference, and do so via a conference organising company, they are paying these intermediaries; therefore, they are acting under their direction. Those were the very helpful words the Minister gave me. They are therefore doing it on the order of the sister party in that other country. They are being directed by that party; the party is paying them to contact us to appear in a seminar or whatever it is. Is that reportable, and is there a criminal penalty if they fail to do it?
If they use an intermediary, who could be an interpreter or a translator, and they pay for that expertise, and they are again directing that party as to what they should do, would that be reportable—not just reportable, but reportable, for us as the Labour Party, to a Conservative Secretary of State, and a lot of this published? Non-governing parties are not covered, so the French socialists can come over and do what they like with us, and that is fine because they are not in Government, but it applies if we start holding seminars which the German Social Democrats, for example, set up using an intermediary such as a conference facilitating company.
For the Minister’s own party, some of their sister parties would also be covered by this when they go to Birmingham, or wherever the Conservatives have their party conference. I doubt very much that, at the beginning, it was the intention of the Government for their definition of foreign influence to get down to this level.
Over the weekend, or perhaps on Monday, some of us were sent very helpfully all the draft regulations and the forms that have to be filled in with people’s private mobile numbers and all sorts of details about what is going to happen, the dates of it, its purpose, the desired outcome, the individuals involved, contact details, the contact for the intermediary, and the invitations and which MPs they are going to. For possibly one meeting on the fringe of a party conference, or a TV interview, or the drafting of an article done by a party via an intermediary, all this would need to be reported.
I am not asking Ministers tonight to redraft this. I am asking—and I think there may be some willingness to do it—for the Government to look hard at whether it is really the intention that FIRS should include this party-to-party relationship, or party-to-politician relationship, where it is done via a third party. I hope that we can get some satisfactory answers or an undertaking that we could perhaps meet, and, if necessary, that some further tweaking might happen to this part of the Bill.
Lord Marks of Henley-on-Thames (LD)
My Lords, I completely support what has been said by my noble friend Lord Wallace of Saltaire in moving our Amendment 75, in respect of the exclusion of NATO members from the definition of foreign power, for all the reasons he gave and that I gave in Committee.
Put shortly, we cannot see any valid reason for treating NATO members as foreign powers on the same basis as Russia, China, Iran and North Korea. We are tied to our NATO allies by a treaty which imposes binding mutual obligations of defence and support. I have considerable understanding for the concern and disappointment expressed in public and in the press by representatives of some friendly nations of that unflattering equivalence of treatment. Those feelings mentioned by my noble friend Lord Wallace are not helpful to British foreign policy or diplomacy.
I also cannot see why the Government would not regard it as positively helpful to have the power to add friendly nations to a list of countries that will not be regarded as foreign powers for the purposes of this legislation. It may be that the Government will conclude in due course, even if not now, that the inclusion of all friendly countries as foreign powers may be profoundly unhelpful to our national position. To have the power, if that transpires, to exclude countries from the definition by regulation, may be regarded then as thoroughly convenient. Why will the Government not accept the flexibility that this part of the amendment offers?
As to the exclusion of governing political parties from the definition of foreign powers, this was an amendment we moved in Committee and which we supported then, and support now, for many of the reasons mentioned by the noble Baroness, Lady Hayter, in support of Amendment 74. We see no basis for categorising all political parties that form any part of a foreign Government as foreign powers, as proposed in Clause 32(1)(e). It is unrealistic, it makes no sense and it is wrong in principle.
As the noble Baroness pointed out, this is the definition of foreign powers that governs the application of FIRS, as well as Part 1 and other parts of the Bill. It could cause all kinds of difficulties where there are coalition Governments, often without UK-style collective responsibility. It is also the case that political parties are themselves diffuse in their views and often divided. To equate all governing parties with the foreign powers in whose Government they take a part—often a small part—is, we say, profoundly misguided. Perhaps the Minister could explain how the Government justify treating even small coalition parties as the Governments of which they form a part?
Lord Balfe (Con)
My Lords, I think that this part of the Bill was drawn up by someone who had not travelled very widely. It really just does not make sense.
I speak particularly to Clause 32. I do not exactly spend all my time, but I do spend a good bit of it, talking to embassies in London, largely from European Union countries that I have known for some time. I also go to Brussels very regularly because I still have interests there. I meet many people from other parties and groups—for a time I was a member of the Belgian Christian Democrat party—and I wonder where this lands. Of course, in some countries—Belgium is one—you will always have a coalition; it moves around, but it is always there.
There are also many other groups—for instance, the Kangaroo Group in Strasbourg covers all of the European Union and exists to pull down barriers to trade. I am a member of that group still because it has a foreign membership category. What are we supposed to do? Incidentally, the Kangaroo Group was set up by Basil de Ferranti, a British Conservative—though it is now a long time since he has been with us. This is a bit of a mess.
I want to deal in particular with Germany, which has a long tradition of political foundations. It has the Konrad-Adenauer-Stiftung, which I do lectures for from time to time; I will be doing one later this month. It has the Friedrich-Ebert-Stiftung, which is the socialist, or social democrat, one. It has the Friedrich-Naumann-Stiftung, which is, if I remember rightly, the one from the liberal party, and it has the Heinrich-Böll-Stiftung from the Greens. They all engage in trying to hold international conferences and gatherings to put across their policies, and they also invite people like me, who are reasonably well known in Germany, to go and give lectures and talks to members of their Stiftung. Part of the reason for that is to educate their own citizens in overseas political practice; it is not all one-way. I think we have missed something out here.
The Minister will say that it will not mean this and it will not mean that, but other people have looked at this Bill and at the explanations. In particular, the German foundations have concluded, reading this draft law on entities acting on behalf of a foreign power—under the law, Germany is a foreign power; that is the definition —that, if they are to get money from their Stiftung to do any work in Britain, the Stiftung will have to satisfy the German Government that it is legitimate to accept and apply for that money.
According to the German lawyers, Clause 31(2)(c), which says that any work carried out
“with financial or other assistance provided by a foreign power for that purpose, or … in collaboration with, or with the agreement of, a foreign power”,
means that the Stiftungen will fall under the scope of the registration scheme. In other words, if the Stiftungen are to be able to operate and satisfy their funders, they will have to satisfy them about this clause in our legislation. This means that a German Stiftung—a political foundation—that receives German taxpayers’ money, or for that matter a cultural institute, Chamber of Commerce or any London-based NGO or think tank that receives money from Germany, is an agent of a foreign power and has to register, according to the definition, every single interaction with UK politicians or high-ranking officials within 28 days. They have described this as making their lives “impossible”. I say to the Minister that it is not what we say the law means; it is what it means to a lawyer, and in this case what it means to a German lawyer.
I cannot agree that the concept of “foreign principle” has been removed. It has been removed and replaced with “foreign power”, but this does not cover what is needed. The fact of the matter is that, in the Minister’s letter, he very carefully said:
“Foreign opposition parties are not classed as foreign powers (for example the French Socialist party).”
That is not the German interpretation of our law. The Minister can shrug his shoulders, but the sensible way forward would be to accept an amendment such as the one put down by the noble Lord, Lord Wallace, which makes it quite clear that these countries are not foreign powers for the purpose of this legislation. I invite the Minister to think carefully and come back at Third Reading with a much better definition. This general, catch-all “foreign powers” covers all of NATO but also, as has been mentioned, Australia, New Zealand and Canada. Where are we going? Please could the Minister think it out a bit better and clarify it, possibly along the lines of the amendment, but certainly so that the people we deal with every day, who are cheerfully telling me about the attitude of the British Government to the reconstruction of Ukraine—which is not quite what the British Government are saying but is what the diplomats are picking up—can continue to brief us and keep us on top of things?
Viscount Stansgate (Lab)
My Lords, I want to speak briefly to ask the Minister a question. I support what has been said by my noble friend Lady Hayter and the noble Lords, Lord Wallace and Lord Marks, but is Clause 32(1)(e) not possibly a case of government overreach? When it is listed that a political party involved in a Government of a friendly power should be included in the Bill in this way, does it imply that every member of that political party would be covered by this provision? Are we talking about the headquarters of a political party or the membership? That would involve so many people, I wonder whether the Government really mean to do that and, if so, whether they realise what an incredible extension and overreach that might represent.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this has been a more wide-ranging debate than I was anticipating. The definition of a foreign power is an important issue. It was covered by the Minister in Committee, and I look forward to him expanding on what he said and particularly to address the points made by my noble friend Lady Hayter in her Amendment 74. I think I will leave it there because we have other business to deal with, and I look forward to the Minister’s response.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords who have spoken in this debate, and I will do my best to clarify all the points and answer all the questions that have been raised. First, I turn to government Amendment 76, which addresses concerns raised in Committee and in the report by the Joint Committee on Human Rights on the drafting of the third limb of the foreign power threat activity provision. This provision is a key part of the Bill which ensures that police have the powers they need in supporting investigations into state threats offences. The concerns raised were that support or assistance unrelated to the harmful conduct covered by foreign power threat activity under Clause 33(3) risked being caught under Clause 33(1)(c). That is not the Government’s intention, and this amendment puts it beyond doubt that the support or assistance must be in relation to the conduct covered by Clause 33(1)(a) rather than unrelated activity. I hope that addresses the concerns helpfully put forward by noble Lords in Committee and that this amendment is welcomed.
This group also includes Amendment 74 tabled by the noble Baroness, Lady Hayter of Kentish Town, and it relates to the meaning of a “foreign power”. The amendment seeks to remove
“a political party which is a governing political party of a foreign government”
from the definition. I would very much like to thank the noble Baroness for the constructive engagement we have had on this issue. I know her principal concern is with the effect of this clause on the foreign influence registration scheme, which of course we will be debating next week.
The foreign power condition applies right across the Bill and is crucial in order that the new offences in it, such as espionage, theft of trade secrets and sabotage, work effectively. Removing it here would remove it from those other offences too. The Government’s position, as the noble Baroness is aware, is that the inclusion of governing political parties addresses situations where there is a dominant political party, or parties, within a country, to such extent that it may be difficult to disentangle whether harmful activities have been carried out on the direction of the ruling party or the Government.
Lord Wallace of Saltaire (LD)
My Lords, may I ask a question of clarification? I understand much more clearly what the noble Lord is saying: governing political parties are in effect acting as intermediaries for the state. However, certainly in the international relations which I have been engaged in over the last 40 years, many think tanks in other states also operate as intermediaries in that respect. In particular the Washington think tanks, which are very close to the Government, act as intermediaries, but foreign-funded ones in other democratic and non-democratic capitals often also do so. Should that not be included in the Bill for the same rationale that he has just given us on dominant political parties?
Lord Sharpe of Epsom (Con)
My Lords, ruling parties are the foreign power. As I have tried to be clear and have stressed twice now, registration will be required only where an individual or entity is directed by a foreign power—that is the condition. Therefore, if a think tank was being directed by a foreign power, the answer would be yes. If it was not, the answer would be no.
Baroness Hayter of Kentish Town (Lab)
My Lords, does the Minister accept that an intermediary could be a conference-arranging organisation? If he is coming to that, I would be grateful.
Lord Sharpe of Epsom (Con)
I noted the noble Baroness’s questions about intermediaries, and I promise that I will address that.
I know that we have had some debate about what it means to be directed by a foreign power. I want to reassure all noble Lords that this is a high bar. The natural meaning of “direction” is an order or instruction to act. It is possible that such direction could be delivered in the language of a request but only where there is a power relationship between the person and the foreign power which adds an element of control or expectation to the request: for example, through a contract, payment, coercion or the promise of future compensation or favourable treatment. It is not enough for a foreign power to fund an activity, so generic requests, joint collaboration or simply an alignment of views, absent the power relationship, will not meet the test for direction.
I will quote directly from the letter I sent to the noble Baroness, Lady Hayter—I apologise for not sharing it more broadly with the House but I was cleared to send it only this morning:
“In terms of what activity would be registrable, we consider that where a parliamentarian is to be directed by a foreign governing party, for example, being paid or on the promise of favourable treatment, to influence Government Ministers or fellow parliamentarians, this would require disclosure under FIRS.”
I will come back to my quote in a second. I digress briefly into the subject raised by my noble friend Lord Balfe and his quick canter through the Stiftungen of Germany. We are in touch with the German Government on this issue and are grateful for their constructive engagement. We do not consider that, for example, the Konrad-Adenauer-Stiftung would constitute a foreign power under Clause 32 of the Bill. A person acting under the direction of such an institution would not be in scope of the foreign influence registration scheme. We will have another opportunity to debate these issues next Tuesday. Konrad Adenauer should be reassured that it is not covered.
I want to be clear that there is no requirement for the activity to cease, only for it to be transparent. In these circumstances, there is a strong national interest in greater openness on the influence of British politics by foreign powers. It should be clear not only to the Government, but to parliamentarians and to the public, where this influence is being brought to bear. FIRS seeks to address the gap, providing us all with more information about the scale and nature of foreign political influence in the UK.
I will answer the question from the noble Baroness, Lady Hayter, directly. In the example she described, the intermediary would have to register, if directed by a foreign power. The noble Baroness herself, or a foreign power, would not.
Baroness Hayter of Kentish Town (Lab)
This is at the heart of it. If the German SPD engaged somebody to set up a stall at our party conference, they would be directed, be paying and have a contract for it. This would then have to be registered. I have seen the draft regulations which the Minister kindly sent me. They would have to disclose which MPs they had invited to the event and all of that. As the Minister has just said, as soon as the intermediary—the conference arrangements organisation—is paid by an outside political party to organise this, according to the form that I have been sent, we would have to fill in our names. We may not be the ones registering, but it would be wholly disclosable. It has nothing to do with the Government nor with national security. It is a party-to-party issue. It is simply because they have used an intermediary—a conference arrangements organisation or interpretation.
I think it is clear and that we agree on this. I am not asking that we should be able to bring it back at Third Reading, but I am asking the Minister to leave a little chink of light. Having thought about it, in consultation with his colleagues, the Government might be willing to look at whether this is really what they want to achieve.
Lord Sharpe of Epsom (Con)
I thank the noble Baroness for her comments. I am more than happy to continue engagement on this subject.
The final amendment in this group, concerning the definition of a foreign power, was initially tabled in Committee and has been retabled by the noble Lords, Lord Marks and Lord Wallace. It seeks to exclude members of NATO and other nations, via regulations, from the definition of a foreign power. I want to put it on record that we do not consider all foreign powers to be hostile. When this amendment was initially tabled, I put forth that the National Security Bill focuses on the harmful conduct undertaken by a person and not the foreign power they seek to benefit. I continue to believe that this is the right approach.
The Government do not seek to create gaps in the legislation which could allow states to act through proxies and thus undermine what the Bill seeks to do—to take necessary and appropriate action against harmful activity. Again, no doubt to groans, I will bring your Lordships’ attention to the case of Daniel Houghton. He is the dual British-Dutch national who attempted to sell sensitive information to the Dutch intelligence service in 2010. If this amendment were to be accepted, and NATO states excluded from the definition of a foreign power, cases such as Daniel Houghton’s would not be captured by the offences and measures in the Bill. This would not be an appropriate outcome which could undermine the Bill. I believe that the Dutch came to us on this particular occasion and I commend them for it. I ask again that these amendments tabled by noble Lords be withdrawn.
Viscount Stansgate (Lab)
I do not want to detain the House. I asked whether the definition of a political party in Clause 32(1)(e) means all members of it or not.
Lord Sharpe of Epsom (Con)
I thought that I answered this when I talked about direction by a foreign power. If members of a political party are directed by a foreign power, they would be covered.
Lord Purvis of Tweed (LD)
I am grateful to the Minister for his clear explanation. There remains a slight degree of uncertainty. Presumably the Government will issue guidance to be put in place before the scheme is operational. We raised this at our meeting with him.
I wonder whether, in advance of us considering FIRS next week, we could have more information about what the draft guidance will look like as part of the engagement that the Minister has committed to, which is welcome. We have seen some elements of the draft regulations and heard some explanations from the Government but, if he could expand on what the draft guidance might be, that would provide some reassurance to the Stiftungen and other organisations that are hurriedly trying to find out where they fit in this area around what a foreign power will be and the interaction with either intermediaries or those who are funded by them. It is hard to outline that in the Bill but, if the Minister could provide that information in advance of next week, it would inform us very well.
Lord Balfe (Con)
My Lords, before the Minister comes back, could either he or a representative of the Government talk to the German ambassador and clear up this difficulty because the Germans are quite convinced that they are caught by this? It would be good if he could come back here and say, “I’ve spoken to the German ambassador or the First Secretary and we have agreed this”. Otherwise, the confusion will carry on.
Lord Sharpe of Epsom (Con)
My Lords, in answer to the question from the noble Lord, Lord Purvis, I cannot make any promises but I will certainly try. In answer to my noble friend Lord Balfe’s question, as I said in my initial answer to him, we have engaged extensively with the German Government.
Lord Wallace of Saltaire (LD)
My Lords, I am not convinced by the Minister’s argument. That he has to go back to the single case of Daniel Houghton shows the weakness of the ground on which he stands. We recall that case, which involved a Dutch-British dual national who was uncovered by our allies, the Dutch, with whom, of course, we have a close intelligence relationship as well as a number of other things; it was therefore resolved. No such things have happened with a hostile foreign power. If we have to go back to that case, it simply shows that there is not very much evidence on which the Government can make this argument.
Many of us who know that this is an important Bill and wish it well are concerned about the unnecessary offence given to friendly Governments. The Minister has not assured us that all our friendly Governments have been consulted and are happy with this Bill. I hope that, in informal conversations between now and Third Reading, he—or at least one of his Foreign Office Ministers who actually talks to other Foreign Ministers—will be able to assure us that we will not treat all foreign powers or contact with them on a similar basis.
On that basis, I will not divide the House but I remark that I am unsatisfied with the Minister’s response. I beg leave to withdraw the amendment.
Lord Sharpe of Epsom
(i) knows or believes P to be involved in, and(ii) engages in the conduct for the purpose of giving support or assistance to,”Member's explanatory statement
This amendment clarifies that conduct is only within Clause 33(1)(c) if it is for the purpose of giving support or assistance to conduct within 33(1)(a).
Lord Sharpe of Epsom
““information” includes information about tactics, techniques and procedures;”Member's explanatory statement
This amendment adds a definition of "information" for the purposes of Part 1 of the Bill.
Lord Sharpe of Epsom
“(e) Schedule 3 (disclosure orders);(f) Schedule 4 (customer information orders).”Member's explanatory statement
This amendment excepts offences under Schedules 3 and 4 from the requirement to obtain the consent of the Attorney General or Advocate General to proceedings for an offence under Part 1.
Lord Ponsonby of Shulbrede
“Reviews of Parts 1, 2, 4 and 5(1) The operation of Parts 1, 2, 4 and 5 of this Act must be reviewed by a person, or people, appointed by the Secretary of State.(2) The operation of Part 4 must be reviewed by the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006 (review of terrorism legislation).(3) The operation of Parts 1, 2 and 5 must be reviewed by either—(a) the person appointed by the Secretary of State under section 36(1) of that Act, or(b) a different person appointed by the Secretary of State. (4) Reviews under this section must be carried out in respect of—(a) the 12-month period beginning with the day on which any section in this Part comes into force, and(b) each subsequent 12-month period.(5) Each review under subsection (1) must be completed as soon as reasonably practicable after the period to which it relates.(6) The person or people mentioned in subsections (2) and (3) must send to the Secretary of State a report on the outcome of each review carried out under subsection (1) as soon as reasonably practicable after completion of the review.(7) On receiving a report under subsection (6), the Secretary of State must lay a copy of it before each House of Parliament.(8) Section 36(6) of the Terrorism Act 2006 has effect as if the references to “expenses” and “allowances” in that subsection included “expenses” and “allowances” in connection with the discharge by the person or people of functions under this section.”Member's explanatory statement
This amendment would provide for the regular review of the operation of Parts 1, 4, and 5 of the Act as well as of Part 2.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will be brief. Amendment 80
“would provide for the regular review of the operation of Parts 1, 4, and 5 of the Act as well as of Part 2.”
Also in this group are government Amendments 81, 85 and 86. Of course, we welcome that the Government have engaged on the issue of oversight and introduced significant concessions. However, the purpose of Amendment 80 in the name of my noble friend Lord Coaker is to go further. On that basis, I beg to move.
Lord Purvis of Tweed (LD)
My Lords, I am not sure whether the noble Lord will seek to test the opinion of the House—he is nodding from a sedentary position. If he does, we will support him. However, that is not to disregard that the Government have listened and responded positively to the points made in Committee on the need for independent oversight.
Therefore, I will support what the Government say, with just with one question regarding oversight and their intention. We have two former independent reviewers in the House at the moment. I am not sure what normal practice is, but the Government’s amendment, regarding the independent reviewer providing a report to the Secretary of State and the Secretary of State then laying that before Parliament, gives no indication of a timeframe for laying the report before Parliament after it has been received from the independent reviewer. Given the earlier comments from the noble Lord, Lord Coaker, regarding Governments not providing information to Parliament in a timely manner, could this unfortunately be a wee loophole in the independent reviewing? It seems that the amendment gives Ministers complete discretion on when they may present reports to Parliament. Therefore, reports could be received from an independent reviewer but not presented to Parliament for a considerable period or at all.
I hope that is not the case and that this can be clarified by the Minister, but it is an omission within the Government’s amendment, which is otherwise welcome. As I say, the Government have moved, but I hope that the Minister can respond on the areas of omission.
Lord Anderson of Ipswich (CB)
The noble Lord, Lord Purvis, hits on a sore point for independent reviewers past and present. At the instigation of my noble friend Lord Carlile, the Australians copied the job of independent reviewer—I think they call him or her the independent national security legislation monitor, which is even more indigestible. In doing so, they provided in their statute that reports be laid before Parliament within, I think, 15 sitting days of receipt by the Minister, an excellent discipline which I rather wish this amendment had followed.
I do not wish to seem ungracious. The independent review of powers, whose exercise is attended by secrecy, is a token of good faith on the part of government. It has proved its worth since the 1970s in this country in the context of counterterrorism law. I never doubted the good faith of the Government where this Bill is concerned. This amendment will make that good faith evident to others. It will help to dampen down the conspiracy theories that are so prevalent in this area and allow us to keep pace with Australia—and shortly, I hope, Ireland—in providing for independent oversight of almost the full range of national security laws.
However, gratitude has its limits. On first inspection, the amendment tabled by the noble Lord, Lord Coaker, looks even better, so if he divides the House, I shall vote for it.
Lord Murray of Blidworth (Con)
My Lords, I thank noble Lords for those contributions. There has been plenty of discussion throughout the passage of this Bill about the need for oversight of the state threats provisions in the Bill. The Government have welcomed this debate and agree on the need for the Bill to go further in this regard. The new provisions proposed by the Government do just that. I am very grateful for the remarks made by the noble Lords, Lord Ponsonby and Lord Purvis, on the Government’s movements in that regard.
I will not spend too long on this group but will set out briefly the provisions and how we expect the government provisions to work in practice. The amendments made by the Government create a single reviewer of state threats legislation to oversee the operation of the measures in Parts 1 and 2 of the Bill. This means that the reviewer will oversee not just the STPIM regime but the criminal offences and the exercise of police powers to ensure that their use is appropriate and proportionate.
The Government are also bringing oversight of the provisions of the state threats port stops power—Schedule 3 to the Counter-Terrorism and Border Security Act 2019—within the remit of the new reviewer, meaning that all dedicated state threats legislation will be considered as part of a single reviewer’s role.
The Government have heard the argument that this role should in practice be carried out by the Independent Reviewer of Terrorism Legislation and can see the potential benefits this could bring. However, the Government are also conscious that the role will be of public interest and will therefore run an open competition for it, rather than appointing someone directly. Given the synergy between the roles, the Government will align the appointment cycle of this post with that of the terrorism reviewer. This will allow the role-holders to work closely together, but also provide the option of having one individual fill both roles, should that be beneficial.
I thank the noble Lord, Lord Coaker, for his proposed amendment on this topic, which would achieve the same effect but also add Parts 4 and 5 to the remit of the reviewer. As mentioned in previous debates on this topic, an explicit commitment to oversight of Part 4 in the Bill is unnecessary, given it is already in the remit of the Independent Reviewer of Terrorism Legislation. I therefore suggest that there is nothing lacking from the present proposal. The provisions in Part 5 are supplementary to the rest of the Bill. The reviewer will be able to look at how Parts 1 and 2 operate in terms of commencement, regulation-making powers and territorial extent without the need explicitly to mention Part 5 in the powers for the reviewer. For those reasons, the Government cannot accept Amendment 80 as tabled by Labour, and hope that colleagues across the House will welcome the government amendments.
Lord Purvis of Tweed (LD)
Before the Minister sits down, I wonder if he might be able to address my point—which I remind him is the only point that I made?
Lord Murray of Blidworth (Con)
I certainly addressed the point which he generously made praising the Government for our amendments. The point that he raised in relation to the Labour amendment, on the basis that there is no timeframe in the present amendments, is not valid in the Government’s submission, because the Labour amendment itself does not contain any binding requirement on the laying of reports. In our submission, that would remove a level of flexibility. In the area of national security, it is important not to hedge about these kinds of provisions with time requirements. For those reasons, we do not believe that the amendment is necessary. I hope that answers the noble Lord’s question.
Lord Purvis of Tweed (LD)
I know that this is Report and we do not have to and fro, but I was making the point that it was an omission in the Government’s amendment. It is utterly open-ended as to whether the Secretary of State will lay the report from the independent reviewer before Parliament. I was seeking clarification from the Minister that that would not be the case.
Lord Ponsonby of Shulbrede (Lab)
My Lords, it was me who moved Amendment 80, which is the first amendment in this group. I thank the noble Lords, Lord Purvis and Lord Anderson, for supporting it. Regarding Part 5, which is covered by my amendment, the Minister described it as supplementary. Well, it may be supplementary, but it is very consequential, because it provides that the Government can make any consequential provision that is a result of this Act, and that consequential amendment can apply both within and outside the UK. It is very significant, even though the Minister may describe it as supplementary.
For that reason, and to provide a more comprehensive view of the Act, as it will be in due course, I wish to test the opinion of the House on Amendment 80.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s new Clause (Reviews: general). The new Clause provides for reviews of Part 2 and other provisions by the independent reviewer appointed under the new Clause, superseding clause 56.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment adds a reference to Northern Ireland legislation to a defined term.
Member's explanatory statement
This amendment adds a reference to Northern Ireland legislation to a defined term.
Member's explanatory statement
This amendment adds a reference to Northern Ireland legislation to a defined term.
Lord Sharpe of Epsom
“Reviews: general(1) The Secretary of State must appoint a person (the “independent reviewer”) to review the operation of—(a) Part 1, except section (Offences under Part 2 of the Serious Crime Act 2007);(b) Part 2;(c) Schedule 3 to the Counter-Terrorism and Border Security Act 2019, except the functions of the Investigatory Powers Commissioner under Part 1 of that Schedule.(2) The independent reviewer—(a) must carry out a review of the operation of those provisions for each calendar year (an “annual review”), and(b) may carry out such other reviews of the operation of any of those provisions as they consider appropriate.(3) An annual review must be completed as soon as reasonably practicable after the calendar year to which it relates.(4) The independent reviewer must, by 31 January in each calendar year, inform the Secretary of State what (if any) reviews under subsection (2)(b) they intend to carry out in that year.(5) The independent reviewer must send to the Secretary of State a report on the outcome of each review carried out under this section as soon as reasonably practicable after completion of the review.(6) On receiving a report under this section, the Secretary of State must lay before Parliament—(a) the report (but not any material removed under subsection (7)), and(b) a statement as to whether any material has been removed under that subsection.(7) The Secretary of State may, after consulting the independent reviewer, remove from the report any material whose publication the Secretary of State thinks would be contrary to the public interest, or prejudicial to— (a) national security,(b) the prevention or detection of crime,(c) the economic well-being of the United Kingdom, or(d) the continued discharge of the functions of any public authority whose activities include activities that are subject to review by the independent reviewer.(8) “Public authority” means a public authority within the meaning of section 6 of the Human Rights Act 1998, other than a court or tribunal.(9) The Secretary of State may pay to the independent reviewer—(a) expenses incurred in carrying out the functions of the reviewer under this section, and(b) such allowances as the Secretary of State determines.”Member's explanatory statement
This new Clause provides for independent review of Parts 1 and 2 of the Bill, and Schedule 3 to the Counter-Terrorism and Border Security Act 2019. It is intended that this new Clause, together with new Clause “Reviews of detention under Part 1” will form a new Part of the Bill after Part 2.
“Reviews of detention under Part 1(1) An annual review under section (Reviews: general)(2)(a) must in particular consider compliance with the relevant requirements in relation to persons detained under section 27 by virtue of a warrant of further detention under Part 6 of Schedule 6.(2) The relevant requirements are requirements imposed—(a) by or under Parts 1 to 5, and paragraph 45, of Schedule 6;(b) by any relevant code of practice under section 66 of the Police and Criminal Evidence Act 1984 or Article 65 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).(3) The independent reviewer must ensure that a review is carried out into any case where—(a) a person is detained under section 27 by virtue of a warrant of further detention under Part 6 of Schedule 6, and(b) the period specified in that warrant is further extended under paragraph 44 of that Schedule to a time that is more than 14 days after the person’s arrest under section 27.(4) A review under subsection (3) may be carried out by the independent reviewer or by another person.(5) The independent reviewer must ensure that a report on the outcome of a review under subsection (3) is sent to the Secretary of State as soon as reasonably practicable after completion of the review.(6) Section (Reviews: general) (6) to (8) applies to a report of a review under subsection (3).(7) The expenses mentioned in section (Reviews: general)(9) include any expenses incurred by the independent reviewer in ensuring that another person carries out, and reports on, a review under subsection (3).(8) “Independent reviewer” has the same meaning as in section (Reviews: general).”Member's explanatory statement
This new Clause makes provision about independent reviews of the powers of detention in Part 1 of the Bill.
National Security Bill
Tuesday 7th March 2023
(1 year, 8 months ago)
Lords ChamberRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 88-II(a) Amendment for Report (Supplementary to the Second Marshalled List) - (6 Mar 2023)
17:20 - Division on Amendment 185 - Ayes: 93 / Noes: 197 - Amendment 185 disagreed.
17:33 - Division on Amendment 188A - Ayes: 146 / Noes: 211 - Amendment 188A disagreed.
18:21 - Division on Amendment 193 - Ayes: 210 / Noes: 184 - Amendment 193 agreed.
19:06 - Division on Amendment 195 - Ayes: 132 / Noes: 180 - Amendment 195 disagreed.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment, together with Lord Sharpe’s other amendments to Clause 64 relating to relevant activities, allow the Secretary of State to make regulations specifying which activities of a specified person are subject to the provisions about foreign activity arrangements.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, the amendments in this group clarify the intent of the enhanced tier of the foreign influence registration scheme —FIRS. They ensure the tier remains proportionate, while achieving its national security objectives. FIRS was recommended by the ISC in its 2020 Russia report, and the Government committed in their response to bring forward such a scheme.
The enhanced tier of FIRS is a targeted regime, allowing the Secretary of State to require the registration of arrangements with specified foreign Governments or entities subject to foreign power control where she believes it is necessary to protect the safety or interests of the United Kingdom. The scheme will play a significant role in the deterrence and disruption of state threats activities by those countries, and entities linked to them, which are of greatest concern.
We know that these states will make use of a whole-of-state approach to covert activities, not just relying on traditional routes of intelligence organisations and undeclared agents. FIRS will be essential to gaining a greater understanding of the scale and nature of activity being undertaken for countries and their proxies that pose the greatest risks to UK interests and national security. The penalties for non-compliance will increase the risk to those who seek to engage in covert activities for specified foreign powers, either directly or through specified entities. It forces them to choose between registering openly or facing prosecution should their activities be known to the intelligence community. Finally, it offers potential for earlier disruption of state threats activity, where there is evidence of a covert arrangement between a person and specified foreign power or entity, but it is not yet feasible to bring charges for a more serious state threats offence.
Government Amendments 89 and 100 make clearer that the Secretary of State can narrow the activities requiring registration under this tier. This will allow us to tailor the registration requirements to the threat posed by the country or entity being specified.
I turn now to government Amendments 95, 104, 125 and 133 and supporting amendments. These amendments make changes to ensure that a proper provision is made for offences committed by those in unregistered arrangements, and employees and subcontractors who are carrying out activities under those arrangements, in both tiers of the scheme. The Government do not wish to unfairly criminalise those who reasonably believe an arrangement is registered and have taken all reasonably practicable steps to check that it is. This is particularly the case with employees of an entity which has made an arrangement with a foreign power or specified person, or for subcontractors carrying out activities under arrangements.
These amendments seek to address this issue by enabling a person—for example, an employee—to avoid committing an offence where they can demonstrate that they took all steps reasonably practicable to determine whether the activities were registered, and they reasonably believed that the activities were registered. We consider that in practice this will mean checking the public register or receiving evidence of registration from their employer in the form of confirmation from the registration portal.
Finally, government Amendments 147 and 151 also modify the individuals to whom an information notice may be issued under both tiers of FIRS. There are circumstances where a person may be arranging for another individual to carry out the activity. In these circumstances, it is important for the Secretary of State to be able to issue an information notice to an individual whom they reasonably believe is carrying out an activity pursuant to a registerable arrangement, even if they are not the person who has made the arrangement.
I have considerable sympathy with the aims of Amendment 91, tabled by the noble Lord, Lord Wallace of Saltaire. Wherever possible, Governments should strive to share what they know to reduce the regulatory burden on ordinary people and businesses. However, I believe that the schemes he has listed have different purposes and requirements, with relatively little overlap. Where there is a risk of unnecessary duplication, registration requirements can be targeted to avoid this.
Amendment 106, also tabled by the noble Lord, Lord Wallace of Saltaire, seeks to require the Secretary of State to produce an annual report on the impacts of the enhanced tier, including on international research collaborations. Again, I seek to reassure the noble Lord on this point, as the Government will keep the impacts of the scheme under review.
Amendments 166B and 203A, tabled by the noble Lords, Lord Purvis of Tweed and Lord Wallace of Saltaire, seek to require the Secretary of State to produce guidance within six months of the Act passing, and to prevent regulations made under the scheme being brought into force until three months after the publication of the guidance. Again, I agree with the spirit in which this amendment has been made but, as I will seek to reassure noble Lords, the Government have already committed to producing guidance during the implementation period, prior to bringing the scheme into force.
I come to Amendment 154A in the names of the noble Lords, Lord Anderson and Lord Carlile. This contains reasonable points which would bring certainty to the provisions and the Government support it.
I hope noble Lords will support these amendments.
Lord Wallace of Saltaire (LD)
My Lords, I speak to Amendments 91 and 106, which the Minister has mentioned. In this case, I speak very much on behalf of the academic and policy research communities, with which I was professionally engaged for some 40 or more years.
We are concerned not to impose too great a burden on those who are engaged in international research. The Minister will be very well aware of the commitments that have already been made for researchers engaged in international co-operation to provide information to the Government, and the concerns that there have already been, particularly about collaboration with countries such as China and Russia. That information is provided to government, and I remind the Minister that, as a member of a Government who are strongly against adding to bureaucracy and red tape, it should be possible for government departments to share information, rather than require it to be given twice to different departments.
I am conscious that the Home Office has a poor record in this regard; indeed, the entire Windrush affair happened because the Home Office refused to ask other departments for information on whether or not the people concerned had been in this country. This was clearly available at the DVLA, the Department of Health, the national insurance scheme, et cetera. There is a real problem in government about asking for the same information twice. The information asked for indeed overlaps, and I ask the Minister to assure us that the Government will look at this matter again and do their best to make sure that it does not add to the burdens to which those of us who are concerned with international co-operation have to relate.
The Minister will be well aware that the Government are also negotiating to rejoin the Horizon European international collaboration scheme for science, probably the most impressive and important network for international co-operation in the world. All the members of the European Union and the various other countries associated with it are listed as foreign powers, with the exception of Ireland, so this is a live question. I declare an interest: my son, a scientist at the University of Edinburgh, is currently engaged in international co-operation with universities and research institutes—one or two of them government-sponsored and financed—in France, Germany, the Netherlands and the United States. That is a small snapshot of the extent of that collaboration, if one were to go merely to the biology faculty at the University of Edinburgh. I suspect that there are some 30 or 40 other countries with which 100 scientists at the university are involved in various collaborative activities.
The purpose of Amendment 106 is to gain the strongest assurances from the Government that they will look at whether additional burdens are being imposed by the legislation on those who are unavoidably and actively—and desirably—engaged in international collaboration with institutes, universities and other bodies that are part of, or dependent on, foreign Governments in one way or another. We need active assurance on that. If the Minister is able to give that, we will not press these amendments further but I emphasise that it is important that this legislation does not over-add to the requirements to report normal activities. I remind the Minister that we are talking about a country that is determined to become a science international superpower, and that needs to be sure that it does not put obstacles in its own way that deter those in other counties from collaborating as it ensures its security.
Lord Purvis of Tweed (LD)
My Lords, I am grateful for the Minister’s response to the amendments I tabled, supported by my noble friend, on the need for the publication of timely guidance on how the schemes will operate. He has been true to his word from the first day of Report and taken away many of the issues raised in Committee and come back with a number of amendments to address them. They relate mainly to the next group and the political tier but, given that my amendments fall within this group, I wish to put on record how grateful I am to him for the way in which he has engaged and responded.
The government amendments have addressed many of the significant concerns of those seeking legitimate activity—I see that the noble Baroness, Lady Noakes, who raised the issue of economic activity, is in her place—and those concerned about human rights. The areas where some questions remain include those we raised on the first day of Report, such as the German Stiftungen and other organisations that will not fall within the scope of the FIR schemes but are nevertheless concerned that they may do so. Much of that will be resolved in the guidance provided to them and therefore, the timeliness of that is of utmost importance.
In Committee I quoted at length from the Government’s impact assessment of the Bill, which suggested that the initial scheme could cost up to £48 million and many thousands of people would have to be informed about the scheme’s operation. Given that it is to be welcomed that the Government have reduced the scope of that, I am not sure what status the impact assessment now has. I should therefore be grateful if the Minister told us whether the guidance to be provided will also be informed by some revision of the impact assessment.
There will be businesses wanting to carry out legitimate activity that have to operate under a set of rules in the current regulations on countries at risk of money laundering or financing terrorism—we have a list of over 30 such countries—and there may now be an enhanced tier under FIRS. There will also be others, making it quite a complex environment for businesses operating in the political sphere.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the enhanced tier of FIRS requires the registration of arrangements to carry out any activity in the UK, or for future activities to be carried out in the UK, at the direction of a specified foreign power or entity. It also requires activities carried out by specified entities to be registered. I too am grateful for how the Government have responded, following concerns that this tier could deter legitimate activities. The Minister has introduced a series of concessions, as he mentioned in opening, which we welcome. There are outstanding issues, which I would be grateful if he could amplify in his answers.
