Genetic Technology (Precision Breeding) Bill (Seventh sitting)
Thursday 7th July 2022
(2 years, 5 months ago)
Public Bill CommitteesRead Full debate Genetic Technology (Precision Breeding) Act 2023 View all Genetic Technology (Precision Breeding) Act 2023 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 7 July 2022 - (7 Jul 2022)
Levelling-up and Regeneration Bill (Eleventh sitting)
Thursday 7th July 2022
(2 years, 5 months ago)
Public Bill CommitteesRead Full debate Levelling-up and Regeneration Act 2023 View all Levelling-up and Regeneration Act 2023 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 7 July 2022 - (7 Jul 2022)
The Chair
Today we will first consider the amendment to the programme order on the amendment paper, which will cancel this afternoon’s sitting. I understand that we will then consider a motion to adjourn the Committee. As I see no one who wishes to debate this matter, and as there will be a change at the crease—to continue to cricketing analogy, rain is not stopping play—I will put the Question.
Ordered,
That the Order of the Committee of 21 June 2022 be varied by the omission from paragraph 1(f) of the words “and 2.00 pm”.— (Miss Dines.)
The Chair
The Committee will next meet at 9.25 am on Tuesday 12 July.
Ordered, That further consideration be now adjourned. —(Miss Dines.)
National Security Bill (First sitting)
Thursday 7th July 2022
(2 years, 5 months ago)
Public Bill CommitteesRead Full debate National Security Act 2023 View all National Security Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 7 July 2022 - (7 Jul 2022)
The Chair
Before we begin, I have a couple of preliminary announcements. Hansard colleagues would be grateful if hon. Members emailed their speaking notes to hansardnotes@parliament.uk. Please will you all switch your electronic devices to silent mode? I can see that you have not got teas and coffees, so that is good. Date Time Witness Thursday 7 July Until no later than 12.00 noon Jonathan Hall QC, Independent Reviewer of Terrorism Legislation Thursday 7 July Until no later than 12.40 pm Sir Alex Younger, former Chief of the Secret Intelligence Service; Professor Sir David Omand, King’s College London Thursday 7 July Until no later than 1.00 pm Paddy McGuinness, former Deputy National Security Adviser Thursday 7 July Until no later than 2.40 pm Demos; Henry Jackson Society Thursday 7 July Until no later than 3.00 pm Electoral Commission Thursday 7 July Until no later than 3.20 pm Professor Ciaran Martin, Blavatnik School of Government, University of Oxford Thursday 7 July Until no later than 4.00 pm The Law Commission; the Law Society Thursday 7 July Until no later than 4.20 pm Reset Thursday 7 July Until no later than 4.40 pm Reprieve
We will consider the programme motion on the amendment paper, followed by a motion to enable the reporting of written evidence for publication, and then a motion to allow us to deliberate in private about our questions before the oral evidence session. In view of the time available, I hope that we can deal with those matters formally, without debate. The programme motion was discussed on Tuesday by the Programming Sub-Committee for this Bill.
Ordered,
That—
1. the Committee shall (in addition to its first meeting at 11.30 am on Thursday 7 July) meet—
(a) at 2.00 pm on Thursday 7 July;
(b) at 9.25 am and 2.00 pm on Tuesday 12 July;
(c) at 11.30 am and 2.00 pm on Thursday 14 July;
(d) at 9.25 am and 2.00 pm on Tuesday 19 July;
(e) at 9.25 am and 2.00 pm on Tuesday 6 September;
(f) at 11.30 am and 2.00 pm on Thursday 8 September;
(g) at 9.25 am and 2.00 pm on Tuesday 13 September;
2. the Committee shall hear oral evidence in accordance with the following Table;
3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 14; Schedule 1; Clauses 15 to 20; Schedule 2; Clause 21; Schedule 3; Clauses 22 to 32; Schedule 4; Clauses 33 to 36; Schedule 5; Clauses 37 to 44; Schedule 6; Clauses 45 to 47; Schedule 7; Clauses 48 to 51; Schedule 8; Clause 52; Schedule 9; Clauses 53 to 61; Schedule 10; Clauses 62 to 65; Schedule 11; Clauses 66 to 73; new Clauses; new Schedules; remaining proceedings on the Bill;
4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 13 September.—(Scott Mann.)
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Scott Mann.)
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Scott Mann.)
The Chair
Copies of the written evidence that the Committee receives will be made available in the Committee Room and circulated to Members by email. We will now go into private session to discuss lines of questioning.
The Chair
We are now sitting in public again and the proceedings are being broadcast. Before we start hearing from witnesses, do any Members want to make any declarations of interest in connection with the Bill? I take it that there are no declarations of interest.
Examination of Witness
Jonathan Hall QC gave evidence.
The Chair
We will now hear oral evidence from Jonathan Hall QC, independent reviewer of terrorism legislation. Before calling the first Member to ask questions, I should like to remind all Members that questions should be limited to matters within the scope of the Bill, and that we must stick to the timings in the programme motion that the Committee has agreed. For this panel we have until 12 noon. Could you please introduce yourself for the record?
Jonathan Hall: My name is Jonathan Hall and I am the independent reviewer of terrorism legislation, a position that I have held since 2019.
Scott Mann (North Cornwall) (Con)
Q
Do you agree that utilising the tools made available in the Bill will enhance our ability to deal with the current threats, and give us the flexibility to respond to the changing threat landscape?
Jonathan Hall: Yes, the measures in part 1 and part 2—I will talk about part 3 at some later stage—contain tools that are necessary. I am not a state threats specialist—I am terrorism specialist—but I have had a chance to interrogate officials, and it is clear that there are determined and well-resourced adversaries who will not be put off by a knock on the door to say, “We know what you are up to.” The agencies and the police need measures to prosecute and PIMs—prevention and investigation measures—which are special measures.
Scott Mann
Q
Jonathan Hall: There are two things. First, the official who chairs the review group meetings, which are to decide whether to submit to the Secretary of State that a measure ought to be imposed, or the group which reviews whether they remain necessary and proportionate, needs to be really strong. This is what I have witnessed, I am glad to say, with terrorism prevention and investigation measures. That official has to be able to really hold the agencies in particular to account, and really test and probe what they are saying, both about the intelligence that is being given to the review group and about whether the measures remain appropriate. The first message from the TPIMs is that you need to have a strong chair of the TPIM review group, or the equivalent, the PIMs review group.
The second thing is that one of the experiences from TPIMs is that it is really difficult with connectedness. People who are under those measures can become very isolated, and I think that officials have struggled with whether to allow those people to have smartphones or access to the internet. These days it is very difficult to function as a normal member of society unless you have access to those. One of the lessons that will be learned from TPIMs is how to try to square the circle to ensure that people cannot do bad communications but while also allowing them to function normally in the world with access to normal communications technology.
Scott Mann
Q
Jonathan Hall: First, it is being able to go to the room where it happens—the meetings where these decisions are taken. When I review TPIMs, I have a completely free hand. I am able to interrogate officials and able to see whatever I want. That is really important. I am not just looking at judgments in courts, or just reading documents; I am actually there able to interrogate, test and challenge. That is what I do. Also, I think it is important that Parliament and the public have a sense of what is going on. Regrettably, because legal aid has not been made available in all cases for TPIMs, there are now fewer court cases, so general information about how this important but serious power is being exercised is relatively cut off. The independent reviewer can provide a lot of transparency about how it is operating.
Holly Lynch (Halifax) (Lab)
Q
Jonathan Hall: It has been tentatively mentioned. Obviously, because the legislation has not been passed, I have not been formally asked whether I would do it, but it has been tentatively asked. My answer is that I think it actually is quite a good fit for the reviewer’s job, and I think it probably is right that the person who does the independent review of terrorism legislation should also do the state threats legislation. The reason is that this new legislation is really modelled on terrorism legislation. In crude terms, the concept of the foreign power condition sits in place of the purposes or acts of terrorism, and then there is the same framework in terms of very strong arrest power, detention up to 14 days, strong powers of cordons and search and investigations, and, of course, the PIMs. There are so many learning points between the two regimes that it does make sense.
Holly Lynch
Q
Jonathan Hall: Having thought about this, I do. I do not think that decisions on prosecution are going to be made other than in really strong and good cases. Where I think one needs particular care is with all the strong powers that come before prosecution, for example with arrest and detention, as well as the PIMs, which are based not on beyond reasonable doubt but on the balance of probabilities.
We have to acknowledge that we live in quite a polarised world at the moment and that citizens of individual countries, such as Russia and China, and those who associate with them, are bound to fall under suspicion. There is a parallel here, in the sense that people used to argue—I think wrongly, but they did argue —that counter-terrorism laws in England and Wales were anti-Muslim, and I think having a reviewer is one way of offering reassurance that that is not the case.
Holly Lynch
Q
Jonathan Hall: I expect that they will be effective because the agencies and the Home Secretary will only think about imposing one when they think it is going to work. There are many more subjects of interest who have terrorist intents than are currently on TPIMs, and I expect that the same will be true in relation to people who are foreign threats. There will be many more people who are identified as foreign threats who will actually go under PIMs. At the moment I think only two people are under TPIMs, so it is very few. I would have thought that the agencies and the Home Secretary will think very carefully before imposing them.
Holly Lynch
Q
Jonathan Hall: What I have been told is that polygraphs have not been used for TPIMs, as far as I am aware, but they have been used for released terrorist offenders and some disclosures have been made. Everyone always thought that the real utility of polygraphs and the clear reason for their use is the disclosures that people make when undergoing the process. I gather that some admissions have been made that have been valuable and have led to a recall. I do not have a huge amount of data, but they seem to have had some success in the context of terrorism offences.
Damian Hinds (East Hampshire) (Con)
Q
Jonathan Hall: I cannot remember the total number of TPIMs. I think it is around 30, but I may be misremembering and that may also include—
Damian Hinds
That is over a number of years, of course.
Jonathan Hall: Yes. The maximum I remember in any year is up to six; at the moment it is down to about two. The authorities ran quite a successful campaign, using TPIMs against members or former members of al-Muhajiroun. Those have tended to drop off, and we are now looking at a very small clutch—I think it is only two now.
Damian Hinds
Q
Jonathan Hall: First of all, where there is good intelligence that an individual is up to no good but it is impossible to prosecute them. There may be secret sources of intelligence—information coming from allies or from electronic means that could not be disclosed—that mean that the agencies know perfectly well that someone is a real risk. Having had the opportunity to read the intelligence, I know that there certainly are cases where people are very dangerous and are engaging in attack planning but could not be prosecuted. These measures allow a huge amount of control.
One of the key measures for the really serious people is moving them from their home location. They find it much harder to operate if they are outside their home location: they do not have the people around that they know, and they find it a more hostile operating environment. There will also be some people whose threat really comes from the propagation of terrorist propaganda, so the measure might be directed towards their use of electronic devices and the internet.
