National Security Bill
Monday 6th June 2022
(3 years, 7 months ago)
Commons ChamberNational 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
(3 years, 6 months ago)
Public Bill CommitteesNational 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
(3 years, 6 months ago)
Public Bill CommitteesNational 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
(3 years, 6 months ago)
Public Bill CommitteesNational 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
(3 years, 6 months ago)
Public Bill CommitteesNational 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
(3 years, 6 months ago)
Public Bill CommitteesNational 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
(3 years, 6 months ago)
Public Bill CommitteesNational 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
(3 years, 6 months ago)
Public Bill CommitteesNational 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
(3 years, 6 months ago)
Public Bill CommitteesNational 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
(3 years, 4 months ago)
Public Bill CommitteesNational 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
(3 years, 4 months ago)
Public Bill CommitteesNational 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
(3 years, 4 months ago)
Public Bill CommitteesNational 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
(3 years, 4 months ago)
Public Bill CommitteesNational 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
(3 years, 3 months ago)
Public Bill CommitteesNational 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
(3 years, 3 months ago)
Public Bill CommitteesNational 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 r