On his Amendment 106, the noble Lord, Lord Wallace, spoke about the need for regular reviews, which may highlight barriers to international collaboration. He gave examples from his family—particularly his son, who is no doubt doing important research work up at Edinburgh University. The purpose of this is to ensure that the enhanced scheme does not make the same mistakes as other schemes around the world. I draw the Australian scheme to the Minister’s attention, which I understand is currently being reviewed, given some high-profile concerns about how it is working. I look forward to his answer.
Lord Sharpe of Epsom (Con)
I thank noble Lords for their contributions to this short but constructive discussion. I will turn straight to the amendments tabled by the noble Lord, Lord Wallace of Saltaire.
Amendment 91 seeks to ensure that registration under FIRS is not required when the arrangement is registered under other legislative requirements. However, somewhat contrary to the noble Lord’s assertion, I think there is a clear difference between FIRS and the National Security and Investment Act, the academic technology approval scheme and the export control regime. The Government are clear that FIRS fills a gap in our toolkit. It is worth highlighting that the focus of this enhanced tier is to provide scrutiny to UK activities directed by specified foreign powers—it is worth emphasising this; we are talking about the enhanced tier—and foreign power-controlled entities.
We consider that there will be limited circumstances where there is a risk of duplication, but we will work closely across government departments and potential registrants to keep the burden of registration to a minimum and inform our approach to using this tier of the scheme. The Government do not want to impose unnecessary burdens. We have committed to a consultation on the guidance ahead of bringing the scheme into force. If that process identifies risks of duplication, the power to target what arrangements and activities will need to be registered can be used to reduce unnecessary duplication. This will be considered on a case-by-case basis when specifying foreign powers and entities.
Lord Wallace of Saltaire (LD)
Can the Minister give us an assurance that he will consult with the academies, the Royal Society and Universities UK to make sure that the element of duplication is reduced to the absolute minimum? When I was in government, we talked about trying to introduce the principle of “Tell us once” when people were in touch with government. In some other areas, that has now been introduced. The principle is a very good one; we do not want universities having to fill in forms unnecessarily widely. If he can assure us that there will be active consultation with those affected, I will not pursue this further.
Lord Sharpe of Epsom (Con)
My Lords, I am happy with the reassurance that we are committed to consulting, but I cannot say at this precise moment who we consult with. As I say, if that process identifies a risk of duplication, the power to target what arrangements and activities need to be registered can be used to reduce unnecessary duplication. Again, I stress that we are talking about the enhanced tier of the FIR scheme in the National Security Bill so, if there is a little bit of duplication, I am sure he will understand that in the context of the overall Bill.
Amendment 106 tabled by the noble Lord, Lord Wallace, would require the Secretary of State to produce an annual report on the impacts of the enhanced tier; the noble Lord, Lord Ponsonby, also questioned me on this. I reassure both noble Lords that the Government recognise the importance of keeping the impacts of the scheme under consideration. Clause 82 already requires the Secretary of State to produce and lay before Parliament an annual report every 12 months after the scheme goes live. The legislation will also be subject to the usual post-legislative scrutiny process, which will consider how the scheme has worked in practice and how far its objectives have been met. I therefore ask that the noble Lord does not press this amendment.
Amendments 166B and 203A tabled by the noble Lords, Lord Purvis of Tweed and Lord Wallace of Saltaire, seek to require the Secretary of State to produce guidance within six months of the Bill passing, and to prevent regulations made under the scheme from being brought into force until three months after the publication of guidance. In answer to the noble Lord, Lord Purvis, I say that the Government recognise the importance of ensuring guidance for the public to support the implementation of the scheme. However, it is important that there are not undue restrictions placed on the development of this guidance, to ensure that the guidance produced is clear and targeted to those complying. I can say to him that a revised impact assessment is required before Royal Assent, so that will be forthcoming. He also raised the point about the German Stiftungen. If he bears with me, we will address this directly in the next group. I will also go further: the Government have committed to establishing expert panels to produce sector-specific guidance on compliance with FIRS. With that, I think I have answered all the questions.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment, together with Lord Sharpe’s other amendments to Clause 64 relating to relevant activities, allow the Secretary of State to make regulations specifying which activities of a specified person are subject to the provisions about foreign activity arrangements.
“(1A) In this section “relevant activities”—(a) if regulations under subsection (1B) apply in relation to the specified person, has the meaning given by the regulations, and(b) otherwise, means all activities.(1B) The Secretary of State may by regulations make provision about activities which are relevant activities for the purposes of this section, either in relation to all specified persons or in relation to such specified persons as the regulations may provide.”Member's explanatory statement
This amendment, together with Lord Sharpe’s other amendments to Clause 64 relating to relevant activities, allow the Secretary of State to make regulations specifying which activities of a specified person are subject to the provisions about foreign activity arrangements.
(a) fails to comply with subsection (2), and(b) knows, or having regard to other matters known to them” Member's explanatory statement
This amendment is to ensure consistency with subsections (1) and (2) of Clause 64, which refer to the person who makes the arrangement as “P”. It also clarifies the meaning of “ought reasonably to know”.
Lord Sharpe of Epsom
“(A1) This section applies where a person (“P”) makes a foreign activity arrangement required to be registered under section 64(2).(1) P commits an offence if—(a) P carries out a relevant activity, or arranges for a relevant activity to be carried out, in the United Kingdom pursuant to the arrangement,”Member's explanatory statement
This amendment confines the offence in Clause 66(1) to the person who makes a foreign activity arrangement with a specified person.
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to Clause 66, page 46, line 13, and clarifies the meaning of “ought reasonably to know”.
Member's explanatory statement
This amendment clarifies the mens rea where P acts pursuant to a foreign activity arrangement.
“(2) A person other than P commits an offence if—(a) the person carries out a relevant activity, or arranges for a relevant activity to be carried out, in the United Kingdom pursuant to the arrangement,(b) the arrangement is not registered, and(c) the person knows, or having regard to other matters known to them ought reasonably to know, that they are acting pursuant to a foreign activity arrangement.(3) In proceedings for an offence under subsection (2) it is a defence to show that the person—(a) took all steps reasonably practicable to determine whether the arrangement was registered, and(b) reasonably believed that the arrangement was registered.(4) A person is taken to have shown a matter mentioned in subsection (3) if—(a) sufficient evidence of the matter is adduced to raise an issue with respect to it, and(b) the contrary is not proved beyond reasonable doubt.(5) In this section “relevant activity” has the same meaning as in section 64.”Member's explanatory statement
This amendment clarifies the applicable mens rea where a person other than P carries out the activities in question, or arranges for them to be carried out.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment, together with Lord Sharpe’s other amendments to clause 67 relating to relevant activities, allow the Secretary of State to make regulations specifying which activities of a specified person are subject to clause 67.
Member's explanatory statement
This amendment, together with Lord Sharpe’s other amendments to Clause 67 relating to relevant activities, allow the Secretary of State to make regulations specifying which activities of a specified person are subject to Clause 67.
Member's explanatory statement
This amendment, together with Lord Sharpe’s other amendments to Clause 67 relating to relevant activities, allow the Secretary of State to make regulations specifying which activities of a specified person are subject to Clause 67.
“(3A) In this section “relevant activities”—(a) if regulations under subsection (3B) apply in relation to the specified person, has the meaning given by the regulations, and(b) otherwise, means all activities.(3B) The Secretary of State may by regulations make provision about activities which are relevant activities for the purposes of this section, either in relation to all specified persons or in relation to such specified persons as the regulations may provide.”Member's explanatory statement
This amendment, together with Lord Sharpe’s other amendments to Clause 67 relating to relevant activities, allow the Secretary of State to make regulations specifying which activities of a specified person are subject to Clause 67.
Member's explanatory statement
This amendment removes the requirement for knowledge that an activity is not registered from the offence in Clause 67(7). Knowledge of registration is now dealt with in the defence inserted by Lord Sharpe’s amendment to Clause 67, page 47, line 10.
Member's explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.
Member's explanatory statement
This amendment adjusts the test for committing an offence under Clause 67.
“(9) In proceedings for an offence under subsection (7) or (8) it is a defence to show that the person—(a) took all steps reasonably practicable to determine whether the activities were registered, and(b) reasonably believed that the activities were registered. (10) A person is taken to have shown a matter mentioned in subsection (9) if—(a) sufficient evidence of the matter is adduced to raise an issue with respect to it, and(b) the contrary is not proved beyond reasonable doubt.”Member's explanatory statement
This amendment provides a defence to an offence under Clause 67(7) and (8).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment and Lord Sharpe’s other amendment to Clause 68(1) restrict the definition of foreign influence arrangements to arrangements with foreign powers.
Lord Sharpe of Epsom (Con)
My Lords, I have listened carefully to the debate about the political tier of the foreign influence registration scheme. I am immensely grateful to the House and others for their expertise and the constructive nature of the debate.
In response to the strength of feeling, this group of amendments refocuses the political tier back on its original intention: the influence of foreign powers over UK democracy. In its revised form, this tier would require registration only where a person is carrying out political influence at the direction of a foreign Government. That bears repeating—only where a person is carrying out political influence at the direction of a foreign Government. To be clear, this will take those being directed by foreign companies, foreign charities or other foreign entities entirely out of scope of the scheme.
I know that there has also been some debate about what it means to be directed by a foreign power. That is a high bar. Its natural meaning is an order or instruction to act. It could be delivered in the language of a request, but only where there is a power relationship between the person and the foreign power which adds an element of control or expectation to the request—for example, through a contract, payment, coercion, or the promise of a future compensation or favourable treatment. It is not enough for a foreign power to fund an activity. Generic requests, joint collaboration, or simply an alignment of views, absent this power relationship, will not meet the test for direction.
As part of this package of amendments, we have made some other changes, which I hope will be welcomed by noble Lords. A person will now have up to 28 days to register an arrangement under the political tier and does not need to register the arrangement before the activity takes place. This will give greater flexibility and ensure that we do not impede spontaneous activity.
We have narrowed the definition of “political influence activity” so that attempts to influence a Member of Parliament or equivalents in the devolved Administrations will require registration only when it is intended to influence them in their capacity as a Member of Parliament. Activity which seeks to influence these individuals in their personal capacity will not be registerable. Amendment 120 makes this clear.
As outlined on the previous group, we have made some minor changes to the offences to ensure that they work properly for subcontractors and that a person will not fall foul of the offence where they have taken all reasonably practicable steps to determine that an arrangement is registered.
I am pleased to say that we have accepted the recommendation by the Delegated Powers and Regulatory Reform Committee that regulations detailing the information to be published on the FIRS public register made under Clause 79 should be subject to the affirmative procedure. The public register is a vital element of the scheme. However, we recognise that there will be sensitivities in publishing some information and understand the call for an opportunity to debate this important matter.
I know that your Lordships have been anxious to scrutinise draft regulations under this part of the Bill. Last week, I published two sets of draft regulations setting out what information will be required from registrants and what information will be published. Importantly, these regulations confirm that we will not publish information where there is a risk that doing so would prejudice national security, put an individual’s safety at risk or involve the disclosure of commercially sensitive information. I have placed copies of these indicative regulations in the House Library.
This is accompanied by a government policy statement setting out how we envisage the other delegated powers being used. This includes an example registration form, which I hope noble Lords have found useful in thinking about how the scheme will work.
We are keen for the implementation of this scheme to be as collaborative as possible, which is why we will hold a further public consultation on the guidance required for the scheme prior to commencement. We will also continue to review the scheme and consider any further exemptions necessary to ensure that there is no negative impact on potential inward investment into the UK.
It is important to understand the wider context for FIRS. We are in an era of increased state-based competition. Foreign powers are seeking to influence British democracy to further their own interests, sometimes openly and sometimes covertly.
Foreign influence is not unwelcome. We recognise that Governments around the world seek to influence policies in the UK in a way that benefits their interests. Of course, the UK does the same. This type of influence, when conducted in an open and transparent way, contributes positively, and we recognise the critical role that this expertise plays in enhancing policy-making, employment and wealth creation. However, when foreign powers seek to influence in a way that is not transparent, this can have serious implications for the UK, posing risk to our open system of government and risking erosion of public confidence in political and government institutions.
We need to be more vigilant about this risk. Currently, foreign Governments can use others as proxies to attempt to influence British Ministers, MPs, officials, or indeed shape British public opinion, with only a limited requirement to disclose the hidden hand behind this influence, and no sanction if discovered. It is not unreasonable to aspire to a greater understanding of foreign influence; for the Government, parliamentarians and wider public to know where this influence is being brought to bear. FIRS seeks to address this gap, providing us all with more information about the scale and nature of foreign political influence in the UK. I look forward to the debate on the amended provisions and addressing the amendments that have been tabled.
Finally, I make noble Lords aware that we have identified an inconsistency in the treatment of ministerial decisions taken across the devolved Administrations that fall within the scope of this tier. I commit to tabling an amendment at Third Reading that will resolve that issue. For now, I beg to move.
Baroness Hayter of Kentish Town (Lab)
My Lords, I have my name on a number of amendments in this group. I will start by saying, which I had not prepared to say, that when the Minister looks at the speech he has just made, I think he will find that there were some drafting errors—I hope there were—at the beginning. He said that FIRS would apply now only to a foreign Government. I think he said that twice and afterwards went on to talk about a foreign power. He knows very well why I pick up on the difference because one of my ongoing concerns is about the definition of a foreign power, which includes political parties. I hope that was just an oversight because I think that this captures political parties as well as foreign Governments.
There are two or three points I want to make very briefly but before I go on, I want to add my thanks for what the Minister has done, not only in the incredible change. The Minister has sent me the Keeling schedule that shows that we have ended up with a FIRS that is very different from what we started with. I should declare my interest, as I sit on the board of the ABI and it is very content with where we have got to. It did however make the point that this is no way to make a sausage—I have to say that they were not its words; it was far more polite. The way it started was not the best way to make legislation. The ABI and others are very content with where we have got to, and it is right to record that we have ended up with something very different, so I thank the Minister.
My name is on three amendments. I will not press Amendments 114 and 121 in my name and that of the noble Lord, Lord Carlile. But on Amendment 115 I am second to the noble Lord, Lord Sharpe, and I think it is an indication of the approval of what he has done that one of the delete clause amendments is in his name—only because he got there first because I was about to do that. I think it is a symbol that we do it.
I have that one remaining query about a foreign political power that happens to be in government engaging with any of us or councillors or parliamentary candidates, even on internal, party-to-party issues, using an intermediary such as the conference arrangement. I have looked at the draft regulations again as the Minister helpfully said. There is no de minimis there, even if they pay £1,000 to a conference organiser to book the stall at a Labour Party conference or a Tory Party conference—I am sure they have stalls; I have been to their conference and they do in the same way as we do. There is no de minimis for a political party abroad seeking to engage with a political party or anyone else here using an intermediary which is simply a facilitator. Therefore, I wonder whether there is a possibility of looking at the guidelines or the forms. There will be a contract. It may be only for £1,000 but there are the implications of having all that to be declared. I am not saying that simply because we have stalls at our conference, it could happen to the Government as well. It captures things that I know the Minister never intended. I know that at the moment he will not give me an answer and a promise written in blood, but some acknowledgement that there is a small ongoing problem would be very helpful. For the moment, I think we have ended up in a much better place than we started.
Lord Wallace of Saltaire (LD)
My Lords, I will speak to Amendment 166A in my name. I also thank the Minister for the way in which the Bill has been discussed and amended between Second Reading, Committee and Report. It is a model of the way in which the Lords should operate, and we all appreciate the way in which the Minister and his team have responded to reasoned criticisms as we have moved forward.
Amendment 166A merely draws attention to some of the definition problems we have all struggled with, wanting to catch all the problems but not to overload the necessary and highly desirable international co-operation with other Governments and other countries, many of which are governed in ways we do not entirely approve of. As somebody who used to work for an international think tank, I am particularly concerned with the opacity of the funding of some of our political think tanks, which as charities do not have to declare their revenue.
In the United States there is much concern with the extent to which some foreign Governments, in particular the Gulf states, put enormous amounts of money into institutes operating as political think tanks, intending to influence and therefore reshape the American political debate. Although that is outside the scope of the current Bill, I and others are much concerned to insist that there should be much greater transparency about the funding of think tanks that set out to deliberately influence the way in which our politics take place.
That is an example, but we all know that there will be a substantial grey area between direction and influence, which we and the Minister have all grappled with. We are not entirely sure that we can draw the line clearly as we go. This amendment asks the Government actively to keep under review and to consult on where that line needs to be adjusted as we move forward in implementation. I hope the Minister will respond in that way.
Baroness Noakes (Con)
My Lords, I got involved in Committee—my only appearance on the Bill—because of concerns brought to my attention about the impact of the registration scheme on huge swathes of ordinary, everyday business and commercial activity. I was much encouraged that at that stage my noble friend the Minister said that this was under review. I am more than pleased with the actual outcome. I know that once a Bill has been published it is very hard for the Government to do a radical overhaul, so we have to pay tribute to my noble friend the Minister and the Security Minister in the other place for having the courage to say that what we started with would not work well enough and to come back with such a significant set of revisions on Report. I thank him again for all he has done to achieve this.
Lord Beith (LD)
My Lords, I think I failed to hear something the Minister said earlier relating to Amendment 110A. I raise it because the noble Lords, Lord Anderson of Ipswich and Lord Carlile of Berriew, are both unable to be in the House this afternoon for various compelling reasons. The amendment helpfully tidies up part of the provision by ensuring that the reference to arrangements entered into before the clause comes into force does not apply to arrangements that have ceased to have effect. I think the Minister indicated that he was going to accept it and therefore, I presume, move it at the appropriate stage.
Lord Purvis of Tweed (LD)
My Lords, the noble Baroness, Lady Hayter, raised valid areas with regard to the sometimes complex relationships between political parties and the Governments of states, which I hope the Minister, who referred to foreign Governments, can go a little further and point to. It is absolutely right that that is one of a number of criteria set down earlier in the Bill, in Clause 32, and that the meaning of a foreign power includes
“a political party which is a governing political party”.
There will still be issues when it comes to relationships such as demand and supply and other kinds of relations, but I hope that the Minister will provide clarity and proper consultations so that, when we come to the finalised guidance and regulations, those issues will be very clear. The Minister will not be surprised to hear that, as in the earlier group, we are still hoping for that bit of clarification on the German Stiftungen and others represented by the kinds of organisations that the Stiftungen are—those that operate within a public policy and political sphere but are not directly linked to the Government or governing political parties although they are, by definition, political in their nature. I am sure that the Minister will respond to that when he winds up.
Like the noble Baroness, Lady Noakes, we have a number of scars on our back from legislation where we have tried to do heavy lifting in this Chamber to improve Bills. I tabled a number of amendments in Committee highlighting the concern that what had been brought forward was an unworkable scheme; I think we are now looking at a workable scheme. That is important for the security of our country.
I particularly welcome the draft registration forms, about which I had raised concerns in Committee. I am very pleased that the Minister will be having an active consultation. I am delighted that there will be an updated impact assessment. While the Minister said that that is required of the Government, in previous Bills some excuses have been made for impact assessments not to be updated, so I am very pleased about that. And on the draft regulations, as I said, I am delighted.
As I said on the earlier group, the Minister has been true to his word. I have just one final favour to ask of him. Given that I have been rather successful with colleagues in securing some concessions on this Bill, could he have a word with other Ministers, just to say that “Purvis is not always wrong”? Sometimes, we can do our job in this place; we can make the Government’s job a bit better and make unworkable schemes workable. I commend the Minister for how he has approached this so far.
Lord Ponsonby of Shulbrede (Lab)
My Lords, there seems to be a new approach to Ministers by buttering them up. I noticed my noble friend buttering up the noble and learned Lord, Lord Bellamy, the other day, which seemed to cause amusement in the House. Nevertheless, I too thank the Minister for his response to the earlier concerns raised. The primary tier of FIRS requires the registration of
“arrangements to carry out political influence activities within the UK”,
or to arrange for such activities to be carried out in the UK,
“at the direction of a foreign principal”.
Registration of political influence activity is also required
“where the activity is being carried out by the foreign principal itself. The foreign principal will be responsible for registering political influence activities”.
As I said, concerns were raised that this could impair international co-operation through political parties and similar organisations. It was previously reported that the Government might withdraw the primary tier entirely, but, instead, the Minister has removed the most controversial features of this and accepted Amendment 110A in the names of the noble Lords, Lord Anderson and Lord Carlile—and the name of the Minister himself is also on that amendment.
I also mention the contacts from the German embassy in relation to the same points raised by the noble Lords, Lord Purvis and Lord Balfe, at an earlier stage of Report: the concerns of political foundations such as the centre-left Friedrich-Ebert-Stiftung and the centre-right Konrad-Adenauer-Stiftung and whether they would have a duty to register. If the Minister could repeat what he said earlier, I hope that the minds of the representatives of those organisations will be put at rest.
I welcome what has been said. I hope that this is indeed a workable scheme. I think it was the noble Baroness, Lady Noakes, who described a “radical overhaul”, which it is not usual to get on such an important Bill as this. I think that everybody accepts that this is a very important Bill and I hope that it will emerge from your Lordships’ House a better Bill than when it arrived.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords who participated in this debate. I am feeling a little overwhelmed. The Government have moved a long way, as has been noted, on the FIRS scheme, which now tackles what it was originally intended to address. I thank all noble Lords for their probing amendments. I would particularly like to thank the noble Baroness, Lady Hayter, for paying special attention and noticing my deliberate error. I should have said—and I will repeat this because I repeated it the first time around—“foreign powers, including foreign Governments”.
With the leave of the House, and in answer to the noble Lord, Lord Beith, I will speak to Amendment 110A, standing in the name of the noble Lord, Lord Carlile, and signed by the noble Lord, Lord Anderson. The Government do not intend to require the registration of defunct foreign influence arrangements, so we urge the House to support the amendment.
Amendments 114 and 121, tabled by the noble Lord, Lord Carlile, and the noble Baroness, Lady Hayter, would remove the requirement to register foreign influence arrangements at Clause 68, and the meaning of “political influence activity” at Clause 70, from the scheme. These clauses are essential to the functioning of the revised political influence tier of the scheme, and for this reason I ask that the amendments be withdrawn. I will, however, go into a little more detail on the impact on the proceedings of a UK-registered party in Clause 70. It is not intended to cover every activity undertaken by a UK political party. The focus is on where foreign powers are seeking to influence formal matters of a UK political party, such as candidates’ selections and adoption of policy through third parties; but it will not, for example, cover decisions around venue changes for joint conferences. In this way, we believe that this scheme is appropriately targeted to focus on the arrangements and activities where transparency is most needed, while avoiding unnecessary bureaucracy. However, I have heard the noble Baroness on a number of occasions now and I will certainly be taking her points into account when we are developing the guidance.
I thank the noble Lord, Lord Wallace of Saltaire, for his Amendment 166A. This would require the Government to consult, and lay a report in Parliament, on the merits of expanding the foreign influence registration scheme to those controlled by a foreign power seeking to influence public policy. Again, we have sympathy with this amendment and, indeed, one of the reasons why the Government originally sought a broader scheme was to fully capture the proxies of foreign powers. I share the noble Lord’s interest in ensuring we remain responsive to the risks posed by covert influence, but I reassure him that the Government will keep the impacts of the scheme, and any need to expand it, under careful review. The timings for this are important and I cannot accept an amendment that may tie the Government to evaluating the scheme before it has come into force and had a chance to bed in. So I ask him not to press this amendment but reassure him that the Government will be able to use the annual review requirements to assess areas where the scheme could be strengthened.
In addressing the point raised in both this group and the last by the noble Lord, Lord Purvis, around the impact of the scheme on foreign political foundations, we did meet with representatives of the German embassy after the debate last week to discuss this scheme, and recognise the importance of the work carried out by political foundations such as the Konrad-Adenauer-Stiftung to promote political co-operation and the values of democracy and the rule of law. So I reassure the noble Lord that institutions such as these that operate independently of foreign powers will not have to register their activities. Receiving funding from a foreign power does not trigger a requirement to register under the scheme. Only where organisations are being directed by a foreign power through a power relationship to carry out political influence activities will that need to be registered. With that, I think that I have answered all the questions.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment and Lord Sharpe’s other amendment to Clause 68(1) restrict the definition of foreign influence arrangements to arrangements with foreign powers.
“(1A) Where the foreign power is a specified person, the arrangement is not a foreign influence arrangement to the extent that it relates to political influence activities that are relevant activities for the purposes of section 64.”Member’s explanatory statement
This amendment prevents overlap between foreign activity arrangements required to be registered under Clause 64 and foreign influence arrangements required to be registered under Clause 68.
Member’s explanatory statement
This amendment increases the time limit for registering a foreign influence agreement after it has been made.
Member’s explanatory statement
This amendment clarifies that the requirement to register foreign influence arrangements entered into before Clause 68 comes into force does not apply to arrangements which have ceased to have effect when the Clause comes into force.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to Clause 68, page 47, line 19.
(a) fails to comply with subsection (2), and”Member’s explanatory statement
This amendment is to ensure consistency with subsections (1) and (2) of Clause 68, which refer to the person who makes an arrangement as “P”.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to Clause 68(1).
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to Clause 68(1).
Member’s explanatory statement
This amendment adjusts the matters within subsection (3)(a), for consistency with Clause 14(3).
Member’s explanatory statement
This amendment clarifies that the matters within Clause 70(3) include a decision of a Minister of the Crown or a government department.
Member’s explanatory statement
This amendment removes reference to the proceedings of Parliament, the Northern Ireland Assembly, the Scottish Parliament and Senedd Cymru. Persons in these assemblies are caught by other paragraphs in subsection (3).
Member’s explanatory statement
This amendment clarifies that the conduct of Members of Parliament etc is relevant only where those persons are acting in that capacity.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to Clause 71, page 49, line 13.
“(c) P knows, or having regard to other matters known to them ought reasonably to know, that they are acting pursuant to a foreign influence arrangement.”Member's explanatory statement
This amendment adjusts the test in Clause 71(1)(c).
“(2) A person other than P commits an offence if—(a) after the end of the registration period the person carries out a political influence activity, or arranges for a political influence activity to be carried out, in the United Kingdom pursuant to the arrangement,(b) the arrangement is not registered, and(c) the person knows, or having regard to other matters known to them ought reasonably to know, that they are acting pursuant to a foreign influence arrangement.(3) In this section the “registration period” means the period before the end of which P must register the arrangement (see section 68(2) and (3)).(4) In proceedings for an offence under subsection (2) it is a defence to show that the person—(a) took all steps reasonably practicable to determine whether the arrangement was registered, and(b) reasonably believed that the arrangement was registered.(5) A person is taken to have shown a matter mentioned in subsection (4) if—(a) sufficient evidence of the matter is adduced to raise an issue with respect to it, and(b) the contrary is not proved beyond reasonable doubt.”Member's explanatory statement
This amendment clarifies the applicable mens rea where a person other than P carries out the political influence activities in question.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to Clause 68(1).
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to Clause 68(1).
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to Clause 68(1).
“(3A) Where the foreign power is a specified person, the prohibition in subsection (3) does not apply to the extent that the political influence activities are relevant activities for the purposes of section 67.” Member's explanatory statement
This amendment prevents overlap between the offence in Clause 67 and the offence in Clause 72.
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to leave out Clause 72(1) and (2).
Member's explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.
Member's explanatory statement
This amendment adjusts the test in subsection (8).
“(9) In proceedings for an offence under subsection (8) it is a defence to show that the person—(a) took all steps reasonably practicable to determine whether the activities were registered, and(b) reasonably believed that the activities were registered.(10) A person is taken to have shown a matter mentioned in subsection (9) if—(a) sufficient evidence of the matter is adduced to raise an issue with respect to it, and(b) the contrary is not proved beyond reasonable doubt.”Member's explanatory statement
This amendment provides a defence to an offence under Clause 72(8).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to omit Clause 72(1) and (2).
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to clause 66, page 46, line 20.
Member’s explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to Clause 71, page 49, line 20.
Member’s explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to Clause 71, page 49, line 20.
Member’s explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to omit Clause 72(1) and (2).
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to omit Clause 72(1) and (2).
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to Clause 71, page 49, line 20.
Member's explanatory statement
The amendment is consequential on Lord Sharpe’s amendments to Clause 68(1).
““news-related material” , “publish” , and “recognised news publisher” have the meaning given by paragraph 4A.”Member's explanatory statement
This amendment and Lord Sharpe’s proposed new paragraph 4A of Schedule 15 incorporate the definitions of “news-related material”, “publish” and “recognised news publisher” in Schedule 15 rather than by cross-referring to the definitions in the Online Safety Bill.
“(1) In paragraph 4, “recognised news publisher” means any of the following entities—(a) the British Broadcasting Corporation,(b) Sianel Pedwar Cymru,(c) the holder of a licence under the Broadcasting Act 1990 or 1996 who publishes news-related material in connection with the broadcasting activities authorised under the licence, and(d) any other entity which—(i) meets all of the conditions in sub-paragraph (2),(ii) is not an excluded entity (see sub-paragraph (3)), and(iii) is not a sanctioned entity (see sub-paragraph (4)).(2) The conditions referred to in sub-paragraph (1)(d)(i) are that the entity—(a) has as its principal purpose the publication of news-related material, and such material—(i) is created by different persons, and(ii) is subject to editorial control,(b) publishes such material in the course of a business (whether or not carried on with a view to profit),(c) is subject to a standards code,(d) has policies and procedures for handling and resolving complaints,(e) has a registered office or other business address,(f) is the person with legal responsibility for material published by it in the United Kingdom, and(g) publishes—(i) the entity’s name, the address mentioned in paragraph (e) and the entity’s registered number (if any), and(ii) the name and address of any person who controls the entity (including, where such a person is an entity, the address of that person’s registered or principal office and that person’s registered number (if any)).(3) An “excluded entity” is an entity—(a) which is a proscribed organisation under the Terrorism Act 2000 (see section 3 of that Act), or(b) the purpose of which is to support a proscribed organisation under that Act.(4) A “sanctioned entity” is an entity which—(a) is designated by name under a power contained in regulations under section 1 of the Sanctions and Anti-Money Laundering Act 2018 that authorises the Secretary of State or the Treasury to designate persons for the purposes of the regulations or of any provisions of the regulations, or (b) is a designated person under any provision included in such regulations by virtue of section 13 of that Act (persons named by or under UN Security Council Resolutions).(5) For the purposes of sub-paragraph (2)—(a) news-related material is “subject to editorial control” if there is a person (whether or not the publisher of the material) who has editorial or equivalent responsibility for the material, including responsibility for how it is presented and the decision to publish it;(b) “control” has the same meaning as it has in the Broadcasting Act 1990 by virtue of section 202 of that Act.(6) In this paragraph—“news-related material” means material consisting of—(a) news or information about current affairs,(b) opinion about matters relating to the news or current affairs, or(c) gossip about celebrities, other public figures or other persons in the news;“publish” means publish by any means (including by broadcasting), and references to a publisher and publication are to be construed accordingly;“standards code” means—(a) a code of standards that regulates the conduct of publishers, that is published by an independent regulator, or(b) a code of standards that regulates the conduct of the entity in question, that is published by the entity itself.”Member's explanatory statement
This amendment and Lord Sharpe’s amendment to paragraph 4 of Schedule 15 incorporate the definitions of “news-related material”, “publish” and “recognised news publisher” in Schedule 15 rather than by cross-referring to the definitions in the Online Safety Bill.
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendment leaving out Clause 72(1) and (2).
Member's explanatory statement
This amendment is consequential on changes to the definition of foreign activity arrangement in Clause 64.
“(2A) Regulations under subsection (1)(c) may, in particular, require the person to provide information about any political influence activities carried out, or arranged to be carried out, during the registration period by any person pursuant to the arrangement which is required to be registered.(2B) In subsection (2A) “registration period” has the same meaning as in section 71.”Member's explanatory statement
This amendment clarifies the breadth of the regulation-making power in Clause 74(1), and is consequential on Lord Sharpe’s amendment to Clause 71 allowing for political influence activities to be carried out during the registration period.
Lord Sharpe of Epsom
“(ba) a person the Secretary of State reasonably believes to be carrying out relevant activities, or arranging for relevant activities to be carried out, in the United Kingdom pursuant to a foreign activity arrangement within paragraph (a) or (b);”Member's explanatory statement
This amendment allows the Secretary of State to give an information notice to persons carrying out relevant activities pursuant to a foreign activity arrangement who are not themselves a party to the arrangement.
Member's explanatory statement
This amendment is consequential on changes to the definition of foreign activity arrangement in Clause 64.
Member's explanatory statement
This amendment is consequential on changes to the definition of foreign activity arrangement in Clause 64.
Member's explanatory statement
This amendment is consequential on changes to the definition of foreign activity arrangement in Clause 64.
“(ba) a person the Secretary of State reasonably believes to be carrying out political influence activities, or arranging for political influence activities to be carried out, in the United Kingdom pursuant to a foreign influence arrangement within paragraph (a) or (b);”Member's explanatory statement
This amendment allows the Secretary of State to give an information notice to persons carrying out political influence activities pursuant to a foreign influence arrangement who are not themselves a party to the arrangement.
Member's explanatory statement
This amendment is for consistency with subsection (2)(e).
Member's explanatory statement
This amendment is for consistency with subsection (3)(e).
Lord Sharpe of Epsom
“(3A) An information notice may only specify information which the Secretary of State considers may be relevant to an arrangement or activity within subsection (1) or (2).”Member's explanatory statement
This amendment clarifies the information which may be specified in an information notice.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on changes to the definition of foreign activity arrangement in Clause 64.
Member's explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.
Member's explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on changes to the definition of foreign activity arrangement in Clause 64.
Member's explanatory statement
This amendment is consequential on changes to the definition of foreign activity arrangement in Clause 64.
Member's explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.
Member's explanatory statement
This amendment clarifies the meaning of “ought reasonably to know”.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment clarifies that Clause 79(2) only relates to the power in Clause 79(1)(a).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on changes to the definition of foreign activity arrangement in Clause 64.
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendment omitting Clause 72(7).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to Clause 68(1).
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendments to Clause 68(1).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment omits the definition of “foreign principal” and is consequential on Lord Sharpe’s amendments to Clause 68(1).
Lord Marks of Henley-on-Thames (LD)
My Lords, at the risk of being accused of buttering up the noble and learned Lord, Lord Bellamy, I should say at the outset that we are very grateful to him, his officials and the noble Lord, Lord Sharpe, for their positive engagement with us on the Ministry of Justice aspects of the Bill. There has been significant movement by the Government on the MoJ provisions, and on this group in particular.
While that is the reality, there remain significant differences between us on these provisions. Our position on the damages reduction clauses in the Bill is that the power to reduce or extinguish damages in a case against the Crown on the basis that the claimant has been involved in some terrorist wrongdoing in the past should never have been in the Bill. After all, the clause does not require the conviction of a terrorist offence. Ground 1 in Clause 85(3)(a)(i) is the commission of such an offence, but the alternative ground in sub-paragraph (ii) is nebulously described as
“other involvement in terrorism-related activity”.
That could be serious or it could be limited. After all, even wearing clothing that might suggest support for a proscribed organisation is a terrorist offence. I therefore invite the Government to give the House an assurance that the provisions on reducing damages will not be invoked on unproven allegations emanating from a foreign state that a claimant has been involved in some terrorism-related activity under the alternative ground in Clause 85(3)(a)(ii).
We have serious concerns about Clauses 84 to 88 being part of the Bill. Those concerns are that they are restrictive of civil rights, effectively denying or restricting legitimate claimants’ access to the courts and their right to a remedy; that they could enable the Government to avoid liability for damages in the face of justified claims; and that they would reduce accountability and limit the publicity for genuine claims of government wrongdoing.
These clauses risk undermining two important democratic principles: first, that everyone is entitled to enforce their rights in court and, secondly, that, where a legal right is breached, there is a remedy. Our central question is, why should the Government be excused from paying damages in a case where their liability to a claimant is proved? I invite the noble and learned Lord to explain how the Government answer that central question. Why, also, have the Government not confined this power to cases within Clause 88, where there is a risk of damages being themselves used for the purposes of terrorism?
In Committee, I drew attention to the cases of Jagtar Singh Johal, Abdul Hakim Belhaj and Fatima Boudchar, arising from the British Government’s complicity in torture and, in the latter case, detention in Thailand and rendition to Libya. Their cases and other cases of government wrongdoing might risk being threatened by this new power. However, since Committee, and in response to one of the main criticisms I and others levelled at this clause, the Government have laid Amendment 169. My reading of that amendment, which agrees with the Ministers explanatory statement, is that the court may consider reducing damages
“only if there was a connection between the terrorist wrongdoing and the conduct of the Crown complained of in the proceedings.”
Because it is complex, I invited the noble and learned Lord to write. Today, the noble Lord, Lord Pannick, and I have received a letter from the Minister containing that assurance. I hope he will forgive me if I read from it the relevant paragraph. He says, “On damages I am pleased to confirm your understanding of the intention and effect of the Government’s amendments to the scope of the Bill. The Government consider that they will mean that applications by the UK security services to reduce damages in national security cases will be possible only where there is a connection between the Crown’s conduct and the terrorist conduct of the claimant.”
That assurance, embodied in Amendment 169 and its consequential amendments, is a significant concession and answers an important criticism. Although the central criticisms of principle that I have outlined remain, we will not be pressing the stand part objections we have laid. Important among our concerns, as pointed out in Committee, is that the clause fails to set out criteria as to when and on what basis the court should exercise powers to reduce or extinguish damages. This was a matter extensively canvassed in Committee, but the Minister could really only say that the provisions were intended “to convey a message” that Britain should not be seen as a “soft touch” for terrorism. There was no guidance as to how and on what basis judges should exercise this new power. With the benefit of several weeks to consider the way in which the power is to be exercised, can the Minister please give us such guidance now?
I turn to Amendments 174 and 175 in my name and that of my noble friend Lady Ludford. At present, Clause 85(4) requires the court to take into account whether
“there was a limitation on the ability of the Crown to prevent”
the wrongful conduct complained of, including on the basis that it occurred overseas or was carried out in conjunction with a third party. That formulation suggests that His Majesty’s Government are just too weak to control their own conduct, if wrongful, overseas, or in collaboration with a third party. That permitted excuse is inadequate. Our amendments would restrict permitting any such limitation on the Crown’s ability to prevent its own wrongful conduct to places where it was both carried out overseas and—not or—instigated by a third party.
In the noble Lord’s letter, to which I referred, he has indicated that the Government are not prepared to concede these amendments. I would nevertheless appreciate the Government’s further consideration of the present provisions as they stand, and of the effect of the amendments we propose. I look forward to his further consideration and his response, in the hope that we might get a little further if he comes back with something at Third Reading. I beg to move.