Damian Hinds
Q
Jonathan Hall: Up to a point. I have expressed my disappointment that because legal aid is not now available as of right for all TPIM subjects, there is a cohort of TPIM subjects who are not getting court reviews. In the absence of the court having the opportunity to test the proportionality, it is particularly important that the Home Office official who chairs the TPIM review group’s meetings is really testing, and I also feel that I have to play that sort of role myself. I have certainly seen cases in which it has been debatable whether the measures have been too strong, particularly in relation to electronic devices, and whether enough attention is being given to allowing people to live a useful life without presenting a threat to the wider public.
The Chair
I am going to move on to our next question now, from shadow Minister Jess Phillips.
Jess Phillips (Birmingham, Yardley) (Lab)
Q
Jonathan Hall: I have one thing to say about part 1, but we will come back to it. Part 3 is different from parts 1 and 2, because I believe that part 3 is not there to meet an operational need. Generally speaking, I think the reason why the public support terrorism legislation is that they believe that laws are being passed to improve their security—obviously, today is the anniversary of 7/7. Here, the changes are intended to be entirely symbolic. The first thing to do is to recognise that it is quite unusual in the context of terrorism legislation to enact a measure that is really symbolic, and therefore it needs to be justified with care.
My concern about the legal aid, beyond the symbolism aspect, is that the class of individuals who are going to be affected by this is very wide indeed. The justification for removing legal aid from convicted terrorists is that they have broken their links with society. Of course, we all understand that in the context of an Islamic State would-be suicide bomber or someone of that nature, but the same effect will be felt by children who are arrested for document offences—in other words, having a copy of “The Anarchist Cookbook” on their computer.
As you know, there are now many children who have been arrested and prosecuted for terrorism offences. It also catches people who do not get custodial sentences at all, so the cohort of people captured is very wide indeed, and I do not myself understand why the decision has been taken to include not just the most egregious examples of terrorism-convicted people, but also people who may never have gone to prison and may have very quickly—one hopes—gone back into normal life. That is my general point about aid. I have expressed further points about how it is possible that this measure could be counterproductive. Should I pause there?
Jess Phillips
Q
Jonathan Hall: I do not think so, because legal aid is termed individually. In the example you are giving, the woman in question would not be a terrorist convict, so she would be able to apply for legal aid.
Jess Phillips
Q
Jonathan Hall: Then, yes. A woman who has previously been convicted of a terrorism offence would be forced to resort to what is known as exceptional case funding. As I think the Justice Committee has reported, it is very difficult to get solicitors to even apply for exceptional case funding and there are great difficulties in getting hold of it urgently. I suspect it will be said that, for the worst cases of domestic violence, it would be granted. I do not know if that is the case.
The Chair
I am going to have to move on to the next questioner. I would appreciate it if colleagues could be succinct with their questions. I will allow a couple if you are succinct—otherwise it is just one question.
Ben Everitt (Milton Keynes North) (Con)
Q
Jonathan Hall: I think what you mean is, am I comfortable with the fact that legislation has now been passed that is dealing with state threats, when previously the focus had been on terrorism? If that is what you are saying, then I think I am comfortable, because I accept and recognise that we live in a contested and uncertain world. Focusing on state threats is now a very sound necessity.
Ben Everitt
Q
Jonathan Hall: I think the two regimes—the terrorism regime and the state-threats regime—should be sufficient. There are obviously people operating in the grey zone at the moment who might be able to say, “We fall outside the remit of terrorism legislation,” for example, the Wagner Group. If they are acting on the battlefield in support of Russia, we would have difficulty seeing them as terrorists. I think this legislation probably fills some gaps.
Stewart Hosie (Dundee East) (SNP)
Q
Jonathan Hall: I do not think so, if the regime operates as it is intended to, because the Bill replicates the obligation for the Secretary of State to consider whether it is possible to prosecute in the first place. I do not think in practice that they will become a measure of first resort, just because they are so resource-intensive and complicated. I suppose it is possible that, unlike some of the terrorist TPIM subjects who are individuals without a huge amount of access to resources, some of the individuals who may be under an SPIM could be backed by a huge amount of resources, which means that there will be perhaps more significant litigation than there has been with TPIMs; I do not know.
The point is that you are dealing with people at a lower level than beyond reasonable doubt. Intelligence is fragmentary and it is possible to make a mistake. It is always important to bear that in mind, with a degree of modesty and humility, when these really strong measures are being imposed.
Stewart Hosie
Q
Jonathan Hall: My view is that it is the same thing.
Holly Lynch
Q
Jonathan Hall: I am slightly uncertain and concerned about the scope of clause 3(2), the foreign intelligence services offence. On the face of it, an offence could be committed inadvertently, and it does appear to cover quite a lot of lawful conduct. The example that I have been debating with officials is the example of someone who sells miniature cameras, which is undoubtedly conduct of a kind that could assist a foreign intelligence service. My concern with clause 3(2) is that it does not seem to have a sufficient mental element, either that the individual who commits the offence is deliberately acting prejudicially to the UK interest, or knows or ought to suspect that there is some foreign intelligence service involvement, so I have a concern about that particular clause.
Sally-Ann Hart (Hastings and Rye) (Con)
Q
Jonathan Hall: Not all terrorists are cold, calculating, ruthless killers who will go and commit terrorist acts whatever their circumstances. They may exist, but there are also quite chaotic terrorist-risk offenders. I have certainly come across cases where the terrorist risk from the individual—the chance of their stabbing someone, for example—goes up if they are not taking their medication or if they are homeless.
My concern about the legal aid is that it will make it harder, for example, for a terrorist offender, maybe 10 years after they have been released and who is facing eviction, to get legal aid. That means that you might have less good decisions made and a sense of injustice or grievance on behalf of the terrorist offender, who will perhaps say to themselves, “Why can’t I get legal aid when everyone else in my situation can?” My real concern is people becoming homeless or falling into debt when they might otherwise be able to get legal assistance.
The Chair
I am afraid that brings us to the end of the time allocated to the Committee to ask questions. On behalf of the Committee, I thank Mr Jonathan Hall QC for giving evidence in this session.
The Chair
Q
Sir Alex Younger: Hello, my name is Alex Younger and I was chief of SIS from 2014 to 2020.
Professor Sir David Omand: I am David Omand. I am currently at the King’s College London war studies department as a professor. My previous career in the civil service involved being director of GCHQ, permanent secretary of the Home Office and UK security and intelligence co-ordinator.
Scott Mann
Q
Sir Alex Younger: Yes. That is a huge question. To keep it brief, though, I think the predominant fact that developed during my career was the erosion of boundaries. When I started, the difference between peace and war, domestic and international, covert and overt, and virtual and real was reasonably clear, and we were organised along those boundaries. The threats that eventuated most powerfully were the ones that recognised that those boundaries had eroded and crossed them. What I would call grey threats eventuated and often presented us with real challenges, particularly when actors or states felt themselves at war with us and we did not feel ourselves at war with them, for good reason.
My career saw less emphasis on conventional threats and more on grey space. Most of my career was devoted to counter-terrorism, which was the dominant example, but subsequently we saw state actors working in sub-threshold space—operations short of conventional war—to harm us. That is broadly the situation we are in now, even if we have a very 20th-century example of conflict happening on our continent.
Scott Mann
Q
Sir Alex Younger: It has risen. During my career, we were broadly in a situation where we had to focus on state threats or terrorist threats. I think that all of us, societally, were hubristically convinced of the end of history and the fact that liberal democracy had triumphed. Perhaps another answer to your earlier question is that that was demonstrated to be false. In fact, we are in a geopolitically contested world, just as we always were. That led to the increasing dominance of the state threat over time as the world diverged ideologically. Of course, with Russia and the UK specifically, we had some really acute examples of that, in terms of services demonstrating complete contempt for us and our democracy by attempting to murder people on our soil. In a sense, that got us, particularly in the national security community, to the hard truth quicker than many.
Scott Mann
Q
Sir Alex Younger: I think it is pressing, not least because, as I have said, many of the threats are ambiguous. This legislation, in seeking to dispel ambiguity—daylight is the best disinfectant—has my support. The reality is that the act of using deception on behalf of a foreign power to undermine our democracy, cause our citizens harm, sap our strategic advantage and undermine our economic advantage is essentially not criminalised at the moment, and that is odd. As you would expect, our adversaries have tonnes of legislation outlawing spying. That is what they do; it is part of how they engineer unity. There is a sense of an external and pernicious threat.
I am more struck by the fact that many of our allies, particularly in the Five Eyes, have seen fit, for many years in some cases, to have such measures in place. To that extent, I regard them as basically uncontentious and overdue. If I may be permitted a professional observation as someone who has worked in this area for 30 years, they will definitely make it harder for people who mean us harm to operate, in a way that they would not like and the public would like.
Scott Mann
Q
Sir Alex Younger: Yes.
Holly Lynch
Q
Sir Alex Younger: First of all, I think it is a good idea, fundamentally, to require people to say if they are acting on behalf of a foreign power. I am supportive of that because I know how difficult it makes it for people intent on conducting operations against us to operate, and makes it much easier to prove. I am therefore instinctively supportive of that, and of a register, and I think that we should get on with that. I have talked to the Government about that; they are understandably cautious, given all the unintended consequences attached to it, and the fact that our adversaries use those techniques in a way that lacks good faith and is malicious. However, fundamentally, I am supportive of it.
I have to be honest; I am more ambivalent about the idea of distinguishing between nations. My view of legislation generally, but particularly when it comes to technology, is that it is a mistake to write things to the current circumstances. It is much better to write things to the principles that you are seeking to employ. I am not a lawyer or a member of the Government, but my recommendation would be that we go for a principles-based approach in so far as we can.
Holly Lynch
Q
Sir Alex Younger: You are referring to the amendment to the Serious Crime Act?
Holly Lynch
That is right, yes.
Sir Alex Younger: I strongly believe that that is necessary. I am conscious of the concerns that you will have, and even the contentious nature of the assertion, so if you will forgive me, I briefly have to tell you why.
First, alongside our ability to uphold our values and not be terrorists, the other reason why we have been successful in stopping bombs going off has been international partnership. That is because no one state or intelligence service really ever has the full facts. They have to work together and combine their information to get the intelligence that is required, proactively, to disrupt terrorist events. That was true in the analogue world; it is really true in the digital world. It is the thing that works and keeps us safe.
That involves an unavoidable risk. That risk, through all the safeguards that you will be familiar with—but which I am happy to talk about—is managed down to the very lowest level possible. However, ultimately, we are dealing with sovereign actors—other states who we do not control—and ultimately, when we are exchanging large bulk datasets, notwithstanding all the scrutiny and risk management, there is a possibility that there will be data in that dataset whose significance we do not understand until it is compared with another dataset that we do not have. That is an unavoidable risk.