Lord Pannick (CB)
My Lords, I added my name to some of the amendments tabled by the noble Lord, Lord Marks. I echo his thanks to the noble and learned Lord, Lord Bellamy, and the noble Lord, Lord Sharpe, for their constructive engagement with us on the damages clauses. I too am satisfied that Amendment 169, in particular, and the assurance that the noble and learned Lord gave in writing—which I hope he will repeat on the Floor of the House—address the main concern. I am impressed also by the eloquent point he made in Committee, that these clauses simply confer a power, or discretion, on the court, and I am confident that the courts will exercise those powers fairly and sensibly.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I am extremely grateful to the noble Lord, Lord Marks, for his amendments, and to the noble Lord, Lord Pannick, for his comments. I hope the House will agree that the Government have been in listening mode throughout this Bill, and that we have in this particular instance moved quite considerably to deal with what the Government consider to be justified observations by your Lordships.
On the general point, the reforms are designed to protect the public, to deter those who seek to exploit our security services for compensation and to reduce the risk that court awards or damages may be used to fund terrorism—perhaps the most serious harm that can be perpetrated against society, going to its very fabric. The noble Lord, Lord Marks, asked me to restate the purpose of the clause and I think I have endeavoured to do so in those words.
On whether the Government can give any assurance that these provisions will not be invoked on the basis of
“unproven allegations … from a foreign state”,
I draw your Lordships’ attention to the fact that this is a power in the court; it is entirely in its discretion. No court is going to act on anything other than proper evidence, so in the Government’s view there is no risk of the danger to which the noble Lord, Lord Marks, referred, because this is a court process with rules of evidence and proper and fair procedures.
With those two preliminary observations, I come to the central point that was at issue when we discussed this clause in Committee. We have listened to the concerns expressed by noble Lords that the legislation needed to ensure that no national security case fell into scope where there was no connection between the Crown’s conduct and the terrorist conduct of the claimant. I can repeat before this House the assurance in the letter I sent noble Lords today, to which we have already been referred, saying that there needs to be a causal connection between the conduct of the terrorist and the reduction in damages.
As to what criteria the courts should apply when considering these issues, I know that noble Members felt the courts would require further guidance. In the Government’s view, the courts do not require further guidance; they are well able to interpret and apply this legislation, especially in light of the amendments we have proposed. The Government have every confidence in the court being able to discharge its functions under these provisions.
Our courts are well versed in taking a wide range of relevant factors into account in determining liability and assessing the level of damages. There are a number of common-law considerations to which noble Lords referred in Committee which may indeed provide some guidance. We do not seek to exonerate the Crown in respect of its own culpability; we aim simply to ensure that the terrorist conduct is properly taken into account when calculating quantum.
I turn to what I think are the only live amendments on this part, Amendments 174 and 175. Those amendments would apply to the Bill’s provisions whereby a court would consider the context in which the Crown had acted to reduce a risk of terrorism, but their underlying intention seems to the Government to be to markedly restrict those provisions. As I understand it, the amendments seek to limit the consideration of the court to where the Crown’s actions had been commenced —the provisions use the word “instigated”—and the conduct was required to have taken place overseas at the instigation of a foreign state.
While the Government accept that there are difficulties in preventing terrorism when the action concerned needs to be taken overseas, there are so many different facts and circumstances flowing from the claimant’s own actions that the proposed amendments would significantly limit the effect of these clauses. In the Government’s view, the courts ought to have complete discretion to apply the clauses as they stand; a very tight restriction both as to instigation and to the requirement that the instigated conduct took place overseas would limit them inappropriately and improperly restrict the discretion courts should have under the provisions.
The Government further feel that there is scope in these amendments for some confusion. The two aspects, an overseas element and instigation, seem to be couched in language reminiscent of an exclusive list, quite apart from the difficulty of deciding exactly what one means by “instigation”. In practice, the Government feel that the courts should be left to exercise their discretion, as they surely will, without the limitation proposed by these amendments. That is the Government’s position on the amendments proposed by the noble Lord, Lord Marks, and I hope that in the light of what I have said, he will consider not pressing them.
There is one amendment by the Government—Amendment 181—which is proposed to ensure family proceedings in Scotland and Northern Ireland are excluded from the freezing and forfeiture provisions that are also part of this part, as with those in England and Wales. That simply corrects an oversight in the original drafting.
Having set out the Government’s amendments and why we are unable to accept the amendments proposed by the noble Lord, I commend Government’s amendments and ask the noble Lord to withdraw his.
Lord Marks of Henley-on-Thames (LD)
My Lords, I have heard the Minister’s explanation. It is right that the amendments that were between us were Amendments 174 and 175. Having considered his point on the court’s discretion, I am not sure that the difference between us is so wide as to justify my testing the opinion of the House on this occasion. I shall not move those two amendments and beg leave to withdraw the stand part amendment.
Lord Bellamy
(i) involves the commission of a terrorism offence or other involvement in terrorism-related activity, and (ii) has a connection with the conduct of the Crown complained of in the proceedings,”Member's explanatory statement
This amendment, together with the other Government amendments to this Clause, would mean that the court may consider the matters in Clause 85(3)(b) only if there was a connection between the terrorist wrongdoing and the conduct of the Crown complained of in the proceedings.
Member's explanatory statement
This amendment is consequential on the Government amendment to Clause 85(3)(a) removing the defined term “terrorist wrongdoing”.
Member's explanatory statement
This amendment is consequential on the Government amendment to Clause 85(3)(a) requiring consideration of whether there was a connection between the wrongdoing and the conduct of the Crown before considering its extent.
Member's explanatory statement
This amendment is consequential on the matters referred to in this paragraph being referred to in Clause 85(3) as a result of the Government amendments to that subsection.
Member's explanatory statement
This amendment is consequential on the Government amendment leaving out Clause 85(4)(a).
Lord Bellamy
Member's explanatory statement
This amendment is consequential on the Government amendments to Clause 85.
Lord Marks of Henley-on-Thames (LD)
My Lords, we now move on to group four on legal aid. Again, I express our gratitude to the Minister, and to the noble Lord, Lord Sharpe, for his engagement with us on these provisions. Nevertheless, in spite of one welcome concession, to which I will turn, we oppose in principle the Bill’s proposals to exclude access to legal aid for those previously convicted of terrorist offences, however minor, subject only to the time and age conditions set out in the Bill. Legal aid, restricted as it might already be, is a right that we enjoy as citizens, and it is wrong simply to exclude that right for anyone convicted of a terrorist offence, however minor, whether or not the legal aid sought has any connection with the previous conviction. At least in relation to damages in the last group, the Government made the concession in Amendment 169, as we have heard, that, for the power to reduce damages to be exercised, there would have to be some connection between the past terrorist activity and the Crown’s wrongful conduct complained of in the proceedings. Here, no such connection is necessary before the exclusion of legal aid kicks in.
All we have from the Government in this group is an exception in Amendment 186 and its associated amendments for cases where an applicant for legal aid is the victim of domestic abuse. That is, of course, important, and it is welcome, but it is based on no discernible principle at all. If the victims of domestic violence should be entitled to legal aid, why not the victims of human trafficking, which, we observe, may well have led them into terrorist activity in the first place? Why not the victims of sexual offences? These two examples are the genesis of Amendments 186A and 186B in my name and the name of my noble friend Lady Ludford.
There are many examples of other cases where legal aid ought to be available, regardless of past convictions: family cases involving children, housing cases, Equality Act cases, and eligible cases of applications for judicial review. It is simply no answer for the Government to say that exceptional case funding remains available. The criteria for exceptional case funding are very restrictive. Broadly, they apply where convention rights are said to be infringed—principally in family, housing or benefits cases. There are very difficult hurdles to surmount before exceptional case funding is given, and there is no promise by the Ministry of Justice to make that funding more widely available.
In any case, the Government are trying to make legal aid more difficult to obtain for past terrorist offenders. It is a nonsense for them now to claim, and then rely on that claim, that it is not all that bad because exceptional case funding will make it easier for the very people they are trying to exclude from the availability of legal aid. So we put down Amendments 185 and 187 based on principle, and it is exactly the principle the Government conceded in the last group in relation to damages reduction: that legal aid would not be excluded in cases where there was no link—which we have called “no relevant factual connection”—between the past terrorist offence of which the applicant had been convicted and the current application for legal aid. I have invited the Minister and the Government to accept that principle. Were it accepted, we would not press these amendments to a vote because, although these clauses would still be unacceptable, much of the sting would be removed from them. In the letter from the noble Lord to which I alluded earlier, those amendments have not yet been accepted. I invite the noble Lord to reconsider that.
We also support Amendment 188 in the names of the noble Lords, Lord Pannick and Lord Carlile of Berriew, and my noble friend Lady Ludford, restricting the exclusion of legal aid to cases where an offender has been sentenced to more than seven years for the relevant terrorist offence. At least those are serious terrorist offences—that is not a limitation in the Bill as currently drafted.
I regret that we cannot see the benefit of Amendment 188A, put down yesterday by the noble Lord, Lord Ponsonby, on behalf of the Labour Party, after what must have been weeks of thought. It seeks a review of the impact of Clause 89 on offenders sentenced to a non-custodial sentence. The review sought is very limited and does not address the flawed principle of the proposal or its application. We will stick to our principled amendments, and I beg to move.
Lord Pannick (CB)
My Lords, I have added my name to amendments in this group. I declare my interest as a practising barrister, sometimes representing clients on legal aid. The harmony that has broken out in this afternoon’s debates does not apply to this group, although I do thank the Minister, the noble and learned Lord, Lord Bellamy, for engaging with me and others on this subject and for tabling an amendment that mitigates, to a limited extent, the mischief of Clause 89.
I will first cite some history. At the legal aid Bill’s Second Reading on 15 December 1948, the Attorney-General, Sir Hartley Shawcross, told the House of Commons that civil legal aid was so important because it would
“open the doors of His Majesty’s courts and make British justice more readily accessible to the great mass of the population who hitherto have too frequently, I am afraid, had to regard these elementary rights—as they ought to be—as luxuries which were beyond their reach”.—[Official Report, Commons, 15/12/1948; col. 1223.]
Sadly, the scope of legal aid has been much reduced in recent years by Labour Governments, Conservative Governments and by the coalition Government. But, where civil legal aid is still available, it remains a vital legal protection for individuals and their families. It is a noble scheme that goes some way, although not far enough, towards ensuring that a lack of financial resources is not a bar to access to justice. So it is objectionable in principle for the Bill to propose to remove eligibility, even subject to exceptions, for a category of people who are defined simply by the nature of the criminal offence of which they have been convicted.
Clause 89 is simply indefensible for three main reasons. First, it will apply irrespective of the seriousness of the criminal offence of terrorism of which the individual is convicted, so long as that offence is capable of being punished by up to two years’ imprisonment. The noble Lord, Lord Anderson of Ipswich, who cannot be in his place, pointed out in Committee that terrorism offences include such matters as
“inviting … support for a proscribed organisation”
and
“‘failure to disclose professional belief or suspicion about’ the commission of terrorist offences by others”.—[Official Report, 18/1/23; col. 1868.]
Now such criminal conduct is wrongful, but it may, and often does, lead to a short custodial sentence or even a community sentence. But, under Clause 89, any such conviction excludes a person from civil legal aid, subject to narrow exceptions, for 30 years, whatever sentence the court thinks is appropriate in the circumstances of the individual case. This is indefensible, and it is particularly so when, as the noble Lord, Lord Anderson of Ipswich, also pointed out, the recidivism rates for terrorist offenders are very low indeed: he gave the figure of 3%.
The second reason that Clause 89 is simply indefensible is that there is no exclusion from civil legal aid for those convicted of murder and rape, people who may receive life sentences and who normally receive very serious sentences for their offence. To single out terrorist offences, and to do so irrespective of the gravity of the individual offence, suggests to me, and I may not be the only one in this House, that the Government are more interested in political gestures than they are in pursuing any coherent principle.
The third reason that Clause 89 is simply indefensible is the one given by the noble Lord, Lord Marks: it will exclude persons from civil legal aid in cases which have no connection to the offence of terrorism of which they were convicted. A woman may be convicted of giving support to a proscribed organisation and receive a short custodial sentence or a community sentence, but 10 or 20 years later, she may be evicted, or face eviction, from her flat and face homelessness. The idea that she should be denied civil legal aid—and denied eligibility for civil legal aid—because of the terrorist conviction frustrates the very purpose of civil legal aid in a civilised society. Let us suppose the terrorist offender is beaten up in prison by prison officers—it does happen. Should he be excluded from eligibility for civil legal aid if he otherwise satisfies the relevant criteria? The idea that this proposal is brought forward by a Ministry of Justice defies credulity.
The only question in my mind is how best to remove or dilute the stain of Clause 89, and the Marshalled List contains a number of possible amendments, to some of which I have added my name: that Clause 89 should not stand part of the Bill, that it should be confined to those who are sentenced to seven years’ imprisonment or more, or that it should be confined to legal aid for a matter connected to the terrorism offence, which is the amendment preferred by the noble Lord, Lord Marks.
I am very sorry indeed that the Labour Front Bench is unwilling—as I understand it; I would welcome correction from the noble Lord, Lord Ponsonby—to support any of these amendments, and has itself tabled what can only be described as a weak amendment, Amendment 188A, which would require a review within 60 days of Clause 89 coming into force. The noble Lord, Lord Ponsonby spoke eloquently about Clause 89 in Committee; he is far too sensible and fair-minded to think personally that Clause 89 makes any sense. I assume, although I welcome correction, that the Opposition in the other place fear that they will be accused of being soft on terrorism if they support any of the substantive amendments. I think we all know what Sir Hartley Shawcross or the great Labour Home Secretary, Roy Jenkins, would have said about that.
If, as I hope, the noble Lord, Lord Marks decides to test the opinion of the House on one of these amendments, he will certainly have my support.
Baroness Ludford (LD)
My Lords, I can speak briefly because my noble friend Lord Marks and the noble Lord, Lord Pannick, have spoken forcefully on this matter. The amendments to remove Clauses 89 and 90 are in my name and signed by the noble Lord, Lord Pannick. I spoke at some length on this in Committee, and I believe it is a matter of principle—a very flawed principle, as the noble Lord, Lord Pannick, said—to bar anybody with a terrorism offence, however minor, from being granted civil legal aid.
The noble and learned Lord, Lord Bellamy, admitted in Committee that this proposal was “symbolic”— I think he said it more than once. In other words, it is gesture politics. The hope must be, as the noble Lord, Lord Pannick, just said, to paint those of us opposing it as somehow soft on terrorism, but I put it to the Government that they could be regarded as soft on murder, rape and sexual offences. They are apparently content that major offenders against women, of the likes of Wayne Couzens and David Carrick, variously guilty of abduction, rape and murder, could one day be eligible for civil legal aid, but not someone who is a minor offender under terrorism laws. If they try to throw at us in the Daily Mail that we are soft on terrorists, the Government ought to be prepared for a counter charge that they are soft on murderers and rapists. Given the huge public concern in recent weeks, months and years about the volume and the type of offences against women, I do not think that the Government are going to come out of this well.
Lord Ponsonby of Shulbrede (Lab)
My Lords, these clauses restrict access to civil legal aid for convicted terrorists, although there are exemptions to this, such as when the convicted terrorist is under 18. I welcome government Amendments 184 and 186, where the Minister has made a further concession regarding people who have been victims of domestic violence and domestic abuse.
While we support the principle that terrorists should not receive legal aid, we are concerned that application of these clauses could permanently impact those with minor offences such as vandalism. We have therefore tabled Amendment 188A in my name to create a practical mechanism to address these concerns. This would establish a statutory review of the impact on those who receive non-custodial sentences. We will not support Amendment 180 in the name of the noble Lord, Lord Marks, which would allow terrorists to receive legal aid if their applications relate to a non-terrorism offence. We believe that these most serious offenders who commit attacks on the UK should not receive support, regardless of the nature of their later civil proceedings.
There is a point of principle here, which is that terrorism is a uniquely targeted offence against the British state, and we think that that needs to be recognised. However, there are the points of the low-level offences, which I brought to the attention of the Committee, and there is also the point that was acknowledged by the Minister about people who are victims of domestic abuse. So, there are principles here, but there is a clash of principles.
Baroness Ludford (LD)
Will the noble Lord explain on behalf of the Official Opposition why, if terrorism is a unique crime against the state, he does not have a similar view of unique crimes against the integrity of the person, the integrity of women, that we have seen in the appalling crimes that have, thankfully and at last, led to convictions of the likes of Wayne Couzens and David Carrick? Those are offences against the integrity of the person, the integrity of women and the integrity of society. Why would they not be considered on a similar level to some terrorist offences, without giving any quarter to terrorism whatever, but on the lesser scale of terrorism? I think his “uniqueness” argument really demands justification.
Lord Ponsonby of Shulbrede (Lab)
I agree that it demands justification, which is that when terrorists carry out their activities, they are attacking in a random way the state itself. The attacks against women to which the noble Baroness referred are of course totally reprehensible, but do not attack the state in any way. They attack women for what they are and those offences are, of course, taken extremely seriously.
I accept that the Government’s amendments regarding civil legal aid on these offences send a message. I and the Labour Party accept and support that point. However, that needs to be ameliorated at the lower level and reviewed. That is why I will be testing the opinion of the House when we reach Amendment 188A.
Baroness Butler-Sloss (CB)
That does not clear a path in the Bill at all. I am rather shocked by Clause 89. I should like to ask the noble Lord whether he accepts the position regarding someone who was convicted of terrorism some years before and brings a civil claim, particularly, for instance, for eviction from housing. Is he or she entitled to a lawyer in order to be able to come before the court and put his or her case? If so, there is an absence of fairness if that person cannot afford the lawyer that he or she would need, and would have to represent himself or herself. That seems to be contrary to access to justice.
Lord Ponsonby of Shulbrede (Lab)
My Lords, we in the Opposition are accepting the principle that terrorism is uniquely terrible and needs to be dealt with in that way. However, my amendment calls for a review of the impact of this on certain lower-level cases.
Lord Pannick (CB)
The noble Lord is being patient, but what is there to review? Why has he not put down an amendment that simply excludes from this objectionable clause those who are convicted only in circumstances that lead to a non-custodial sentence? That surely is the logic of what he is saying. Why do we need a review?
Lord Ponsonby of Shulbrede (Lab)
We need a review because we do not know what the impact is unless we have looked at the data. It seems to be as simple as that.
Lord Purvis of Tweed (LD)
I am grateful and the noble Lord is being patient on these points. He referred to only the most serious cases and said that there was a separate issue with regard to cases that are less serious. In Committee, he used as an example a personal one: someone being convicted of the offence of graffiti. That woman—if indeed it was a woman—would no longer be able to get any legal aid support if she had been a victim of human trafficking or sexual attack. That cannot be right. Does the noble Lord agree that that is what he is supporting today?
Lord Ponsonby of Shulbrede (Lab)
As the noble Lord knows, the amendment is calling for a review to look at the practical impact of the proposed legislation. We have yet to hear from the Minister on whether the Government accept that a review is necessary.
Lord Davies of Gower (Con)
My Lords, I remind noble Lords that this is Report and not an opportunity to further debate the matter.
Lord Purvis of Tweed (LD)
It is perfectly within the rules of the Companion for noble Lords to seek points of clarification or elucidation from those who are speaking.
Lord Bellamy (Con)
I am again extremely grateful to noble Lords for their interventions and, in particular, for the support for the principle behind Clause 89 expressed by the Official Opposition, subject to the point about minor offences, which I will come to in a moment.
As a quick reminder, Clause 89 narrows the range of circumstances in which individuals convicted of specific terrorism offences can automatically receive civil legal aid services. This includes individuals convicted of terrorism offences punishable with imprisonment for two years or more as well as other offences where a judge has found a terrorism connection. It is important to note that this clause modifies but does not exclude legal aid, because there is still the route of exceptional case funding, particularly if convention rights are in issue. One of the fundamental convention rights— I think this at least partially answers the point raised by the noble and learned Baroness, Lady Butler-Sloss—is the necessity for a fair trial, in Article 6. The exceptional case funding route is still available in that regard. Phrases such as “excludes”, “denies”, “debars” and “no legal aid support” are not an accurate summary of what this clause achieves.
Lord Marks of Henley-on-Thames (LD)
I am grateful to the noble and learned Lord for giving way, but is it not the case that no one gets exceptional case funding simply because they otherwise would not get legal aid? The point made by the noble and learned Baroness was that it is unfair, so you will not get a fair trial. However, that does not ground exceptional case funding —unless the noble and learned Lord has a different view of exceptional case funding from the rest of us.
Lord Bellamy (Con)
My Lords, there might well be found applications for exceptional case funding; approximately 75% of such applications are successful each year. In any event, exceptional case funding is still available.
Viscount Hailsham (Con)
On the question of numbers and definition, what is the essential definition of exceptional case funding and how many cases have given rise to such a relief?
Lord Bellamy (Con)
I do not have the exact definition in front of me. It is a matter for the director of the Legal Aid Agency to decide. There is guidance on this, which applies in particular to cases of inquest and other areas where convention rights are at issue. I can supply my noble friend with further details in due course.
Lord Bellamy (Con)
I do not have that information with me, but about three-quarters of applications succeed.
At the risk of disturbing the atmosphere of good will that has, to an extent, prevailed this afternoon, your Lordships would have expected me to explore with the Government whether there can be any further movement on this clause and I am sorry to say that, subject to the important exception for victims of domestic abuse in relation to family and housing matters, they adhere to the clause and respectfully present it to the House.
The amendments tabled by the noble Baroness, Lady Ludford, seek to remove these clauses from the Bill altogether. The Government’s position is that the measures are necessary to ensure that our limited resources for legal aid funding are not directed towards individuals who attack society and democracy and, through their actions, commit acts of terrorism that seek to threaten and undermine the very democratic institutions which provide the benefit of legal aid. It is right that access to legal aid should therefore be subject to the provisions of this clause. Again, I understand that the Labour Party, in principle, accepts that approach.
It is certainly possible to argue, as the noble Baroness did, that if this applies to terrorism, why does it not apply to murder, the abuse of women, drug trafficking and other offences? Certainly, one can always advance an argument about where you draw the line. The line is drawn here at terrorism because of its particular threat to our society and democracy; that is the Government’s reasoning. As I have just said, it is not a blanket ban on civil legal aid because the exceptional case funding route ensures—in compliance with our obligations under the convention—that legal aid remains available when it is most needed to ensure access to justice.
Amendment 188, tabled by the noble Lord, Lord Pannick, would limit the restriction to where an offender has been sentenced to a term of imprisonment of seven years or more. I acknowledge of course the noble Lord’s concerns, but the Government oppose this amendment on the following grounds. The Counter-Terrorism and Sentencing Act 2021, introduced following the Fishmongers’ Hall and Streatham Hill terrorist attacks, expanded the sentencing powers of courts in relation to terrorist offenders and created more restrictive provisions for terrorist offenders whose offences carry a maximum sentence of more than two years. So, the two-year benchmark is already baked into legislation, and the Government feel that it is the appropriate benchmark in this instance.
The noble Lord’s seven-year sentence proposal would mean that a number of quite serious terrorism offences would escape: for example, the breach of a TPIM notice. It would also—by reference to sentencing, as distinct from the statutory definition of an offence—create quite a subjective difference between offenders when one has got more than the other: one is a bit above and one is a bit below, perhaps because one has had more previous convictions than the other, or for whatever reason. So, the Government think that the two-year benchmark in existing legislation is logical, defendable and clear and that it should remain. So, with regret, the Government are unable to accept Amendment 188 in the name of the noble Lord, Lord Pannick.
Amendment 187, tabled by the noble Lord, Lord Marks, would make the restriction not apply if the terrorism offence of which the individual had been convicted had no relevant factual connection with their application for legal aid. We quite understand the noble Lord’s intention behind that amendment, but, again, the Government cannot accept it. As the noble Lord, Lord Ponsonby, said, this is a point of principle. The Government have considered with great care the proposal put forward and consider that the fact of a conviction for a terrorist offence carrying a sentence of more than two years is a ground for restricting the route by which legal aid is granted, so we are unable to accept this amendment.
However, we have tabled government Amendments 182, 183, 184 and 186 to create an exception so that the restriction will not apply where a terrorist offender is a victim of domestic abuse and is applying for legal aid related to family and housing matters within a relevant time period. That would include such matters as pursuing protective injunctions in child custody cases, as well as the loss of a home or homelessness. Again, the question arises: if you have extended it there, why do you not extend it somewhere else? The answer, I think, is that one has to draw a line somewhere. Those are particularly serious issues in society as it stands, and that seems to the Government to be a sound basis for making an exception. It is not our position that it is relevant or wise to create any further exceptions.
Lord Purvis of Tweed (LD)
I would be grateful if the Minister could clarify a point from his earlier comments on exceptional case funding. The guidance on this on GOV.UK says:
“You could get legal aid for cases that would not usually be eligible if your human rights are at risk. This is known as exceptional case funding”.
Can the Minister clarify: under the Bill, will anybody who receives any sentence for any terrorism offence now automatically be eligible for exceptional case funding?
Lord Bellamy (Con)
No, that is not the Government’s position. There is a mechanism by way of exceptional case funding to ensure access to justice in an appropriate case.
Lord Purvis of Tweed (LD)
Then the point that the Minister referred to about the Bill is irrelevant, because the eligibility for exceptional case funding is regardless of whether the Bill is in place.
Lord Bellamy (Con)
It is not entirely irrelevant that exceptional case funding is always available for access to justice. That fact changes some of the comments that have been made about the restrictive nature of the Bill.
Lord Marks of Henley-on-Thames (LD)
My Lords, there is a sharp division of opinion on the general principles here. I share the disappointment of the noble Lord, Lord Pannick, at the position taken by the noble Lord, Lord Ponsonby, on behalf of the Labour Front Bench, particularly in view of the way the Labour Front Bench spoke in favour of the principles we enunciated in Committee. I do not propose to press Amendment 180, but when the time comes, I will seek to test the opinion of the House on Amendment 185.
Lord Bellamy
“(a) in relation to England and Wales, has the meaning given by section 75(3) of the Courts Act 2003; (b) in relation to Northern Ireland, has the meaning given by Article 12(5) of the Family Law (Northern Ireland) Order 1993 (S.I. 1993/1576 (N.I. 6));(c) in relation to Scotland, has the meaning given by section 135 of the Courts Reform (Scotland) Act 2014 and includes proceedings under the Children (Scotland) Act 1995 and the Children’s Hearings (Scotland) Act 2011 (asp 1).”Member's explanatory statement
This amendment provides a definition of “family proceedings” in relation to Scotland and Northern Ireland, as well as England and Wales.
Lord Bellamy
Member's explanatory statement
This amendment would remove the limitation on the availability of civil legal aid to an offender where the services are provided to them as victims of domestic violence in relation to a matter arising out of a family relationship in which there has been, or is a risk of, domestic violence.
Member's explanatory statement
This amendment would clarify that the Director has to determine that one or more of the additional conditions is met in order for civil legal services to be available to offenders.
Member's explanatory statement
This amendment is consequential on the amendment to this Clause inserting a new Condition G.
Member's explanatory statement
This amendment is consequential on Lord Marks’ other amendment to this clause inserting a new Condition G1. Condition G1 will become Condition H if the amendment to be moved by Lord Sharpe of Epsom inserting a new Condition G is accepted.
Lord Marks of Henley-on-Thames (LD)
My Lords, I wish to test the opinion of the House on Amendment 185.
Lord Sharpe of Epsom
“(7A) Condition G is met where—(a) the general case services are those described in paragraph 11, 33, 34 or 35 of Schedule 1 (services in relation to domestic violence and housing), and(b) the offender—(i) was or is a victim of domestic violence occurring after the relevant date, or(ii) is at risk of being a victim of domestic violence.(7B) In subsection (7A)—“domestic violence” has the meaning given in paragraph 12(9) of Schedule 1;“relevant date” means the date five years before the application date.”Member's explanatory statement
This amendment would allow offenders to access civil legal aid in relation to services relating to domestic violence and housing where they were at any time in the five years preceding their application, or at any time after their application, victims of domestic violence, or are at risk of being victims of domestic violence.
“(10A) Within 60 days of this section coming into force, a Minister of the Crown must publish a review in to the impact of this section on offenders who have been sentenced to a non-custodial sentence.”Member's explanatory statement
This amendment means that a Minister must review the impact of restrictions on legal aid on those who receive non-custodial sentences.
Lord Sharpe of Epsom
“Amendments of Terrorism Act 2000Schedule (Amendments of Terrorism Act 2000) contains amendments to the Terrorism Act 2000.”Member's explanatory statement
This amendment introduces the new Schedule inserted by Lord Sharpe before Schedule 17.
Lord Sharpe of Epsom
My Lords, Section 41 of the Terrorism Act 2000—hereafter referred to as TACT —confers a power on a police officer to arrest a person whom they reasonably suspect to be a terrorist. Under Section 41, officers are able to detain someone before charging or releasing them. The Section 41 detention clock allows them to do so for a maximum period of up to 14 days. It is possible for a person to be arrested under Section 24 of PACE then subsequently rearrested under Section 41 of TACT. This might happen, for example, when information comes to light during the investigation indicating that the offence of which the individual is accused has a terrorist connection. Under the current position, the time spent in detention under Section 24 would, in theory, not be counted towards the initial 48-hour permissible period of detention under Section 41. Though counting this time is, in fact, current operational practice, the Government are clear of the need to codify this practice and ensure that the safeguard continues to apply in all future cases. This is what this amendment does, while aligning the power relating to foreign power threat activity contained in Part 1 of this Bill.
Schedule 5 to TACT contains a power under which an officer of at least the rank of superintendent may, by a written order, give to any constable the authority which may be given by a premises search warrant issued by the court for the purposes of a terrorist investigation. The authorising officer must have reasonable grounds for believing that the case is one of great national emergency and that immediate action is necessary. We are seeking to amend Schedule 5 to TACT to create an ex post factum judicial authorisation safeguard. This will require the police to apply to the court for a warrant in relation to any relevant confidential journalistic material seized during the search that they need to retain for the purposes of a terrorist investigation. In the interests of national security, it is right that confidential material should be accessible in cases where the police can show that the action is necessary, proportionate and satisfies the legal tests in these provisions, while pursuing a terrorist investigation.
However, the Government also recognise that press freedoms are extremely important. Therefore, when such material is seized during a search that has been authorised under this urgent procedure, it is right that a warrant must be sought from a judge for its continued retention, and that an application for retention can be ex post factum, after the search itself has taken place. This approach reflects recent case law and ensures that the provisions provide appropriate protection for journalists. This amendment will also align this aspect of Schedule 5 to TACT with the equivalent urgent premises search power found in Schedule 2 to this Bill.
I turn to Amendment 192, tabled by the noble Lord, Lord Coaker. This amendment seeks to impose on the Secretary of State a duty to implement the recommendations of the Intelligence and Security Committee’s report on Russia. As noble Lords will be aware, the Government published their response to the Russia report on the day the report itself was published, 21 July 2020. Although the report did not itself enumerate specific recommendations, all the recommendations that could be identified in the report were addressed in the government response. A majority of the ISC’s recommendations had already been implemented by the Government before the report was published—for example, those covering co-ordination of HMG’s Russia work, close working with international partners and continued exposition and attribution of malign Russian activity. The then Home Secretary reiterated this in a Statement made to the House on 17 January 2022.
The Government’s response made our approach to tackling the recommendations in the report clear. By introducing effective new tools and powers for the police and security and intelligence agencies, this Bill can rightly be seen as delivering on commitments that the Government made in their response. Noble Lords will also be aware that the Government implement the vast majority of all ISC recommendations. However, there may be occasions when, for reasons including national security, we may not be able to take forward specific recommendations. We do not consider further reporting nor this amendment necessary, given the actions that the Government have already taken in response to the report.
Amendment 193, also tabled by the noble Lord, Lord Coaker, seeks to impose a duty on the Prime Minister to update the memorandum of understanding between the Government and the Intelligence and Security Committee to reflect the changes to the Government’s intelligence and security activities as a result of the Bill. Section 3(2) of the Justice and Security Act 2013 already provides for the ISC to make reports
“as it considers appropriate concerning any aspect of its functions”.
That already gives the ISC the ability to report on matters that fall within its remit so far as is consistent with the MoU—for example, to seek to avoid duplicating the work of other committees. Amending the Bill as proposed might be taken to imply that the ISC required explicit legislative nomination to propose changes to the MoU in relation to changes in intelligence and security arrangements brought in by Bills, which is not the case.
I turn to the amendment tabled by the noble Lord, Lord Wallace of Saltaire. I am aware that there are concerns about how the now closed tier 1 investor route operated—in particular, concerns that the route was used by those relying on funds that had been illegitimately acquired and those who may have posed a wider risk to the UK’s national security. It was because of those concerns that we committed to a review of visas issued under the route between 2008 and 2015. The Home Secretary made a Written Ministerial Statement on 12 January setting out the findings of that review, including that the review had identified a minority of individuals connected to the tier 1 investor visa route who were potentially at high risk of having obtained wealth through corruption or other illicit financial activity, or being engaged in serious and organised crime.
The Statement of 12 January represents the Government’s substantive response to the commitment to undertake a review and publish our findings. I am aware that some noble Lords would have preferred that the published review had included more information about specific individuals. However, we have had to act responsibly with regard to the UK’s national security. We have sought to strike the right balance between setting out the broad findings of the review and the constraints on disclosing sensitive details, which must be withheld at the request of our operational partners to protect our border, and the vital work of our law enforcement agencies.
I stress that this Government have already acted decisively regarding the risks posed by the tier 1 investor route to the UK’s national security when we closed the route on 17 February 2022. The Government have also been clear that any future visa programme in the investment space must operate on a fundamentally different premise from the previous one, with a far greater focus on skills and impacts, rather than just cash in the bank. I beg to move.
Lord Coaker (Lab)
My Lords, this is the first opportunity I have had to join other noble Lords in thanking the Minister for the various significant changes the Government have made to the National Security Bill and the improvement they have brought.
I shall speak to my Amendments 192 and 193. Again, I thank the Minister for his various amendments in this group, which are also an important step forward. I will leave the noble Lord, Lord Wallace, who has signed my Amendment 192, to speak to his Amendment 194.
Amendment 192 deals with the recommendations of the July 2020 ISC Russia report. The Minister has addressed some of those but I have one or two questions to ask him before I turn to Amendment 193, which is the real priority for me in this group. The report highlighted the fragmentation of the various bodies. The Minister has spoken about how the Government seek to address that, but we would all like to know how the supposed co-ordination of the government response to the Russia report is being monitored to ensure that it is taken forward, and that what the Government say about the need for co-ordination to tackle fragmentation is made a reality.
The report highlighted again the prominence of dodgy Russian money in London. The Government will say, quite rightly, that they have at last taken action on that. How is that progress being monitored, so that we know how effective it has been, particularly in light of Ukraine? Similarly, can the Government reassure us that the various threats to democratic processes that the report highlighted are being addressed? I do not intend to press Amendment 192 to a vote—I am really just asking about the progress made since the report was published. As the Minister said, the Government’s response was published on the same day, but the question is how we maintain the progress that we all want to see on the various issues raised.
I will try to be as brief as possible on Amendment 193. The ISC’s annual report, published on 13 December 2022, clearly laid out the need to update the memorandum of understanding. That is what my Amendment 193, on which I will test the opinion of the House, seeks to do: to update the MoU the ISC operates under to reflect the changes made by the Bill and those made over the last few years. The Minister himself referenced the various government departments that now have responsibility for different aspects of security and intelligence, a point I will come to in a moment.
Let us remember that the ISC was set up in 1994 to allow for greater parliamentary oversight of these important matters, while respecting the obvious need for national security—an issue brought into sharp focus by the excellent Saunders report on the horrific Manchester Arena attack. The current MoU is out of date. The commitment made by the Security Minister in 2013 during the passage of the Justice and Security Act—that the MoU is a live document that is easily changed—needs to be honoured.
Who oversees the increasing devolution to policy departments of intelligence and security activities? How can parliamentarians scrutinise those when only ISC members with the necessary security clearance can access classified information? The Select Committees supposedly tasked with these various oversight roles are not suitable for that reason, rather than for any reason of capability. They simply do not have the security clearance to look at classified information.
The following departments and bodies are mentioned in the Saunders recommendations: the Department for Education, the Crown Prosecution Service, the Law Commission, the Home Office and the Ministry of Justice—and that is the open part of the report; for obvious reasons, we will not know what is in the closed part. If the ISC oversees all this, as it is perhaps expected to do in light of the recommendations, how will that work with regard to the Department for Education and the various other departments?
Our committee says that the outdated MoU is a real problem, but the Government say it is not. The ISC says it is a problem, but the Government simply dismiss it and say it is not. Can the Minister explain how members of a Select Committee—let us use BEIS as an example—can oversee classified information that informs the work of a body they are responsible for if they cannot see that information? Pages 42 and 43 of the Intelligence and Security Committee annual report lists numerous departments that have various security and intelligence functions they are supposed to oversee, but they will not be able to see the classified information because they do not have the security clearance. The ISC itself cannot oversee this because that is not part of the memorandum of understanding under which it works.
The committee was told, as I said, that the Government do not feel bound by statements made by the Security Minister to Parliament in 2013. So what weight should we give to any Ministerial Statements the Minister makes if, in a few years’ time, the Government can simply say, “We don’t give any weight to what was said in 2013”? Parliamentary Statements by Ministers of the Crown are supposed to be justifications of policy. We all rely on them. Courts rely on them. Many amendments to this Bill were withdrawn earlier because of what the Minister said at the Dispatch Box and the reassurances he gave, yet the Government are saying that they no longer agree with the 2013 assurances given by then Security Minister, so they will ignore them. We are talking not about policy—I understand how policy works—but about process and the need to update it. As I say, that is very disappointing, to say the least.
Lord Wallace of Saltaire (LD)
My Lords, my name is on Amendments 192 and 194. I also support Amendment 193. I remind the Minister that the Conservative 2019 manifesto states:
“We will protect the integrity of our democracy, by introducing … measures to prevent any foreign interference in elections.”
This Bill partly does that—not in my opinion sufficiently, but it takes us some way in this direction. There are questions of transparency and of accountability, about which the noble Lord, Lord Coaker, has just been speaking, and broader questions about public information and public education into the nature of the threat and the experience which we have so far had of that threat.
I remind the Minister, that paragraph 47 of the Russia report has as its heading, “Lack of retrospective assessment”. It says:
“We have not been provided with any post-referendum assessment of Russian attempts at interference … This situation is in stark contrast to the US handling of allegations of Russian interference in the 2016 presidential election, where an intelligence community assessment was produced within two months of the vote, with an unclassified summary being made public.”