An issue that I think you have to consider is, who should be carrying that risk? My view is that there must be accountability, but where an SIS officer or any other UK intelligence community officer is acting in good faith, within their instructions, as authorised by Ministers, on behalf of you and the public, it should not be them carrying the risk. It is more appropriately carried by the Government more broadly. I feel that, as you can tell from my body language, very strongly, as a leader.
It was unavoidable that we sent our young men and women into harm’s way when it came to physical risk. For instance, I served in Afghanistan. Our people were asked to go out on to the streets day in, day out. It involved physical risk that we mitigated down to the lowest level we could possibly manage, but it was part of the deal.
These risks are avoidable. Through this legislation and other measures, we can make sure that these risks are attached to the appropriate person or people or entity. I am much less comfortable as a leader about the idea that we therefore ask individual men and women in the UK intelligence community to suck it up. I do not think that is right.
Professor Sir David Omand: I very strongly agree with what Alex Younger has just said. I know from my own experience of GCHQ that information-sharing with our close allies and indeed more broadly is essential, and I think it is morally wrong to place that burden on the individual member of staff, who may be quite junior, who is simply following the policies and the instructions that they have had. In the end, the Government Ministers must account if something unexpectedly does go awry.
Holly Lynch
Q
Professor Sir David Omand: My counter-argument would be that this is actually a question of principle—how Government works, particularly in relation to people whom we as a nation are asking to take some significant risks on our behalf. This is an additional risk. You may say that it is theoretical; they may not feel it that way, and I think that we owe it to them to protect them.
Sir Alex Younger: It does not feel theoretical. You know, you have to examine the motives of the staff of the UK IC, who are ordinary members of the public, just like you and me. They are not doing this for personal gain.
There is a very practical point that I think the Committee must consider, which is the incentive. Over time, what is going to motivate admittedly a very mission-orientated community if they see personal legal jeopardy in an area where there is an unavoidable level of ambiguity? I think that will inhibit people from the exercise of sharing. I hope I have been really clear that it is the exercise of sharing that allows us, as a team, to deal with the threats that we face. The risk may be theoretical, but it does not feel like that when you are stood in front of the person or the computer.
Stewart Hosie
Q
The Chair
Just before we get the answer, I will just flag up that this may be outside of the scope of this Bill, but we will allow the discussion to proceed, because we have not made a precise ruling on it as the co-Chairs of this Committee. So please proceed, but there the potential for it not to be within the scope.
Sir Alex Younger: My answer is a less eloquent version of that, which is that I have talked about the Government about this. Essentially, they say that they think it is too complicated to work this issue through in the timescale that this Bill is operating in. I am not a lawyer; I apologise. I do not have a detailed answer to your question.
Professor Sir David Omand: I believe that the powers in the Bill are not only necessary, but urgent. In addition to everything that Alex was saying, we are living through a digital revolution. The digital harms are there. I would hate to see the powers in this Bill held up, and possibly even miss their legislative slot, while quite difficult work is done on the 1989 Act.
Maria Eagle (Garston and Halewood) (Lab)
Q
Sir Alex Younger: It is sincere.
Maria Eagle
It is novel for me—I speak as a lawyer.
I would like to come back to clause 23 and the changes proposed to the Serious Crime Act 2007. I could tell you are very strongly in favour of the changes, but I wonder whether this kind of complete carve-out from liability for the agencies is something you have come across before anywhere else. Is this totally novel, or have you seen it operate somewhere else, and you think it would work well in these instances? There are already defences in that legislation to protect the people you were expressing concern about. What is so wrong with the defences that are already there?
Sir Alex Younger: There are other examples. Australia is the clearest, but it goes much broader than this, actually. In our case, you are right, and it is really important to recognise that a large part of what is already there works. The SCA is, by the way, an Act that I absolutely support—I hate to see fat cats here helping people launder money overseas; it is really irritating. We need this stuff, but I am fairly sure that this aspect, the potential criminalisation of intelligence exchange, was unintentional. The reality is that the way the SCA is drawn, with its extraterritorial nature and its very broad conditions, captures things that would not be adequately addressed through the safeguards that were in place before.
Of course, as you allude to, there are defences in place, but to go back to the conversation we have just had, I do not think I as a counter-terrorist operator, which I was, would be particularly happy—even though I have faith in the justice system and the wisdom of juries—to know that what I did could be tested in a court of law with all the uncertainty that entails, when I am obeying a lawfully authorised instruction with all of the oversight that exists. I want to be really clear: when a UK intelligence community individual acts not in good faith or outside those instructions, they should absolutely be subject to all the considerations, including of secondary liability, that exist, but I think any ambiguity in the circumstances I just described is wrong and will have a chilling effect on our intelligence exchange.
Maria Eagle
Q
Sir Alex Younger: Again, I am not a lawyer, but I do not believe that it does, no, not entirely. In fact, that is the predicate for what I am saying.
Maria Eagle
Q
Professor Sir David Omand: Yes, I would agree with that.
Damian Hinds
Q
Professor Sir David Omand: From my experience, I would point to the consequences of the digitisation of every conceivable kind of information. That is proceeding apace. We have digital cities. Our infrastructure is now wholly dependent on IT.
In my recent book, I coined an acronym, CESSPIT—crime, espionage, sabotage and subversion perverting internet technology—and that perversion is going on as we speak. I will add one thought: I put “crime” in my acronym deliberately. If you take the activities of something like the North Korean Lazarus group, which was responsible for the WannaCry ransomware attack on our national health service, it is operating in order to obtain foreign exchange to pay for the North Korean nuclear programme and North Korean intelligence activity. In March, the group took more than $0.5 billion-worth of Ethereum currency from an exchange. This is large-scale larceny on behalf of a state.
My hope is that the powers in the Bill will help the police and agencies to deal with state-based criminal activity. I know that there are aggravated offences powers as well, which will help the police.
Damian Hinds
Q
Professor Sir David Omand: If you recall the statement made almost exactly two years ago in the House by Dominic Raab, he said that the Government had concluded that it was “almost certain” that “Russian actors” had “sought to interfere” in our election in 2019; and we had the evidence from the American elections and the French presidential election in 2017. All the techniques were deployed. I do not know whether any members of the Committee have been watching the TV series showing on Channel 4, which is as good a primer as any on how such techniques can be used to pervert our political discourse as well as actually harm individuals. This is the world we are in, these are the harms we face and I think that this Bill is a good start in helping the agencies to address some of those harms.
Sir Alex Younger: On this issue, you are right to focus on the possibility of interference in our democratic process and the potential unintended consequences of what we are talking about here. Of course, one person’s interference is another person’s legitimate intervention. Perish the thought that it should be the Government’s responsibility to say what is true and what is not. That is the difference between us and our opponents.
I can understand the scale of the problem; I have seen it. I had a long chat with the Government about this, and the thing that convinced me that this was an appropriate response was, first, the foreign powers condition—to be clear, that is about people acting on behalf of a foreign power—and, secondly, essentially the use of deception to achieve your aim. It seems to me that if someone is working on behalf of a foreign power, using deception, to distort our political process, we have a pretty clear basis for taking action. That, I think, is as it should be.
Sally-Ann Hart
Q
“A person commits an offence if…the person engages in conduct intending that the conduct, or a course of conduct…will have”
a negative “effect” on the UK for or on behalf of the foreign power in question. In other areas of law, in particular the criminal law, we have intent and recklessness. Do you think that clause 13 should be expanded to include recklessness?
Professor Sir David Omand: I looked at clause 24, “The foreign power condition”, and there is quite a lot of scope in it for a successful prosecution to demonstrate that the individual who as, as you say, acted recklessly, could reasonably have been expected to know that their act would benefit a foreign power, for example, so I was not so concerned about that particular question.
Sally-Ann Hart
So you do not think that it should be included in clause 13?
Professor Sir David Omand: No, I had not concluded that.
Sally-Ann Hart
Sir Alex?
Sir Alex Younger: I do not have anything to add to that.
Stewart Hosie
Q
Sir Alex Younger: First of all, “carve-out” means different things to different people, but there is a wild idea that this is a granting of immunity that means we can behave willy-nilly. You will know from your Committee experience that this is not true. I want to make that really clear. The reality at the end of all this—we have had the theoretical versus practical conversation already—is that there exists a risk that individual UK IC officers will face criminal sanction for doing their job. I do not think that risk should exist. That is fundamentally where I am. You can decide as politicians that it is better than what is being proposed by the Government, but I am saying that I do not think it is compatible with a healthy sharing regime of the sort that produces the security benefits I have outlined.
Ben Everitt
Q
Sir Alex Younger: I cannot. I am sorry, but it happened just at the end of my time. I know from conversations with my Australian colleagues that they are very satisfied with the legislation that exists, in so far as that it deals with this issue. I would recommend looking into that yourself or speaking to the Australians. I do know that it is broader than what we are proposing here today. I am sorry I cannot be more helpful.
Ben Everitt
Q
Sir Alex Younger: Yes. It is not something I have thought hard about, but the fundamental principle of operating as a team is probably our most powerful riposte, alongside our values, to the threat of authoritarianism. It is something I am completely signed up for, but alliances are a thing we have that our opponents generally speaking do not. I was very proud to operate in one of those—Five Eyes—which is a particularly effective version. If we, as a matter of principle, aimed for interoperability through legal alignment, that is something I would absolutely support. It is never going to be complete. The United States particularly has a very different legal process to us. Certainly as regards counter-terrorism, the extent that we manage to align legally massively boosts operational co-operation. I am wholly confident that the same would be true when it comes to state threats.
Ben Everitt
I think everybody here would agree that a team has to play by the same rules.
Holly Lynch
Q
Professor Sir David Omand: I was pleased to see the power in the Bill because, particularly in the digital age, you can take the offensive and you can prepare, but you may not have got to the stage of actually pressing the button. If you can demonstrate that a foreign state was engaged with help from inside the country in some serious espionage or sabotage activity, it seems to me that the very preparation is something that the prosecutors ought to be able to bring forward. In the terrorism example, the cases would be slightly different, but the offence of acts preparatory to terrorism has been extremely helpful to the prosecution authorities for good reason.
Sir Alex Younger: The bottom line is that we have to get in front of this stuff. Just speaking as a counter-terrorist practitioner, that is the additional discipline. It is not like solving the crime. We need to solve it before it has happened, and that raises a set of ethical and legal dilemmas where it is important to be striking the right balance, so I really welcome the proper treatment that we see of that in the Bill.
Holly Lynch
Q
Professor Sir David Omand: Probably not, but on the other hand you have to balance that against the risk that legislation would inadvertently catch, for example, academic activity in think-tanks. Alex Younger has referred to transparency and covertness. Where a foreign power is taking covert acts and dirty tricks in order to access our institutions, think-tanks and universities, that would be criminalised by the Bill.