It goes on to say that it is
“the Committee’s view that the UK Intelligence Community should produce an analogous assessment of potential Russian interference in the EU referendum and that an unclassified summary of it be published.”
The following chapter talks about the high level of integration for Russian oligarchs within London society and, in particular, political parties—including mentioning penetration of the House of Lords. In effect, it recommends that some of that should be published. Very little has been, which leads to Daily Mail allegations of all sorts of things about the House of Lords, which I suspect are exaggerated, and to a lack of understanding of the nature of the threat. I understand that many of these issues might embarrass the Conservative Party because the penetration, influence and money has most evidently gone to the Conservative Party. However, I can easily imagine what a Conservative Party in opposition would be saying if it were a Labour Government who were refusing to accept the recommendations of the ISC in this respect. Accountability and public education are important. In this respect, they have failed.
On Amendment 194, I take the same view in terms of accountability and public education on the golden visa scheme, and some of that review should be published. We have heard very little about the problem of Chinese rich people in Britain. I remind the Minister that by far the largest nationality of origin of people who have come in under the golden visa scheme was Chinese. The second largest was Russian, and then there were various other nationalities, including a lot of central Asian nationalities. We need to understand a little better what the experience has been, what the sensitivities have been, and what we should learn from that. The Government, in keeping it all under wraps, are failing not only to account to Parliament about what is going on but to tell the public what sort of world we now live in and where there are sensitivities about which we should be concerned. This Bill, as a whole, is trying to sensitise some of the public to the delicacies of our international relations.
Part of our problem in Britain is that we live in a highly internationalised world, with a very large number of rich people in London living among us. My wife and I have just begun to face up to the dreaded problem of downsizing. As we go around parts of London, we see estate agents who tell us that 20% to 40% of the people to whom they have sold houses in recent years have been from overseas—from the Middle East, eastern Europe, Russia and Asia. Again, many of these are highly desirable people buying second homes in London. However, we need to know where there are problems, what we should have been thinking about, what the government have now learned and what they would like the public to understand.
Lord West of Spithead (Lab)
My Lords, I support on behalf of the ISC Amendment 193 in the name of my noble friend Lord Coaker. This amendment would update the ISC’s remit to ensure it has the power effectively to scrutinise intelligence and security activity that will be taking place across government under the new national security regime.
The ISC already has the power to oversee much of the intelligence and security activity that will take place. However, as my noble friend Lord Coaker outlined very persuasively, the ISC’s oversight has generally been eroded due to intelligence and security activities often now being undertaken by policy departments which do not generally carry out national security-related activity. He mentioned a list of them and there are many. They were not included in the ISC’s remit and they can—I have to say, they have often—excluded the ISC from looking at the material that we think we should look at. If the Government establish new teams as part of this Bill which sit outside our remit, this amendment will make sure that the memorandum of understanding is updated, and we will be able to have access to do our job for Parliament scrutinising this highly classified material.
Updating the ISC’s MoU is vital, as effective oversight of intelligence and security can be undertaken effectively only by the Intelligence and Security Committee. Unlike Select Committees, the ISC’s purpose is to oversee these highly classified matters which relate to national security on behalf of Parliament. It is therefore the only parliamentary body with the necessary security infrastructure to scrutinise the material that often underpins national security decisions. This issue of having the right material affects the staff. For example, civil servants, who are working with regular access to “top secret” have to have DV. If one looks across government at the moment, I am not sure that that is the case in some departments. They also, including Ministers, have to be read into the STRAP material, and then there is the extra physical security to store “top secret” and STRAP material. It is considerable, and I am not convinced that this is the case across government.
As my noble friend Lord Coaker mentioned, the Government understandably provided a very clear commitment to Parliament, during the passage of the Justice and Security Act 2013, that the ISC’s MoU would be kept updated. Unfortunately—we noted this in our last annual report—this has not been done. They have not stood by this commitment. I cannot understand what difficulty the Government have with this, because I would have thought it was in the interests of the Government to ensure that Parliament has an ability to do this.
I can only repeat the words of the noble Lord, Lord Coaker:
“Each piece of new legislation devolving national security matters away from bodies already overseen by the ISC should come with commensurate expansion of the ISC’s MoU”.
This has been promised by the Government and it should be done. This amendment will seek to do that if, as a result of this Bill, the Government do indeed establish new teams outside the ISC’s current remit. However, as this amendment is linked to this Bill only, it understandably has limited scope; it will not fix the lack of effective oversight in other national security legislation, such as the Telecommunications (Security) Act, where, again pretty much across this House, people argued that the ISC should have the ability to scrutinise that. But it will be a very useful start to help embed the oversight provisions, and for that reason I support this amendment.
Lord Butler of Brockwell (CB)
My Lords, I want to support Amendment 193, moved by the noble Lord, Lord Coaker. He said that he felt the memorandum of understanding had not been renewed and brought up to date for no good reason. I believe it is worse than that. I think it has not been revised for a bad reason: because the Government have taken a dislike to the Intelligence and Security Committee. They have tried to restrict its activities, I believe for two reasons. First, the Government were piqued when there was pressure to publish the Russia report before the 2019 election and they did not want that. I suspect the reason they did not want it was that they did not want the discussion which the report introduced about the involvement of Russian apparatchiks in London politics. Secondly, I believe the Government were piqued because the committee did not elect as its chairman the person whom the Government wanted. It seems extraordinary that one could say of a responsible Government that these were their motives; they are childish motives. But the consequence is that in recent times the Intelligence and Security Committee of Parliament has not been used for the purpose for which it was set up.
If the Government are not going to use the Intelligence and Security Committee properly, they should save money and abolish it. But, of course, they will not do that because Parliament set it up, Parliament thinks it is important that this House and the House of Commons should have some insight into intelligence operations, and it would be unacceptable for the Government to abolish it. But they must choose either to abolish it or to use it properly. If they are to use it properly, they must update the memorandum of understanding and, as the noble Lord, Lord West, said, use it for the purpose for which Parliament intended: to give oversight by people who are fully screened within the ring of secrecy to report to Parliament. I think this is a much more important amendment than the face of it suggests.
Lord Sharpe of Epsom (Con)
My Lords, again I thank all those who have spoken on this group of amendments, and in particular I thank the noble Lord, Lord Coaker, for his generous remarks.
In terms of the Russia report, it is simply not true that we have not implemented the report’s recommendations. As I said in my opening remarks, the Government published a full and comprehensive response to the ISC report in July 2020, which is available online and which addressed all the committee’s key themes and recommendations point by point. The Government have responded to all the recommendations that could be identified within the report. The majority of the committee’s recommendations were already being implemented by the Government before the report was published: for example, those covering co-ordination of HMG Russia’s work, close working with international partners, and continued exposition and attribution of malign Russian activity.
I would say also that, as noted in HMG’s response to the Russia report, an assessment was produced and is available at a higher classification. Noble Lords will appreciate the difficulties of producing intelligence assessments for the wider public, given the risks of putting sensitive material, including information about our capabilities and methods, into the public domain.
Lord Coaker (Lab)
Before the noble Lord moves on to a different amendment, can he answer my question? How can Select Committee members, who do not have the necessary security clearance, possibly look at and scrutinise classified material on Parliament’s behalf?
Lord Sharpe of Epsom (Con)
If they do not have the necessary security clearances, they obviously cannot, but, as I said earlier, that is part of the full consideration of the MoU and the various changes to the machinery of government that is currently under way.
Lord Beith (LD)
Has the noble Lord quite grasped the significant value of the ISC? I speak as someone who used to be on it. One aspect is its value to the Prime Minister, who gets a detailed assessment of aspects of security in circumstances where nobody else can, and he alone can do something about it. It is also an important guarantee to parliamentary colleagues in both Houses that things that cannot be disclosed are being examined by people whom colleagues trust, and that is very important in order to have some confidence that there is oversight going on.
Lord Sharpe of Epsom (Con)
I completely agree with the noble Lord. I certainly get it, and I hold the ISC in great respect, including the noble Lords in this House who are members. As I have said, the Justice and Security Act requires the Prime Minister to read the report before it is published. He gets an unredacted version, so he sees the full picture, and I have committed to take back the House’s concerns about attending the committee, via my noble friend Lord True.
If I may, I will turn to the tier 1 investor visa route, and I am afraid that I will have to repeat a number of things that I said in my opening remarks. The review of visas issued under the route took place relatively recently. A Written Ministerial Statement on 12 January set out the findings of that review, which reviewed visas issued between 2008 and 2015. That included that it had identified a minority of individuals connected to the tier 1 investor visa route that were potentially at high risk of having obtained wealth through corruption or other illicit financial activity. The Statement represented the Government’s substantive response to the commitment to undertake that review and publish its findings.
I am aware that the noble Lord, Lord Wallace, would have preferred that the published review included more information about specific individuals. I agree with his remarks about protecting our democracy and transparency. However, we have had to act responsibly in regard to the UK’s national security. We have sought to strike the right balance between setting out the broad findings of the review and the constraints on disclosing sensitive details, which must be withheld at the request of our operational partners to protect our border and the vital work of our law enforcement agencies. I think that those are perfectly reasonable points to have made in regard to the tier 1 investor visa.
I appreciate that I have not given as fulsome answers as all noble Lords would like, but in light of the answers that I have given, I request that noble Lords do not press their amendments.
Lord Coaker
“Duty to update the Intelligence and Security Committee of Parliament's memorandum of understanding(1) The Prime Minister must ensure that the memorandum of understanding between the Prime Minister and the Intelligence and Security Committee of Parliament (the “ISC”) under section 2 of the Justice and Security Act 2013 (the “MoU”) is revised to reflect any changes to the intelligence or security activities of His Majesty’s Government as a result of this Act.(2) Any revisions to the MoU under subsection (1) must be agreed between the Prime Minister and the ISC in accordance with the process set out in section 2 of the Justice and Security Act 2013.(3) Any engagement between the Prime Minister and the ISC relating to revisions to the MoU under subsection (1) must commence within the 6-month period beginning with the day on which this Act is passed.”Member's explanatory statement
This amendment ensures that the ISC’s Memorandum of Understanding is updated to reflect this Act.
Lord Coaker (Lab)
As I indicated, I would like to test the opinion of the House.
Lord Coaker
“Proscription of organisations: hostile activity on behalf of another State(1) Within six months of this Act receiving Royal Assent, the Secretary of State must publish draft legislation establishing a process for the proscription of actors engaged in hostile activity within the meaning of paragraph 1(5) of Schedule 3 to the Counter-Terrorism and Border Security Act 2019.(2) Such legislation must have reference to the existing proscription process as governed by section 3 of the Terrorism Act 2000 (proscription).”Member’s explanatory statement
This amendment requires the Secretary of State to propose a new proscription process for actors engaged in hostile activity on behalf of other states.
Lord Coaker (Lab)
My Lords, in moving Amendment 195, I will not speak at great length. The amendment requires the Secretary of State to propose a new proscription process for actors engaged in hostile state activity on behalf of other states, or indeed non- state organisations acting for a state or those who may act on their behalf.
I am moving this amendment to enable the Government to deal with any legislative problem in proscribing, among others, the Islamic Revolutionary Guard Corps, known as the IRGC. The Government will tell the Chamber and me that existing legislation can deal with it, so it is not a problem. So why is there a delay in proscribing the IRGC? If there is no problem with existing legislation, why are Foreign Office officials questioning, as reported in the Times and many other media outlets, how the IRGC can be defined as a terrorist organisation under existing legislation, given that it is a government agency, unlike most of the other groups on the list? Foreign Office officials are being reported in the media as saying that there is a problem with the legislation. The Home Office is saying—I presume this is what the Minister will say—that there is not. Where has that come from? Why is the Foreign Office briefing the media that the reason it is resisting the proscription of the IRGC is that it is not sure that existing legislation will be adequate to define the IRGC as a terrorist organisation because it is a government agency.
There is a problem here at the heart of government. My Amendment 195 seeks to say to the Government, “Here is a legislative vehicle by which you can plug a gap so that the concerns raised by the Foreign Office can be alleviated”. The Home Office and the Foreign Office cannot both be right. So we should pass the legislation as I have laid it out here. I have read—I was advised that this was the way to give the Government a vehicle to deal with any legislative problem in the proscription of the IRGC, as laid out by the Foreign Office—the various parts of the 2000 Act and the 2019 Schedule in front of me and, as much as I can read and understand them, I will have to take the Foreign Office’s word that it is because it is a government agency that there is a problem.
As I said, something is the matter here. It is the will of Parliament, as expressed time and again in this place and in the other place, that the IRGC should be proscribed, but the Government are unable to do it. Therefore, all of us should pass this amendment to get rid of the legislative barrier that the Foreign Office says stays in the way. I am not a legislative expert, but, if the Foreign Office says there is a problem, if I were in the Home Office, I would pass this amendment and call out the Foreign Office if I wanted to proscribe the IRGC. Perhaps the Minister can tell us whether the Government wish to proscribe the IRGC and whether there is a problem with the Foreign Office. Clearly there is; the Minister will not say there is, but there is.
We have seen an Iranian TV station in the UK forced to shut down because of activity from Iran. Numerous plots have been foiled, thanks to our security services. The noble Lord, Lord Evans, is here, and the noble Baroness, both former heads of MI5, so we thank them. But the Government are prevaricating on the proscription of the IRGC. My amendment, as I said, seeks to help the Home Office in its disagreement with the Foreign Office by allowing the creation of an improved and clearer process for proscribing hostile state actors.
The Government are divided in the face of this worrying issue. The Government will say they are not, so I was looking for evidence to show that they were. What did I find? In Hansard, Bob Blackman MP—not me trying to create trouble in the Lords but a Conservative MP—said:
“Clearly, the threat from the IRGC to people in this country—be they opposition journalists reporting on what is going on in Iran at the moment or UK citizens—is paramount. Foreign Office Ministers have responded to all the urgent questions the Speaker has granted and the debates we have had, but will my right hon. Friend now take the obvious step, which is supported by all political parties in the Chamber, and proscribe the IRGC in its entirety?”
Tom Tugendhat, Minister, Home Office, responds with this direct quote:
“My hon. Friend will know that it is not me”—
I am quoting this—
“he has to persuade in this matter and that there are many areas where I would like to go. I can assure him that the Government are absolutely listening to exactly what he is saying. The Home Secretary and I are as one on this”.—[Official Report, Commons, 6/2/23; col. 639.]
I am not a genius at working out what that means, but I think anybody who has been in the other Chamber or in this Chamber and has listened to the debate knows that the National Security Minister is telling Bob Blackman MP that the Home Secretary and he agree that the IRGC should be proscribed, but they have a problem with other parts of government, and those other parts of government are the Foreign Office, which believes that it should keep open communication with Iran and that proscribing the IRGC will cause all sorts of other problems, presumably around the nuclear treaty and so on and so forth.
All I am saying to the Minister is that the Foreign Office is clearly blocking the proscription of the IRGC, which is what the majority of people in this Chamber and the other think should happen, and my amendment seeks to take away from it the excuse it is using: namely, that there is a legislative problem, because the IRGC is a government agency and it would therefore be difficult under existing legislation to define it as a terrorist organisation.
Amendment 195 is extremely important, because it will allow the proscription of the IRGC and will take away from the Foreign Office the excuse that it is using to block that proscription. It is in the national security interests of this country for the IRGC to be proscribed as soon as possible. From what I just quoted, it is obvious that the Government, defined as the Home Office, agree, but the Foreign Office is stopping it. This Chamber has the opportunity, in the vote on my Amendment 195, to take away the excuse that the Foreign Office is using to stop that proscription. I hope that noble Lords will take it.
Lord Purvis of Tweed (LD)
My Lords, I am grateful to the noble Lord, Lord Coaker, for bringing this issue to the Chamber on Report. He asked very pertinent questions. If he seeks to test the opinion of the House, we shall abstain on this point, but that is not because we do not wish to hear the Minister’s answer—it is because, if we are reforming the Terrorism Act 2000 and the means by which we proscribe organisations, there are perhaps better places for a full and more fundamental review.
I have been on record as supporting the proscription of the IRGC, and I have said that this should not be done without considering the knock-on effects within Iraq and Lebanon. The Terrorism Act 2000 states that it is the Home Secretary who has the specific power to proscribe, so the questions that the noble Lord, Lord Coaker, asked are valid. If this is a Home Office Minister stating that to the House of Commons and it is the Home Secretary’s decision, what is the process by which government will now make decisions on this? I have also repeatedly called for the proscription of the Wagner Group, which is a non-government organisation but clearly has direct links with the Russian Government.
There are, of course, some grey areas. Before we reached this group, I reviewed the whole list of those proscribed organisations, and we have recently proscribed some that are clearly not linked with a Government but are organisations designed to destabilise that country’s Government. However, over the years, there have been other organisations where the lines are more blurred as to whether they are within the framework of aliases or associated organisations, which can be proscribed under the Terrorism Act 2000, even if they are not directly part of the Government of that nation. It is obviously a large step if we proscribe part of a Government, but, in the past, we have seen that, in many areas, it has not been clear who the Government of a country are. Therefore, the statutory tests that are used, and that need to be satisfied, need to be robust.
I have raised the issue of the Wagner Group since 25 April last year, and I have seen it operating with my own eyes in Sudan—some noble Lords have heard me make this case before—and it is palpably the case that its operations are terrorist in purpose and in nature and that they are directly against the national security interests of the United Kingdom and pose a threat to British nationals and our allies. I called for its proscription last year on 25 April, 23 May, 9 June, 7 July, 15 November and 21 December, and on 26 January this year.
Lord Leigh of Hurley (Con)
My Lords, I have not spoken on the Bill before, and I appreciate that we are very near the end of it, but I am moved to stand by the amendment of the noble Lord, Lord Coaker, which, as it is written, I support.
I have only voted against the Government once and, in retrospect, I think that was a mistake, in that I got confused about what the legislation said. But in this particular instance there is an opportunity for us to stand up and say that the IRGC is an organisation that should be proscribed. It is clear that large parts of government and MPs, including the Tory MPs referenced, believe that, and it is clear that a group of people in the Foreign Office take a different view. That is not a new position. I appreciate that my noble friend is a Home Office Minister and does not have a Foreign Office Minister with him but, none the less, an inflection moment is in front of us. I hope that my noble friend the Minister might find a way of supporting this amendment or explaining how he will satisfy the questions raised tonight.
Lord Polak (Con)
My Lords, my noble friend Lord Leigh led the way, and I shall follow. Along with the noble Lord, Lord Alton, I am one of the two Members of this House who have been proscribed by the Iranian regime and the IRGC, and I have consistently called for it to be proscribed by the Government.
I listened carefully to what the noble Lord, Lord Coaker, said and, if there is an issue with the organisation being part of the Government, how were we able, when Sajid Javid was Home Secretary, to proscribe Hezbollah, which had Members of Parliament in Lebanon? This was always the argument against it, but it was done because it was the right thing to do. I remind noble Lords that Hezbollah and Hamas, which we all proscribed, are in fact the unruly children of the parent body—the IRGC, which needs to be proscribed.
Lord Alton of Liverpool (CB)
My Lords, it is a pleasure to follow the noble Lords, Lord Polak and Lord Leigh, as well as my friend, the noble Lord, Lord Purvis. He is indeed a friend, but I disagree with the conclusion he reached today. I want to support the noble Lord, Lord Coaker, if he puts the amendment to a vote in the House. I salute the noble Lord, Lord Purvis, for the work he has done on both the IRGC and the Wagner Group; like him, I have seen the consequences of their actions in many parts of the world. I think that proscription is the right thing to do in some circumstances, and I believe that it is right in these circumstances.
Just before the debate on this amendment, I was at a committee meeting upstairs in Committee Room 9, where a young Iranian woman was speaking, during this special week celebrating the rights of women, about the slogan which has been used so often in the protests: “Freedom, Life and Women”. This young woman described atrocities that had occurred to her friends and her own personal experiences. She asked what we were doing about the IRGC and why the television broadcaster Iran International has had to leave this country and go to the United States because it is not safe to operate in west London. How can that be? How can it be that BBC Persian service personnel are constantly harassed as a result of doing their job, even though Article 19 of the Universal Declaration of Human Rights guarantees the freedom to transmit ideas and opinions? That freedom is not permitted by the theocracy in Iran.
As the noble Lord, Lord Polak, said, he and I have been sanctioned, along with Tom Tugendhat MP, to whom the noble Lord, Lord Coaker, referred. This is trivial in comparison to the things that happen to Iranian people and to what we have seen happening to people in the protests in Iran, which are truly shocking. It is trivial when you think about the export of drones from Iran to Russia that are now pouring down on the people of Ukraine. If we fail to take this kind of action—indeed the noble Lord, Lord Polak, and I asked this question in your Lordships’ House back on 18 January, after Alireza Akbari, a British citizen, was executed—what has to happen before they are proscribed? We asked it again on 23 February, in the Moses Room during a Question for Short Debate I tabled about relations between Iran and the United Kingdom. We specifically asked about the division between the Foreign Office and the Home Office and about what was impeding a decision being taken on this matter.
I know the Minister quite well now, and I admire and respect him. I do not expect him to give us a lot of cant from the Dispatch Box, but I hope that he will take back to the Government the feelings of so many of us in this House today who want to support the noble Lord, Lord Coaker, for the reasons he expressed so well.
Lord Evans of Weardale (CB)
My Lords, it is an honour to follow the noble Lord, Lord Alton. I have considerable sympathy for what he says in view of the appalling behaviour of the IRGC. However, this amendment, as I understand it, would open the door to the proscription of state organisations, with proscription having originally been envisaged as a mechanism principally to bear down on non-state organisations.
I wonder therefore whether the Minister, when he responds, could clarify whether the proscription of state organisations brings with it unintended consequences that would be potentially quite difficult. For instance, will we say that anybody who is a member of a hostile intelligence service—which might be proscribed—is, by definition, committing an offence? What will that do, for instance, to intelligence liaison with people who are hostile to us, which sometimes happens? Does it create problems which would not be created for a non-state organisation, because these organs will be part of a very considerably bigger state entity with which we may have to engage at some level?
I am neither in favour with nor against the amendment. I am not quite sure exactly how it would work, and I would be very grateful if the Minister could clarify those aspects.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords who have participated in this very brief debate.
I think it would be helpful to give a brief overview of the concept of proscription as outlined in Part 2 of the Terrorism Act 2000. Put simply, proscription can play an important role in degrading the ability of terrorist organisations to operate effectively, and it sends a strong message that the UK is a hostile operating environment for such groups. The Terrorism Act 2000 gives the Home Secretary the power to proscribe a group if she has a reasonable belief that it is currently concerned in terrorism and it is proportionate to do so. The amendment seeks to replicate this within an explicit state threats context and requires that the Government develop and publish appropriate draft legislation.
The Home Secretary’s decisions on proscription can be legally challenged. As such, those decisions are supported by a comprehensive, evidence-led process which involves close consultation with other government departments and partners. This House will fully appreciate that developing a state threats proscription power will need to be considered fully.
Before I go on, I will refer to the IRGC, as it has come up in all contributions. I remind the House that the United Kingdom already sanctions the IRGC in its entirety. The separate list of proscribed terrorist organisations is kept under very careful review, but we do not routinely comment on whether an organisation is or is not under consideration for proscription.
In response to the illustrative points from the noble Lord, Lord Coaker, on whether there is a legislative gap in this area, I say that the National Security Bill creates a wide range of offences, tools and powers to counter state threats activity. In many respects, they cover very similar ground to a proscription-like power. For example, any person materially assisting a foreign intelligence service in their UK-related activities would commit an offence under Clause 3. Under the enhanced tier of the foreign influence registration scheme in Part 3, the Government could require the registration of all activities being conducted with those specified under the scheme. The Government will, with the agreement of Parliament, be able to specify a foreign power, part of a foreign power or an entity controlled by a foreign power. That means that those who are in arrangements with such organisations must register their activities or risk prosecution. The noble Lord, Lord Coaker, referred to my right honourable friend in the other place, the Security Minister, and I know that he is reassured by this.
However, as the Government have previously set out, we see the Bill as forming a new baseline for state threats legislation from which the statute will inevitably build over time as the threat evolves and diversifies. I am therefore grateful to the noble Lord for raising the issue and giving us the opportunity to debate it. I reassure him that I understand the reasons behind the amendment and the concern about the activities of state groups such as the IRGC. The Government of course share the noble Lord’s concerns, as was made clear in the Government’s statements on Iran International —to which the noble Lord, Lord Alton, also referred—which highlighted the potentially lethal operations of the IRGC taking place in the UK.
The amendment raises an important question of whether more needs to be done in this space, and I can reassure all noble Lords that this is a question that the Government are already considering carefully. The Government are committed to tackling all forms of state threats and to ensuring that our police and security services have the right powers to keep the UK safe.
Given, as I have said, that the measures in the Bill already have a similar effect in the state threats context to that achieved through the proscription for terrorism, we need to fully consider, alongside our operational partners, whether and how additional tools such as a state threats proscription power would add to the offences and measures in the Bill. We are committed to ensuring that any future legislation we pursue in this area has maximum effect.
Returning to the amendment itself, while it does not seek to set the ultimate scope of any legislative provision, I am afraid I am unable to accept an amendment that too tightly constrains our thinking in this important area. Linking proscription to hostile activity as defined in Schedule 3 to the Counter-Terrorism and Border Security Act 2019 would need careful consideration. I very much take on board the points of the noble Lord, Lord Evans, on this and on the scope. While that definition was considered suitable for that legislation, a different approach was taken in the National Security Bill, reflecting the differing nature of the tools and powers it contains. I would not want to pre-empt what might work best in the context of a potential proscription-like power. Furthermore, it is possible that to deliver an operational benefit, the tool may need to be created in a different way, and as such proposing a link to existing proscription processes may be unhelpful.
For these reasons, the Government cannot accept this amendment as drafted. I am also going to have disappoint the noble Lord, Lord Purvis: I am unable to comment on the Wagner Group; I am not qualified to do so. I hope the noble Lord is reassured that the Government are already looking carefully at this area and will therefore consider withdrawing his amendment.
Lord Coaker (Lab)
I thank the noble Lord for his response. Of course the Government are carefully considering this. I do not for one moment believe that they are not thinking about or carefully considering it—that would be an insult to the British Government. Of course they are concerned about national security and worried about various issues, including the one before us. That is a given. I have never accused the Government of not being concerned about it, of not considering it, of not deliberating on it, of not thinking about what they should do.
My amendment is saying that there is a real problem at the heart of government because the Foreign Office is blocking what the Home Office wants to do. There was not a word about that from the Minister; not a word about the fact that the Foreign Office is saying, “You cannot use existing legislation because it means that the IRGC”, to use that as an example, “is a government agency and not within the definition of a terrorist organisation under the legislation as drafted”. That is the core of it.
The noble Lords, Lord Leigh, Lord Polak, Lord Alton, and others who have spoken are saying that if there is a legislative problem, which the Foreign Office thinks there is, sort it out or come before this Chamber and say, “We do not want to proscribe the IRGC. We do not want to take that sort of action”. It is a perfectly reasonable thing to argue. “We do not want to proscribe the IRGC because we think the better way of sorting this problem out is to maintain open communications with the Iranian regime, to talk to them, to embrace them. We are not going to take any hard action against them because we think that undermines the policy objectives of the British Government.” It is a perfectly reasonable policy position, but I do not think that that is what is going on. I think the Government are having a row. I think there is a clash between the Foreign Office and the Home Office, and I am on the side of the Home Office. The IRGC should be proscribed, and I think that is what the majority of people in this Chamber, and in the other place, think. If so, it is the Government—or part of the Government—who are the problem, and my Amendment 195 gives them a legislative vehicle to sort it out.
What sort of a response is it, on something as serious as this, to say it is a drafting problem and “I did my best with it”? If there is a drafting problem, the Government can accept it and sort it out. They can change it, bringing in their battalions of lawyers, barristers even—I apologise to the noble Lord, Lord Pannick—to sort it out. I was a teacher; I played football; I was a politician; I am not a lawyer, but that was the best I could do, because I know how important this is. The IRGC is operating within this country, to the extent that MI5 and others are having to foil terrorist plots. It forced a TV station to shut down, and the Government’s reaction to my amendment is to say, “There is a drafting problem with it”. It really is not acceptable.
The noble Lord, Lord Evans, is right in saying that there is a balance to be struck. Well, strike a balance by accepting Amendment 195, sorting the legislation out and allowing the will of this Parliament to be expressed through its directly and properly elected Government. It is saying to the Government that the IRGC is simply and utterly unacceptable. I do not care if the legislation says there is a problem with defining it. It is a terrorist organisation. “No, it is not”, because Schedule 58 to some Act somewhere says it is not. That is ridiculous. It is the tail wagging the dog. The IRGC is causing damage in our society and the Foreign Office is blocking this, according to the Times and other media outlets, because its officials are saying there is a definition problem because it is a government agency.
The noble Lord, Lord Evans, is right that this takes us into new territory. It does, and there are problems, but all I am saying is that it cannot be an excuse for the British Government to say, “We are not going to proscribe the IRGC because the Foreign Office says there is a problem with it being defined as a terrorist organisation when it is a government agency”. What do we say to people? Bring it down from these heady clouds of the House of Lords Chamber. Bring it down to the fact that terrorist plots are having to be foiled by our security services because of its actions. An international Iranian TV station has been forced out of our country: the United Kingdom cannot guarantee the safety of people who work for a TV station, in the face of actions by the IRGC and the people who support it, and the British Government prevaricate on whether to proscribe it. It is unbelievable.
The Government are whipping their Members to vote against that proscription and the Liberal Democrats, for their own reasons, are going to abstain. So, we are going to have people voting against and abstaining on the proscription of a body that poses a very real threat to our country. Good luck with explaining that. Good luck with explaining to people why that is something Parliament should accept and why my amendment should fail. “A drafting error”. “Not properly written”. Goodness me, is that the best we can do? I wish to test the opinion of the House.
Lord Sharpe of Epsom
“ScheduleAmendments of Terrorism Act 20001 (1) Section 41 to the Terrorism Act 2000 (arrest without warrant) is amended as follows.(2) In subsection (3)(b)—(a) for the words from “Schedule 7” to “2019,” substitute “a provision listed in subsection (3A)”;(b) for “examination under that Schedule” substitute “detention under that provision”.(3) After subsection (3) insert—“(3A) Those provisions are—(a) section 24 of the Police and Criminal Evidence Act 1984;(b) Article 26 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));(c) Schedule 7;(d) section 1 of the Criminal Justice (Scotland) Act 2016 (asp 1);(e) Part 1 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019;(f) section 27 of the National Security Act 2022.”(4) After subsection (8) insert—“(8ZA) Subsection (8A) applies where— (a) a person is detained under this section in hospital, or(b) a person detained under this section is removed to hospital because the person needs medical treatment.”(5) In subsection (8A)—(a) for the words before paragraph (a) substitute “Where this subsection applies”;(b) in paragraph (a) after “hospital or” insert “(where this subsection applies by virtue of subsection (8ZA)(b))”;(c) in paragraph (b) after “hospital or” insert “(where this subsection applies by virtue of subsection (8ZA)(b))”.2 (1) Schedule 5 to the Terrorism Act 2000 (terrorist investigations) is amended as follows.(2) In paragraph 3 (power to search premises within cordoned area)—(a) in sub-paragraph (1) for the words from “Subject” to “superintendent” substitute “A constable”;(b) in sub-paragraph (2) for the words from “who” to “paragraph” substitute “may exercise the power in sub-paragraph (1) only”.(3) In paragraph 15 (search and seizure in urgent cases: England, Wales and Northern Ireland)—(a) at the end of sub-paragraph (1) insert “(subject to sub-paragraph (1A))”;(b) after sub-paragraph (1) insert—“(1A) An order under this paragraph giving the authority which may be given by a search warrant under paragraph 11 does not authorise a constable to retain confidential journalistic material.(1B) “Confidential journalistic material” means material which is excluded material by virtue of section 11(1)(c) of the Police and Criminal Evidence Act 1984.”(4) After paragraph 15 insert—“15A “(1) This paragraph applies where confidential journalistic material is seized by virtue of an order under paragraph 15 giving the authority which may be given by a search warrant under paragraph 11.(2) A constable may apply to a Circuit judge for the issue of a warrant under this paragraph.(3) An application under sub-paragraph (2) must be made as soon as reasonably practicable after the material is seized.(4) The judge may grant an application under sub-paragraph (2) if satisfied that conditions 1 to 3 are met.(5) Condition 1 is that the warrant is sought for the purposes of a terrorist investigation.(6) Condition 2 is that there are reasonable grounds for believing that the material is likely to be of substantial value, whether by itself or with other material, to a terrorist investigation.(7) Condition 3 is that there are reasonable grounds for believing that it is in the public interest that the material should be retained having regard to the benefit likely to accrue to the terrorist investigation if the material is retained.(8) A warrant under this paragraph is a warrant authorising the retention of confidential journalistic material.(9) A warrant under this paragraph may impose conditions on the retention and use of the material.(10) If the judge does not grant an application for the issue of a warrant under this paragraph in relation to any of the material to which the application relates, the judge may direct that the material is—(a) returned to the person from whom it was seized, or (b) destroyed.(11) “Confidential journalistic material” has the same meaning as in paragraph 15.”(5) In paragraph 18 (application to Northern Ireland) before paragraph (f) insert—“(ea) the reference in paragraph 15(1B) to section 11(1)(c) of the Police and Criminal Evidence Act 1984 is to be taken as a reference to Article 13(1)(c) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)),”(6) In paragraph 31 (search and seizure in urgent cases: Scotland)—(a) at the end of sub-paragraph (1) insert “(subject to sub-paragraph (1A)).”;(b) after sub-paragraph (1) insert—“(1A) An order under this paragraph does not authorise a constable to retain confidential journalistic material.(1B) “Confidential journalistic material” has the same meaning as in the Investigatory Powers Act 2016 (see section 264(6) and (7) of that Act).”(7) After paragraph 31 insert—“31A “(1) This paragraph applies where confidential journalistic material is seized by virtue of an order under paragraph 31.(2) The procurator fiscal may apply to a sheriff for the issue of a warrant under this paragraph.(3) An application under sub-paragraph (2) must be made as soon as reasonably practicable.(4) The sheriff may grant an application under sub-paragraph (2) if satisfied that conditions 1 to 3 are met.(5) Condition 1 is that the warrant is sought for the purposes of a terrorist investigation.(6) Condition 2 is that there are reasonable grounds for believing that the material is likely to be of substantial value, whether by itself or with other material, to a terrorist investigation.(7) Condition 3 is that there are reasonable grounds for believing that it is in the public interest that the material should be retained having regard to the benefit likely to accrue to the terrorist investigation if the material is retained.(8) A warrant under this paragraph is a warrant authorising the retention of confidential journalistic material.(9) A warrant under this paragraph may impose conditions on the retention and use of the material.(10) If the sheriff does not grant an application for the issue of a warrant under this paragraph in relation to any of the material to which the application relates, the sheriff may direct that the material is—(a) returned to the person from whom it was seized, or(b) destroyed.(11) “Confidential journalistic material” has the same meaning as in paragraph 31.””Member's explanatory statement
The amendments to section 41 of the Terrorism Act reflect provision in Clause 27 of the Bill. The amendments to paragraph 3 of Schedule 5 amend powers to authorise searches. The remaining amendments to Schedule 5 restrict powers to retain confidential journalistic material to reflect provision in Schedule 2 to the Bill.
Lord Sharpe of Epsom
“Investigatory Powers Act 2016 (c. 25)
10 (1) Schedule 3 to the Investigatory Powers Act 2016 (exceptions to the exclusion of certain matters from legal proceedings) is amended as follows.(2) After paragraph 8 insert—“Proceedings under Part 2 of the National Security Act 20238A (1) Section 56(1) does not apply in relation to—(a) any proceedings which are relevant proceedings within the meaning of Part 2 of the National Security Act 2023 (see section 63(1) of that Act), or(b) any proceedings arising out of any proceedings within paragraph (a).(2) But sub-paragraph (1) does not permit the disclosure of anything to—(a) any person, other than the Secretary of State, who is or was a party to the proceedings, or(b) any person who—(i) represents such a person for the purposes of the proceedings, and(ii) does so otherwise than by virtue of an appointment as a special advocate under Schedule 10 to the National Security Act 2023.”(3) In paragraph 20(2) (proceedings for certain offences)—(a) after paragraph (h) insert—“(ha) an offence under section 1 or 3 of the National Security Act 2023 relating to any information, document or other article which, or an offence under section 12 of that Act relating to any asset which—(i) incorporates, or relates to, the content of any intercepted communication or any secondary data obtained from a communication, or(ii) tends to suggest that any interception-related conduct has or may have occurred or may be going to occur;(hb) an offence under section 18 of the National Security Act 2023 in relation to an offence falling within paragraph (ha);”(b) in paragraph (i), for “(h)” substitute “(ha)”.”Member's explanatory statement
This amendment makes consequential amendments to the Investigatory Powers Act 2016.
“Counter-Terrorism and Border Security Act 2019 (c. 3)
10 In paragraph 62 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019 (review of Schedule 3 by Investigatory Powers Commissioner) omit—(a) sub-paragraphs (1) to (5);(b) sub-paragraphs (7) and (8).”Member's explanatory statement
This amendment omits provision for the review of Schedule 3 to the Counter-Terrorism and Border Security Act 2019 by the Investigatory Powers Commissioner. It is superseded by new Clause (Reviews: general), which provides for reviews of Schedule 3 by the independent reviewer appointed to review Parts 1 and 2 of the Bill.
Lord Sharpe of Epsom
“(za) regulations under section 64(1B);”Member's explanatory statement
This amendment provides for the affirmative procedure to apply to regulations under Clause 64(1B), which is inserted by Lord Sharpe’s amendment to Clause 64, page 45, line 19.
“(aa) regulations under section 67(3B);”Member's explanatory statement
This amendment provides for the affirmative procedure to apply to regulations under Clause 67(3B), which is inserted by Lord Sharpe’s amendment to Clause 67, page 46, line 36.
“(ab) regulations under section 79(1)(a);”Member's explanatory statement
This amendment provides for the affirmative procedure to apply to regulations under Clause 79(1)(a) (provision about the publication of information provided to the Secretary of State under Clause 74 or 75).
Member's explanatory statement
This amendment is consequential on the additional regulation making powers in relation to specified persons conferred by Lord Sharpe’s amendments to Clause 64, page 45, line 19 and Clause 67, page 46, line 36.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on the new Schedule inserted by Lord Sharpe before Schedule 17.