Where a member of the embassy of any foreign state represented here attends, quite openly, think-tank meetings and so on—everybody knows who they are and they know they are on the guest list—that does not pose a direct harm. It would be a mistake to start to try to confuse those categories too much. However, what it comes down to is that this is a probabilistic business; this is doing things that increase the chances that we all protect the citizens and the interests of the state. This Bill alone is not going to prevent states from attempting harm against us, and it probably will not catch all those harms either, but it is a good start.
Scott Mann
Q
Professor Sir David Omand: Well, there is a lot in the Bill. The move away from having to identify states as enemies, for example. States have interests of their own and they will promote those interests. If they are doing so openly through diplomatic and academic means, that is one thing, but if they are doing it, as some are, covertly, then although you might not categorise them as enemies, they are none the less conducting themselves in a way that causes harm. That is one of the examples where I think the Bill takes a more up-to-date view. It is not just nations with which we are at war or potentially could be at war.
Holly Lynch
Q
Professor Sir David Omand: My reading of the Bill is that trade secrets and theft of intellectual property are well covered. You probably also have to have in mind the Online Safety Bill, which has a whole different set of considerations but which is, again, intended to reduce the amount of harmful content that citizens are exposed to. It is quite easy to envisage cases where a foreign state is putting material online covertly and pretending to be someone else.
In the 2016 US presidential election, there were a number of egregious examples of that—for example, in order to stir up conflict within society by exaggerating an existing split in society, be it over race, inequality or any other issue. That is the nature of the threat that we currently face in all democracies. You cannot solve it all by creating criminal offences where a link cannot be established back to the foreign powers condition, but you may be able—by working with the companies, which will exercise their own terms and conditions—to get more of this stuff removed. You need that as well as the powers in the Bill.
Holly Lynch
Q
Professor Sir David Omand: Yes, and another important consideration is public education. I have argued before that we should start teaching critical thinking in schools and teaching kids how to be safe online when they come across deliberate and malicious misrepresentation.
Damian Hinds
Q
Professor Sir David Omand: I recommend the use of the OECD’s triplet of “misinformation”, which is wrong, but innocently so, and should be corrected; “disinformation”, which is deliberately and maliciously wrong; and “malinformation”, which is information that is true but was never intended to enter the public domain, such as the personal emails of Members of Parliament.
Sir Alex Younger: Please hold that thought, because I spent years trying to work out whose side Vladimir Putin was on, as he was propagating all sorts of contradictory causes, and then I just realised that he wants an argument—he wants distrust and discord. I have not been to the OECD on the subject, but I entirely support that.
The Chair
That brings us to the end of the time allocated for this session. On behalf of the Committee, I thank our very distinguished witnesses for your time today.
Examination of Witness
Paddy McGuiness gave evidence.
The Chair
Q
Paddy McGuinness: My name is Paddy McGuiness, and I am currently an adviser with a critical issues firm called Brunswick Group. I was previously a national security official, latterly as the deputy national security adviser for intelligence, security and resilience in the Cabinet Office from 2014 to 2018. In that role, I oversaw hazards and threats affecting the UK homeland, including some aspects of counter-terrorism, alongside Sir Alex, and cyber-security programmes, offensive and defensive. I began the work on hostile states, and I also dealt with questions of broader resilience to natural hazard. For much of that time, I was also the Government’s chief security officer, overseeing matters of vetting, classification, investigation, and disciplinary and criminal proceedings to protect classified information.
Scott Mann
Q
Paddy McGuinness: I really welcome the way you framed that question, because when I thought to myself, “What am I going to say in front of this Committee?” that was absolutely at the centre of it. As the representative, in a policy sense, of the intelligence agency—Sir Alex and the others—and as a person trying to practise Government security and see through disciplinary and sometimes criminal investigations around compromise of classified material, my lived experience was that our legislation and regulations were, frankly, a Potemkin front, and that behind them there was not very much.
I would move in public or speak to Members of Parliament and Ministers, and they would say, “Ah, we have got the Official Secrets Act. We have got this and that,” and they would look at the terrorism powers, which Jonathan Hall described so fully, and the way they interplay with the powers proposed in the Bill, and they would assume we have similar powers, but as you see we had almost nothing. Where there were powers, very few of them crossed the serious crime threshold to engage the full range of intrusive investigative techniques and police time to pursue them. That was very disturbing at a time, certainly when I was deputy National Security Adviser and previously, when the impact on the digital age, as described by Sir David and Sir Alex, came to the fore, and when many states were messing, within the United Kingdom, with our institutions, corporate life and communities, over which they thought they had some share because those people came from that country of origin.
The answer is that I was left very disturbed. That is why under the coalition Government, the Cameron Administration and the May Administration—I left during that—I was, if you like, an apolitical advocate of new powers to shore up what was a weakness or shortfall in our national security capability.
Scott Mann
Q
Paddy McGuinness: Yes, and this is illustrative. In the other areas, as Sir Alex described and did fantastic service in countering terrorism, we have not had as much terrorist pressure on our societies and values as there might have been, because of the suppressive effect we have been able to have with our partners. That is because we had capabilities and powers. In the case of hostile state threats, we have some capabilities but perhaps not enough powers, and that is true in cyber. So we have left in front of people who wish to have purchase over our decision making, or to be able to influence us or possibly attack us, free space.
Inevitably, we concentrate on those that are most egregious. Sir David referred to the Lazarus Group in North Korea, and we might look at Iranian behaviours. Indeed, we might look at Russian or Chinese behaviours, particularly around intellectual property and technology, which are all very serious, but I refer you to the number of advanced persistent threats that are now listed because that gives you a description of the number of states that, unconstrained, are beginning to use these techniques for their policy purposes, whatever they are.
For me, almost the best example of this was in the covid pandemic, when there were intrusions and potentially damaging activity in the networks of international healthcare organisations that we needed to help us deal with the pandemic, such as the World Health Organisation. The APT—advanced persistent threat—identified was Vietnamese. I refer you to that list. We do not need to ask any former official to breach the confidentiality of high classification material to know that many states act in this space, and they have clear space in front of them in the cyber domain and in some of the techniques that are countered by the Bill.
Holly Lynch
Q
Paddy McGuinness: It was quite extraordinary that we had a range of different possible offences that relate to the kinds of things that a hostile state would commit in order to sabotage, for instance, critical national infrastructure—a target entity in the UK—and that it was not coherent. What I would put in front of the Committee when you are thinking about this is: the most common thing that I find now in corporate life, but also in Government or in policy space—and in Parliament where I do a bit of advisory work—is stovepiping.
You say “cyber” or “cyber-security” and people immediately think of cyber-security issues, or you say “insider issues” and they say they will deal with that, or they think of physical attacks or physical disruption and they deal with that. They do not understand that this is a playbook, which, if you are a Russian commander, you put together, and you have a choice of what you do.
So you go in an escalation route from, “Can we access this remotely through the internet? Is there another way of accessing it electronically? Do we have a spy within it? Can I send someone from the embassy to go and get close to it and do something to it? Shall I send in Spetsnaz covertly—you know, go to Salisbury and poison some people? Or shall I go to war?” You have that whole range of things and they all relate to each other. And all of them relate to sabotage. We need to approach this by understanding what the adversary is doing and not having little bits of powers in some criminal damage legislation, or in the Computer Misuse Act. That will not do because that is not the purpose of the opponent.
I have described it for disruption and destruction in a sense of warfare, and I have used a kind of Gerasimov Russian example. It is very interesting when one looks at the way in which intellectual property has been stolen. There are a few cases where we see the end-to-end Chinese state effort, where you begin with remote cyber-attacks in close proximity—the case I am thinking of was in the United States—and an inability to get in by those means. Eventually, the subversion and recruitment of a member of staff operating in Switzerland provided them with the intellectual property, which they were not able to access using the cyber techniques. All the way through they were intervening in the networks and activities of that company.
One final thought on this: one of the difficulties with this grey space activity, as Sir Alex described it, is that if you have a presence for an intelligence purpose, you can flick it over and turn it into a disruptive or destructive attack. That is where that preparatory bit is quite important, too: understanding that the simple fact of engaging and being present quickly takes you towards sabotage. I think these are absolutely vital powers.
Holly Lynch
Q
Paddy McGuinness: The Clerks may have told you, or it may be in my bio, I do not know, but after I left Government I was asked by the Oxford Internet Institute to join them in a thing called the Oxford Technology and Elections Committee, prior to the 2019 elections—with an urgency because of what had happened in the United States in 2016—to come up with some practical suggestions for what we might do to protect our elections. I refer you to it: it is a great bit of work, and the Oxford Internet Institute has gone on doing that work. I am no longer as involved, but there is good work there.
The way I would frame it is this: it is a bit like what I said about the powers that we have. Because we do not occupy the space, others step into it, so because there are not strong controls and real clarity about what is happening around our electoral processes, people mess about in that space. It is really important—this rather echoes something Sir Alex said—that we do not take messing about in the electoral space as being the same thing as delegitimising an election. We have a strong tradition in the United Kingdom of being able to make judgments about whether the way in which candidates have behaved or the way in which money has been spent in a given constituency makes an election void, and you possibly have to run it again. We are used to making that judgment.
One of the risks that I note in this space—again, this is a point Sir Alex made very nicely about Vladimir Putin’s intent, which is to have us off balance—is that if the Russians do hack into a political party’s servers and mess about within them, and maybe mess with the data or interfere, or if they play games with a technology platform that people rely on for information and put out information, and we decide as a result that we cannot trust a referendum or an election, they succeed. That is success for them, so I think what really matters in this space is the ability to measure the impact that state activity has on the democratic process we are looking at, and—as Sir Alex said—that there is bright transparency so we know who is doing what.
Sally-Ann Hart
Q
Paddy McGuinness: I would expect it to be a dynamic process. I think you will be looking at further legislation; let us hope you have a long life as an MP, but in your time as an MP I would expect you to have to look at this again.
To Sir David’s point, I do not think we should delay for a moment fixing the things that the Bill fixes because of the fact that technologies develop dynamically. There is a lag. I can remember—I think I was actually working at GCHQ at the time—us thinking about what was happening with Facebook as it emerged as a widely used platform. Here we are with the Online Safety Bill, about 13 years later. There is a natural and quite proper lag between rapid technology innovation and slow and considered regulation and legislation, and we are going to have to live with that. I think this is good. It provides a basis, and I think the extraterritoriality is particularly important, as is the way in which sabotage is broadly defined to allow you to deal with the kind of range of things that I have been talking about, given that the opponent will move through those spaces.