National Security Bill
Monday 13th March 2023
(1 year, 8 months ago)
Lords ChamberRead Full debate National Security Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 115-I Marshalled list for Third Reading - (10 Mar 2023)
The Lord Privy Seal (Lord True) (Con)
My Lords, I have it in command from His Majesty the King and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the National Security Bill, have consented to place their interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Clause 14: Foreign interference: meaning of “interference effect”
Amendment 1
Lord Sharpe of Epsom
“(aa) a Northern Ireland Minister, the First Minister in Northern Ireland, the deputy First Minister in Northern Ireland, a person appointed as a junior Minister under section 19 of the Northern Ireland Act 1998, a Northern Ireland department or the Executive Committee of the Northern Ireland Assembly,(ab) the Scottish Ministers or the First Minister for Scotland,(ac) the Welsh Ministers, the First Minister for Wales or the Counsel General to the Welsh Government, or”Member's explanatory statement
This amendment and Lord Sharpe’s other amendments to clause 14 clarify the persons whose decisions are caught by clause 14(1)(d), and are needed to avoid giving a meaning to the terms “Scottish Ministers”, “Welsh Ministers” and “Northern Ireland Minister” that is different to the meaning of those terms given in the devolution Acts.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, as I set out at Second Reading, the first responsibility of any Government is to ensure the safety of their citizens. National security is at the forefront of this Government’s agenda, and that is why the passing of this Bill is so important. It gives us a new toolkit to tackle those state actors who threaten the safety and security of the United Kingdom. By listening carefully, and working closely with your Lordships through the passage of this Bill, we have created legislation which is stronger, more targeted and shows the importance of the scrutiny that this House provides.
We have made a range of changes to this Bill since its introduction, such as significantly tightening Part 1 in response to concerns relating to journalistic freedoms. We have amended the “ought reasonably to know” test to put it beyond doubt that individuals would not be caught if they acted unwittingly or without genuine knowledge as to the effect of their conduct. Further, we have focused the political tier of the foreign influence registration scheme more explicitly on foreign powers, providing us all with more information about the scale and nature of foreign political influence in the United Kingdom. We have also, under Clause 30, created a targeted defence available to UKIC and the Armed Forces for the extraterritorial offences under Part 2 of the Serious Crime Act 2007 in specific circumstances, replacing the previous approach of disapplying those offences.
I also note that the Government will bring back the sensible amendment of the noble Lord, Lord Anderson, to restrict the defence to intelligence activity of the Armed Forces, during Commons consideration of these amendments. We have extended the oversight provisions which were included in Part 2 on introduction of the Bill to cover Part 1 as well. We have also amended Schedule 3 to the Counter-Terrorism and Border Security Act, so that the statutory oversight for those powers will now be the responsibility of the new independent reviewer of national security legislation, ensuring that the oversight of all state threats provisions is in one place. The Government recognise the importance of independent scrutiny, and I know noble Lords welcome the inclusion of a new reviewer for the Bill.
I shall now speak briefly to the minor and technical amendments we have tabled today. Together, these amendments clarify definitions related to decisions of the devolved Administrations in Clauses 14(4)(a) and 71(3)(b) for the offence of foreign interference and the political influence tier of FIRS. These amendments will also clarify which officeholders in Scotland and Wales to whom a communication is sent are caught by Schedule 14 as set out in Clause 71(2)(a). I want to provide some context to these changes. We took the opportunity on Report in the Lords to clarify the drafting so as to ensure our policy intention in relation to government decisions was clear on the face of the legislation. We replaced the phrase
“a decision of the government of the UK”
through Amendments 50 and 118, with
“a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975), a United Kingdom government department”.
In doing so, we identified that the definitions did not fully reflect the decision-making powers of the devolved Administrations and their Ministers, but we wanted to make sure we got this drafting right, so we have worked closely with our colleagues in the devolved Administrations before tabling these amendments. Amendments 1 to 8 achieve the same effect as those tabled on Report mentioned above.
Amendments 1 and 4 relate to drafting changes for Clauses 14 and 71 respectively. They contain revised definitions for Scotland, Wales and Northern Ireland to ensure parity for all Governments within the United Kingdom. Amendments 2, 3, 5 and 6 are consequential amendments flowing from Amendments 1 and 4. Amendments 7 and 8 relate to the definitions in Schedule 14, which covers those officeholders to whom communication is caught under Clause 71(2)(a). It is vital that the UK is able to promote transparency within the political lobbying arena and tackle those who seek to interfere in our democracy at every level and in every part of the United Kingdom. That is why these amendments are so important, and I ask noble Lords to support their inclusion in the Bill.
Finally, in terms of tabled amendments, there is also a change to the Long Title of the Bill to reflect the changes made on Report to the foreign influence registration scheme. I beg to move.
Lord Balfe (Con)
My Lords, I briefly thank the Minister. I have heard from the stiftungs that we intervened on behalf of, and they thank the Minister for the movement that has happened and look forward to working closely with us in the future. I think it is as well to place these thanks on the public record.
Baroness Jones of Moulsecoomb (GP)
My Lords, I still feel quite grumpy about the Bill, but I accept that the Government have moved a little. I very much hope that, when it gets back to the other place, Members there will perhaps see fit to introduce stronger protections for journalists. I understand that something has gone into the Public Order Bill, but I think something should have been in this Bill as well.
Lord Anderson of Ipswich (CB)
My Lords, we on these Benches are often critical of the Government—of either colour, I understand—so it is perhaps appropriate to record my appreciation, at least, to the Minister and indeed to the Security Minister, for the patience with which they listened to us, but also for the imagination with which they reacted, not simply producing cosmetic tweaks that resulted in dogs being called off, but being prepared to go back, particularly on the political tier of the foreign influence registration scheme, to first principles and to think it out again, with the consequence, I suspect, that we are now left with something of real value, rather than the bureaucratic nightmare with which we were threatened when the Bill left the Commons.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to clause 14(4).
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to clause 14(4).
Lord Sharpe of Epsom
“(ii) a Northern Ireland Minister, the First Minister in Northern Ireland, the deputy First Minister in Northern Ireland, a person appointed as a junior Minister under section 19 of the Northern Ireland Act 1998, a Northern Ireland department or the Executive Committee of the Northern Ireland Assembly,(iii) the Scottish Ministers or the First Minister for Scotland, or(iv) the Welsh Ministers, the First Minister for Wales or the Counsel General to the Welsh Government,”Member's explanatory statement
This amendment and Lord Sharpe’s other amendments to clause 71 clarify the persons whose decisions are caught by clause 71(2)(b), and are needed to avoid giving a meaning to the terms “Scottish Ministers”, “Welsh Ministers” and “Northern Ireland Minister” that is different to the meaning of those terms given in the devolution Acts.
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to clause 71(3).
Member's explanatory statement
This amendment is consequential on Lord Sharpe’s amendment to clause 71(3).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment clarifies which office-holders in Northern Ireland, to whom a communication is sent, are caught by Schedule 14, and is consequential (in part) on Lord Sharpe’s amendment to clause 71(5).
“3 The First Minister for Scotland, a Minister appointed under section 47 of the Scotland Act 1998 or a junior Scottish Minister.4 The First Minister for Wales, a Welsh Minister appointed under section 48 of the Government of Wales Act 2006, the Counsel General to the Welsh Government or a Deputy Welsh Minister appointed under section 50 of that Act.”Member's explanatory statement
This amendment clarifies which office-holders in Scotland and Wales, to whom a communication is sent, are caught by Schedule 14, and is consequential (in part) on Lord Sharpe’s amendment to clause 71(5).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment to the long title is consequential on amendments made to Part 4 of the Bill on Report.
Lord Sharpe of Epsom (Con)
My Lords, I wish to express my sincere gratitude to all noble Lords across the House for their interest in this Bill and for their valuable contributions and co-operation so far. Debate has been consistently informative and constructive. I am extremely grateful for the diligent approach that noble Lords from across the House have taken to ensuring that this vital legislation has received full scrutiny ahead of returning to the other place.
I am particularly grateful for the positive engagement and support of various noble Lords. From the Benches opposite, I am grateful to the noble Lords, Lord Coaker, Lord Ponsonby and Lord West; from the Cross Benches, I am grateful to the noble Baroness, Lady Manningham-Buller, and the noble Lords, Lord Evans, Lord Anderson and Lord Carlile; from the Liberal Democrat Benches, I am grateful to the noble Lords, Lord Purvis and Lord Marks; and I am also grateful to my noble friends Lady Noakes and Lord Leigh. I hope all noble Lords will join me in thanking the Bill team, policy teams and legal teams in the Home Office and the Ministry of Justice for their hard work in getting the Bill to its current position. They worked phenomenally hard, particularly in relation to FIRS. It is always invidious to single out anyone in particular, but I would very much like to thank the following: Emer Smith from my private office, and Laura Weight, Jack Joseph, Sebastian Graves Read, Grace Bennett, Joe Marshall, Grace Lucas, James Dix and, last but by no means least, Louise Holliday from the Bill team.
I also place on record my thanks to our law enforcement and intelligence agencies, both for their contributions to this Bill’s development and for their enduring work in keeping us all safe every day. It is vital that they have the tools they need to fulfil such a challenging task. The measures in the Bill seek to ensure they are well equipped to tackle the wide range of modern threats that we face in the UK today. I beg to move.
Lord Coaker (Lab)
My Lords, I start by thanking the Minister for his constructive engagement, along with his colleagues, the noble and learned Lord, Lord Bellamy, and the noble Lord, Lord Murray, and others, including his Bill team. The Bill has had significant changes made to it, showing the way this Chamber can improve legislation. That can happen only when a Minister and the Government listen. All of us, I think, appreciate the way the Minister has engaged and made significant changes to the Bill to improve it. We are all grateful to him for that.
I also pay due respect to the contributions of many noble Lords across the House. I pay my respect to the noble Lord, Lord Anderson, who we have just heard from on the previous group of amendments, and the noble Lord, Lord Carlile, who I am pleased to see in his place. I think the contributions from the noble Lords, Lord Alton, Lord Hogan-Howe and Lord Pannick, have been significant and have helped to improve the Bill.
The Minister paid tribute to the intelligence and security services, as we all do, because we all have an interest in the security of our nation. We should note that the noble Lord, Lord Evans, and the noble Baroness, Lady Manningham-Buller, have attended virtually the whole of the proceedings on this Bill. That says everything about the contributions they have made, but also it also sends a signal to the intelligence and security services to know that two former directors-general have spent all their time contributing to the Bill and advising people both in the Chamber and outside of it. That is of huge significance, not only to this Chamber but to our country. They deserve recognition for that.
I also thank my noble friends Lord West and Lady Hayter for their contributions throughout the Bill, which have helped our thinking as well. I thank my noble friend Lord Ponsonby for his—as I often say now—calming support to my more excitable personality. That helps me enormously in more ways than you can imagine. I also thank—I know they are not here—the noble Lords, Lord Purvis and Lord Marks, for their input, which helped to improve the Bill.
Lord Stoneham of Droxford (LD)
My Lords, I must apologise that my noble friend Lord Purvis cannot be here with us today. He was coming down from the Borders, but he was unfortunately grounded by the winds at UK airports, so I am just standing in to pass on his thanks to the House.
At Second Reading, my colleagues raised concerns that, in many areas, this important Bill was not workable and, in others, seriously undermined civil liberties. However, we would like to thank the noble Lord, Lord Sharpe, who in Committee listened, acted and then brought forward a series of government amendments to address them. My noble friend Lord Marks is also appreciative of the openness of the noble and learned Lord, Lord Bellamy, at the Ministry of Justice. The Bill leaves this House a better one than when it arrived, and it is a testament to the cross-party working that went into it. Of course, some issues remain, and we will continue to press on them.
My noble friend Lord Purvis would also like to thank all Members of the House who have participated, including the opposition team and the officials’ Bill team, for all their support and work during this Bill. On his behalf, I thank our own team, led by Elizabeth Plummer, who marshalled all our work supremely.
Lord Wallace of Saltaire (LD)
My Lords, I saw my role in this Bill as representing the research sector to some extent, and I am very conscious—as I am sure the Minister is—of the delicate balance there is between the desirability of close international collaboration and sometimes having to collaborate with those who come from authoritarian countries that are not entirely friendly to us. The representatives of the research sector—the Royal Society and others—look forward to talking with the department about the guidance, which we hope will strike exactly the right balance in this delicate area between what needs to be done and not imposing deliberate bureaucracy.
I am sure that the Minister is aware from what we have seen in Georgia over the last two weeks—where there have been very serious riots against the Government caused by a foreign agents Bill, which is seen as a Russian attempt to gag the Government and the people of Georgia and to block their contact with the western world—that this is a delicate area. It is extremely difficult to get the right balance, and we hope that we have achieved in this House a much better balance than when the Bill was originally drafted.
Lord Coaker (Lab)
My Lords, I hope the Chamber will indulge me. I forgot to thank Ben Wood, who is our adviser. I apologise to him for that.
Lord Sharpe of Epsom (Con)
While the House is indulging, I also forgot to thank my colleagues, my noble friends Lord Murray of Blidworth and Lord Davies of Gower, so I would like to place that on record. I also thank my noble and learned friend Lord Bellamy at the Ministry of Justice.
Bill passed and returned to the Commons with amendments.
National Security Bill
Wednesday 3rd May 2023
(1 year, 6 months ago)
Commons ChamberRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Amendments as at 3 May 2023 - (3 May 2023)
14:30 - The House divided: - Ayes: 132 / Noes: 252 - Question accordingly negatived.
14:45 - The House divided: - Ayes: 254 / Noes: 134 - Question accordingly agreed to.
14:57 - The House divided: - Ayes: 254 / Noes: 136 - Question accordingly agreed to.
Madam Deputy Speaker (Dame Rosie Winterton)
I must draw the House’s attention to the fact that financial privilege is engaged by Lords amendments 33 and 34. If they are agreed to, I will cause the customary entry waiving Commons financial privilege to be entered in the Journal.
Clause 28
The Minister for Security (Tom Tugendhat)
I beg to move amendment (a) to Lords amendment 26.
Madam Deputy Speaker (Dame Rosie Winterton)
With this it will be convenient to discuss the following:
Lords amendment 26, and amendment (c) and Government amendment (b).
Lords amendment 153, and Government amendment (a).
Lords amendment 22, and Government motion to disagree.
Lords amendment 122, and Government motion to disagree.
Lords amendments 1 to 21, 23 to 25, 27 to 121, 123 to 152 and 154 to 174.
Tom Tugendhat
Let me start on a personal note by thanking the Clerk who is sitting in his place and congratulating him on becoming Clerk of the House. It is the first time that he has been in his place when I have spoken from the Despatch Box. He has been a friend for many years, so I am glad to have the opportunity to put on record that the Clerks keep us all on the straight and narrow, and in some cases get us out of rather a lot of trouble. I thank them very much indeed.
It is a pleasure to bring the National Security Bill back to this House. A number of changes have been made in the other place to improve it. The House will know the importance of the Bill: it gives our intelligence and security services, as well as law enforcement, a new toolkit to tackle state actors who threaten the safety and security of the United Kingdom. It also takes steps to prevent public funds from being given to those who could use them to support terror. As always, this Government have listened. I pay tribute to Lord Anderson and Lord Carlile for their work to improve the Bill—[Interruption.] I am glad to hear the acknowledgement from the Opposition Benches. That has improved the Bill for all sides.
We have heard the views of the other place, of industry and of many others, and we have focused the foreign influence registration scheme into a more targeted weapon against those who would do us harm. Arrangements to carry out political influence activity will now be registerable only when directed by a foreign power. Receiving funding from a foreign power, absent a direction, will not trigger a requirement to register under the scheme. For example, cultural institutes that make an important contribution to life in the United Kingdom will not be required to register simply because they receive funding from a foreign power. That is in line with the original intention of the scheme.
Only where organisations or individuals are directed by a foreign power to carry out political activities will that arrangement need to be routinely registered. We will publish guidance to support understanding of the scheme and circumstances in which arrangements will need to be registered. It remains the case that criminal offences will be attached to failures to register.
The Government made a number of changes in the other place following concerns expressed about the Bill’s potential impact on journalistic freedoms and other legitimate activity. I pay enormous tribute to Lord Black for his contribution to the debate. The Government are clear that the Bill’s focus is on protecting the United Kingdom from threats from those acting against the UK’s interests, not interfering with press freedom. The Lords amendments clarify the scope of offences and requirements in part 1. That includes amending the language in the phrase
“knows, or ought reasonably to know”
to put beyond doubt that it would need to be proved what an individual knew rather than capturing individuals acting unwittingly. That applies in every instance when the phrase appears in the Bill, including in the foreign power condition.
Further drafting changes have been made, including to clarify the scope of the offence of assisting a foreign intelligence service and the meaning of foreign power threat activity.
Martin Docherty-Hughes (West Dunbartonshire) (SNP)
Does the Minister agree that we must exclude assistance in torture from the scope of defence, to protect people such as my constituent Jagtar Singh Johal, who was repeatedly electrocuted and threatened with being set alight by the Government of India?
Tom Tugendhat
The hon. Member will know that that is a matter for the Foreign Office in its dealings with other states. The Bill does not in any way erode any of the protections under the European convention on human rights, including the right not to be tortured.
We are pleased that the chief executive officer of the News Media Association Owen Meredith said in response to the Government’s changes that he welcomed
“the government’s reassurances that journalism will not be criminalised under this new national security regime.”
That is absolutely correct. It will not be, and it is not the Government’s intention that it should be. The media sector recognises the balance that the Government have struck between protecting press freedoms and safeguarding national security.
We have also taken on board the concerns of the Intelligence and Security Committee of Parliament, which I thank for the incredibly constructive and supportive manner in which it has engaged on the Bill. In response, the Government have changed the Serious Crime Act 2007 amendment from non-application of the offences to a defence. We believe that the amendment strikes the right balance. It ensures that the dedicated individuals in the intelligence and security services can carry out activities to support our foreign partners, but that there can be proper legal consideration of any potential wrongdoing.
The Bill is now in a strong position. We have effective tools and powers to tackle hostile activity on British soil or that is against the UK’s interest, done for or on behalf of, or with the intention to benefit, foreign states. We have a thorough transparency scheme designed to ensure that we know who is influencing our politics. Under the enhanced tier of the foreign influence registration scheme, we have the ability to specify states and entities and thereby require the registration of activities to protect the safety or interests of the United Kingdom. We also have the means to prevent the exploitation of the UK’s civil legal aid and civil damage systems by convicted terrorists.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I have raised on a number of occasions in debates and Committees the use of cryptocurrencies, and cryptocurrency mixers in particular, to facilitate the activities of hostile state-sponsored activities in a number of countries. The US Treasury acted against a number of the so-called mixers back in August last year. Despite raising that on a number of occasions, I am yet to receive clarification on what we are doing to ensure that cryptocurrency is not used to facilitate hostile state activities, as has been done in sums of billions.
Tom Tugendhat
The hon. Gentleman, who is a friend, is right to highlight this issue as it is true that cryptocurrency can be used in such ways. I urge him to look at the Economic Crime and Corporate Transparency Bill, which we are taking through the House. Naturally, the National Security Bill does not cover every element that we are using to ensure the protection of the United Kingdom; there are many other Bills, which work together as a woven fabric of defence. Cryptocurrency is one aspect of the Economic Crime and Corporate Transparency Bill, which my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) is leading on. That Bill is making its way through the House and will address some of the hon. Gentleman’s concerns.
Turning to amendments 22 and 122, the Government have set out clear reasons why we will not accept either amendment. I know that my right hon. Friend the Member for New Forest East (Sir Julian Lewis) will be making an intervention about this later in the debate. We have set out the reasons why we will not accept the amendments, which were made clear in the other place.
Amendment 22 would introduce a requirement for political parties to
“publish a policy statement to ensure the identification of donations from a foreign power”.
Upon receipt of a donation, political parties are already required by law to verify whether they are or are not from a political source. Donations that do not meet the permissibility tests or are unidentifiable must be returned and reported to the Electoral Commission. If political parties fail to do that, their treasurers face being sent to jail. They risk the reputations of their staff and their elected representatives being shredded. There is already a strong incentive for parties to ensure that donations come only from permissible donors.
Sir Chris Bryant (Rhondda) (Lab)
But earlier the Minister was praying in aid Lord Carlile, saying what a wonderful job he had done in helping the Government to bring forward wonderful amendments. This is one of his amendments, so it seems a bit odd to turn against this one.
On the point the Minister just made about permissible donors, all that has to be checked is whether the person is on the electoral register. The Elections Act 2022 has added to the register 3.5 million people who do not even live in this country. All that political parties presently have to do is check whether somebody is on the electoral register. I do not think that safeguards our elections from interference from those who would wish us ill.
Tom Tugendhat
The hon. Member has formerly been very kind about the work that we have done together, such as on the Foreign Affairs Committee and on other appointments. He has agreed with me on some areas and disagreed on others. It cannot be an enormous surprise to him that I agree with Lord Carlile on some areas and disagree with him on others. Frankly, that is the nature of parliamentary work, as the hon. Gentleman knows better than anyone.
As for the hon. Gentleman’s point about foreign registrations, those are of British citizens living abroad. Those are the only terms on which people are registered to vote on our electoral register. It is not right to say that those are a random 3.5 million people; that is certainly not true. They are British citizens and therefore their donations are as valid as their votes.
The Government recognise that there are risks. That is why it is already an offence to attempt to make a donation by concealing information, giving false information or knowingly facilitating the making of an impermissible donation. Where the foreign power condition is met in relation to a relevant electoral offence, as set out in schedule 1 to the Bill, clause 16 provides for a substantially increased maximum penalty: where a one-year sentence previously applied, that has been increased to four years; and two-year sentences have been increased to seven years. These relevant electoral offences include offences of undue influence, for which the maximum sentence has been increased to seven years, and making a false declaration about the source of a donation, for which the maximum sentence has been increased to four years.
Indeed, the Government have already taken action. The Elections Act 2022 tightened the law to close loopholes on foreign spending. The Electoral Commission is also being given more powers to access Companies House information, through measures under the Economic Crime and Corporate Transparency Bill. That will allow the Electoral Commission to undertake the proper targeted and proportionate checks.
For absolute clarity, donations to political parties from foreign powers, made directly or indirectly, are not permissible. The amendment places new requirements on minor parties, who are not subject to any other financial reporting requirements at this time, as they can contest only local and parish elections. The amendment would therefore place huge administrative burdens on small, grassroots political campaigning and would punish grassroots democracy.
It is not clear how the proposals would work in practice. Political parties are not banks; rightly, they do not have access to individuals’ financial records. They are not His Majesty’s Revenue and Customs; they do not have access to tax records. They do have access to the electoral roll and to Companies House, which they are already obliged to check. The Electoral Commission already publishes guidance on these legal duties. Indeed, political parties must already report all larger donations to the Electoral Commission, which are then published online for public scrutiny.
Martin Docherty-Hughes
Is the Minister saying that small grassroots organisations, many of them associational organisations that may be registered charities in England and Wales, Scotland or Northern Ireland, are not capable of filling out an extra form to make sure that they are not being utilised by foreign states?
Tom Tugendhat
The hon. Member underplays what the amendment would do. It would be much more than simply filling in a form and would place a greater burden of a need to check, which would be a major requirement for small political parties and grassroots organisations. I am surprised that he, as a champion of local democracy, would require smaller parties to do that.
As I have said, Lords amendment 22 is not needed. The law already makes robust provision in relation to donations to political parties. Foreign donations are banned. It is an offence to accept them and there are strong rules safeguarding against impermissible donations via the backdoor. Parties can accept donations only from permissible donors. As such, the Government will not accept the amendment.
Amendment 122 imposes a duty on the Prime Minister to amend the memorandum of understanding between the Prime Minister and the Intelligence and Security Committee to account for changes to intelligence or security activities
“as a result of this Act”.
It also requires engagement on these revisions to begin within six months of the Act coming into force.
The power to make revisions to the MOU between the Prime Minister and the ISC is not limited to changes resulting from a specific piece of legislation. Adding the amendment risks creating the erroneous impression that explicit legislative provision is required in order for the ISC to propose amendments to the MOU. Further, the power to amend the MOU is already included in the Justice and Security Act 2013. I would be happy to meet with the chair of the ISC, my right hon. Friend the Member for New Forest East, on this matter. Indeed, we have spoken about that in the past.
Sir Julian Lewis (New Forest East) (Con)
I am grateful to my right hon. Friend—and he is a friend—who I know is saying what he has to say. We know that the memorandum of understanding can be amended as developments in the organisation of Government require it to be amended, but the trouble is that the Prime Minister has been reluctant to amend it and it is not being amended. The reason this amendment was introduced in the other place is to force the Government to do what they should be doing voluntarily.
Tom Tugendhat
As usual, my right hon. Friend makes his point cogently. In reality, the MOU requires amendment because the nature of the Government has changed. He is absolutely right that we need to ensure that the House is able to scrutinise the Government on areas where intelligence and security information is required. I agree that that update needs to be made, but I disagree that this is the place to do it or that it should be done in legislation, for the reasons of flexibility that we have already discussed. I know that he will be making his case powerfully to the Prime Minister, and no doubt to other Ministers, to make sure that the updates required to make sure scrutiny is observed are followed through.
Finally, I turn to the amendment to the Serious Crime Act 2007 tabled today, which largely speaks for itself. It clarifies the application of the new defence, which will apply to
“the proper exercise of a function of the armed forces”
only when relating to intelligence. This addresses concerns raised in the other place about the scope of armed forces activities that may have been covered by the defence. It builds upon the amendment tabled by Lord Anderson on Report in the Lords and the commitment made in the other place to bring forward a similar amendment. I am glad that we can bring it forward today.
The ISC has heard and accepted the operational problems caused by the application of the SCA offences. I believe the new SCA defence, and today’s amendment to it, satisfy the concerns of the United Kingdom intelligence community, the armed forces, the other place and this House. I therefore ask the House to support the Government amendment. Let me again thank the Intelligence and Security Committee for its co-operation and help in improving the Bill.
As the House will know, the Government have also tabled a minor amendment to the foreign influence registration scheme, designed to ensure parity across the devolved Administrations in respect of the public officials covered within the meaning of political influence activity.
This Bill is a groundbreaking piece of legislation that will revolutionise the tools and powers available to the police and our intelligence agencies, so that they are equipped to keep us safe.
Stephen Doughty
The Minister will be aware of Lords amendment 130, which relates to the sovereign base areas of Akrotiri and Dhekelia. He will also be aware of the concern that has been expressed about the possible unintended consequences of the Bill. Those bases are critical to UK national security, as is our relationship with the Republic of Cyprus, which a close friend of many in the House. Will he say a little about where the discussions have got to, and whether there will be a good conclusion?
Tom Tugendhat
The hon. Gentleman has tempted me to approach the issue a little early in my speech, but let me put this firmly on the record. I have met the high commissioner of Cyprus, and my right hon. Friend the Foreign Secretary has spoken to its Foreign Secretary. I want to make it clear that any references in the Bill to the sovereign base areas of Akrotiri and Dhekelia shall be in accordance with the 1960 treaty concerning the establishment of the Republic of Cyprus, shall not affect the status of the sovereign base areas as defined in the treaty, and will not in any way undermine its provisions. References to the sovereign base areas in the Bill in no way indicate a change in UK policy towards their governance. I hope that is extremely clear.
If we had these powers now, I would already be encouraging the police to use them against those who side with our enemies. As always, I want to share my admiration and appreciation for the services, their work and all their efforts that so often go unseen, although the impact does not go unnoticed. I hope that right hon. and hon. Members will support the Government’s changes, and our opposition to the amendments relating to the ISC and political party donations.
Holly Lynch (Halifax) (Lab)
We on the Labour Benches are in no doubt about the importance of the Bill. Transnational repression and interference from hostile state actors and their proxies are testing the UK’s defences as never before. As the global landscape continues to change at a staggering pace, interference from countries that do not share our values is nothing new. However, the breadth and enduring nature of the threats we are now facing is a contemporary challenge, combined with the technology and methods used by those seeking to undermine us, which are new and enhanced.
Today is World Press Freedom Day, giving us a chance to recommit ourselves to defending press freedom, but also to acknowledge that many of the threats to which our security services and counter-terrorism police are responding here in the UK relate to the protection of journalists, from the—thankfully disrupted—assassination and kidnap plots against UK residents who are perceived as enemies of Iran owing to their coverage of the protests and the regime’s brutal crackdown, to the unacceptable harassment reported by Caoilfhionn Gallagher KC and her colleagues acting on behalf of the British national Jimmy Lai, the pro-democracy newspaper owner currently detained in Hong Kong. We must challenge that overseas and refuse to tolerate it here.
We have always understood that we need the new provisions in the Bill, but the Minister will understand where I am coming from when I say that this has been far from a shining example of best practice in passing legislation. The churn in the Government since the Bill was tabled in May last year, coupled with the late and lengthy additions to it, has meant that scrutiny has been truncated on occasion, but it is all the more crucial as a result. It is unusual for a Bill to come back from the other place with—if I am not mistaken—no fewer than 117 Government amendments, but that is why I, like the Minister, am particularly grateful to our colleagues at the other end of the building, where operational expertise in particular has had a positive impact in shaping and sharpening these measures to ensure that they deliver the protections we need and the safeguards we can all trust.
Sir Julian Lewis
For the record, I think I should say that during her very short tenure the current Prime Minister’s immediate predecessor, my right hon. Friend the Member for South West Norfolk (Elizabeth Truss), did offer to come and meet the ISC. I hope that is an example that her successor will follow soon, but we are waiting for a similar commitment to be made.
Holly Lynch
I am grateful to the Chair of the ISC for that clarification. It was indeed a short tenure, and we will never know whether that meeting would have come to fruition, but I hope the spirit was there then and is continued. Beyond the spirit, however, let us hope that we can nail down some of this today.
It has been argued that Select Committees should instead have primacy in fulfilling the role. Pages 42 and 43 of the annual report list numerous Departments that have various security and intelligence functions that they are expected to oversee. However, these Committees, while no doubt providing robust scrutiny, simply do not have the same powers and security clearance as the ISC members and so cannot fulfil that duty to the same level. The Minister might well say that this amendment is not required, but the problem remains, as we have already discussed, and there is a need to address the issues raised by the ISC’s most recent report, so I look forward to the Minister reflecting once again on his position on that in his closing remarks.
Lords amendment 22, tabled by Lord Carlile, to whom we have already paid tribute today, enjoyed broad support in the other place. The amendment would require UK political parties to publish a policy statement to identify donations from foreign powers, either directly or indirectly. Moreover, the amendment would bind political parties to making an annual statement of risk management to the Electoral Commission and create a duty for the Secretary of State to publish guidelines on these provisions. In the most recent annual threat update, the director general of MI5, Ken McCallum, said:
“We see the Chinese authorities playing the long game in cultivating contacts to manipulate opinion in China’s favour—seeking to co-opt and influence not just prominent Parliamentarians from across the political landscape, but people much earlier in their careers in public life, gradually building a debt of obligation.”
We know that offering donations to individuals and political parties is unfortunately a tried and tested approach used by hostile state actors. That is not in doubt. The Minister might tell me that Lords amendment 22 is unnecessary and that it is covered by other provisions, but can he tell me that those other provisions are effective and that dirty money, with a price attached, is not finding its way into our system and our democracy? The need for such provisions is both pertinent and serious. In 2020, a report by the Intelligence and Security Committee found that members of the Russian elite linked to Putin had donated to UK political parties.
This amendment would also guard against undue Chinese influence. The Minister was in Belfast when we had an urgent question in the House in April on Chinese police stations in the UK—the second urgent question on that issue. The shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), stated that it had been reported in The Times that
“a Chinese businessman linked to an alleged Chinese secret police station in London has attended Chinese Communist party political conferences, is linked to the united front work department and has organised Tory party fundraising dinners and attended events with Conservative Prime Ministers.”—[Official Report, 19 April 2023; Vol. 731, c. 248.]
Just last month, the Good Law Project published damning revelations that since the start of Russia’s invasion of Ukraine in 2022 the Conservatives had accepted at least £243,000 from Russian-associated donors, some of whom were linked to sanctioned businesses and organisations.
The Electoral Commission has produced a helpful briefing on Lords amendment 22. It states:
“Enhanced due diligence and risk assessment processes would help campaigners identify foreign money, identify potential proceeds of crime, and establish a culture of ‘know your donor’ within parties—similar to the ‘know your customer’ approach, encouraged through Anti-Money Laundering regulations for the financial sector.”
It goes on to stress:
“These requirements could be introduced in a way that recognises the need for proportionality”—
this speaks to the Minister’s concerns—
“with different requirements depending on the size of a regulated entity’s financial infrastructure, or the size of a donation, to prevent the checks becoming a disproportionate burden on smaller parties and campaigners.”
Spotlight on Corruption argues:
“The rules that are supposed to prohibit foreign donations—in the Political Parties, Elections and Referendums Act 2000—are riddled with loopholes which enable foreign money to be channelled to political parties and MPs through lawful donors.”
The Committee on Standards of Public Life, in its 2021 “Regulating Election Finance” report, recommended that laws should be updated and that
“parties and non-party campaigners should have appropriate procedures in place to determine the true source of donations. Parties and campaigners should develop a risk-based policy for managing donations, proportionate to the levels of risk to which they are exposed”.
There is an evidence base for such action. We know that the risk is there, and this is a rational and proportionate response to that risk. If the Minister and the Government reject these proposals, the electorate will draw their own conclusions as to why.
I have set out the case for the Lords amendments before us today. Before closing, I want to join the Minister in paying tribute to the incredible work that our security services and police forces do every day. We very much recognise that the additional tools in the Bill will assist them in that important work. We have not agreed with every detail of the Bill, but I am pleased that we have made a great deal of progress in the areas where we have had differences. We are in no doubt that many of the new powers within it are necessary and needed urgently. I hope that the Minister will be persuaded by the arguments he has yet to hear in the Chamber today, and that he will reflect again on the merits of Lords amendments 22 and 122.
Madam Deputy Speaker (Dame Rosie Winterton)
I call the Chair of the Intelligence and Security Committee.
Sir Julian Lewis
It is clear from the opening contributions of both Front Benchers that there is a considerable degree of common ground on this legislation, and I would like to congratulate both of them on the way they have made their presentations. The Intelligence and Security Committee strongly welcomes the National Security Bill. The Committee has long called for reform of the Official Secrets Acts regime and highlighted the grave dangers posed by hostile state actors to the UK’s national security. Most recently, as we have heard, the ISC’s Russia report of 2020 made it clear that the Official Secrets Acts regime was outdated and not fit for purpose. It recommended that new legislation be urgently introduced to provide new tools to help our law enforcement and intelligence community, who work tirelessly to defend the UK’s national security.
The Bill modernises the Official Secrets Acts espionage regime and creates important new offences such as sabotage, foreign interference and assisting a foreign intelligence service. As recommended in the ISC’s Russia report, the Bill also creates the long-awaited foreign influence registration scheme. That must be a cause of particular satisfaction to the Minister for Security, my right hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat), who strongly promoted that policy during his very successful term as Chair of the Foreign Affairs Committee.
Together, these changes will increase the transparency of those threats and help to make the UK a more difficult operating environment for foreign intelligence services to act. They will help to deter hostile foreign powers from undertaking harmful activities and disrupt them at a much earlier stage. There have been several justified concerns about the way in which the Bill was handled, but after considerable scrutiny, especially in Committee and in the upper House, it has been greatly improved.
Theresa Villiers (Chipping Barnet) (Con)
I very much agree with everything my right hon. Friend has said. Does he agree that we will need to look at further reform of the Official Secrets Act 1989 in order to complete the excellent reform process in this Bill?
Sir Julian Lewis
I am extremely grateful to my right hon. Friend, a fellow member of the Committee, because that is one of the points I am about to come to and it is good to have it reinforced by someone with her status and experience.
We were very engaged in the legislation and three members of the Committee formed part of the Commons Bill Committee. Since then, the Committee has considered classified information on behalf of Parliament from the Government and held constructive sessions with the intelligence community to explain the rationale behind important parts of the Bill, such as clause 31 as it now is—it was previously clause 28. We have focused on ensuring that the Bill is as effective as possible in providing the intelligence community and law enforcement with the required tools while incorporating the necessary safeguards.
Martin Docherty-Hughes
The right hon. Gentleman is highlighting what he sees as benefits, but does he agree that clauses 85 to 88 will mean any British Government could avoid paying damages in cases where the secret intelligence services have arbitrarily handed a UK citizen into the detention of a friendly state that goes on to torture them? Surely being liable for playing a part in the torture of a UK citizen is not a good way to do intelligence.
Sir Julian Lewis
My understanding of the legislation—someone from the Intelligence and Security Committee is due to speak after me who has a better perspective of the detail of this than I have—is that there are safeguards against anything that could possibly be used to justify or facilitate torture. This was debated in considerable detail in Committee, and I am concerned that the hon. Gentleman, for whom I have a great deal of respect from our time together on the Select Committee on Defence, still feels that the safeguards may not be strong enough. Perhaps we will hear from him later.
We are pleased to see that the Government have incorporated various changes recommended by members of the Intelligence and Security Committee, including on strengthening the Bill’s independent oversight provisions and replacing the “exemption” under clause 21 with an improved “defence”, with stronger safeguards and accountability provisions.
As my right hon. Friend the Member for Chipping Barnet (Theresa Villiers) flagged a moment ago, there has been a missed opportunity, namely the failure to reform the 1989 Act. As the ISC has said since the Bill’s introduction, it does not go far enough, despite reforming the espionage regime under the OSA, because it fails to reform the 1989 Act, as both we and the Law Commission recommended. That is despite a previous Government commitment that reforming the 1989 Act would be a key part of the Bill. This means the problems with the 1989 Act, which the Government have already acknowledged, will persist. Among those problems is the requirement to prove that damage has been done by unauthorised disclosures, which acts as a barrier to prosecution because showing that disclosures have done damage risks increasing the damage.
The recommendations include increasing the two-year maximum sentence, which we feel is clearly insufficient to deter or to respond to the most serious unauthorised disclosures. Will the Minister commit to introducing legislation to reform the 1989 Act in this or the next parliamentary Session? I would like an answer either now or at the end.
Bob Stewart (Beckenham) (Con)
The problem is that classified information sometimes has to be used to prove something like this, and it is just not acceptable to use classified information in an open court.
Sir Julian Lewis
My right hon. and gallant Friend underlines my point, which is that, in proving damage has been done, the mere fact of displaying why something has been damaging can increase the damage and adverse impact by many multiples.
Both Front Benchers focused on Lords amendment 22, on foreign interference in elections, and Lords amendment 122, on the duty to update the MOU of the ISC. Like Admiral Lord West, who spoke in favour of Lords amendment 22 on the ISC’s behalf, I firmly support the introduction of the proposed new clause, which would help to increase the transparency and accountability of our political system. The ISC’s Russia report of 2020 recognised that the UK has clearly welcomed Russian money, including in the political sphere. It found that several members of the Russian elite with close links to Putin have been identified as being involved with political organisations in the UK, including by making large donations to political parties. That clause would require a UK-registered political party to create a policy statement, and to provide the Electoral Commission with an annual statement of risk management, identifying how risks relating to donations from a foreign power are being managed to ensure such donations are properly identified. This should not be controversial, and it is still not clear, despite the Minister’s best efforts, why the Government would wish to oppose that clause. Indeed, the Government said in the other place that the current electoral finance legislation is sufficient.