Antony Higginbotham (Burnley) (Con)
Q
Paddy McGuinness: I think it does a very significant thing in the way in which it criminalises specifically the trade secrets aspect, which covers a very broad range. Again, we may have to return to this. This kind of legislation and the type of work that Sir Alex and his successors in MI5, MI6 and GCHQ are doing has Darwinian effect, so I have no doubt that as companies have got better at certain kinds of protection advised by the interaction with the CPNI and the National Cyber Security Centre, so the opponents have got better at it. And we will have to go on doing it.
It does not feel as though we have quite the same volume of opencast mining of our intellectual property and economic value that we had, as was described previously by General Keith Alexander, the head of the National Security Agency in the US. He described the enormous volume—trillions of value—taken out of our economies. There still is a very high level, though, so there is more work to do on this, and it is a significant challenge to the corporate sector to do the right thing in this space, because of the difficulty that it represents. The Bill provides a really solid basis for that discussion, because of the criminalisation of the trades secrets aspect.
Antony Higginbotham
Q
Paddy McGuinness: One must constantly avoid complacency, but one of the strengths of the British state is the way in which institutions and agencies work together pragmatically and practically—within the bounds of law, obviously. That is how we have managed to get this far, with a lack of powers, without something going catastrophically wrong. It has felt really nerve-wracking doing it. As the person who had to represent it to Prime Ministers and the National Security Council, my word I was nervous about this. I was much more confident in other areas of my responsibilities, because there was a real shortfall. The Bill closes out quite a lot of that.
I would note something that I think reads across several of the points that have been made by the previous witnesses that I have heard today that it is important for the Committee to understand and for me to represent. When you are dealing with state threats, and in particular against really capable actors, that is a different task from dealing with terrorism or serious and organised crime, because we must work on the assumption that some of our communications, some of our computers and some of our people are under their control.
When I look at, for instance, the STPIM powers, I reflect that it is much more difficult still to bring prosecutions in this area than it is for terrorism and for serious and organised crime, where sometimes people have been suborned by the crime group. This is all together more serious, and it would be naive to think that no one spies for a foreign country, no communications are intercepted and no one is in any of our computers. That just raises the level of difficulty that we have got in this space.
The Chair
Thank you very much. That brings us to the end of the morning sitting and the time allocated. On behalf of the Committee, I thank Mr McGuinness for giving evidence today.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
National Security Bill (Second sitting)
Thursday 7th July 2022
(2 years, 5 months ago)
Public Bill CommitteesRead Full debate National Security Act 2023 View all National Security Act 2023 Debates 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.)
Genetic Technology (Precision Breeding) Bill (Eighth sitting)
Thursday 7th July 2022
(2 years, 5 months ago)
Public Bill CommitteesRead Full debate Genetic Technology (Precision Breeding) Act 2023 View all Genetic Technology (Precision Breeding) Act 2023 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 7 July 2022 - (7 Jul 2022)
The Committee divided: - Ayes: 3 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 7 - Question accordingly negatived.
Daniel Zeichner (Cambridge) (Lab)
I beg to move amendment 21, in clause 26, page 16, line 29, leave out “may” and insert “must”.
The Chair
With this it will be convenient to discuss the following:
Amendment 22, in clause 26, page 16, line 31, leave out “may” and insert “must”.
Clause stand part.
Daniel Zeichner
It is a pleasure to continue under you in the Chair, Mr Stringer, and it is always a pleasure to see the hon. Member for Banbury, who is now the Minister for our proceedings. Obviously, these have been difficult days for Members on the Government Benches, and I extend my sympathies to the hon. Member for Bury St Edmunds (Jo Churchill). I hope that Members will agree that the spirit in which we conducted our proceedings on Tuesday was constructive. We probed the Government’s intentions, and we will continue to do so and seek to improve the legislation this afternoon.
This clause represents a significant aspect of the Bill and we welcome it, although we note that a number of Government Back Benchers expressed concern on Second Reading. I will speak to our two amendments but also more broadly about the principles underlying these clauses as we see them and why we think that they are integral to the overall package.
Much has been said about the strength of the food and public health measures in the Bill and the fact that the Food Standards Agency will have a role to play in ensuring that any precision bred organisms that reach supermarket shelves are adequately regulated. Part 3 of the Bill, which we are discussing now, covers the food and feed produced from precision bred organisms, and clause 26 concerns regulation of food and feed produced from precision bred organisms—an area on which, as I have said, much has been promised.
We have already talked frequently—I am sure that the Minister has read the record of the proceedings from the other day—about the example of tomatoes fortified to contain higher levels of vitamin D, and I think we have agreed that it is important that information for consumers in such cases is managed carefully. But before getting to that point, we must ensure that any foods created with precision bred organisms are safe for human consumption.
As I said on Second Reading, I am particularly proud that a Labour Government established the Food Standards Agency; I think that it does an excellent job. I will say a little more later about its potential role, but I do think that we have high standards here in the UK and we also have trust, and that is in no small part down to the work and reputation of the Food Standards Agency.
However, I am expressing concern about the current wording of subsection (1) precisely because, although it confers on the Government the option to create provision for regulating the placing on the market of food and feed produced from precision bred organisms, it does not make that mandatory. In other words, although the Bill makes regulation of precision bred food and feed a possibility, it leaves it open to the Government not to take up that power should they not desire to do so. Our amendment 21 would change the subsection’s language from “may” to “must”, so that the Government were mandated to take up the power; that would not be optional.
I do not think this is a minor point. All the subsections conferring delegated powers do so by stating either that the Government “must” take up the power or that they “may”, so a decision clearly has been taken about which powers should be mandatory and which ones optional. In my very helpful meetings with the former Minister, she told me that close attention had been paid to the clauses conferring delegated powers and that the language around these had been chosen very specifically. I feel that this is an area where take-up of the power should be mandatory and that the language should be amended.
We heard evidence in the evidence sessions that backs up this position. Professor Robin May, chief scientific adviser at the Food Standards Agency and a professor of infectious disease at the University of Birmingham, said that
“it is important to be sure that”
precision bred
“products are safe…The entire point of this technology is to do things that could have been achieved through traditional breeding, but much faster. It is important that we have safety checks along that pathway.”––[Official Report, Genetic Technology (Precision Breeding) Public Bill Committee, 28 June 2022; c. 19, Q27.]
This amendment is also in line with the public polling and research that the Food Standards Agency has conducted. Professor May said that there is a
“really strong view that the public want some level of regulation and safeguards in this”.––[Official Report, Genetic Technology (Precision Breeding) Public Bill Committee, 28 June 2022; c. 19, Q28.]
Therefore I am not convinced that the public will be reassured to know that the Government might create a regulatory system for precision bred food but they also might not. The public want certainty, as do producers who will be embarking on the process of creating and then marketing precision bred products. Our amendment 21 would achieve that.
Subsection (2) lists the sorts of things a regulatory framework for precision bred food would achieve. Again, however, this is a “may” or “might”, instead of a “must’ and “will”. The subsection contains issues as important as traceability and imposing
“requirements for the purpose of securing traceability in relation to food and feed produced from precision bred organisms that is placed on the market in England”.
Without the ability to trace products, how will we be certain that we can remove any that have unexpected health consequences? How will we reassure organic producers and those who do not want to have precision bred inputs in their supply chain? It makes little sense to outline this level of detail in the Bill, which we welcome, without the commitment to take them up. That is all the more so because the Government’s language suggests that there is a firm commitment in the Bill—the Minister is nodding, so I suspect that is what she will tell us—when the actual wording does not really say that. On Second Reading, the Secretary of State said:
“The Food Standards Agency will”—
—not may—
“also conduct a very thorough and comprehensive assessment of any food safety issues. I think that will give people the reassurance they need.”—[Official Report, 15 June 2022; Vol. 716, c. 376.]
Although we have not tabled further amendments to the clause, because we are debating the clause stand part simultaneously I will also mention that subsection (6) only makes it a possibility, not a certainty, that the FSA will conduct the “thorough and comprehensive assessment” to which the Secretary of State referred. Perhaps what he should have said is that the Bill gives the Government the option to create regulations regarding food, and powers for the FSA to manage them, but that they have yet to make their mind up and that it would be perfectly compatible with the Bill for them to choose not to do it at all. If it is something that will definitely happen, why not make it an actual commitment in the Bill by changing “may” to “must”? I recall that we have had this discussion once or twice before in previous sittings of the Committee.
I suspect the Minister will be reassuring—she is very good at that—but we seek certainty. We welcome the detail that the Food Standards Agency has provided on how it might go about setting up such a system if the powers are used by the Government. It issued a helpful publication earlier this week, which I suspect members of the Committee have seen, although that too will need further discussion, because it has proposed two tiers of checks, with tier 2 checks being engaged when a precision bred organism has been created
“in which there is likely to have been a significant change in the composition of the product that is typically eaten. Such changes that may, for instance, include alterations to the type or level of nutrients or allergens within the product to a level beyond that usually seen in products based on conventionally bred organisms… Here further evidence of safety and a more detailed risk assessment would be required prior to an authorisation decision”.
Although that is reassuring, some people will question who will make the initial judgment about what constitutes “significant change”, and how such a decision will be arrived at. However, it fleshes out the thinking, which is welcome. It is a shame that, because of the “may” and “must” issue, we do not see any guarantee in the Bill that the FSA will even have the opportunity to play a role, or that there will be a regulatory system for food in the first place, so I would welcome reassurances from the Minister.
The Minister for Farming, Fisheries and Food (Victoria Prentis)
It is a great pleasure to serve under your chairmanship, Mr Stringer, and I would like to provide the hon. Gentleman with reassurances. He and I have discussed many times the “may” and “must” issue in the context of the Agriculture Act 2020, the Fisheries Act 2020 and, I believe, the Animal Welfare (Kept Animals) Bill.
It is indeed vital that the Bill gives the necessary power for regulations to be made to enable the Food Standards Agency to ensure that, as the hon. Gentleman said, the food we eat is safe for human consumption. My Department has spoken in depth, and many times, to the Food Standards Agency about this matter, and I did so myself this morning in preparation for this afternoon’s sitting. I have been fully reassured that any measures that are proposed will be taken up by the FSA and will be proportionate and appropriate. The FSA is committed to open and transparent policy making, which will be wholly evident as it continues the process of building the new framework. Work is already under way to make sure that the right stakeholders are involved, including officials in Wales and Northern Ireland, and Food Standards Scotland. They will be able to shape the frameworks and how they operate in practice.
There are already existing provisions in general food law for securing traceability of food and feed at all stages of production, processing and distribution. Businesses wishing to market precision bred food and feed will of course need to comply with the existing legal provisions. The Bill includes the option to impose specific requirements for securing traceability, if they are deemed a good idea. That will allow the FSA to consider new methods of traceability as the science develops, future proofing the Bill in the context of further innovation, about which we have not yet thought. I urge members of the Committee to consider the evidence that they heard last week and the vital work that the FSA does to protect our consumers. I therefore ask the hon. Member to withdraw amendments 21.
On clause 26 stand part, innovation in our food and feed industry is developing at a faster pace than we have ever seen before. New technologies, as the Committee has heard many times, enable us to utilise better and more sustainable production methods. It is vital that appropriate measures are in place to ensure that consumers can trust the food that they eat. The regulatory framework has been inherited from the EU. Now that we are forging our own path, it is vital that the framework provides consumers with food they can trust and also keeps pace with new technologies.
The framework for regulating genetically modified organisms, which, as we all know, precision breeding technologies currently fall within, does not adequately reflect the lower risk profile of PBOs, where such organisms are often indistinguishable from products that could be produced using traditional breeding methods. The clause will allow the FSA to build a framework that responds to the lower risk profile of PBOs. I beg to move that the clause stand part of the Bill.
Daniel Zeichner
I welcome the Minister’s reassurances, although I am not sure she really addressed the “may” and “must” issue. On this particular occasion, it would have been straightforward for the Government to say what was going to happen. Although I see the opportunity through secondary legislation to take account of changing technologies, which we all recognise is likely to happen pretty quickly, it is essential that provisions and safeguards are put in place. On that basis, although I do not feel the need to push amendment 22, I would like to test the view of the Committee on amendment 21.
Question put, That the amendment be made.
Daniel Zeichner
I beg to move amendment 23, in clause 27, page 18, line 16, leave out “may” and insert “must”.
The Chair
With this it will be convenient to discuss the following:
Amendment 24, in clause 27, page 18, line 20, leave out “may” and insert “must”.
Amendment 25, in clause 27, page 18, line 26, leave out “may” and insert “must”.
Clause stand part.
Daniel Zeichner
Our amendments to this clause follow a similar line of reasoning as the previous ones. They continue the discussion around whether the provisions must be introduced or simply might be.
Clause 27 is about the food and feed marketing authorisations register. Extensive reference has been made to that register throughout the passage of the Bill and during the evidence sessions. The Bill would confer a delegated power on the Government to make provision to require the Food Standards Agency to establish and maintain a public register containing information regarding information concerning food and feed marketing authorisations. I have already said many times why I think access to information is important, and will help give confidence to consumers and those farming in ways that require separation from those using gene edited organisms.
We also think the register could be helpful in tackling some of the devolution issues that were referred to in the evidence sessions. The central provisions of the Bill apply to England only, but the Welsh and Scottish Governments were consulted at very late stages. Both Governments have raised concerns that the mutual recognition principle of the United Kingdom Internal Market Act 2020 will mean that it will be possible to legally place precision bred food on the Welsh and Scottish markets even if the Welsh and Scottish Governments choose not to adopt the changes contained in the Bill, which obviously presents a challenge. It is for the Government to resolve that challenge, but I would have certainly liked to have seen them consult the devolved Administrations earlier and in a more constructive manner.
However, in the absence of a solution to that problem, while precision bred products will be able to be legally placed on the market in Scotland and Wales, I imagine that some supermarkets and shops may decide that they want to operate within the spirit of Scottish and Welsh legislation and not stock precision bred products on their shelves, as is their right. The register of foods authorised for sale may help companies address that conundrum—certainly, without it, it is hard to see how they could do so without setting up very expensive parallel production systems, which might simply not be practical in many cases. In other words, a chain of unintended consequences might follow, which I do not think anyone would wish to see.
As I said on Second Reading, in the modern world, consumers increasingly want more information about the products they are buying. We can see that reflected in the market, such as the rise of environmental information on product labels. We will discuss labelling later when we debate one of our new clauses, but as I anticipate that that new clause might not be adopted by the Government, the register will be the only source of information for consumers and businesses looking to gain information on these products. As such, it is a pretty key provision of the Bill.
In our evidence sessions, Professor May of the Food Standards Agency said:
“The idea behind the register is to have a public awareness of the products that are going through this pathway and are ultimately out on the market, in a similar way to the public registration of foods at the moment…My view as a scientist is that this should be the same for precision breeding. We should have a register that says, ‘Here is a product that has been considered. We have looked at it; it hasn’t rocked up without any kind of due diligence around it.’ It is there in the public domain for people to see what process it has gone through and be reassured that those products have had some level of scrutiny.”—[Official Report, Genetic Technology (Precision Breeding) Public Bill Committee, 28 June 2022; c. 24, Q40.]
That is absolutely right. He continued,
“there will be some consumers who have strong views on this, and they may or may not wish to purchase something accordingly. It is important that the information is available for them, so that they can pause if they want to and find out. Even if most people do not, it is available, should they wish to do so.”—[Official Report, Genetic Technology (Precision Breeding) Public Bill Committee, 28 June 2022; c. 24-25, Q41.]
Again, that seems absolutely right to me.
The FSA clearly thinks there is a strong basis for establishing the register, as borne out by the evidence it has seen. Despite that, clause 27 only makes the register a possibility, rather than a certainty; it is a provision that the Government may take up, but not one that they must take up. As we go around this perpetual loop again—I have forgotten how many Bills have given rise to this discussion—perhaps the Minister can explain exactly why she thinks the wording should only be “may”, rather than “must”. With the number of key provisions that are being put not only into secondary legislation, but into secondary legislation that the Government are not even bound to introduce, there is a risk that some people looking at the Bill could say that there is a gap between the safeguards that are being promised and the reality that is being delivered.
I am sure the Minister will be affronted by such a suggestion, but as ever, salvation is at hand. Amendments 23, 24 and 25 would amend each subsection of clause 27 so that the Government must engage the provisions contained therein, rather than may. We think the register is a key element of the Bill, especially considering the Government’s stance on labelling, and so there must be a strong commitment within the Bill itself.
Deidre Brock (Edinburgh North and Leith) (SNP)
This will be a short contribution. The hon. Gentleman referred to the Scottish and Welsh Governments’ views on the situation. He will be aware that clause 27 just talks about the Food Standards Agency and the Secretary of State, and does not cover Food Standards Scotland, Scottish Ministers or indeed Welsh Ministers. With that in mind, I hope he will look carefully at new clause 9 and my amendment 37, which is coming up, because they will neatly address the problems he referred to.
Victoria Prentis
I completely agree that it is vital that this Bill should grant the necessary power that will enable regulations to be made to allow the FSA to ensure trust in food, as I said earlier. In addition to a proportionate framework for the regulation of PBOs, it is important that consumer confidence is assured. We feel that a transparent public register for precision bred food and feed will do just that.
On the “may” and “must” point, I apologise; I thought we had been through this so many times that the hon. Member for Cambridge would not want me to say it again. It is rather like the conversations we can have with members of our families, when they say, “Please be quiet. You’ve told us that 3,000 times already!” Perhaps that is only me.
Victoria Prentis
I am very happy to explain the role, as I am many other things—not fighting with one’s younger sister, for example.
The role of the FSA is enshrined in law. Its purpose is to provide food safety and consumer confidence. In our view, “must” is therefore not necessary. We are working with the FSA on this, and it has a role and a duty to provide consumer confidence, which is why we are completely assured that it will maintain this register, as it maintains other registers and keeps them regularly updated. To that end, members of the Committee may be reassured by the evidence of Professor Robin May, which the hon. Gentleman referred to. The professor spoke at length about the need for transparency within the register and how it will provide consumers with the information they need. We feel that is very important.
The FSA is committed to food safety. It is equally committed, as was explained in evidence, to using these powers in a proportionate way that both supports innovation and protects consumers. We are convinced it will deliver a food and feed register that gives consumers the information they need. We therefore do not feel that the amendments are necessary.
On clause 27, we feel that genetic technologies such as precision breeding present opportunities for innovation. Setting out a clear framework for the regulation of precision bred organisms will help ensure that we maintain that really important public trust. The clause will introduce powers that will provide transparency for consumers, the industry and enforcement bodies through the establishment of the public register. In addition to the register, which will be established under clause 18, the food and feed register will give extra clarity about PBOs are being used in food production.
The international market for PBOs is growing quickly, and countries recognise the need to align their regulatory frameworks. Establishing a register will be seen as a positive step by our international trade partners, who are keen to see that we are open for business and ready to accept imports of precision bred crops in this market. As the hon. Gentleman knows, we rely on a certain amount of agricultural food and feed imports, and we hope the Bill will facilitate trade with large exporters such as Argentina, Brazil, Canada, the US and Australia, which already have established regulatory frameworks.
We will come to the point made by the hon. Member for Edinburgh North and Leith later when we discuss new clause 9. The register will make clear the nation in which the authorisations apply. Authorisations, including on the register, will be indicated as enforced in England only. However, the UKIM Act 2020 means that market access principles will apply for PBO goods produced in or imported into England that can be lawfully sold here. That will allow those goods to be sold on the Scottish and Welsh markets. This clause will grant the power required to allow the FSA to establish a register that will give the required transparency.
Daniel Zeichner
Normally I find myself generally reassured by the Minister, but on this occasion, as a consequence of her comments, I am less so.
Daniel Zeichner
Indeed. I am afraid that however many times she tells me about “may” and “must”, I am still not convinced. On a day when trust in politics is pretty central to a public conversation, she will be unsurprised to find that the Opposition are not entirely convinced.
On a separate point about growing trade with some of the countries that the Minister noted, I am not sure I am reassured about the standards of some of those countries or that we want to import more from them—particularly precision bred food or that subject to standards that may be different from our own. That opens up a whole series of issues. The Opposition are clear that we want to grow and produce more here, and we do not want to be moving towards importing more from other countries that are producing to standards different from our own. Far from being reassured, I will go away and look very closely at what has been said, because it rather confirms a direction of travel that the Opposition are not comfortable with.
On that basis and in the spirit of not wanting to take too much time from the Committee, I beg to ask leave to withdraw amendments 24 and 25, but I will press amendment 23 to a Division.
Question put, That the amendment be made.
The Chair
With this it will be convenient to consider the following:
Clause 29 stand part.
Clause 30 stand part.
Victoria Prentis
Briefly, the Bill has so far introduced provision to ensure that PBOs will be subject to pre-market assessments that are proportionate to the level of risk posed. However, the role of the regulator does not stop with authorisation, and measures must be put in place to ensure compliance with any conditions that are imposed on the marketing of these products. It is essential that enforcement bodies have the appropriate powers to monitor compliance and investigate suspected failures to comply.
Question put and agreed to.
Clause 28 accordingly ordered to stand part of the Bill.
Clauses 29 and 30 ordered to stand part of the Bill.
Clause 31
Meaning of “relevant breach” etc
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider the following:
Clause 32 stand part.
Clause 33 stand part.
Clause 34 stand part.
Clause 35 stand part.
Clause 36 stand part.
Clause 37 stand part.
Clause 38 stand part.