Several Lords also noted that, unlike companies or charities, political parties do not have to examine the source of the funds they receive. As those Lords explained, that means it is perfectly possible for companies to make significant donations to political parties despite clearly not making operating profits—so with limited explanation of how they can afford such donations or where the money comes from. That means that, unlike companies and charities, there is no enhanced due diligence even when a donor is operating from a high-risk country listed in terrorism-financing or money-laundering legislation.
As was also suggested in the other place, incorporating this modest amendment would mean that political parties develop a culture of knowing their donor, just as companies, particularly financial and legal entities, are required to know their customer. It is entirely appropriate for political parties to do more to determine the source of donations. The additional measures proposed would not be over-onerous. Lords amendment 22 is eminently reasonable, and it should not be controversial for political parties to want to ensure the transparency of their foreign political donations. We must protect against covert, foreign state-backed financial donations if we are to defend our democratic institutions from harmful interference and influence.
Alison Thewliss (Glasgow Central) (SNP)
I absolutely agree that we should be guarding against this. Does the right hon. Gentleman agree there is also a problem with incorporated associations that donate money? It is very difficult to trace where the money has come from, despite the efforts of organisations such as openDemocracy.
Sir Julian Lewis
I agree that it will always be difficult to man the defences sufficiently against people who apply great ingenuity and unscrupulousness in finding their way around such defences. Perhaps we should bear in mind—I say this in the context of British politics, rather than anywhere else—that, so long as we have an adversarial political system, parties that accept what we might dub “dirty donations” will be found out if their opponents are doing their job properly; or if they are not absolutely proven to have accepted money from unacceptable sources, they will still suffer general reputational damage that will not do them any favours when people cast their vote. It is very much in the interest of political parties to make sure their funds come from clean and acceptable sources.
In turning to Lords amendment 122, on the duty to update the Intelligence and Security Committee’s memorandum of understanding, I can almost hear an under-the-radar groan in the Chamber because this subject keeps coming back in one Bill after another. It featured prominently during our consideration of the National Security and Investment Act 2021, and I fear this will continue until the matter is resolved. People might be forgiven for saying, “Isn’t this all a bit unimportant, a bit introspective and a bit self-regarding of the Intelligence and Security Committee?” In our defence in insisting that the matter needs to be sorted out, I quote none other than Lord Butler of Brockwell, who, as Robin Butler, was one of the most revered Cabinet Secretaries in recent political history. In the debate on the matter in the House of Lords, he said that “the consequence” of the way the Government have been behaving
“is that in recent times the Intelligence and Security Committee of Parliament has not been used for the purpose for which it was set up.
If the Government are not going to use the Intelligence and Security Committee properly, they should save money and abolish it. But, of course, they will not do that because Parliament set it up, Parliament thinks it is important that this House and the House of Commons should have some insight into intelligence operations, and it would be unacceptable for the Government to abolish it. But they must choose either to abolish it or to use it properly. If they are to use it properly, they must update the memorandum of understanding and, as the noble Lord, Lord West, said, use it for the purpose for which Parliament intended: to give oversight by people who are fully screened within the ring of secrecy to report to Parliament. I think this is a much more important amendment than the face of it suggests.”—[Official Report, House of Lords, 7 March 2023; Vol. 828, c. 745-46.]
When someone of Lord Butler’s stature makes those remarks, we can be justified in continuing to focus attention on this matter.
Sir Jeremy Wright (Kenilworth and Southam) (Con)
Does my right hon. Friend agree that one curiosity of this debate is that earlier this afternoon the Minister referred with approval, as did the shadow Minister, to the ISC’s work in attempting to seek a resolution of the problems we all found with clause 28? Does that not demonstrate that the ISC’s remit matters because, if nothing else, the Government sometimes find it a useful institution to help to resolve this kind of problem?
Sir Julian Lewis
Absolutely. My right hon. and learned Friend is far too modest to say that his input, as a former senior Law Officer of this country, to the changes that were made was of extreme importance and assistance to the Government.
Bob Stewart
In short, we have to revise the MOU because at the moment we on the ISC cannot do our job properly and it is a job that everybody in this Chamber wants us to do.
Sir Julian Lewis
I am grateful for that strong support. It should not have been necessary for people in the upper House to bring forward a legal requirement to update the MOU. For the benefit of people not buried in the intricacies of these arrangements, let me say that the MOU means that at any one time an exchange of letters between me, as the Chairman of the ISC, and the Prime Minister can modify the range of organisations that the ISC has the right to scrutinise. As we will be hearing in a few moments, that is because when that arrangement was initiated, it was recognised that from time to time changes in the structure of Departments mean that different parts involving classified intelligence-related activities would pop up here and there in different Ministries, so we would need an ability to adjust the MOU to approve our scrutinising the classified parts of those activities. That is precisely because ordinary—I know that my colleague on the Front Bench does not like my using that word—departmental Select Committees are not able effectively to scrutinise highly classified material in any systematic way. If they were, it would not have been necessary to set up the ISC in the first place.
Owen Thompson (Midlothian) (SNP)
As a relatively new member of the ISC, I am finding it extremely perplexing to try to understand why the Government have such a resistance to updating the MOU. Does our Chair agree that it would be particularly useful if the Minister gave his commitment to backing the Committee’s calls to update the MOU, using his good offices, and to trying to move that forward as quickly as possible? Like others, I can find little understanding of why the Government would be so resistant to doing that.
Sir Julian Lewis
I am very grateful for the hon. Gentleman’s support and I take this opportunity to pay tribute to both him and his predecessor for making an extremely valuable and valued contribution to the Committee. We draw such authority as we have from the fact that party politics does not enter into our work. I think I heard the Security Minister say that he accepted that the MOU needs to be updated—
Sir Julian Lewis
I see that he is nodding. Should he wish to elaborate on that a little more, that would be even more welcome.
Madam Deputy Speaker (Dame Rosie Winterton)
Before I call the SNP spokesperson, let me say that, obviously, this debate is time limited, and I am sure that hon. Members will want to leave some time for the Minister to conclude.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
Once again, it is a pleasure to have the opportunity to scrutinise what we recognise as an extremely important piece of legislation. Like both the Minister and the shadow Minister, I wish to start by paying tribute to all those who are involved in protecting us and our security.
The National Security Bill has had SNP support from the outset, but we have also highlighted significant problems with it: things that were not in the Bill that should have been; things that were in the Bill that needed fixing; and things that were in the Bill that had no place in there at all. I welcome that many of those concerns were also raised in the House of Lords, and recognise that the Government have responded positively to several of them.
We welcome the amendments that have added clarity to the scope of some of the offences in the Bill, particularly around the state of knowledge required before offences are committed. In general, we welcome the changes to the registration schemes, which will make them more targeted. We also welcome the broadening of the oversight provisions to ensure that the measures in part 1 of the Bill are properly scrutinised.
On omissions, we continue to think that the failure to reform the Official Secrets Act 1989 is a major opportunity missed, and we regret that there has been no addition of a public interest defence, which is something to which a number of Members have alluded. That is an issue that will have to be returned to urgently.
Some improvements have been made to the Ministry of Justice’s clauses in the Bill relating to legal aid. However, we remain of the view that the legal aid provisions should have been taken out altogether. In relation to the award of damages in clause 83, improvements have been made, but, yet again, not enough. It is welcome that reductions in awards of damages now can happen only where there is a direct link between the alleged act of terrorism and the claim for damages. However, there is still concern about how this will operate when foreign Governments—Governments who have carried out torture based on UK intelligence—simply use the smear of an unproven terrorism allegation to justify or defend their actions.
Martin Docherty-Hughes
I wish to go back to the point that I made to the Chair of the ISC, who is a very good friend and who must be commended for everything that he does in relation to that Committee. Again, clauses 85 to 88 seem to allow any British Government to avoid paying damages if the intelligence services have participated in the torture of a UK national, such as my constituent Jagtar Singh Johal, by an ally, especially if they are found not guilty and let go.
Stuart C. McDonald
I am grateful to my hon. Friend for intervening. His constituent’s case is one that I had in mind when drafting this part of my speech. We do not need to look too far to think of other possible examples. I hope the provisions that he is referring to do not have those implications, but more could have been done to make that absolutely clear. What would be useful today at least would be to have assurances from the Minister that mere assertions by foreign Governments will not be enough to allow that clause to apply. It must be for the courts to interrogate whether assertions that somebody was involved in torture are made out.
Let me turn to the amendments under discussion today. Lords amendment 22 would place additional duties on political parties in relation to risks of donations from foreign powers. In the interests of transparency, I should declare an interest: I have recently had the great honour of being appointed the national treasurer of the Scottish National party, so this amendment would add to my already rather full in-tray. Notwithstanding that, we must acknowledge the serious dangers posed by such donations to our democratic political systems and indeed to our security.
We have been warned by the Intelligence and Security Committee in its Russia report, by MI5 and by various other bodies about the dangers of foreign influence being sought through donation. Yes, we do have the Political Parties, Elections and Referendums Act 2000, but we cannot seriously think that we are remotely in a position to say that the risk has been dealt with. Far from it, the repeated and significant circumvention of those rules is precisely why we continue to receive the warnings that I have just referred to. We need to think about going beyond basic status checks on donors to investigating—where an assessment of risk requires it—the real source of donations. There is support for that type of approach from the Electoral Commission and the Committee on Standards in Public Life.
We welcome this amendment by Lord Carlile, a former independent reviewer of terrorism legislation, with support from the former head of MI5, Lord Evans, and others. As the Chair of the Intelligence and Security Committee has said, this is a modest rather than revolutionary proposal, but it is definitely a step in the right direction. Frankly, opposition to the amendment seems rather fishy indeed.
On Lords amendment 122 and the role of the Intelligence and Security Committee, my general approach is to give colleagues on the ISC all the support that they request. The job that they do is utterly crucial, and I have never had any reason to doubt how seriously and assiduously they go about their task. Their annual report highlighted the need for an updated memorandum of understanding, particularly given the outsourcing of intelligence and security activities to different policy Departments, but there is no sign of that update happening. The support of ISC colleagues for Lords amendment 122 therefore attracts significant deference and weight. Frankly, if nothing else, the Government need a metaphorical kick up the backside in their approach to the ISC—an approach exemplified by the failure of any Prime Minister to meet the ISC since 2014. Therefore, we support Lords amendment 122.
Finally, we welcome the significant change in approach to the offences under part 2 of the Serious Crime Act 2015, and thank all involved in the drafting of the new clause. In particular, it is welcome that the provision now takes the form of a defence rather than an exemption or a carve-out. However, we do remain concerned that there is no specific exclusion in relation to serious harms, such as torture, cruel, inhuman and degrading treatment and sexual offences. If anything, we are even more concerned now than before. Obviously, the Government have spent a lot of time redrafting the Bill in the light of the concerns that have been raised, yet they have still decided to exclude such serious harms from the scope of the defence. It seems a very deliberate and conscious choice that they have made and the Fulford principles do not provide sufficient safeguards on their own.
We therefore support amendment (c) to Lords amendment 26, tabled by the right hon. Members for Orkney and Shetland (Mr Carmichael) and for Haltemprice and Howden (Mr Davis). At the least, it would be very useful to have the Minister say at the Dispatch Box that the Government do not see any circumstances in which such activities could be deemed necessary for the purposes of an intelligence function. On that note, we welcome amendment (c).
We do support the Bill, but we still think there is further to go to get it to where it needs to be.
Sir Jeremy Wright
I am grateful for the opportunity to speak in this debate, and also grateful to my right hon. Friend the Member for New Forest East (Sir Julian Lewis) for setting out so clearly the position of the Intelligence and Security Committee, of which I am also a member. He made many points with which I agree and which I do not need to repeat, but I do want to say something very briefly about Lords amendments 22 and 122 in slightly more detail. Both amendments have something in common, which is that they highlight a significant problem and put forward, perhaps, an imperfect solution to those problems. The Government’s saying that they are imperfect solutions has validity, but it would have more validity if the Government were prepared to come forward with solutions to those problems that were less imperfect, which we could all then support.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
I will speak to amendment (c) in my name and in those of the right hon. Member for Haltemprice and Howden (Mr Davis) and—though it came too late to be printed on the amendment paper—the hon. Member for Barnsley Central (Dan Jarvis) . Amendment (c) would, as it states, disapply subsection (2) of proposed new section 50A of the Serious Crime Act 2007,
“in relation to an alleged offence that relates to conduct involving—
(a) torture or inhuman, cruel or degrading treatment or punishment, or
(b) the violation of a person’s sexual integrity.”
It is worth saying that the Bill that has come back from the other place is significantly improved on that which was sent to it. I posit the thought that, had the Bill started out as it stands today, an amendment such as mine would probably feature. It sits more logically with the structure of the Bill now, and it would avoid some of the unintended consequences. That is the disadvantage of starting a piece of legislation—a Bill of this nature should always have the maximum cross-party agreement and political consensus behind it—in a way that was, in the early days, quite divisive. The issues could perhaps have been better interrogated further upstream before the legislation came to the House.
The points that I wish to pray in aid of the amendment relate to the way in which clause 31, as it stands, would have effect. There are a number of points, which I will cover as briefly as possible because I do not want to filibuster the opportunity to put my own amendment to a vote; I have seen that done too many times in the past.
One concern, on which I would be interested to hear the Minister’s view, is that the International Criminal Court has warned that clause 31 as it stands would open the jurisdiction of the court to look at the actions of UK personnel. To the right hon. Member for Haltemprice and Howden, the ICC’s chief prosecutor wrote that cases could now be
“potentially admissible before the ICC”—
a fairly strong statement in these circumstances—citing the risk of creating gaps in the domestic prosecution mechanisms for war crimes and crimes against humanity under the Rome statute. The prosecutor said that the Bill would be clear if it clearly excluded serious human rights abuses from its remit. I do not know if it is the Government’s wish and intention that the International Criminal Court be given jurisdiction in that way, but should that ultimately turn out to be the case, neither the Minister nor his successors will be able to say that they were not warned.
Clause 31 could also give Ministers and officials a statutory defence for involvement in crimes such as targeted killing and torture. That could include sending information from the UK overseas to be used in a torture interrogation, assisting the offense of torture under section 134 of the Criminal Justice Act 1988. Under the clause, a statutory defence would be available if the action were deemed necessary for the proper exercise of a function of an intelligence service or for the proper exercise of a function of the armed forces. In the Lords, that point was interrogated at length in Committee. The Minister in the Lords said that he would revert to Lord Pannick, but he never did. Instead, the Government chose to proceed in the way that is presented to the House today.
Clause 31 almost appears designed to protect politicians and officials in the UK rather than British personnel operating overseas. The clause would provide a legal defence for encouraging or assisting crimes overseas, such as giving a tip-off that leads to someone’s torture, as opposed to the direct commission of the crime itself. This is not fanciful; we know what was done by Jack Straw and senior officials of the day in relation to the Belhaj and Boudchar cases. Although we have never really seen a proper conclusion to those cases, such an operational defence would put that comprehensively beyond reach.
The clause could also discourage the Crown Prosecution Service, the Crown Office and Procurator Fiscal Service, and the Director of Public Prosecutions or the Lord Advocate from bringing cases. Where decisions are made about bringing prosecutions on individual cases, including those against Ministers and officials, the availability of a statutory defence for any conduct deemed “necessary” would likely discourage the prosecution authority from bringing a prosecution relating to criminal activities—or what would otherwise be criminal activities—that Ministers and officials assist or encourage others to do overseas.
In its simplest form, the Bill would still undermine an important and long-standing legal prohibition in this country on torture and related abuses. We have a long and distinguished history in this area. Conservative Members will be aware of the landmark changes made under the Government of the late Baroness Thatcher to create a specific criminal offence of torture. If the Government seek to undermine Baroness Thatcher’s legacy, I am quite prepared, on this one limited occasion, to take up cudgels and defend it.
The Bill also raises the question of our country’s moral authority. What right do we have to criticise other countries—for example, Saudi Arabia for the murder of journalist Jamal Khashoggi, or Vladimir Putin’s Russia for its extraterritorial offences—if we authorise the conduct of our own Ministers, politicians and personnel in relation to such activities? This is about our moral authority. I would like to think that the Government will look kindly on the amendments, if not today, then perhaps when the Bill returns to the other place.
John McDonnell (Hayes and Harlington) (Lab)
I offer my support to the right hon. Member for Orkney and Shetland (Mr Carmichael) for his amendment (c) and his speech.
I will speak as the secretary of the National Union of Journalists parliamentary group, which is the cross-party group that speaks on behalf of journalists in the House. The union formed a coalition with the Index on Censorship and openDemocracy. Our objectives were to clarify and narrow the definitions of offences in the Bill to protect journalists, to seek a statutory public interest defence in the Bill, and to have an element of independent review and commissioning to review the operation of the Bill when implemented. We have successfully narrowed—as the Minister said—and defined the offences more clearly to protect journalists, which is helpful. An element of independent scrutiny has been introduced, which is helpful. There is no general public interest defence in the Bill, but that may well be developed in case law over time.
Sir Chris Bryant
I start where my right hon. Friend the Member for Hayes and Harlington (John McDonnell) finished. I am completely perplexed about why the Minister is holding out against Lords amendment 22, not least because he told Insider last year that it was “perfectly legitimate” to criticise political parties for accepting donations “that are not clear”. He made it absolutely clear at the time that he supported the idea of legislation to require political parties to be clear about where their funding was coming from. To be fair to him, that was obviously not when he was a Government Minister, and he has now fallen among thieves. I preferred the old version of the Minister, and I hope that, in our discussions over the next few minutes, we can manage to persuade him to return to proper form.
The pedigree for Lords amendment 22 is phenomenally strong, as has been said. Not only have Lord Carlile and Lord Evans—the chair of the Committee on Standards in Public Life and a former head of MI5—called directly for such provisions, but as I understand from her comments, Baroness Manningham-Buller also supported Lords amendment 22, as did Lord West, all the members of the ISC, Spotlight on Corruption, the Committee on Standards in Public Life, and, of course, the Electoral Commission.
The Electoral Commission wrote directly to the Minister last year to say that it would surely be wrong not to change the law so that political parties can accept donations from companies that have made enough money in the UK to fund the amount of their donation. One would think that that stands to reason. One would also think that it stands to reason, as the commission also argued, that political parties should be required to check not just whether someone is a permissible donor in the sense of being on the electoral register, but whether they have enough money of their own to be able to fund the political party to the extent proposed. That is just due diligence, but there are phenomenal loopholes in the law.
The Minister is normally a very polite and generous man, but I understand that he has still not replied to the Electoral Commission on this matter, and the commission has complained about this. In this area, as he knows perfectly well from our work on the Foreign Affairs Committee, complacency serves us ill. One need only look at the sad trajectory of the tier 1 visa system—the golden visa. When the report was finally produced it showed that we had given visas to live in the UK and make their permanent residence here to people we ended up sanctioning because they were so closely related to the Putin regime. The 2020 Russia report from the ISC—it should have been the 2019 Russia report, but the then Prime Minister did not allow it to be published before the general election—made it very clear that Russia and perhaps other state actors had been intent on affecting elections and referendums in this country, and urged us not to be complacent.
There are authoritarian state actors who wish us ill. They rely on the openness of our political system, on our open system of governance in the City, on the fact that contracts can be enforced, and on our open judicial system. They rely on all of that and, I would argue, on our complacency to be able to do their nefarious work in the UK. There is a flaw in the Political Parties, Elections and Referendums Act 2000: the concept of “permissible donor” is too tightly drawn. Surely any political party and any person trying to secure donations from a third party would want to ensure that the money they received was not tainted by human rights abuses in another country, by authoritarian acts from another country or, frankly, by malign influence by a third party state actor.
The position is made worse by the Elections Act 2022 adding to the registers 3.5 million overseas voters who pay, or who may pay, no tax in the UK, and who may have next to no relationship with the authorities in this country—it is necessarily very difficult to track that information down. What should a party do if it is offered a donation of, let us say, £50,000 by somebody who lives and works in Moscow today? The law says the party need not do anything, as long as the individual is on the electoral register. Surely, though, we do not think that that is right or appropriate. I want further checks to be in place. The provisions in the amendment are so minimal—absolutely the minimum that we have to do to make sure that political parties in this country do the basics.
I said there is a flaw—perhaps a fissure—in PPERA, but I am starting to worry that the Government want that loophole to exist. If they do not, I simply do not understand why the Minister is holding out on this point. I hope the Minister will change his mind on this minimal requirement and support Lords amendment 22. If we end up voting it down, I hope their lordships will throw it back to us. For more than a decade now, we have left the door wide open to political interference in our system in this country. It is time we slammed it shut.
Tom Tugendhat
First, I thank the hon. Member for Halifax (Holly Lynch) for the contribution she made and the spirit in which she has approached these debates. She is absolutely right to talk about Caoilfhionn Gallagher and Jimmy Lai and to highlight the many issues that she did. Such matters unite us; another is the fact that this Government, like every Member of this House, I am sure, remain absolutely committed to the UN convention against torture and other cruel, inhuman or degrading treatment or punishment. There is absolutely nothing in this Bill, or in any other Bill that this Government are bringing forward, that would in any way undermine our obligations or the seriousness with which we treat torture as it is practised, sadly too frequently, around the world. Although I hear what the right hon. Member for Orkney and Shetland (Mr Carmichael), my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and the hon. and gallant Member for Barnsley Central (Dan Jarvis) say, there is quite literally nothing in the Bill that would give rise to the need for amendment (c) to Lords amendment.
The point made by the right hon. Member for Orkney and Shetland about Lord Pannick, however, was entirely fair. A letter should have gone back to him. In fact, the point was made and the answer given in the form of amendments to clause 3 that address his concern about the carve-out for lawyers. Although I agree that I should have written, the reality is that I addressed the points Lord Pannick raised in the Bill itself.
The matter of foreign donations has been raised again. The reality is that we have to treat British citizens like British citizens. The idea that we can treat British citizens differently depending on how we feel about them seems to me to be rather a bad way of making law, but that does not mean that political parties have to treat British citizens exactly alike. Surely the rule here is: just because you can does not mean you should. There are many donations, and perhaps many individuals making them, that many of us would not wish to accept. The point about politics is that it is about decisions, judgment and choices, and while the law has to apply to everyone equally, we as politicians and as political parties are not so obliged. We have to make judgments and decisions, and we have to carry our reputations and the reputations of our organisations with us when we make those calls.
On the changes to the MOU that the ISC suggested, my right hon. Friend the Member for New Forest East (Sir Julian Lewis) had the opportunity to give me the power to make those changes, but I am not the Prime Minister, so I cannot do so. The Prime Minister will have to make that decision, but I will raise the matter again with his office, because my right hon. Friend’s points were well made.
I have heard many comments about the Official Secrets Act 1989. The nature of this reform is complex and there are many and various arguments because this piece of legislation ties into so many others. I will not give my right hon. Friend the Member for Beckenham (Bob Stewart) a commitment to act in this Parliament—he will understand that more work is required. As for my ability to make commitments into the next Session, he tempts me too far.
I am glad to hear that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) has achieved the great honour of being treasurer of the Scottish National party. I hope it comes with a caravan and that he is enjoying the touring that that affords him.
My right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) raises many good points. The reality is that these challenges must be addressed as a whole and require further discussion, so I am very grateful for his time.
Bob Stewart
I accept the Minister’s points on the Official Secrets Act 1989 and the fact that it is complicated, but do the Government recognise that, complicated though it is, it must be addressed?
Tom Tugendhat
My right hon. Friend tempts me in a direction I would love to go in, but in the minutes I have left, I shall not be lured. An awful lot of legislation would require work if we were to amend the Act, so a huge amount of drafting work would be required before I could express an opinion. I see other right hon. and hon. Members nodding in agreement.
The hon. Member for Rhondda (Sir Chris Bryant) made a fair point on the Electoral Commission. I shall follow up with the Department for Levelling Up, Housing and Communities, which is responsible for electoral law and which will be responding to the commission on that issue.
If I may, I will finish by simply saying that tomorrow is polling day, and while this Bill addresses many different aspects of our national security, the single best thing that all of us as citizens can do to defend our country and our future is to vote. As such, I urge everybody who has the opportunity to do so—in England and Wales, in our local government areas—to please get out and vote, and of course, to vote Conservative.
Amendment (a) made to Lords amendment 26.
Amendment (c) proposed to Lords amendment 26.—(Mr Carmichael.)
Question put, That the amendment be made.
National Security Bill
Wednesday 21st June 2023
(1 year, 5 months ago)
Lords ChamberRead Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 135—I Marshalled list for Consideration of Commons Reasons and Amendments - (20 Jun 2023)
17:07 - Division on Motion A1 - Ayes: 219 / Noes: 172 - Motion A1 agreed.
17:20 - Division on Motion C1 - Ayes: 223 / Noes: 165 - Motion C1 agreed.
Lord Sharpe of Epsom
That this House do not insist on its Amendment 22, to which the Commons have disagreed for their Reason 22A.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, as well as Motion A, I will also speak to Motions B, C and D.
It is a pleasure to bring the National Security Bill back to this House. I thank noble Lords for their support so far. The vast majority of this Bill has now been settled, and measures that are vital to our national security will now be available to our security and intelligence services and to law enforcement. This new toolkit will facilitate the tackling of state actors who threaten the safety and security of the UK. The Government are busy working towards the implementation of this legislation, but there is only so much that we can do without Royal Assent. I ask noble Lords to bear this in mind through any votes that we may have.
Starting with the amendment that has been tabled in lieu of Amendment 122, the Government have listened to the concerns raised by the noble Lord, Lord Coaker, regarding the updating of the ISC’s memorandum of understanding, or MoU. The concerns raised by the noble Lord are that the Prime Minister has not attended a session of the ISC since 2014 and that the MoU is out of date. As I said the last time that this issue was debated, the ISC MoU is under regular review and the ISC is always welcome to review and suggest revision to it. The amendment tabled to force this process is therefore unnecessary.
This amendment cannot compel the Prime Minister to attend a session of the ISC, which I suspect is the amendment’s true driver. However, the Security Minister recently met with the chair of the ISC to better understand the committee’s concerns and find an agreeable resolution to the issue. In that meeting, he committed to attending an evidence session of the ISC to discuss the powers taken in the National Security Bill in greater detail and the plans for implementing the legislation. The Minister also committed to giving the ISC further updates on the progress of implementation through quarterly written updates.
I remind the House that, under the Justice and Security Act 2013, there is already provision in place for the review and amendment of the MoU where there is agreement between the Prime Minister and the ISC. Therefore, although I understand the spirit behind the amendment, it will not provide for anything new in practice. I believe that the Security Minister’s offer of attendance at a session and to provide regular written updates about the implementation of the Bill shows that the Government take the committee and its concerns seriously.
We have responded to the concerns raised about the ISC MoU in respect of the Bill, but the Bill is not the mechanism to address wider concerns. I ask noble Lords to recognise this. I also note that the Home Secretary is giving evidence to the Iran hearing in July and appreciates the ISC’s critical role in scrutiny of the intelligence and security community.
I turn to Motion A1, tabled by the noble Lord, Lord Carlile, to propose an amendment in lieu of Amendment 22, which concerns donations to UK political parties from foreign powers. I thank the noble Lord for recently meeting with my noble friend Lady Scott, the Minister with responsibility for elections. I turn to the substance of the amendment: it creates a duty on political parties to write an annual policy statement to ensure the identification of donations from foreign powers and a duty on political parties to provide the Electoral Commission with an annual report on donations received by foreign powers. I will set out the reasons why the Government oppose this amendment.
First, on the annual return to the Electoral Commission, as I have said before, accepting a donation from a foreign power, whether directly or indirectly, is already illegal. The amendment does nothing to assist parties in identifying illegal donations. Taken together, this renders the reporting of such activity to the Electoral Commission as an annually submitted blank page. This is not a helpful addition to the transparency framework surrounding political donations and, on that principle, we oppose its inclusion.
Secondly, the requirement to publish an annual policy statement lacks utility. Political parties are already required by law to take all reasonable steps to verify the identity of a donor and whether they are permissible. To reiterate, foreign powers are not permissible donors. The existing law also prohibits impermissible donors seeking to direct money through permissible proxies, and it is an offence knowingly to facilitate the making of an impermissible donation. The legal framework is clear, and requiring the publication of a policy statement adds nothing.
Thirdly, given that the amendment will not add value, we do not think that it is reasonable or proportionate. It is worth highlighting that political parties are not banks or security services: they do not have the means to undertake sophisticated forensic accounting. While these services can be obtained through the private sector, they are likely to be cost prohibitive. Political parties are not global corporations: there are over 380 parties currently registered with the Electoral Commission, many of which are predominantly made up of volunteers. This amendment would add burdens on political parties and could risk disincentivising parties from accepting donations, which could, in turn, harm our democracy.
There is also a point on convention here. As far as we are aware, political parties have not been engaged on their views for this proposed amendment. The Government do not unilaterally change laws relating to political parties without such consultation taking place. It could lead to inequitable outcomes and, as such, is another reason why the Government oppose the amendment.
For all of these reasons, the Government’s position is that this is the wrong way to go about preventing threats from foreign powers to our political system, which I know that the noble Lord, Lord Carlile, is concerned with.
During engagement with noble Lords and throughout previous stages, concerns have been highlighted about donations from companies and unincorporated associations. I would therefore like to set out the framework that we are operating in. Only those with a genuine interest in UK electoral events can make political donations. To be a permissible donor, companies must be registered in the UK, incorporated in the UK and carrying out business in the UK.
Lord Carlile of Berriew
Moved by
At end insert “, and do propose Amendment 22B in lieu—
22B: After Clause 14, insert the following new Clause—
“Foreign interference in elections: duties on political parties
(1) A UK-registered political party must, within three months of the passing of this Act, and annually thereafter, publish a policy statement to ensure the identification of donations from a foreign power (whether made directly or through an intermediary).
(2) A UK-registered political party must provide the Electoral Commission with an annual statement setting out individually the details of all donations from a foreign power, including whether made directly or through an intermediary (and identifying all such intermediaries).
(3) In this section, “UK-registered political party” means a political party registered under Part 2 of the Political Parties, Elections and Referendums Act 2000.””
Lord Carlile of Berriew (CB)
My Lords, in moving Motion A1 as an amendment to Motion A and proposing Amendment 22B in lieu, I should say that I shall support, if it is necessary to do so, Amendment 122B, which will be moved by the noble Lord, Lord Coaker.
The Minister mentioned the very pleasant meeting I had with three Ministers and a number of officials about my amendment, and I was very grateful for that meeting. I was given a very simple message—with which I do not agree—that the law goes far enough to protect political parties and those who vote for them from the intervention of foreign powers. My amendment would place no extra burden on Ministers; I removed that from the original version. What it does—rightly, in my view—is place a burden on political parties to do what in the commercial world is routine and carry out proper due diligence, as the term is, on the people who contribute to them.
I listened with great care to what the Minister said a few moments ago. If my noble friend Lord Kerr will forgive me for quoting one of his many memorable sotto voce utterances, he turned and said to me, “So that leaves it to the thief to report the crime, doesn’t it?” I agree with him. Indeed, what the Minister said suggested that when, say, a company is used, up there in Companies House, if you make a complaint, there are investigators who will carry out an investigation to see where the money ultimately comes from—the ultimate donors, not those nice nominees who are nominated directors of the company. However, I do not know how many of your Lordships know this, but Companies House has no investigators whatever—zilch, zero. If noble Lords will take the trouble, during the boring parts of what I hope will be a short speech, to look at GOV.UK, they will see that it tells people that if they want an investigation done into a company they should go to the Serious Fraud Office or somewhere like that.
I accept that the Government want political parties to be properly funded, not improperly funded, although some political parties have accepted unusual sums of money from unusual places. However, I hope that the Minister—and noble Lords if this comes to a vote later—will agree that more due diligence is needed, and that we cannot take at face value that the criminal should report his own crime. We are dealing with bad people here, not good people.
I thank the organisation Spotlight on Corruption for some excellent research that it has done; I feel that it deserves that namecheck. Donations from foreign powers are a significant threat to the UK’s national security and undermine the integrity and credibility of our democratic processes. There is plenty of evidence to support that. A report in 2020 by the Intelligence and Security Committee identified that members of the Russian elite linked to Putin had donated to UK political parties.
Another bit of evidence is that in January 2022 the Security Service warned that an alleged Chinese agent had sought to influence UK parliamentarians on behalf of the Chinese Communist Party and had donated to two major political parties that stand in every seat in this country. In mid-April 2023 concerns were raised in Parliament about alleged links between the Chinese Communist Party and Conservative Party fundraising. The Minister of State for Policing said that
“all political parties need to be alert to the danger of representatives of hostile states seeking to infiltrate or influence their activities”.—[Official Report, Commons, 19/4/23; col. 249.]
This amendment is just that alert.
The Home Office impact assessment for the Bill emphasises that foreign interference is a direct attack on our sovereignty, national institutions and values. The Bill will not prevent that attack unless political parties are required to play a part. One of the noblest things that this noble, unelected House does is to protect democracy from itself, and that is what the amendment is intended to do.
We turn to the safeguards that the Minister says are effective. They are not. The rules that are supposed to prohibit foreign donations in the Political Parties, Elections and Referendums Act 2000 are absolutely riddled with loopholes. They enable foreign money to be channelled to political parties and MPs through what appear to be lawful donors, such as UK-registered businesses and unincorporated associations. The Act requires UK political parties only to check the status of donors; it does not require them to have a risk-based approach to donations. The nominated directors may look like ordinary nominees, but I think it was yesterday that we heard from my noble friend Lord Vaux, in an excellent speech, how names can appear in Companies House as directors and bear no relationship to the control of a company. We come to the same point twice in two days. While the UK’s anti-money laundering framework has been progressively tightened over the last decade, the minimal checks that parties are required to perform are a glaring anomaly.
How effective are the sanctions? The Electoral Commission referred eight cases to the Metropolitan Police in the period 2011 to 2021. I will give your Lordships one guess as to how many prosecutions there have been—absolutely none, because it is completely unreasonable to ask the police suddenly to move into this complex area to carry out the detective work and do the due diligence that any company, whether significant or relatively insignificant, should carry out.
I do not accept for one moment that what I am proposing will affect tiny political parties, because they will be taking their funds from a small group of closely interested people who will, effectively, be their close friends. What we are talking about here is the bigger political parties.
There is consensus among independent experts that parties should check the source of donations. In 2018, the Electoral Commission argued that risk management principles adapted from anti-money laundering undertaken by businesses could
“prevent foreign money being used in UK politics”.
It emphasised that political parties had a duty to do just that. This was supported, in effect, in the July 2021 report Regulating Election Finance by the Committee on Standards in Public Life.
I was pleased to note that my original amendment, to which this is in itself an amendment, was supported in the other place by the Conservative chair of the Intelligence and Security Committee, Sir Julian Lewis MP, who said that the need for political parties to do more to determine the source of donations is “entirely appropriate” and that the additional measures would not be “over-onerous” and were “eminently reasonable”. The Government said that the amendment would impose “huge administrative burdens” on grass-roots political campaigning, but this is just not the case. As the chair of the Electoral Commission has highlighted, a requirement to determine the true source of donations is proportionate and would not by design overburden smaller parties with limited resources.
About 35 years ago, when I was an MP in the old Liberal Party, my Whip and the Opposition Labour Whips asked me to go and sit on the Reasons Committee in the other place. I think it was not really a compliment. If your Lordships have ever been behind the Speaker’s chair they will know that there is a little room, which I thought until that night was private facilities for the Speaker. In fact, it is the reasons room, though that is not on the door, because visitors would assume that it was straight out of “Alice in Wonderland”—and it is, a bit. The Government of the time were privatising the railways and the opposition parties had tried to avoid ping-pong happening twice in one night. I think the reason I was chosen was that they thought I could keep a debate on next to nothing going for an extremely long time.
Lord Carlile of Berriew (CB)
I am not sure how to take that laughter.
Interestingly, we debated for one and three-quarter hours who should be the chair of the committee, until my pager pinged—we had pagers in those days. It read: “You can go home now. Their Lordships have gone to bed”.
Lord Coaker (Lab)
My Lords, I will speak to my amendment in Motion C1. We very much support the amendment put forward by the noble Lord, Lord Carlile. Should he wish to press it, we will certainly support him in the Lobbies later.
I am grateful to the Minister for his comments and for the valiant effort he made to defend what the Government are not doing about updating the memorandum of understanding. I thank him for his attempt to gloss over and make the best of it.
I pay tribute to the work of our security services. As we know, there is no difference among any of us here in our admiration for their work and the way in which they keep us safe. We all wish to see the National Security Bill become an Act as soon as possible. However, that does not mean that we do not have a responsibility to scrutinise and improve the Bill where we think change is needed. My amendment is part of that ongoing process.
I say to the noble Lord, Lord Carlile, that I must be a veteran, because I have been to the Reasons Committee a few times, not just the once. I do not know whether I was particularly good at it or just regarded as a toady who would do what anyone said. I am not sure exactly where the room was but I remember going there on a number of occasions.
On a serious point, that is something I now regret. The point the noble Lord, Lord Carlile, was making was that Members of Parliament—I was one of them; I am talking about myself—should take more notice of the revisions that are sent down. Sometimes the reasons given were simply spurious, such as, “We don’t agree with it”. I would not say that they were made up, but they were not far away from it. That is a source of great regret to me. Personally, I should have done more and taken more notice of them. That is partly why I understand that the reasons the Government have given are totally inadequate. They have basically dismissed what we said and what this House passed in my amendment that the other place then disagreed with.
The Minister will note that I have taken seriously the Government’s rejection of my original amendment. He will have seen that the duty to update has been changed to a duty to review. This is a significant, important change, as it would not require the Government to update the memorandum of understanding; it would simply require them look at the memorandum of understanding, review it and see whether change is needed. The Minister said that that is already included in the Bill. I submit to your Lordships that the Government will not do this unless something is put forward in the Bill to say that are required to review it, rather than the Government saying, “It’s in a piece of legislation that we have passed so we will do it anyway”. It will not happen.
The Intelligence and Security Committee—I know my noble friend Lord West will speak in a few minutes—is our voice. It was set up by Parliament to hold the Executive to account on intelligence and security matters. It is astonishingly and incredibly important. All Select Committees and committees of this Parliament are important, but the Intelligence and Security Committee was set up in 1994 to fill a vacuum, and the MoU was updated in 2013.
Some noble Lords have far more experience of that committee than me and will know how it works, but the fundamental point is that confidential and classified security-related matters can be discussed and debated there on our behalf. I do not expect to know what no doubt my noble friend Lord West and others discuss; it is totally inappropriate and wrong for me to know that, and I accept that. That is not what this is about. But it is important that those who are selected, appointed or voted, in some instances, to be members of that committee have access to all the classified information across government, because it is across government that they hold the Executive to account. That is how a democratic system functions while keeping security material safe and classified. It is a really important committee.