Victoria Prentis
Very briefly, these clauses cover the enforcement measures in the Bill. They provide powers for “relevant breach” and “relevant obligation” and they define those terms. They provide powers to make regulations on enforcement, set out the powers for regulations to provide compliance notices and set out provisions that must be included in regulations and stop notices. They also set out provisions that must be included in regulations that provide for monetary penalty notices and in respect of enforcement notices, and they enable enforcement notices to be issued to provide for reviews and appeals. They address how the new regulatory regime might recover the costs incurred of dealing with non-compliance. I commend all eight clauses to the Committee.
Deidre Brock
I want to ask the Minister about something that the hon. Member for Bury St Edmunds (Jo Churchill) said the other day on the meaning of a relevant breach. I do not expect the Minister to be able to provide me with an answer straight away, but I would be grateful if she could write to the Committee or give us further information on that matter. The previous Minister reassured us that precision bred organisms may not contain exogenous DNA, so the question was: would the release of an organism that still contains exogenous DNA, or any kind of DNA, constitute a relevant breach? If we could get an understanding of that at some stage, I would appreciate it.
Victoria Prentis
As I am not absolutely certain about that conversation the other day, with your leave, Mr Stringer, we will write to the hon. Lady on this occasion.
Question put and agreed to.
Clause 31 accordingly ordered to stand part of the Bill.
Clauses 32 to 38 ordered to stand part of the Bill.
Clause 39
Fees
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clause 40 stand part.
Clause 41 stand part.
Clause 42 stand part.
Victoria Prentis
This group covers administrative clauses regarding fees and notices, provisions to allow PBOs not to be treated as GMOs under the Environmental Protection Act 1990, and subsequent necessary powers. I reassure the Committee that we do not intend to charge fees initially in order to incentivise innovation and investment in PBOs, but we will keep that under review. If fees are introduced later, they will be set at a cost recovery level. I commend the clauses to the Committee.
Daniel Zeichner
I would like to speak briefly on clause 42, as it contains one of those notorious Henry VIII clauses, which need to be considered carefully. The clause concerns powers to make consequential provisions. Subsection (2) says,
“Regulations under this section may modify legislation.”
We have had this debate many times before about the procedural and technical elements of the Bill, which are thin and constitute poor legislative practice in general, because many of the key provisions are not properly spelled out in the Bill. As we have said, many of the secondary powers are merely optional.
Clause 42 is problematic because it gives Ministers the power to change and amend primary legislation without having to go through the normal scrutiny processes. This is a familiar argument, but it bears repeating—not least because the Minister today will be well aware of the issue and would, no doubt, berate me if I made such a proposal. These clauses shift power away from Parliament towards the Executive, so they clearly need to be strongly justified.
I understand that some elements of the Bill would amend primary legislation in an administrative way, but I still think it is right that the Minister should justify her use of this subsection, given that it would give her Government wide, sweeping powers, which could also be applied in a non-administrative way. It is a question worth addressing.
It is also a question the Government will have to answer when the Bill comes to the Lords. The Delegated Powers and Regulatory Reform Committee will consider whether any of the Bill’s provisions inappropriately delegate legislative power, and the Government will have to provide the Committee a memorandum identifying the purpose of each delegation, providing the justification for leaving the matter to delegated legislation and explaining why the proposed level of parliamentary control is thought to be appropriate.
I am sure the Minister will be pleased to know that I have looked at the memo from the Department to the Delegated Powers and Regulatory Reform Committee, which I suspect the Minister may read out in a moment. I was not entirely convinced by the previous Minister’s arguments on these points. Given that the Lords Committee pays particular attention to any proposal in the Bill that uses a Henry VIII clause, because of the way it shifts power, I hope she will be able to provide me with further justification while we in the Commons have the opportunity to scrutinise the Bill.
Victoria Prentis
I completely understand the hon. Gentleman’s feelings about Henry VIII clauses. I think it is right that they are used judiciously and carefully.
To turn to clause 42 specifically, precision bred organisms are currently regulated by many GM legislative instruments that will need amending to reflect the changes made by the Bill. They will in the main be very technical amendments that will merely reflect the changes that we make if the Bill is passed. There are also references to GM organisms in numerous legislative instruments that will need adjusting, for the same reason. Other parts of law are passed, and GM references feature in many different forms of our legislative framework. The power in clause 42 enables the Government to make reasonable, proportionate and technical amendments. In that light, I urge that the clause stand part of the Bill.
Question put and agreed to.
Clause 39 accordingly ordered to stand part of the Bill.
Clauses 40 to 42 ordered to stand part of the Bill.
Clause 43
Regulations
Daniel Zeichner
I beg to move amendment 26, in clause 43, page 28, line 6, at end insert—
“(7) Regulations under this Act must be made in accordance with—
(a) the environmental principles set out in section 17(5) of the Environment Act 2021, and
(b) Article 391 (Non-regression from levels of protection) of the Trade and Cooperation Agreement between the United Kingdom of Great Britain and Northern Ireland, of the one part, and the European Union and the European Atomic Energy Community, of the other part, done at Brussels and London on 30 December 2020.”
The Chair
With this it will be convenient to discuss amendment 27, in clause 43, page 28, line 6, at end insert—
“(7) No regulations may be made under this Act unless—
(a) a policy statement on environmental principles has been laid before Parliament under section 18(6) of the Environment Act 2021, and
(b) section 19 of the Environment Act 2021 is in force.”
This amendment would prevent the exercise of any powers granted by the Bill until the Government’s policy statement on environmental principles has been finalised and Ministers are under a statutory duty to have due regard to it.
Daniel Zeichner
Some Members may have found the previous conversations slightly dry.
Daniel Zeichner
However, now we are getting to some really interesting points. We have tabled two amendments that would insert additional subsections into clause 43 with regard to the environmental principles of the Environment Act 2021 and the non-regression principle laid out in the 2020 trade and co-operation agreement between the United Kingdom of Great Britain and Northern Ireland and the European Union. Veterans of the Environment Act proceedings will recall extensive discussion of those issues, and I suspect that one or two Government Members will rise to the defence of the trade and co-operation agreement, particularly the non-regression clauses.
This is quite technical, but it is important because it is about upholding the standards that we have committed to in both domestic legislation and international agreements. It is about upholding the promises that we have made. Arguably, it is one of the reasons why the previous Minister is not here today. These are serious issues and, as she put it, a
“jocular self-serving approach is bound to have its limitations.”
How right she was. Our amendments highlight some of those limitations.
The first of these relates to the Environment Act 2021 and specifically the Government’s obligations under sections 17 to 19. Section 17 states:
“The Secretary of State must prepare a policy statement on environmental principles”
to be interpreted and applied in the making of Government policy. Section 17(5) lays out a definition of “environmental principles”, which include
“the principle that environmental protection should be integrated into the making of policies…the principle of preventative action to avert environmental damage…the precautionary principle, so far as relating to the environment…the principle that environmental damage should as a priority be rectified at source, and…the polluter pays principle.”
Some Members will recall extensive discussion in the Environment Act proceedings as to exactly what that meant.
Section 18 details the timeframe for the policy statement, and section 19 details the obligations that Ministers are under once the statement is finalised. Section 19(1) states:
“A Minister of the Crown must, when making policy, have due regard to the policy statement on environmental principles currently in effect.”
The problem is that the Government have yet to finalise the statement. A draft was published in May 2022, but we are yet to have a response from the Secretary of State, or the final version of the policy statement. Sadly, the Minister who issued the press release about the statement, the hon. Member for Taunton Deane (Rebecca Pow), is no longer in her place, either.
The Environment Act was heralded by the Government as “World-leading”—remember that? The Prime Minister hailed it as the most ambitious environmental programme of any country on earth, neatly timing Royal Assent to the Bill with the COP26 summit hosted in Glasgow. However, a raft of policies in this sphere and specifically in the Department for Environment, Food and Rural Affairs have been brought forward that will have significant impacts on the environment, before the Government have fulfilled their obligations under the Environment Act.
The Government cannot have it both ways. They cannot hail the success of their environmental legislation, while failing to follow through on it or deliver on its aims and failing to hold themselves accountable in their creation of policy to the obligations that were set out. Great claims have been made, but they are not being followed through.
Amendment 26 would help the Government out. It would ensure that regulations under the Bill are made in accordance with the environmental principles set out in section 17(5) of the Environment Act. Amendment 27 would ensure that no regulations may be made under the Bill unless the policy statement has been finalised and laid before Parliament, and Ministers are under an obligation to pay due regard to it. I look forward to enthusiastic support from those on the Government Benches to furthering the aims of their own legislation.
Amendment 26 concerns article 391 of the trade and co-operation agreement between the UK and the EU, which was agreed in December 2020—I am sure the Minister remembers it well. Chapter 7 of the TCA covers environment and climate, and defines environmental levels of protection as
“the levels of protection provided overall in a Party’s law”—
that refers to the parties to the agreement, before anyone gets any ideas—
“which have the purpose of protecting the environment including the prevention of a danger to human life or health from environmental impacts”.
The TCA then lists some specific examples, some of which would concern this Bill. Those include:
“the protection and preservation of the aquatic environment”
and
“the management of impacts on the environment from agricultural or food production”.
Each party in the agreement—the EU and the UK— committed to
“the principle that environmental protection should be integrated into the making of policies”,
as well as to “the precautionary approach” and
“the principle that environmental damage should as a priority be rectified at source”.
Article 391 of the TCA sets out the rules on non-regression from these levels of environmental protection. It allows
“each Party…to determine the environmental levels of protection and climate level of protection it deems appropriate and to adopt or modify its law and policies in a manner consistent with each Party’s international commitments”.
However, the TCA also aims to prevent either party from weakening environmental legislation below the levels in place at the end of the transition period:
“A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its environmental levels of protection or its climate level of protection below the levels that are in place at the end of the transition period, including by failing to effectively enforce its environmental law or climate level of protection.”
I am not a lawyer, although the Minister is, as I have often pointed out, but it seems to me that the non-regression rules allow the UK to argue that it is allowed to change its regulation on precision breeding to create the new category we are discussing, that it can do so safely and that there is an environmental case for doing so. However, while we may argue that, some may equally argue—we heard this in the evidence sessions—that doing so poses environmental risks. Although the Bill attempts to manage those, and we broadly agree they could be managed, the safeguards should be strengthened. My point is that there are potential grounds for disagreement.
It also seems that the EU could make a determination on how the UK has moved, carry out an assessment itself on the balance of risks and benefits, and make a judgment on whether we have adhered to the non-regression rule. Given that we trade with the EU extensively, and this element of the TCA explicitly references impacts on trade, I hope the Minister will be able to explain the Government’s assessment of how the Bill will interact with the TCA, whether parity is maintained and whether there will be any trade repercussions as a result.