There can be no doubt that, as the Intelligence and Security Committee said in its annual report in December last year, the intelligence architecture has changed. The committee has asked not for anything radical or for a complete rewriting of the rules; it is simply saying to the Government, is it not appropriate to update the memorandum of understanding to reflect the changed security environment in which government operates? This committee should do it on our behalf but, essentially, also on behalf of the people of our country; it is totally reasonable to ask for that.
The committee gives some examples of changes that should happen in areas where it does not currently have the opportunity to operate. One is BEIS and
“the activities of the Investment Security Unit”.
I would have thought there was a clue in the title. I do not know what it does; I can guess, but I do not really know. Another is the Department for Culture, Media and Sport and
“the activities of the Telecoms Security and Resilience Team”,
which is not accountable to the ISC. The report also mentions the “Office of Communications” and the “Counter Disinformation Unit”, which are not accountable to the ISC and do not come under its remit. There is also the Department for Transport and
“the activities of the Transport Security, Resilience and Response Group”,
which, again, is not accountable to the ISC. The report further mentions the Foreign, Commonwealth and Development Office and
“the activities of the Intelligence Policy Department”,
which, again, is not accountable to the ISC. It also mentions the Department of Health and Social Care—we have heard a lot about this—and
“the activities of the Joint Biosecurity Unit”.
None of these is accountable to the ISC, and the Government should at least review that. Instead of updating this and saying, “You have to do it”, all the amendment says is, “Perhaps review whether the ISC should look at these”.
Noble Lords can see how ridiculous this is. The example that the committee gives is BEIS and the activities of the investment security unit, which the Government say the BEIS Select Committee can look at. That is completely and utterly ridiculous, because the point is that the ISC has security clearance to look at classified information, in a way that the BEIS Select Committee, as good as it is, cannot. So how on earth can the BEIS Select Committee look at anything that may be classified in the investment security unit, without the necessary security clearance? It cannot be done.
My amendment does not actually require the Government to do anything, but they have simply rejected it, saying that it is not necessary, that they are not even going to look at it and that various commitments have been made. I am sure the Security Minister and the Minister opposite will agree that there should be a review. Indeed, it appears that that is what the Security Minister has said. But what about the Home Secretary, the Prime Minister and the other people at the top of government? If the Security Minister is making those noises to the committee, why are the Government just going to say that this simple amendment, requiring a review, is not needed and is inappropriate and wrong? Just saying that we do not need it is not answering the point; it is just an assertion, and that is not good enough.
The Minister in the last minute or so has just glibly, if I might say so, pointed out that my amendment does not require the Prime Minister to attend. No, it does not, but let me tell noble Lords this from the Dispatch Box. It is an absolute disgrace that no Prime Minister of our country has been to the ISC since 2014. That is nine years. It is actually in the report—meeting with the Prime Minister; I had to read it a couple of times. I spoke to the Minister four or five months ago about this, and I asked him to ask why on earth the current Prime Minister, despite being invited, as I understand it, still has not responded to say when he is going. That is despite my saying then that it was completely unacceptable that no Prime Minister had been to the ISC.
Perhaps the Minister could update the House on what has happened. Who has the Minister made representations to and why has nobody taken any notice? Why has the Home Secretary not gone to see the Prime Minister about this? I say again—I could not believe it. Apparently, for 20 years after 1994, the Prime Minister of the day went once a year to the ISC; and then it stopped. The committee has tried to get Prime Ministers to go, and they will not. The Prime Minister of this country should go at least once a year to the Intelligence and Security Committee of our country, which is how this Parliament holds intelligence and security agencies to account. Can the Minister take that back to the Government? I speak for myself and for His Majesty’s Opposition, and I shall let others speak for themselves, but I think it is disgraceful that a Prime Minister has not been to speak to the Intelligence and Security Committee. I hope that that is heard loud and clear, that we can get something done about it and that the next time this is raised, the Prime Minister has spoken to the ISC with the Security Minister.
Lord King of Bridgwater (Con)
Having been the chairman of the ISC for its first seven years, may I just say that it is quite untrue to say that we called the Prime Minister to report to the ISC? We used to report to the Prime Minister when we were conducting various investigations.
Lord Coaker (Lab)
I take that point, and I apologise if I suggested it was the other way around. The point I am making is that the Prime Minister, according to the information here, used to go and speak with the Intelligence and Security Committee, and there was that two-way communication. My contention is that that is an important thing for the Prime Minister of our country to do. I would have hoped that the ISC had the opportunity to talk to the Prime Minister at least once a year since 2014.
I finish where I started. The defence and security of our country is the Government’s highest priority, and we all support them in that. We welcome the work of the security services to keep us safe. Mine is a simple amendment that seeks to update, through a review, the memorandum of understanding under which the ISC operates. It is a sensible thing for the Government to do and when the time comes, I shall seek to test the opinion of the House.
Baroness Hayter of Kentish Town (Lab)
My Lords, I support Motion A1, having had my name on the original amendment—I think it was Amendment 22 at the time—from the noble Lord, Lord Carlile.
There are two reasons for being concerned about foreign influence in UK politics. One is indeed the ISC Russia report, as it highlighted what was going on and gave good evidence of malign attempts to affect our politics and our elections—the same could be said about China. The other reason is this Government’s decision to give long-term expats the vote, no matter how long they have lived abroad. By doing so, they enable those expats to become permitted donors to UK political parties. Someone living for, say, 40 years in Russia can be on our electoral roll—no checks, no questions asked—and thereby be free to donate to a political party, with no checks on the source of these fundings, nor even whether they belong to that permitted donor. In fact, there is no way to ascertain whether the said donor is in fact in prison, whether they have properly earned income or whether such money that they donate is actually their own or has been given on behalf of a political power.
In the Guardian today, we read of a wealthy Chinese couple banned from Britain after they were accused of donating to British political figures on behalf the Chinese Communist Party. They happen not to be permitted donors but were no doubt able to put their money through somebody who was. Interestingly, that story seems to have come to light following an immigration tribunal, rather than by checks by a political party of the sort that would be required if Motion A1 were agreed by this House.
As the noble Lord, Lord Carlile, said, PPERA—the Political Parties, Elections and Referendums Act—requires parties to check only that the donors are permissible. The Minister said again today—as all his predecessors did—“Oh, but we’ll check that the donors are valid people”. That is not the point that we are making. We are saying that, by being able to be on the electoral register, they become donors and we do not check the source of the money that they give. We are not asked as political parties to carry out due diligence on donors, even those operating in high-risk countries of the sorts that are listed in the 2022 money laundering and terrorist finance regulations 2022. As a political party, we can take a donor from one of those countries and are not required to do any checks—in fact, we are not required to check anything other than that the donor is legitimate. So overseas-domiciled citizens—who long ago gave up paying taxes here, of course—can donate to a political party without any questions about the money.
Motion A1 would effectively introduce a “know your donor” culture and would make a political party responsible for showing how it would identify and look at donations from a foreign party and for sharing that information with the Electoral Commission. Back in the summer—on the day that we debated this, I think—the Minister wrote to me and said that
“it is in the national interest to have greater openness about the influence on British politics by foreign powers”.
I could not agree with him more. Motion A1 would ensure that foreign donations were properly scrutinised and openly made.
Lord West of Spithead (Lab)
My Lords, I support Motion A1 from the noble Lord, Lord Carlile, and Motion C2. On Motion A1, I spoke in favour of the previous version of this amendment on Report on behalf of the Intelligence and Security Committee. Our position in the committee remains very much the same: we firmly support the introduction of this clause. Indeed, I cannot really understand why the Government continue to oppose the amendment. It is eminently sensible and the previous version received widespread support across this House. Indeed, as the noble Lord, Lord Carlile, said, it was notable that, apart from the Government Front Bench, not a single Peer across the House spoke against it.
The ISC’s Russia report in 2020 recognised that the UK, including political parties, had welcomed money from Russian elites, and the Government acknowledged that. They have, for example, as part of the Bill increased the sentences for electoral offences involving foreign powers. There is no doubt that protecting our democratic institutions should be the very top priority for the Government and parliamentarians, but the Government have adopted a rather dismissive and worryingly complacent approach to this risk. They claim that they oppose this amendment on the basis that the existing protections within electoral law are sufficient, that the amendment would not work in practice and that it would place an undue burden on grass-roots political organisations. These claims are patently not true.
Current protections within the electoral financing law are demonstrably inadequate. As the noble Lord, Lord Evans, the chairman of the Committee for Standards in Public Life, who is in his place, noted on Report, his committee undertook a major report into the regulation of electoral finance in 2021 and provided a series of recommendations to close several loopholes in this space, all of which were rejected by the Government. The report stated that
“we consider the current rules are insufficient to guard against foreign interference in UK elections”.
One of the many problems the committee identified was the ability of a foreign corporation to create a UK subsidiary with the sole function of receiving and channelling money to a UK political party. Further, as extraordinary as it may seem, unlike charities or companies, political parties do not have to examine the source of funds they receive. This means that it is perfectly possible for companies to make significant donations to political parties despite clearly not making operating profits and therefore with limited explanations of how they can afford such donations and where the money comes from. These factors clearly increase the threat of political parties being unduly influenced by a foreign power.
The report also noted that, since 2018, the Electoral Commission has supported the introduction to electoral finance of risk management principles that are used in anti-money laundering checks conducted by companies. As the noble Baroness, Lady Hayter, suggested on Report, this amendment would introduce such principles and ensure that political parties identify foreign money and potential proceeds of crime, establishing a culture of “know your donor” within parties similar to the “know your customer” approach in the financial sector.
Contrary to the Government’s suggestion, this amendment would not place a significant administrative burden on smaller political organisations, and nor would it be too difficult for political parties to implement in practice. As the shadow Security Minister noted in the other place, the Electoral Commission has stated:
“These requirements could be introduced in a way that recognises the need for proportionality … with different requirements depending on the size of a regulated entity’s financial infrastructure, or the size of a donation”.—[Official Report, Commons, 3/5/23; col. 129.]
Guidance would prevent this amendment, which increases transparency and accountability, becoming a disproportionate burden. The fact that due diligence measures are used in the charity sector and not just by commercial enterprises demonstrates that it would be entirely possible for similar measures to be adopted by political parties.
I find it extraordinary that the political parties currently do not have to check the source of their funding in the same way as charities and businesses—it is extraordinary—and it is inexplicable that our Government or any political party could consider it appropriate to oppose such a sensible and proportionate amendment. It is entirely necessary and it would go a long way to strengthening our democratic institutions, providing greater protection from foreign influence. I am sure that the Government agree that we must protect our democratic institutions from harmful interference and I am sure that, having heard all these arguments, they will change their view—or I hope they will
Moving on to Motion C1, on behalf of the Intelligence and Security Committee—I have been given its approval to speak on this—I am grateful to my noble friend Lord Coaker for introducing this amendment and we fully support it. It is interesting to note that, when a similar amendment was debated in the House, many Peers spoke in favour but only one, on the Government Front Bench, spoke in opposition. It seems to be a trend with these various amendments. Strangely, the same was true in the other place, where many MPs spoke in support and only the Minister opposed the amendment. The Security Minister himself acknowledged the need for the amendment when he stated that an update to the ISC’s memorandum of understanding needed to be made.
Parliament is united in its support for independent oversight of the intelligence agencies; it is only the Government who are seeking to undermine the ability for oversight, for purposes unknown. National security is too important to play party politics with. Members from across both Houses have repeatedly explained the need for this amendment throughout the passage of the Bill, but to no avail.
I intend to do so again to demonstrate the absurdity of the Government’s opposition to it. The ISC’s memorandum of understanding, which sits underneath the Justice and Security Act 2013, outlines its remit and the organisations that it oversees. Its remit encompasses the expenditure, administration, policy and operation of the agencies and four other organisations that form part of the UK intelligence community. As the ISC has made very clear in its most recent annual reports, intelligence and security activities are increasingly undertaken by a wider assortment of policy departments, as the noble Lord, Lord Coaker, mentioned, including those that generally do not carry out national security-related activity, such as BEIS—now the Department for Business and Trade—DCMS and the Department for Transport.
Those teams are not currently listed in the ISC’s MoU. This is solely because, when the MoU was drafted in 2013, they were not responsible for intelligence and security matters. Had they been, Parliament would have included them in the ISC’s remit. Parliament was clear on the remit it wished the ISC to have and the work it wished it to do on its behalf and that of the British public.
Effective oversight of intelligence and security matters can be undertaken only by the ISC. Only it has the security infrastructure to scrutinise effectively those aspects where classified material, such as intelligence, underpins decisions on national security. This is not rocket science—perhaps sometimes it is, but that is a different issue. Intelligence and security matters deal primarily with highly classified information. Parliament established the ISC, supported by security infrastructure such as the appropriate computer systems, storage facilities and vetted staff, to provide independent oversight of classified matters precisely because Select Committees cannot effectively undertake that role. They definitely cannot do it and it is wrong for the Government to pretend that they can.
The sole purpose of the ISC, and the reason Parliament set it up, is for it to hold the Executive to account on behalf of Parliament and the public. Independent oversight in this space is particularly important given the gravity of national security decisions and the significant intrusive powers that the agencies have at the Government’s disposal. The inability for Select Committees to provide effective oversight of intelligence and security matters has already been acknowledged by the Minister on Report.
The ISC’s MoU, which sets out which government bodies it can oversee, is woefully out of date. There is now intelligence and security activity undertaken by government that is outside the ISC’s independent oversight, which means that it is outside Parliament’s democratic oversight. I am sure noble Lords agree that that is unacceptable. In effect, it means that secret activity is being carried out in our name that no one is scrutinising. The ISC’s MoU needs to be updated so that Parliament can ensure that the Government are acting appropriately in the intelligence and security space at all times.
I find it appalling that the Government continue to oppose this amendment. It is hardly controversial. There is no reason to oppose it unless one wants there to be less independent oversight, less transparency and less accountability in relation to classified intelligence and security. Is that really what the Government want? Would they rather keep any problems behind closed doors? If so, we should be very afraid. This is a matter of grave concern. I therefore support this amendment.
Lord Wallace of Saltaire (LD)
My Lords, the Commons reason given for disagreeing to Lords Amendment 22 is:
“Because the law already makes sufficient provision in relation to donations to political parties”.
Yet we have heard that the Committee on Standards in Public Life and the Electoral Commission have made it quite clear that they do not believe the current law makes sufficient provision for that. I remind the noble Lord that the Committee on Standards in Public Life and the Electoral Commission, like the Intelligence and Security Committee, are part of the structure of constitutional safeguards in our politics. They are there to remind the Government how the rules need to be kept. A wise Government should accept that advice. When they do not accept it, Parliament should insist that they do.
Lord Anderson of Swansea (Lab)
My Lords, there is no doubt that a number of foreign Governments seek to subvert our democracy and in many cases that means seeking to influence political parties, particularly the governing parties. All parties are looking for finance; the temptation is to accept that money. I rise mainly to applaud the colleagues who have spoken before, and particularly to adopt what the noble Lord, Lord Carlile, said so well about the inadequacy of the current safeguards.
I congratulate the Government on organising the two-day conference on the reconstruction of Ukraine. Understandably, it is focusing mainly on financial reconstruction, but I have just come from a parallel conference on restoring, or improving, democracy in Ukraine, which involves looking particularly at the political parties. What sort of example are we giving to Ukraine if we allow these loopholes to continue? How do we inoculate Ukraine against possible subversion from Russian oligarchs and others? How do we inoculate ourselves and our own democracy from similar attempts? I think of the phrase “sunlight is the best disinfectant”, which is attributed mainly to the great American jurist, Justice Brandeis, who was so towering in his intellect and legal knowledge. If we are to have the sunlight, the onus must surely be on the Government, or anyone else who seeks to block that sunlight, to give good reasons why they should do so, because we know that there are malign forces seeking to subvert our democracy.
We need an active citizenry and a committed democracy to counter these sorts of attempts. I believe the response of the Government, as the noble Lord, Lord Carlile, and others have shown so well, is inadequate to that task.
Lord Balfe (Con)
My Lords, I will take just two minutes, because when I vote against the Government, I generally listen to the debate and have a clear view. Democracy is being bought. This is part of a very difficult proposition that we have. I completely support the noble Lord, Lord Carlile, but I am also concerned at the amount of money that goes into political parties in Britain, because it is just not true that people pay for nothing. We need to look at the whole structure of party financing.
I have been many times to Ukraine, which has just been mentioned. It is not just foreign financing; one of the curses of Ukraine was oligarchs buying political parties and buying seats in the Verkhovna Rada, the Ukrainian parliament. We have to look at what we call democracy and how it functions if we are allowing so much money to go into it from basically pretty covert sources.
I would like to see a very strict limit on donations. I am delighted in some ways that the Labour Party is now reported as getting millions every quarter—but this is not the way forward, any more than it is for our party. We have to find a better way of doing it. To all those people who deride state funding, I say that at least it is in the open and is based on the number of votes.
I will support the noble Lord, Lord Carlile, but I see this as a much wider thing. I will also support the Motion about the Intelligence and Security Committee. The noble Lord, Lord West, made an excellent speech outlining why we should, and I have nothing to add to it. We need a fundamental look at the way we fund democracy in this country.
Lord Purvis of Tweed (LD)
My Lords, these Benches will support Motion C1 in the name of the noble Lord, Lord Coaker, if he tests the opinion of the House. He made the case very adequately, and I need not add anything. These Benches will also support the noble Lord, Lord Carlile, if he seeks to test the opinion of the House on Motion A1.
The coming year is likely to be the most expensive year in British politics—let us be honest about it—so the time to act is now, rather than having regrets after the next election if there are difficulties with some of the sources of the donations. Therefore, the noble Baroness, Lady Hayter, is right: it is no longer good enough simply to verify the donor and not the source of the funds.
I used to give tours of the House of Commons when I worked for David Steel—and I also thought that was a toilet behind the Speaker’s chair, after the Speaker no longer used the toilet under his chair with the curtains around it—so I learned something about the Reasons Committee. I do not think it would have taken the committee an hour and 45 minutes to come up with Reason 22A:
“Because the law already makes sufficient provision in relation to donations to political parties”.
That was the reason given before the current situation for reporting mechanisms was put in place. It is a reason that has been given by the Government each time there has been a proposal for change. The question is not whether we agree with that reason—which, of course, we should not—but what the merits of the case for seeking extra information about the sources of funding are.
Like the noble Lord, Lord Coaker, I thank the Minister for the way he has engaged on the Bill. If he does not mind me saying so, it has been a model of how Ministers can operate. But there are these two outstanding issues on which he can use his good counsel with his colleagues in the House of Commons.
I know the Minister made the point that this will potentially delay the Bill a little longer. He will forgive me for saying so, but the Bill was delayed because of the Government bringing forward the foreign influence registration scheme without notice in Committee in the Commons, dumping on us and then having to bring 150 concession amendments. We have done our job and we continue to do it—that is the point of us being here. The time to act is now.
The Minister also mentioned that one of the deficiencies of the amendment from the noble Lord, Lord Carlile, is that political parties had not been consulted. That is a bit rich. The Government have not asked the Electoral Commission to ask political parties for their view about it, but then they say that is a problem with the amendment because there was no consultation. That is not really relevant, if the Minister does not mind me saying so.
We have to move to a situation in which we check not just the status of the donor, as the noble Baroness said, but the status of the source of funds. We would do it if a donor was buying property and HMRC was uncertain about the source of the funds—that is why we have unexplained wealth orders. It seems odd, as it seems to be the Government’s and the Minister’s position that the very same person who could be liable for an unexplained wealth order from HMRC if they were buying a property would be able to donate considerable funds to a political party and there would be no questions asked. It does not match. We also have a list of countries where extra checks have to be made by law because of the list of countries in the anti-money laundering and terrorism financing regulations that the Minister’s department puts forward.
In that regard, I will ask a couple of questions of the Minister. I hope he is able to answer them today but, if he is not, I will be grateful if he writes to me. In support of my noble friend Lord Wallace of Saltaire, I note that we seem to be in a position in which, over the last seven years, if you are a Conservative treasurer and you donate more than £3 million, you have a unique set of characteristics and skills that will mean that you have a 100% chance of being elevated to this House. If you donate more than £3 million and coincidentally then become the treasurer of the governing party, that governing party elevates you to be a Member of Parliament to hold that governing party to account. This is Britain in the 21st century. I understand that the current treasurer has given £600,000 through Unatrac Ltd and that he has also given personal donations. He is a joint national—I do not cast any aspersions on him whatever. I would be grateful if the Minister could confirm that he does not have a non-dom status. I would also be grateful if the Minister could state where his permanent residency is: London or Cairo. I would be grateful for a simple, straightforward clarification.
I would also be grateful if the Minister could state when Unatrac stopped trading with Russian oil and gas enterprises. Another Minister, the noble Lord, Lord Ahmad, is here—he and I have debated Russian sanctions and trying to clamp down on economic activities with Russia for a long time in this House. Apparently, Unatrac has made a statement that over the last few weeks it has suspended trading with Russian oil and gas. I would be grateful if the Minister could tell me when that ceased permanently.
I ask that because, according to the accounts of Unatrac, its immediate parent company is Unatrac Subco Ltd, which is incorporated in Dubai. Unatrac’s ultimate parent undertaking is Unatrac Holding Ltd, based in the UAE. The UAE is on the list of the anti-money laundering and terrorism financing regulations; extra requirements have to be made when businesses are carrying out activities from the UAE. The Minister says that political parties that receive millions of pounds in donations do not have to do that. The context we are facing is that over the coming year, as many noble Lords have said, money and politics will affect all political parties. The time to act is now. We must amend the Bill to make sure that we do not regret it in 2025.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords who have taken part in this relatively short debate. It was remiss of me earlier not to praise our security services, as the noble Lord, Lord Coaker, did, so I will correct that omission now. I also thank in particular the noble Lords, Lord Coaker and Lord Carlile, for the spirit in which they discussed and spoke to their Motions.
There is obviously a fundamental disagreement on the burden that this Bill would place on political parties, and indeed on whether the laws stand up to “intellectual analysis”; I believe that was the phrase used. I think I have made a strong case already that all of the matters under discussion are already illegal. However, there are one or two points that perhaps deserve clarification, so I will go into those briefly.
On overseas electors, as raised by the noble Baroness, Lady Hayter, it is a long-standing principle first introduced by the Committee on Standards in Public Life in 1998 that if you are eligible to vote for a party in an election then you are also eligible to donate to that party.
On unincorporated associations being used to funnel donations to political parties, there are a number of existing rules that make sure that ineligible foreign money is prohibited from entering through proxy donors. Permissible donors cannot give donations on behalf of impermissible donors. It is right that unincorporated associations that carry on business mainly in the UK and have their main office here can donate to political campaigns. I have already said this, but I will say it again: unincorporated associations that are making political contributions are already subject to additional controls compared with other types of donors. If they make political contributions or donations over £25,000 within a year, they must notify the Electoral Commission and provide it with information about how they are funded.
On the questions raised about the Committee on Standards in Public Life, the Government responded to the committee’s report Regulating Election Finance in September 2021. The Elections Act 2022 contains measures that closely link to the recommendations made in that report—for example, the new requirement on political parties to declare their assets and liabilities over £500 on registration, and a restriction of third-party campaigning to UK-based or otherwise eligible campaigners. However, as the Government’s response stated, the recommendations in the report deserve full consideration. As noble Lords will be very well aware, electoral law is complex, and more work is required to consider the implications and practicalities of all the committee’s recommendations.
The noble Baroness, Lady Hayter, also referred to a report in the newspapers today. I obviously cannot comment on the details of the individual case, but the Government absolutely recognise the risk posed by those who wish to evade the rules on donations. I think this story demonstrates just seriously the Government take that risk.
I am not sure there is very much point in me saying anything else. I say to the noble Lords, Lord Balfe and Lord Anderson, that we are not Ukraine. Self-evidently, there are very robust laws already in place.
If I was ungracious to the noble Lord, Lord Wallace, in a previous debate, I would like to apologise for that.
The noble Lord, Lord Purvis, raised a number of party-political matters. Obviously, I am here to speak on behalf of the Government so I will not address those, but I suggest that he writes to the party.
I now move on to Motion C1 from the noble Lord, Lord Coaker. I join him in praising the work of the ISC, on which the noble Lord, Lord West, sits. Of course, we agree with much of what has been said. However, His Majesty’s Government consider the current MoU to be sufficient to allow the ISC to discharge its statutory oversight duties of the agencies and the wider intelligence community. The MoU is subject to continuous review and His Majesty’s Government welcome the ISC proposing changes that it would like the PM to consider.
The ISC has a broad remit over security and intelligence policy, as set out in the Justice and Security Act and the accompanying memorandum of understanding between the ISC and the Government. Those documents also set limitations where, for example, there would be a conflict with current operations or where it would be duplicative of the work of other jurisdictions. We believe that those guiding principles are working effectively and would seek to maintain them but, as I just said, the Government would welcome the ISC proposing changes it would like the PM to consider. It also shows the respect the Government have for the work of the ISC that the Security Minister has made the commitments that he has.
I say to the noble Lord, Lord Coaker, that I do not believe I was glib in my remarks about the Prime Minister earlier. Obviously, I am unable to comment on the PM’s diary, but I have said this before and made the commitment at this Dispatch Box: I will make sure that No. 10 is well aware of the discussions that we have had in the Chamber today.
With that, I am afraid that I do not think there is much point in me saying too much else. I beg to move.
Lord West of Spithead (Lab)
We in the ISC have tried to get movement on the MoUs being changed. There is no doubt—all ISC members feel this way—that we are being thwarted in getting this to happen and we do not really understand why. The Minister makes it sound as though this is a nice process that is happening. It is not, I am afraid. It is not happening, which is extremely worrying.
Lord Sharpe of Epsom (Con)
Obviously, I will make sure that those concerns are reflected to my right honourable friend the Security Minister, who will see the committee fairly soon. As I have just said to the noble Lord, Lord Coaker, clearly I will make sure that this debate is widely understood in the appropriate places.
Lord Carlile of Berriew (CB)
My Lords, I am grateful to all those who have spoken in this debate; I am particularly grateful to the Minister for his great courtesy. I say to him, with great respect, that he has answered mostly questions of his choice that were not directly relevant to the points I made. In my experience over the years, the repetition of a weak defence is capable of convincing only the defendant and nobody else.
I thank those who spoke. It is worth mentioning their names for a particular reason. The noble Lord, Lord Coaker, was powerful, as ever. The noble Baroness, Lady Hayter, made some powerful additional points. The noble Lord, Lord West, is always the right person to have on the bridge with you if you can arrange it; he spoke powerfully about the views of the ISC. The noble Lord, Lord Wallace of Saltaire, speaks on matters of the constitution with great political and academic knowledge, and has done so for many years. I have always respected the noble Lord, Lord Anderson of Swansea, whom I have watched in the other place as well as here, for the wisdom of his views. The noble Lord, Lord Purvis, has yet again made another powerful speech in your Lordships’ House. Interestingly, the noble Lord, Lord Balfe, was the only Member on the Conservative Back Benches to speak in this debate—a factor that I take to be of significance.
Taking all that into account, it is my intention to invite the House to agree to my Motion by expressing its opinion.
Lord Sharpe of Epsom
That this House do agree with the Commons in their Amendments 26A and 26B.
Lord Sharpe of Epsom
That this House do not insist on its Amendment 122, to which the Commons have disagreed for their Reason 122A.
“Duty to review the Intelligence and Security Committee of Parliament's memorandum of understanding
(1) The Prime Minister must ensure that the memorandum of understanding between the Prime Minister and the Intelligence and Security Committee of Parliament (the “ISC”) under section 2 of the Justice and Security Act 2013 (the “MoU”) is reviewed in the light of any changes to the intelligence or security activities of His Majesty’s Government as a result of this Act.
(2) Any revisions to the MoU arising as a result of the review under subsection (1) must be agreed between the Prime Minister and the ISC in accordance with the process set out in section 2 of the Justice and Security Act 2013.
(3) Any engagement between the Prime Minister and the ISC relating to revisions to the MoU arising as a result of the review under subsection (1) must commence within the 6-month period beginning with the day on which this Act is passed.””
Lord Sharpe of Epsom
That this House do agree with the Commons in their Amendment 153A.
National Security Bill
Monday 26th June 2023
(1 year, 4 months ago)
Commons ChamberRead Full debate National Security Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Message as at 26 June 2023 - (26 Jun 2023)
21:00 - The House divided: - Ayes: 289 / Noes: 199 - Question accordingly agreed to.
The Minister for Security (Tom Tugendhat)
I beg to move, That this House disagrees with Lords amendment 22B.
Madam Deputy Speaker (Dame Rosie Winterton)
With this it will be convenient to discuss Lords amendment 122B, Government motion to disagree, and Government amendment (a) in lieu of Lords amendment 122B.
Tom Tugendhat
It is a pleasure to bring the National Security Bill back to this House. I must once again highlight the importance of the Bill’s achieving Royal Assent in a timely manner. Our police and intelligence services need the tools and powers that it contains; the longer they go without, the greater the risk to national security.
Maria Eagle (Garston and Halewood) (Lab)
Why doesn’t the Minister just accept the Lords amendments, then, so that we can move straight to getting the Bill on the statute book?
Tom Tugendhat
The right hon. Lady will be delighted to hear the rest of my speech, in which I answer her wonderful questions.
As this House will be aware, the Intelligence and Security Committee memorandum of understanding can already be revised by agreement, which is one of the points that the right hon. Lady is raising. We do not believe that primary legislation is an appropriate mechanism for making amendments to the MOU. However, we recognise the strength of feeling on the issue, and in a spirit of compromise we have tabled amendment (a) in lieu of Lords amendment 122B. The Government’s amendment will achieve a similar result and will create a duty on the Prime Minister and the Intelligence and Security Committee to progress a review of the MOU within six months of the provision’s coming into force.
Mr Kevan Jones (North Durham) (Lab)
That is fine, but the ISC has been raising this issue for the past two years. It takes two to tango. Unfortunately, the only reason we have this Lords amendment is a sense of frustration—certainly among members of the ISC, but also among a lot of Members of this House.
Tom Tugendhat
I assure the right hon. Gentleman that I have heard him. I hope that the amendment will now satisfy the ISC with respect to its concerns. I am sure that hon. Members across the House will support Government amendment (a) in lieu.
I turn to Lords amendment 22B, which would require political parties to make an annual return to the Electoral Commission, setting out the details of donations from foreign powers. It would also create a duty on political parties to write an annual policy statement to ensure the identification of donations from foreign powers. I understand the intention behind the amendment, and I share the strength of feeling behind it.
The Government are very much alive to the risk that foreign interference presents. I am pleased that we have already taken action to address it, and I am pleased with the support that we have received on both sides of the House for our reforms to Companies House, which will deliver more reliably accurate information on the companies register, providing greater powers for Companies House to query and challenge the information it receives. The Government are also legislating, via the Economic Crime and Corporate Transparency Bill, to enhance data sharing between Companies House and public authorities, including the Electoral Commission. This will help the enforcement of the rules on donations by providing greater confidence in the accuracy of the data held at Companies House.
Liam Byrne (Birmingham, Hodge Hill) (Lab)
The Minister is one of the House’s experts on the malign influence of foreign money in this country and the creation of Londongrad, so he knows all too well that money from foreign powers is coming into the bank accounts of UK citizens and then moving almost immediately—sometimes even overnight—into the coffers of political parties in this country. That creates a risk to the integrity of our political system. He must surely accept that the drafting of the Bill does not yet provide sufficient safeguards against that risk.
Tom Tugendhat
The right hon. Gentleman flatters me, which is always a way to succeed in this place, but he will forgive me if I carry on, because I will address some of those points. He will see that I have considered them, and that there are some areas in which there may be some conversation.
Our reforms build on the updates to electoral law in the Elections Act 2022, which have closed loopholes on foreign third-party campaign spending. They also include other measures to ensure that our democracy will remain secure. The National Security Bill will give our agencies more tools to tackle foreign interference. The new offence of foreign interference includes manipulating whether or how any person participates in political processes. The Bill also provides for substantially higher maximum penalties where a foreign power is involved in the commission of existing electoral offences of the nature that the right hon. Gentleman describes. That includes those relating to making political donations, including via third parties.
In addition, the Bill’s foreign influence registration scheme, which the right hon. Gentleman and I both championed on the Foreign Affairs Committee, will increase the transparency of foreign political influence activities. The enhanced tier of FIRS, as we are calling it, allows us to list foreign powers that act against the safety and interests of the United Kingdom. A designation would require a person acting within the United Kingdom at the direction of a specified power or entity to register with the scheme.
Although I understand the aims of Lords amendment 22B, I do not follow its approach. The legal framework in this area is exceptionally clear: any person accepting a donation from a foreign power, whether made directly or indirectly, is already breaking the law. As such, the result of this amendment would be for political parties to submit a blank return to the Electoral Commission once a year. As I am sure colleagues would agree, this would do little to improve transparency or enhance our electoral security.
Secondly, as the Government have set out previously, Lords amendment 22B does nothing to enhance the ability of political parties to investigate donations of the nature that the right hon. Gentleman describes. Political parties do not have the financial investigative capabilities of the banks or security services. They rightly cannot access people’s personal financial records and do not have the means to trace layers of financial transactions. They cannot themselves undertake sophisticated forensic accounting. There is little to be gained by increasing pressure on political parties to identify impermissible donations without improving their ability to do so.
Thirdly, political parties are not global corporations. There are more than 380 registered political parties, many of which are predominantly made up of volunteers. Lords amendment 22B could be disproportionately burdensome for smaller political parties, disincentivising them from accepting donations and, in turn, harming grassroots democracy.
Finally, the requirement to publish an annual policy statement lacks utility. In previous debates on this matter, hon. and right hon. Members highlighted concerns that parties do not have to evaluate a donation and its perceived risk. This is not true. I reiterate that political parties are already required by law to take all reasonable steps to verify the identity of a donor and whether they are permissible. Failure to ensure that permissibility requirements are met is an offence under existing law. As such, parties are already required to have systems in place to mitigate the acceptance of such funds.
As to the political point: just because you can, does not mean you should. Political judgment should always apply to donations.
Liam Byrne
I thank the Minister for giving way once again. He is being characteristically generous.
We may as well test the argument he is rehearsing against facts that are now known. Mr Mohamed Amersi, for example, has given something like £775,000 to political causes in this country. The Financial Times has reported that a considerable fraction of Mr Amersi’s profits are made from trade in Russia. How does this Bill safeguard against profits made in a country such as Russia finding their way into this country’s political system and infecting it?
Tom Tugendhat
The right hon. Gentleman, as he will understand, raises an individual about whom I will not comment. The Government will not take a position of that nature on an individual based on such comments. I will not address him specifically.
What I will say is that there have been reports of foreign donations getting into political parties—that is true. What is also true is that political parties have a responsibility to check the sources of their donations, and all British citizens have the right to donate. If a specific accusation has not been reported to the Electoral Commission and investigated, and if a person has not been found guilty, the right hon. Gentleman will understand that I cannot make any further comment.
Holly Lynch (Halifax) (Lab)
I thank the Minister for his opening contribution as these two additions to the National Security Bill return to the Commons once again.
The Minister has made the case for Government amendment (a) in lieu of Lords amendment 122B. I have a great deal of respect for him, as he knows, but this amendment in lieu, tabled in the name of the Home Secretary, essentially says that this House and the other House have a point, that the Government want to give themselves maximum wiggle room to be able to avoid doing anything about addressing the point by tabling an amendment in lieu that is much wishier and much washier than the clarity of our Lords amendment.
Lords amendment 122B, tabled by my noble Friend Lord Coaker, would have introduced a duty to update the Intelligence and Security Committee’s memorandum of understanding, rather than a requirement to consider whether the MOU needs updating. What does that actually mean? Is there a proposed framework or a timetable for deliberations? The Lords amendment was not tabled for fun; it was tabled because the Intelligence and Security Committee performs a vital function, but its ability to perform that function is being eroded.
The Lords amendment followed a recommendation made by the ISC in its 2021-22 annual report, which looked back to the Committee’s origins, when the then Security Minister told Parliament that it was
“the intention of the Government that the ISC should have oversight of substantively all of central Government’s intelligence and security activities to be realised now and in the future.”––[Official Report, Justice and Security Public Bill Committee, 31 March 2013; c. 98.]
Maria Eagle
Does my hon. Friend agree that intelligence and security activities are now undertaken by a wider assortment of policy Departments, including those that generally do not carry out national security-related activities? Those teams are not listed in the ISC’s memorandum of understanding, and therefore there is a scrutiny gap that cannot be fixed unless the memorandum of understanding is changed.
Holly Lynch
I am grateful to my right hon. Friend for making that important point. The annual report lists a number of policy Departments. Although the Select Committees do incredibly important work, they are not able to see the same information because their members do not have the same clearance as members of the ISC. It is quite right that such information and such scrutiny fall to the ISC, which alone can do that important work.
We have previously discussed that one of the starkest revelations from that annual report is that the ISC has not been able to secure a meeting with a Prime Minister since December 2014, nearly nine years ago. I welcomed the Chair of the ISC’s intervention when we debated the merit of the previous amendment, saying that the right hon. Member for South West Norfolk (Elizabeth Truss) had pledged to meet the ISC. However, given her exceptionally short tenure in office, we will never know if that meeting would have taken place—her name is No. 4 on the list of five Prime Ministers who have been in office since 2014.
Such a meeting is just one of the considerations for an updated MOU, but knowing how often this issue has come up, both in this House and in the other place, I wonder whether the current Prime Minister now has a date in the diary to meet the ISC. If we are to take Government amendment (a) at its word, arranging that meeting is the very least the Government could do to be able to point to some progress. Alas, it appears that they cannot point to that progress.
I am also interested to know whether the Government have spoken to the ISC about Government amendment (a). Given that the amendment seeks to assure us that the Government intend to do due diligence on engaging with the ISC, have they engaged the ISC about the amendment? Hopefully the Minister might be able to shed some light.
Jim Shannon (Strangford) (DUP)
I commend the shadow Minister for her thoughts. I suppose the rationale for opposing Lords amendment 122B is the Justice and Security Act 2013. Does she have any idea why the Government are reluctant to concede to a review as the legislation evolves? That seems to be a simple way of doing it.
Holly Lynch
It would be unwise to speculate at the Dispatch Box, but I am grateful to the hon. Gentleman for making that point. In the absence of clarity, he is right to put that question to the Government. Why have we not seen progress on this? It would seem to be sensible and proportionate to expect that engagement happens between the Government and the Prime Minister and the Intelligence and Security Committee, and happens on a regular basis.
Lords amendment 22B, tabled by Lord Carlile—once again, let me thank him for his services to this legislation—has continued to enjoy broad support, both across the Benches inside Parliament and outside. We know, from examples that have been exposed and from the most recent annual threat assessment by the director general of MI5, Ken McCallum, that it deals with one of the ways hostile state actors and their proxies are seeking to gain influence within our democracy. When we debated the merit of the previous amendment on this matter, I shared the examples of those linked to so-called Chinese secret police stations who had been involved in organising Conservative fundraising dinners. I also cited the Good Law Project’s research, which claims that the Conservatives have accepted at least £243,000 from Russian-associated donors, some of whom were linked to sanctioned businesses and organisations, since the start of Russia’s invasion of Ukraine.
There is a comprehensive case for these proportionate changes. The Electoral Commission has said:
“Enhanced due diligence and risk assessment processes would help campaigners identify foreign money, identify potential proceeds of crime, and establish a culture of ‘know your donor’ within parties—similar to the ‘know your customer’ approach, encouraged through Anti-Money Laundering regulations for the financial sector.”
I hope the Minister is persuaded by its argument that:
“These requirements could be introduced in a way that recognises the need for proportionality, with different requirements depending on the size of a regulated entity’s financial infrastructure, or the size of a donation, to prevent the checks becoming a disproportionate burden on smaller parties and campaigners.”
Similarly, Spotlight on Corruption has argued:
“The rules that are supposed to prohibit foreign donations are riddled with loopholes which enable foreign money to be channelled to political parties and MPs through lawful donors.”
That point has just been made by my right hon. Friend the Member for Birmingham, Hodge Hill (Liam Byrne). Furthermore, the Committee on Standards of Public Life, in its 2021 “Regulating Election Finance” report, recommended that laws should be updated and that
“parties and non-party campaigners should have appropriate procedures in place to determine the true source of donations. Parties and campaigners should develop a risk-based policy for managing donations, proportionate to the levels of risk to which they are exposed”.
We know that the risk is there, and Lords amendment 22B is a rational and proportionate response to that risk. The Minister has said that the Lords amendment is unnecessary and that donations are covered by other provisions, but I ask him once again, can he truly assure us that dirty money, with a price attached, is not finding its way into our system and our democracy?
Liam Byrne
My hon. Friend is making a brilliant speech. Does she agree that the scale of this potential risk is now unprecedented, not least because in 2019 we saw the most expensive election year in British political history? More than £100 million flowed into British political parties then. Does that not underline the obligation on all of us to make sure that every penny of that money is clean?
Holly Lynch
I am grateful to my right hon. Friend for that, as he is absolutely right. I think we can all come together to recognise the responsibility that falls to all of us to clean up our democracy as much as we can. The world has changed, even since we started work on this legislation well over 12 months ago. The role of hostile state actors and their conduct in the world, and the interference that we are having to take every measure to protect ourselves from, means that these proposals are needed more than ever, so he is absolutely right to make that point.
If the Minister and the Government reject these proposals, the electorate will draw their own conclusions as to why. I will be listening carefully to the other contributions and to the Minister’s closing remarks. I am pleased that the Government have recognised the need to have a look at the updated MOU for the ISC—I just wish there was some substance to their amendment.
Once again, in case we do not see the Bill back again in the Commons, may I take the opportunity to thank all those who have worked so hard on it, and the law enforcement officers and security services who work so hard, every day, to keep us safe?
Several hon. Members rose—
Madam Deputy Speaker (Dame Rosie Winterton)
Order. Before I call the next speaker, let me say that I am conscious that the debate has to finish at four minutes past 9. I know that the Minister will want five minutes at the end, and we also have to hear from the Scottish National party, so I ask people to take that into account.
I call the Chair of the Intelligence and Security Committee, Sir Julian Lewis.
Sir Julian Lewis (New Forest East) (Con)
Thank you, Madam Deputy Speaker.
Lords amendment 22B, accepted by the upper House last Wednesday, 21 June, requires a UK-registered political party to publish a policy statement ensuring the identification of foreign donations and providing the Electoral Commission with an annual statement showing the foreign donations received. This is the second time that the other place has amended the Bill to include such a clause. On behalf of the ISC, I spoke in favour of the previous version of the amendment when the Bill was last in the Commons, and, as Lord West stated on Wednesday, the ISC’s position remains the same: we firmly support the introduction of this provision. It is deeply concerning that the Government continue to oppose it.
In 2020, the ISC’s long-delayed Russia report highlighted the risk of foreign state-linked financial interference in UK politics. There is clearly a threat that needs to be tackled. The Committee on Standards in Public Life, in a major 2021 report on regulating electoral finance, concluded that
“the current rules are insufficient to guard against foreign interference in UK elections.”
That committee also observed that, since 2018, the Electoral Commission has supported the introduction into electoral finance regulation of risk management principles that are used for anti-money laundering checks conducted by companies. This amendment falls into that same category.
Members from both sides of both Houses have previously spoken strongly in support of the Lords amendment and, together with the evidence provided by the ISC, the Committee on Standards in Public Life and the Electoral Commission, have clearly set out why it is needed and why the current safeguards in our law are insufficient. By refusing to accept the need to update the law, the Government are rejecting the non-partisan conclusions of both Parliament and the Electoral Commission. They are inexplicably rejecting the opportunity significantly to improve the transparency and accountability of our political system by requiring political parties to take modest but important steps to identify and disclose donations received from foreign sources and states.
The Government claim to oppose this Lords amendment on the basis that the existing protections within electoral law are sufficient; that the amendment would not work in practice; and that it would place an undue burden on grassroots political organisations. Almost everyone else disagrees. The Government rely on the fact that existing electoral financing law requires political parties to check that a donor is “permissible”. Yet that misses the central point: the lack of any requirement for a political party to check the source of the funding.
There is currently no rule that political parties must conduct adequate due diligence on donors—not even donors operating in high-risk countries. Citizens domiciled abroad and companies based in the UK can donate to a political party with no questions asked about the source of the money. That applies even to companies that are making no operating profit. Why should a UK charity, or a UK company, have to undertake enhanced due diligence, under money laundering and terrorist financing law, where a donor is linked to a high-risk country, whereas a political party is exempt from that duty? Political parties surely require the highest level of protection.
Martin Docherty-Hughes (West Dunbartonshire) (SNP)
On that point, the hon. Gentleman is clear that even small and medium-sized registered charities, whether they are in Scotland, England, Wales or Northern Ireland, have to do as he says. I am absolutely perplexed as to why the Government cannot agree with him and his Committee on why that should not be extended to political parties.
Sir Julian Lewis
I hope he, like us, will persevere and maybe one day that mystery will be solved. In fact, the amendment does not even represent the highest level of protection. It is a very modest measure that would not place undue burdens on political parties. The Electoral Commission says that such rules could be introduced in a way that recognises the need for proportionality, as we have heard, with different requirements depending on the size of an entity’s financial infrastructure and/or the size of the donation. Guidelines would prevent this amendment, which increases transparency and accountability, from becoming disproportionately onerous.
The fact that due diligence measures are used in the charity sector, and not just by commercial entities, demonstrates that it should be entirely possible for similar steps to be taken by political parties. We know that there is both a threat and a vulnerability. We know that current safeguards are inadequate. This is a modest, sensible and proportionate amendment: the Minister should seize the opportunity by accepting it or proposing his own alternative.
Alison Thewliss (Glasgow Central) (SNP)
As the observant among you will know, I am not the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C McDonald), who is indisposed. I am sure that we all send him our best wishes for a speedy recovery.
I am very pleased to be in front of the Minister again. For those who were not paying close attention to the Home Affairs Committee last week, his delivery, rather than the content of what he was saying, was so soporific as to put my children to sleep in the Committee Room. So, for all parents who missed CBBC’s Bedtimes Stories, I recommend the Minister’s speech from this evening.
I rise to support these Lords amendments. I wish also to agree with the right hon. Member for New Forest East (Sir Julian Lewis) and what he has proposed this evening. I am disappointed to hear that he will not vote on this issue, but I understand his reasons for so doing.
In reading the Lords debates from last week, it really does seem quite odd to me that the Intelligence and Security Committee has to come to this House and beg for things that it should have by right and by prior agreement. The Committee should not have to come to the Chamber to lay amendments to try to get the information that it ought to have. In recognition of the widening landscape across different Departments and the need for accountability, it seems very sensible that the Committee should have access to the information that it seeks.
I also find the Government’s amendment a bit curious:
“The Prime Minister and the Intelligence and Security Committee of Parliament must consider whether the memorandum of understanding…should be altered (or replaced)”.
Well, the ISC has already considered that; it has done that work. It is for the Government to take that ball and to do something with it, rather than to table amendments for further consideration perhaps six months down the road. That does not seem to me something that the ISC should be waiting any longer for; it should have that information as soon as it requires it.
Let me move on to amendment 22B on political donations. Reading the Lords debate last week it seemed that there was very wide agreement on the need for this measure, with Lord Carlile, Lord Evans, Baroness Manningham-Buller and Lord West all agreeing that it was necessary, along with the Electoral Commission, the Committee on Standards in Public Life, the ISC itself and Spotlight on Corruption. The question is not the eligibility or permissibility of donors, but rather the source of those donations in the first place.
As others have said, charities and companies have to have “know your donor” and “know your customer”-type checks; “know your donor” checks for political parties ought already to happen automatically. Parties already carry out various checks, so there is no reason why that should pose an additional burden upon them. I note that a June article in Politico outlined the scale of the problem and the loopholes in the rules. The article mentioned that an unincorporated association has a threshold of £25,000 a year, after which it is subject to an additional Electoral Commission requirement: it has to report any gifts of £7,500 in a 12-month period, but only if the donations that make up that figure are of £500 or more.
Someone could have £24,999.99 and not have to report anything, but if they go over by one penny, suddenly they have to report it—and if they are a bit fly, they will know exactly what they are going to do in those circumstances. Furthermore, if someone gives £499.99, again it does not hit the threshold and it does not count. According to the Politico article, only one single group hit that £7,500 threshold, despite millions of pounds going through unincorporated associations. Some £14 million has gone through them in the past five years, and only one donation hit that threshold. That is indicative to me of a loophole, and if the Government will not do something about that just now, we have to ask why.
The Scottish Unionist Association Trust has been noted for some of the dark money funnelled through it; indeed, according to openDemocracy, it took a donation from another unincorporated association. We have layers upon layers of unincorporated associations and money sloshing through them. There needs to be a wee bit more curiosity about where that money is coming from, and a lot more accountability in accounting for that. Certainly, in the election campaigns I have been part of, none of the donations we have received have hit the £25,000 threshold. That is a lot of money for certain political parties in this country.
I note that Spotlight on Corruption has also provided a helpful briefing on those loopholes for this debate, pointing out how difficult things become in terms of the accountability and integrity of the whole system. I urge the Minister to explain why he thinks that that is not worth tackling, because it seems to me that that loophole opens up certain political parties in this country to serious risk and that we should certainly know where that money is coming from and whether it is accountable.
I would like to thank the Lords for the amendments they made to this Bill. As a person who does not really believe in the House of Lords, it should not be the case that they are improving legislation in this place, but they have done so, and the Government should take account of that, rather than continuing to undermine the good and sensible amendments made in the other place.
Madam Deputy Speaker (Dame Rosie Winterton)
We still have three more speakers, so I would urge brevity.
Sir John Hayes (South Holland and The Deepings) (Con)
Brevity is my middle name, Madam Deputy Speaker, as I shall illustrate in this short, pithy but powerful address.
I have only three points to make. The first is that, as members of the ISC know and as the Security Minister knows, the threats to this country are dynamic. They change rapidly and the means of countering them must change accordingly. It is critically important therefore that we understand, as the shadow Minister said, that there are foreign powers—many of them state powers, though not exclusively so—who are determined to effect things in this House through contacts with political parties, with the institution itself and with politicians. Being aware of that, we need to counter it using all the necessary methods, including legislation.
The second point is that, in order to exercise the power to protect us, those missions to do so must act in a way that is secret.
Their work cannot be transparent. They need to protect their sources, their methods and, most of all, information. To legitimise that kind of power, which is by its nature extreme, it must be accountable and it must be scrutinised. A body that does so must, by definition, have a very particular kind of constitution, in that it has to have a means and method of doing so that is itself secret.
Mr Kevan Jones
In a democracy, the ability of Parliament or others to scrutinise the activities of our security services is not a “nice to have” but a vital part of the confidence that our citizens have in them. We have the Investigatory Powers Commissioner and the Investigatory Powers Tribunal, and then we have the ISC, which is the parliamentary arm that ensures that there is full accountability.
The Justice and Security Act 2013 extended the powers of our security services and, in return, increased the powers of the ISC. The important thing is that it has to be independent. I have been on the Committee the longest—six years now—and what has happened over the past three years has been an attack on the Committee’s independence and our ability to scrutinise. It started with Boris Johnson’s attempt to rig the Committee by giving the Conservative party a majority on it and the chairmanship of it. That failed. We also had the delay of the Russia report for no apparent reason other than to avoid his own embarrassment.
The Minister asks, “Why have we got this amendment to the legislation?”. The reason is a sense of frustration. Our Committee has been trying for the last two or three years to get the MOU changed, as my right hon. Friend the Member for Garston and Halewood (Maria Eagle) said, because the remit for considering departmental policy has grown, but at every turn we have been refused. It is not about a lack of willingness on the part of our Committee.
There are other aspects in which the Committee’s work has been frustrated. I mentioned the unnecessary delay of the Russia report, but it is still happening. We have just done a major report on China. It has gone to the Prime Minister and been through security clearance. He had 10 days to publish it; a month later, we are still waiting for a date for it. The report we completed on international partnerships was sent to the Prime Minister on 6 September last year, and we are still waiting for it to be published, so the Government have form when it comes to trying to frustrate the work of the Committee.
We on the Committee get frustrated, but the important thing is that Parliament is being frustrated. For some reason, the arrogance that was around when Boris Johnson was there seems to have continued. The Minister can say all those nice warm words—as he does in his nice, flannelly sort of way—but frankly it does not wash with us. The Prime Minister or whoever in Government is trying to stop this needs to recognise that it is not about whether the Committee gets access; it is about proper scrutiny, as laid down in an Act of Parliament. This is serious for our democracy.
I want to add a few final points about the passage of the Bill, during which I think we have had four Ministers. The Committee approached the Bill in a constructive way and worked with the security services to come up with amendments. However, that was not helped by the Minister’s Department, which frankly did everything it could to stop the positive amendments that we had agreed and that were put forward by the security services. They valued that, but were amused, frankly, that the Home Office was so incompetent, or for some reason did not want to give the Committee any credit for coming up with anything.
All I say to the Minister is that I can agree to this proposal, but frankly it means nothing unless there is a change of attitude among the higher echelons of this Government. The point that needs to be remembered is that democracy is important and our constituents need to have that confidence. Our security services, who work day in, day out in very challenging situations on our behalf, need the security and support of knowing that there is independent oversight and that the public can be satisfied with it. Unfortunately, the way that the Government are carrying on in this area is damaging that oversight.
Sir Jeremy Wright (Kenilworth and Southam) (Con)
I want to make a few brief comments about both the amendments before us. Let me start with Lords amendment 22B and the Government motion to disagree with it. I find it very difficult to disagree with this amendment. I was a member of the Committee on Standards in Public Life when the 2021 report that has been referred to was produced, and I am a member of the Intelligence and Security Committee now. Both those Committees, as the House has heard this evening, take the view that further measures are required to protect our democracy from the influx of inappropriate foreign money, and I think both would say that the amendment is the bare minimum of what needs to happen.
Lords amendment 22B does two things. It says, first, that a political party should be able to identify donations from a foreign power and, secondly, that it should be transparent with the Electoral Commission about such donations. It is worth stressing that the donations we are talking about are those from a foreign power—not necessarily from an individual, but from a state, perhaps funnelled through an individual. It is surely important to recognise the significance of such donations—potentially, at least—on our democratic process. It seems to me that there are two scenarios here. Either there are hardly any such donations in British politics, in which case the work involved to identify and deal with them appropriately is hardly likely to be onerous, even for smaller parties; or there are substantial numbers of such donations, in which case the case for greater transparency is overwhelming.
Let me turn to Lords amendment 122B and Government amendment (a) in lieu. It is worth being honest: there is very little difference between the Government amendment in lieu and the amendment from the other place, but both, as others have said, are operating on the margins of the real issue. The real issue is that there needs to be the capacity for the Intelligence and Security Committee’s remit, and the memorandum of understanding that relates to it, to adapt as the processes and structures of Government adapt. If that is not the case, all the consequences flow that have been described so well by my Committee colleagues, which I do not need and have not got time to repeat.
My last point relates to a deficiency in both Lords amendment 122B and the Government’s amendment in lieu. Both say that the consideration or the review—depending on which version we choose—of the memorandum of understanding must begin within six months of the passage of the Bill. The problem with that, it seems to me, is that it is far from inconceivable that the Government may make a machinery of government change or a process change beyond that six-month point. It does not seem sensible to artificially limit the capacity for having that review or consideration of the memorandum beyond that point. For that reason, I am afraid, I do not think that either the Lords amendment that we have received or the Government’s amendment in lieu are sensible responses to the challenge we face. In my view, both are flawed.
Tom Tugendhat
I thank all Members of the House for their comments this evening—there have been some important contributions. I pay particular tribute to the hon. Member for Halifax (Holly Lynch), who has been not only a powerful critic, but a very able debater and participant in improving the Bill and getting it into a position where I think it is ready to be enacted. As she and the House are very well aware, this is a Bill that is somewhat overdue. It updates the powers that our fantastic intelligence services require in order to keep this whole nation safe. We have, sadly, seen various different efforts by nations and—as my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) put it—some non-state actors to use our freedoms against us. It is very welcome that the House has worked so helpfully in bringing the Bill together to make sure that we are as protected as possible.
I now turn to some of the areas in which criticism has been raised, and I understand that criticism. As a former Committee Chair myself, I start by praising the Intelligence and Security Committee. My right hon. Friend the Member for New Forest East (Sir Julian Lewis) has regularly been in my office of late, and indeed in the past. We have worked extremely closely on many other areas, so I am delighted that he has raised his challenges. I will seek to answer them, because he understands as well as I do that parliamentary scrutiny is not just essential for the country, but for good government. The areas that he challenges us on are incredibly important.
It is also very good to see the hon. Member for Bristol North West (Darren Jones) in his place. There are other Committees that have responsibility for some of the areas we are discussing today, and as Chair of the Business and Trade Committee, he is charged with overseeing some of the areas that require some understanding of the nature of business in our society today. That, I am afraid, does include some classified information, so the Government are committed to finding ways in which we can make sure that not only the Intelligence and Security Committee, but relevant departmental Committees, can have appropriate oversight. I repeat what I have said separately to him and to my right hon. Friend the Member for New Forest East: this issue is extremely important to me, and I know that the whole Government share my view.
I will now turn to the question of foreign donations, and the reason why I do not think that Lords amendment 22B quite works. As the right hon. Member for Birmingham, Hodge Hill (Liam Byrne) has put it in the past, I do not resile from saying that the nature of foreign donations to this country is certainly not something to be taken lightly. When it is found, it is a crime, and a crime that must be punished. We should be very clear that interfering in our democracy is completely unacceptable, and I am very pleased that working with others in this House, we have made some progress in different areas through the defending democracy taskforce. I thank all Members of this House for that, and I particularly thank Mr Speaker for his assistance in making sure that we are in a better position today and will, I hope, be in an even better position in a few months’ time as various elements come forward.
May I say that there are differences between charities or businesses and political parties? One of those important differences is that charities and businesses, quite correctly, do not have to make public their donations. They do not have the obligation that political parties have to state exactly who is funding them. Political parties do have that obligation, and that is one reason why there is a difference. Transparency is provided not only by the political parties checking who is permissible and therefore who is actually giving the money, but by their making that donation public so that the media, who scrutinise us all, scrutinise those who donate and seek to influence or promote ideas by supporting any of us. I think that is an important difference that we should recognise.
May I, however, add that there is clearly a question on scrutiny? I say again that this amendment does not address that question, because any lawful political party should give a nil return, according to the amendment. I do not think that quite answers the questions that right hon. and hon. Members are asking, but I do understand the question of scrutiny that has been raised across this House, and I can assure Members that I am listening.
Question put, That this House disagrees with Lords amendment 22B.
National Security Bill
Tuesday 4th July 2023
(1 year, 4 months ago)
Lords ChamberRead Full debate National Security Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 155-I Marshalled list for Consideration of Commons Amendment and Reason - (3 Jul 2023)
16:28 - Division on Motion B1 - Ayes: 201 / Noes: 210 - Motion B1 disagreed.
Lord Sharpe of Epsom
That this House do not insist on its Amendment 22B, to which the Commons have disagreed for their Reason 22C.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, with the leave of the House I will also speak to Motion B and ask that this House do not insist on its Amendment 122B and do agree with Commons Amendment 122C in lieu.
I thank the noble Lord, Lord Carlile, for meeting once again with me and speaking with the Security Minister. During the previous debate on the Bill in this place, I talked about the importance of the Bill finishing, and continued engagement is the way to achieve that. I thank him and all in this House again for their valued scrutiny of this Bill.
I will start with the amendment tabled by the noble Lord, Lord Carlile. I understand the intention behind it. The Government are very much alive to the risk presented by foreign interference, as evidenced by the various ways we are seeking to tackle it through this Bill. However, as I said during previous debates on this matter:
“Political parties are already required by law to take all reasonable steps to verify the identity of a donor and whether they are permissible”.—[Official Report, 21/6/23; col. 227.]
The introduction of an independent review to consider the matter is not an approach the Government would support. The scope of the review the noble Lord proposes implicitly suggests that the duty should be on political parties to prevent foreign interference, not the relevant enforcement bodies with the appropriate tools and knowledge. The Government submit that this is not the way to approach concerns about the risk of foreign donations entering our political system, although we agree that work is needed in this area.
As such, I offer an alternative to today’s amendment in lieu. If noble Lords agree with the Government that the amendment before the House is not the right approach, the Government will commit to consult on enhancing information sharing between relevant agencies or public bodies to help identify and mitigate the risks of foreign interference in political donations that are regulated by electoral law. The relevant public bodies in scope of the consultation would include Companies House and the Electoral Commission, among others. This consultation would take place within a year of the Bill coming into force. It would seek views on how relevant agencies and bodies can obtain and share information relating to the provenance of a donation, which might not be available to the recipient of a donation. We consider that greater information sharing may well help in the prevention and identification of breaches of the law in relation to impermissible donations from foreign powers.
The Government also commit to tabling a report in the House at the end of this consultation which will set out conclusions and next steps. I want to be clear that the Government’s intention is not for any changes made as a result of this consultation to become a tool to be wielded against political parties where they could not have reasonably known the provenance of a donation. As I have noted before, political parties do not have the investigative capabilities of banks to trace layers of financial transactions. Rather, this consultation would look at ways in which information sharing between the relevant agencies and public bodies that do have those capabilities could support parties in mitigating the risk of foreign donations.
The rules on political donations are clear: donations from foreign powers, whether made directly or indirectly, are illegal. This consultation will allow us to consider how best to strengthen the information-sharing and enforcement system that supports those existing rules. This goes a considerable way towards addressing the noble Lord’s concerns, and in a way that will deliver real benefit. I am committing the Government to undertake this work in good faith, and I ask the noble Lord, Lord Carlile, to withdraw his amendment on this matter, in favour of our suggested approach.
Lord Carlile of Berriew (CB)
My Lords, I now have the opportunity to speak to Amendment 22D. I thank the Minister and the others involved in the discussions we have had. I give particular thanks for the involvement of the Security Minister, whom he mentioned, in the creation of what the Minister offered today.
In my reamendment, I offered an independent review, which is quite a physical way—to use a metaphor—of examining the law in this area. We have been offered a much more neurological review, to use another metaphor, because it involves going to every place where knowledge is held within government of the possibilities by which foreign powers may contribute to political parties.
I am particularly grateful to the Minister because the Government are offering something that not only places a clear moral obligation on political parties by which their honesty will be judged, but which goes further. It means that there will be standards by which their honesty will be judged, which has potential implications for political parties that they had better pay regard to. Compared with the no-action approach when we last discussed this matter, what was decided today is a generous response by the Government.
I will close with another metaphor. The right reverend Prelate, who read Psalm 24 in Prayers this afternoon, spoke of a “pure heart” and “clean hands”. I doubt very much whether these measures will purify the hearts of political parties, but it will certainly make their hands much cleaner. I therefore announce my intention not to move Motion A1.
Lord West of Spithead (Lab)
My Lords, I will speak to Motion B1, an amendment to government Motion B. I am very pleased that the Government have finally proposed an alternative amendment, recognising that only the ISC can undertake effective scrutiny of intelligence and security work undertaken by the Government.
The ISC supports the government Motion on the basis that my Motion is also accepted. It removes the requirement for consideration of whether the ISC’s MoU needs to be updated to commence within six months. We are concerned that such a time restriction may have unintended consequences; it might inadvertently affect the ability of the ISC to oversee security or intelligence activity related to the Bill. For example, if the Government commence new security or intelligence activity as part of the Bill outside the ISC’s remit—beyond the six-month period—the Government could attempt to argue that they will not consider any commensurate update to the ISC’s MoU as considerations are required to start within six months of the Bill coming into force.
Because of the Government’s long-standing refusal to update the ISC’s MoU, and their continued arguments to justify their refusal to accept independent oversight of the committee, the committee is of the view that it will be much safer for us to remove this time limitation to avoid any possible confusion in the future. Although that sounds like a lawyer’s argument, this is a lawyer’s issue; it is something we have to be quite careful about.
While the government Motion will not remedy the significant gap in ISC oversight that already exists in relation to intelligence and security matters, it at least seeks to stop the oversight gap becoming even bigger. I hope that this reflects a turning point and the beginning of a shift in the Government’s position, including their acceptance of the need for robust, independent and democratic oversight of secret intelligence matters.
However, the House should not forget the wider problem, and we should continue to insist on a remedy. With my ISC colleagues in the other place, I have already explained repeatedly why the ISC’s MoU needs to be updated more broadly. I will not repeat those arguments now, other than to say that currently there is insufficient parliamentary oversight of the Government’s intelligence and security activities.
Intelligence and security matters are too important for there not to be comprehensive parliamentary oversight. There can be no activity by the Executive which escapes democratic oversight. The Motion is the first indication from the Government that they have begun to grasp this fundamental principle and the importance attached to it by those in this House. Despite the Motion’s significant limitations, I support it being added to the Bill, with my own Motion, to ensure that there are no unintended consequences which may negatively affect the ability of the ISC to oversee the entirety of this regime. I encourage the Government to use this as a foundation for constructive engagement on the rest of the ISC’s MoU, which, as I have explained, urgently needs updating.
Lord Leigh of Hurley (Con)
My Lords, I will speak to this closing part of the Bill. I declare my interest as the senior treasurer of the Conservative Party. It is not on the register of interests, because the registrar does not accept it as a declarable interest; I do not know why, but I bring it to your Lordships’ attention now.
I wish to speak because, as this debate concludes, it would be unfortunate if the reader of this debate and previous debates was left with the conclusion that political parties are in any way seeking to obtain donations from foreign parties or do not take considerable steps to ensure that foreign parties or intermediaries do not make donations to political parties. In the previous debate, the noble Lord, Lord West, commented that
“it is perfectly possible for companies to make significant donations to political parties despite clearly not making operating profits and therefore with limited explanations of how they can afford such donations and where the money comes from”.—[Official Report, 21/6/23; col. 237.]
However, many companies can of course raise substantial sums of money and not make operating profits— I have personal experience of that. That is not the issue; the issue is that regulated donees have to be UK-registered companies incorporated in the UK which carry on business in the UK. I know from my experience that considerable lengths are taken to ensure that those companies are companies that carry on business, by any definition, in the UK. That is a requirement of the Political Parties, Elections and Referendums Act 2000.
The companies must also be registered with Companies House. Later this afternoon, we will finalise our debates on the Economic Crime and Corporate Transparency Bill, in which I have had a large involvement. From that, it is clear that Companies House will have substantially greater access to information on companies’ accounts digitally to assess who the persons of significant control are.
Accepting or funnelling unlawful donations is already illegal. Every donation over £7,500 is declared and you can take my word for it that any donation that one might think is, shall we say, unusual leads to lots of inquiries from the press, which is perfectly reasonable, and others such as political opponents. The Electoral Commission has 233 staff. It has resources this year of £25.5 million. It is responsible for looking after political parties, not much more than that.
It is not particularly obvious to me what more political parties could do. They are not banks; they are not HMRC. It would be inappropriate to create a very false impression. Donors do not control parties. They do not influence or determine policy. They typically give modest sums of money because they believe in supporting a party and wish it to succeed. We do not wish to slip into state funding, which would be a very dangerous route. In fact, donors to all political parties should be thanked and recognised for their contribution to civil society.
Lord Carlile of Berriew (CB)
I slightly despair listening to the noble Lord. Can we just ask for a little humility from treasurers of all political parties? I am afraid there is plenty of evidence that the garden is not as perfect as the noble Lord, Lord Leigh, is saying.
Lord Leigh of Hurley (Con)
I beg to disagree and am happy to offer humility. I note that recently the Labour Party returned a donation from a Mr Ian Rosenblatt which it decided was inappropriate. All credit to it. It happens regularly. This is not a political issue; this a cross-political matter. As I say, every donation is listed, so there is 100% transparency. I welcome my noble friend the Minister’s proposals, which I think are extremely sensible and helpful to this argument.
Lord Wallace of Saltaire (LD)
We on these Benches very much welcome the concessions that the Government have made. I disagree with the rather overoptimistic interpretation of where we are from the noble Lord, Lord Leigh. In the last exchanges, the Minister said that the National Security Bill was about national security and not about donations to political parties, but donations to political parties from foreign powers are a matter of national security.
Indeed, in the last Commons debate on this, a number of rather distinguished Conservatives intervened to say how strongly they supported the amendment as put forward by the noble Lord, Lord Carlile, on the last occasion. I recall Sir Jeremy Wright saying that he found it “very difficult to disagree” with anything in the amendment. He is currently on the ISC and was previously a member of the Committee on Standards in Public Life when it was writing its report on public finance.
I have just read a paper on political finance that the Institute for Government has just published. That stresses how rapidly the context is moving and how the law needs to adjust to cope with that. It particularly stresses the extension of overseas voting rights to British citizens who have been resident abroad for a very long time, many of them dual nationals. Checking on where the ultimate source is for those things is going to be extremely difficult and probably impossible, but political parties should be on their guard against undue influence and the suggestions the Government are now making perhaps will help political parties to take further moves in that direction
I was also struck by the speech that David Davis made in the Commons last week about a donor to the Conservative Party who had given £750,000—not a modest donor, even by the terms of the noble Lord, Lord Leigh—who had spoken openly about buying influence and “access capitalism” as part of what he expected. This was a dual national whose fortune appears to have come largely from contracts within a number of post-Soviet states.
There is a problem there, and it requires investigation, and I welcome the Government’s acceptance that there is a problem and that it needs further investigation, and we look forward to reading the text of the amendment that the Government will move in the Commons and to the further work that they will do then—we hope in co-operation with other parties—to last beyond the next election. This is an area where we need to have electoral rules that are agreed by all the participants.
Lord Purvis of Tweed (LD)
To follow my noble friend to conclude from these Benches on this part of the Bill, I wish to commend the Minister for listening and taking back to the department a very strong view from this House that more needed to be done in this area. I also commend the noble Lord, Lord Carlile, for his persistence on this area. I respectfully disagree with the noble Lord, Lord Leigh of Hurley. Of course, we all know that there is a distinction between the small donors—those who give small sums of money either as a member or as a supporter of a political party: in my case, in my former constituency, there were all too small numbers of small donors, regrettably, but there were those who would bake a cake for a raffle—and individuals who give really quite enormous sums to political parties. On the one hand, I understand the argument that there should not be a distinction between the two groups, if someone is of wealth and means and they believe in the same thing as someone without wealth and means. However, as my noble friend indicated, with regret I share more the view of the noble Lord, Lord Carlile, in this regard.
We would not be where we are in pursuing and being persistent with this issue if we did not know that the Electoral Commission was in effect asking us to do it. I have met the Electoral Commission frequently, and I do not think that it is relevant to highlight its resources when it has been very clear to us in saying that it does not have the powers to carry out what, ultimately, I believe it should be able to carry out—to ask political parties for due diligence as to the source of large donations. I hope that the government review will take us on that journey and provide an evidence base, on which I believe there will be a degree of consensus.
I thank the Government for their response and look forward to the review taking place, especially as it will start with the competent authorities that will have the information available to them. The Government are taking through the economic crime Bill, reforming and updating the mechanisms through unexplained wealth orders. It strikes me that that is a very good opportunity to look at some of the processes around UWOs, which are designed to be streamlined and not burdensome on authorities, to see whether they can be the model by which we would look at the requirements on political parties. On this issue, I have previously talked about the jarring position that, if a politically exposed person who is open to unexplained wealth order mechanisms, instead of giving to a political party used that money to buy a property, the relevant competent authorities would have to go through a process of due diligence for that property. However, as my noble friend said, on the concern about buying influence rather than buying a property, there is no mechanism that is open. I hope that that loophole will be closed. The Government have been clear in their guidance on the duties on the public and competent authorities to access data for unexplained wealth orders, so we should be in a better position.
Finally, as I said in the previous debate, this is likely to be the most expensive year coming up in British politics. I hope that we will have cleaner hands, but they will not be empty. Therefore, it is how we ensure that with the source of that money going into British politics, especially in the lead-up to election campaigns, the transparency is not just around the donor but around where that money is from for substantial donations. I hope very much that we have started the process of rectifying this deficiency in the British system, and I thank the Minister for starting it.
Lord Coaker (Lab)
My Lords, I begin by saying how much we support the amendments of the noble Lord, Lord Carlile. I am glad that the Government have listened and come to an amicable agreement with the noble Lord which takes us forward. I thank the Minister for the way he has done that and for the concession that the Government have made on the updating of the memorandum of understanding, although clearly issues remain between the ISC and the Government, hence Motion B1 tabled by my noble friend Lord West, which we support. Aside from the Motion itself, it will allow continuing discussions, and indeed perhaps negotiations, around how the memorandum of understanding can be revised or replaced, including by negotiation, hence its importance.
I think it is really significant that still, even at this late stage of the Bill, my noble friend Lord West, speaking on behalf of the Intelligence and Security Committee, which gives parliamentary oversight of the activities of the security services, is not happy with where we have arrived at. I think it is incumbent on the Government to reach an agreement with the ISC. Clearly, as we have heard from my noble friend Lord West this afternoon, we are not in a situation where that has occurred. There are all sorts of issues that remain between the Government and the ISC, as has been evidenced by various things that have happened today, and the Government need to respond to those.
I will add just a couple of other points. One is that the Government gave a commitment during the passage of the Justice and Security Act 2013 and the Minister gave assurances to Parliament that the memorandum of understanding was a live document that would be regularly reviewed and updated. Are the Government of today completely ignoring that commitment that was made to Parliament? If so, we are in a really difficult situation, because it means that parliamentary oversight is undermined by the fact that Ministers making pledges to Parliament can just be ignored in the future by the Government. I say—we often say, all of us say—that we will not press an amendment, on the basis that the Minister, speaking from the Dispatch Box, makes commitments that are read into the record. That is an important part of parliamentary scrutiny. Ministers are asked to do that and Members of Parliament in the other place and noble Lords withdraw amendments. But here we have an example of where the Intelligence and Security Committee is saying that pledges and commitments were made to Parliament that the memorandum of understanding would be regularly updated and the Government have not done that or are still not in agreement with the ISC. I think that is a really important point.
For the avoidance of doubt, I remind your Lordships again that I do not seek to compel the Prime Minister to go to the Intelligence and Security Committee. I shall just say what I believe, and your Lordships will have to make up their own minds. Given that the Intelligence and Security Committee is the oversight body for this Parliament, I would have thought that if the ISC were regularly asking the Prime Minister to attend, the Prime Minister would go—not because he is compelled to go but because it is an important part of that parliamentary oversight and the Prime Minister of our country negotiating and liaising personally with the Intelligence and Security Committee is of real importance. So I say to noble Lords, as others have heard me say before, that all of us would be surprised by the fact that no Prime Minister has been since 2014; nearly 10 years. It has been nine years, in case I am quoted as not being accurate, since a Prime Minister has been. So I gently say that, while I do not seek to compel the Prime Minister, I politely ask the noble Lord, Lord Sharpe, whether the Home Office has suggested to the Prime Minister that, in his diary, he might consider going to see the Intelligence and Security Committee when he can.
My noble friend Lord West’s amendment raises several important issues, but the most significant is that we need to send a message through supporting it that the ISC is still not at one with the Government. That is a serious issue and needs somehow to be resolved. I believe that supporting my noble friend’s amendment will continue to put pressure on the Government to ensure that they come to an arrangement with the ISC in the end, such is its importance. If my noble friend chooses to test the opinion of the House, we will be happy to support his Motion B1.
Lord Sharpe of Epsom (Con)
My Lords, I thank the noble Lord, Lord Carlile, very much for his words and his engagement on a number of matters throughout the Bill, and for not pressing his Motion. I also thank other noble Lords who have participated in this very short debate, including my noble friend Lord Leigh of Hurley, who brought a very useful perspective on the current state of play with regard to political party donations. I gently remind the noble Lord, Lord Wallace, that donations from foreign powers are already illegal and suggest that the word “consult” means that all political parties will be consulted.
On Motion B, the noble Lord, Lord Coaker, said that he does not seek to compel the Prime Minister to come to the ISC. That is certainly not the tone of the remarks he has made in a number of debates in this House. It seems to me that he does seek to compel the Prime Minister to attend the ISC. He will know that I have answered before the question as to whether the Home Office and No. 10 Downing Street have had discussions on this subject. I will not answer it again. I have nothing else to say on Motion B, as I have already spoken to it. I ask this House not to insist on its Amendment 122B and to agree with the House of Commons in its Amendment 122C.
Lord Sharpe of Epsom
Moved by
That this House do not insist on its Amendment 122B and do agree with the Commons in their Amendment 122C in lieu.
(2) Consideration under subsection (1) must begin before the end of the period of six months beginning with the day on which this section comes into force.”
Lord West of Spithead
Moved by
At end insert “, and do propose Amendment 122D as an amendment to Amendment 122C—
Lord West of Spithead (Lab)
My Lords, my noble friend Lord Coaker has put it far better than I have. I am afraid that there has been a breakdown in trust between the ISC and the Government, although the Minister on the Front Bench has been very helpful in this area. This is such an important issue, and we cannot get our minds around what has gone wrong. Therefore, I would like to test the opinion of the House.
Royal Assent
Tuesday 11th July 2023
(1 year, 4 months ago)
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