The other day, I quoted the impact assessment on the economic consequences of the EU taking a different view, and I want to go back to that. Although the text was printed in Hansard, I am not sure that I presented those details with quite the force I should have done. Paragraphs 144 to 146 of the impact assessment, on page 48, in the section “Assessment of likely EU response”, are frankly staggering. The Government appear to be prepared to concede that, if there were a disagreement, our markets—our exports to the EU—would in effect be closed. Paragraph 146 states:
“Approximately 55% of all crop-related food exports from the UK are to the EU…And so, it would be difficult to replace EU demand”—
you’re telling me it would be difficult! It goes on:
“Therefore, there is a possibility for a portion of the £8.56 billion worth of crop-related exports to the EU to decrease”.
But most staggeringly of all, that is followed by an attitude of, “Well, never mind,” as the impact assessment continues:
“Nonetheless, this represents only 2.5% of our annual total value of exported goods and 5.4% of our annual value of exported goods to the EU. And so, even if UK crop-related food exports are maximally impacted, the overall impact on the UK balance of trade is minimal.”
I find that absolutely staggering and, on behalf of the food and agriculture sector, I invite the Minister to dissociate herself from that aspect of the impact assessment. The impact assessment has a lot of interesting stuff in it, but I suspect a lot of it was not read as closely as it should have been.
Victoria Prentis
I have listened with interest to the points made by the hon. Gentleman. It is not necessary to put either amendment in the Bill, and I will do my best to reassure him as to why that is the case.
The scientific advice is clear that precision breeding poses no greater risk to the environment than traditional breeding. Section 19 of the Environment Act 2021 provides that Ministers must have due regard to the policy statement on environmental principles. DEFRA has already published and laid that statement before Parliament for debate. I understand that that is the draft version, but we have made it clear that our intention is to publish the final version in autumn this year. Therefore, by the time regulations are made under this Bill, the final version of the policy statement will have been laid before Parliament, and section 19 will be in force. It is therefore unnecessary to make a provision that will be meaningless by the time the Bill comes into force.
However, to provide more assurances, let me add that one of the five principles—the precautionary principle—was touched on in the evidence sessions, including by the hon. Gentleman, and I believe that many of the experts are satisfied that it is being met. They include Professor Jim Dunwell, the chair of the Advisory Committee on Releases to the Environment; Dr Alan Tinch; and Professor Gideon Henderson. To quote Gideon,
“the Bill we are putting forward now is precautionary—it follows the guidelines of the precautionary principle. We are not leaping in with both feet, but we are moving in stepwise motion.”––[Official Report, Genetic Technology (Precision Breeding) Public Bill Committee, 30 June 2022; c. 89, Q145.]
In line with the requirements of section 20 of the Environment Act, we have reviewed whether the Bill reduces existing environmental protections. Based on the scientific advice from the independent scientific committee ACRE, our assessment is that the provisions do not have the effect of weakening environmental protections. We published that statement when the Bill was introduced.
I listened carefully to what the hon. Member for Cambridge said about the TCA. The scientific advice is clear that precision breeding poses no greater risk to the environment than traditional breeding, and we therefore believe that the Bill is consistent with our non-regression commitment to the EU. Indeed, the EU is consulting on its own new regulatory framework for precision bred plants. The TCA aims to prevent either party from weakening their environmental protections below the levels that were in place at the end of the transition period. Article 391 states:
“The Parties…shall not weaken or reduce, in a manner affecting trade or investment…environmental levels of protection”.
Katherine Fletcher (South Ribble) (Con)
I am listening to a really good debate. Does the Minister agree that the Bill gives us the opportunity to strengthen our environmental protections, not just to maintain the status quo? It is a great leap forward.
Victoria Prentis
The Government certainly believe that there are real environmental benefits to allowing carefully regulated precision breeding that enjoys public trust, and we are keen to realise those benefits. Although I am sorry that my hon. Friend the Member for Bury St Edmunds (Jo Churchill) is no longer in position, I was pleased to take over the Committee stage of the Bill because, as Farming Minister, I have long taken a close interest in it. I am very excited, for example, by the reduction in pesticide use that may be brought about really quite quickly if we pass the Bill and crack on with appropriate precision breeding. I do not think it is necessary or appropriate for regulations to be made subject to amendments 26 and 27.
Kerry McCarthy (Bristol East) (Lab)
Two things concern me. First, we know that the Secretary of State has repeatedly expressed doubt about the precautionary principle, suggesting that it is implemented in too strong a fashion and that he wants to row back from that. Secondly, in 2017 we were promised these environmental principles imminently. Now, in 2022, we have a draft statement. That suggests that the Government are not keen to get these principles into law and to implement them; rather, they are doing everything they can to drag their feet. Does the Minister not realise why I have concerns about that?
The Chair
Order. If Members wish to make interventions, they should be brief. If they want to make longer interventions, they should try to catch my eye and make a speech.
Victoria Prentis
I understand the hon. Lady’s reservations but I do not share them. The Government have moved as fast as they can, with substantive and lengthy environmentally friendly legislation, much of which the hon. Member for Cambridge and I have discussed at considerable length in Committee and otherwise.
I am proud of the Government’s record on environmental protection. The passing of the Agriculture Act 2020 and the Fisheries Act 2020 will put us on a much more sustainable level in both those industries, in terms of how we apportion public subsidy and how farmers and fishermen grow and fish the food we are proud to enjoy. I am proud of our recent work in the food strategy, where we set out as a Government policy goal the level of self-sufficiency we enjoy at the moment. All that must be read under the overarching protections in the Environment Act 2021, which was also passed by this Government. I am proud of our record.
I will move briefly to clause 43, which provides for the parliamentary procedures to be used when making regulations under the Bill. The clause allows for transitional, transitory or saving provision to be made to ensure a smooth transition from existing arrangements to new ones. That is necessary, because these are complicated pieces of legislation. To reassure hon. Members, I will give one example. Consequential regulations under clause 42 might make provision for entries in the GMO register concerning any qualifying higher plants grown in field trials. Under the changes recently introduced by the Genetically Modified Organisms (Deliberate Release) (Amendment) (England) Regulations 2022, those can then be copied across to the PBO register, which we will have established under clause 18. I therefore beg to move that clause 43 stand part.
The Chair
It is okay. You have made your points, Minister. If any other Members wish to speak on clause 43, that will come later.
Daniel Zeichner
What the Minister said was very interesting, not least because one of the questions we have puzzled over is whether qualifying higher plants fit into this structure. We are beginning to see that it is as a consequence of some of these powers, which are, to put it mildly, obscure. As I commented the other day, it is quite hard to discern the overall structure of this legislation, given how little is in the Bill, so I found her comments quite helpful.
We will not pursue amendment 26, which concerns the trade and co-operation agreement, today. I am sure the matters in that amendment will roll on inexorably—they are complicated. The basic point is that different people can interpret things differently, and that gives the possibility of challenge. That is the problem. I fear we will be locked into these kinds of problems for a long time to come, sadly, and we will need to rely on good will and co-operation with our neighbours, which is important.
My hon. Friend the Member for Bristol East made a very strong set of points on the question of the environmental principles and the link to the precautionary principle. Of course, this debate has been ongoing for a long time. I do not think it is unfair to point out that the Secretary of State sees this—a diminution of the precautionary principle—as a Brexit opportunity. Labour does not agree with that, and we have sought at every opportunity to tease their position out of the Government, but frankly they are saying one thing and doing another.
However, that is a debate that can be conducted another day. Environmental lawyers are looking closely at all of this. It is a complicated area, to put it mildly. I dare say it will be contested and probably determined elsewhere. In the meantime, we will continue to point out that gap. On that basis, I will not press amendment 26, but I would like to put amendment 27 to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 27, in clause 43, page 28, line 6, at end insert—
“(7) No regulations may be made under this Act unless—
(a) a policy statement on environmental principles has been laid before Parliament under section 18(6) of the Environment Act 2021, and
(b) section 19 of the Environment Act 2021 is in force.” —(Daniel Zeichner.)
This amendment would prevent the exercise of any powers granted by the Bill until the Government’s policy statement on environmental principles has been finalised and Ministers are under a statutory duty to have due regard to it.
Question put, That the amendment be made.
Daniel Zeichner
I beg to move amendment 3, in clause 48, page 30, line 18, at end insert—
“(3A) Regulations under subsection (3)(b) may not appoint a day on which any of sections 11 to 15 is to come into force unless the welfare advisory body has advised the Secretary of State that it is satisfied that regulations made under Part 2 establish a proper process to ensure that the health and welfare of animals, and their qualifying progeny, in respect of which a precision bred animal marketing authorisation is made will not be adversely affected by any precision bred trait.”
This amendment would prevent regulations being made on precision bred animals until the welfare advisory body is satisfied that animal health and welfare will be ensured.
I would like to speak briefly on this amendment, which concerns the extent and application of the sea areas. On Second Reading, I raised the fact that there are legitimately held and differing views within the different Administrations in the UK. It is fair to say that the devolved Administrations were not happy with the way this had been handled so far; I suggested that
“the Government should tread carefully.”—[Official Report, 15 June 2022; Vol. 716, c. 382.]
As I have said today, the regulation of genetically edited organisms is a devolved matter. The central divisions of the Bill apply to England only, but the Welsh and Scottish Governments were consulted at a late stage. Based on evidence I heard in this Committee, it is clear that the frustrations with the Government’s approach to co-operation with the devolved Administrations are ongoing. I am disappointed that the Government did not consult the Welsh and Scottish Governments earlier, as I said before, and that they have not laid out more detail, in either the explanatory notes or the impact assessment accompanying the Bill, as to the precise impact it will have on Wales and Scotland and any proposed mechanisms moving forward.
The Opposition have tabled a new clause on labelling, and we have already raised a point about how some of the information-sharing provisions in the Bill could be strengthened to facilitate supply chain tracking and coexistence. I hope that the Minister will say more about the Government’s discussions with the devolved Administrations and the plans they have.
Victoria Prentis
Are we speaking only to amendment 3? I thank the hon. Gentleman for tabling the amendment. I can assure him that the Government are committed to appointing a welfare advisory body that will provide expert scientific advice to the Secretary of State, as set out in clause 22. We want to ensure that the body will be functionally independent and that it will provide scientific advice. We are committed to appointing a body with the most suitable expertise for the role. We will work closely with existing animal welfare experts, such as the Animal Welfare Committee, to ensure that there is a rigorous and proportionate system to safeguard animal welfare.
Daniel Zeichner
In responding to the Minister’s excellent contribution, I should explain that what I said previously relates to clause 47 and so can be ignored—I managed to speak to completely the wrong clause, which of course happens late in the day.
Daniel Zeichner
I am not surprised. I will try to find my way back to the right clause.
Amendment 3 is relatively straightforward. It would prevent regulations being made on precision bred animals until the welfare advisory body is satisfied that animal health and welfare will be ensured. I have previously cited evidence in which DEFRA itself admits that the elements of the Bill relating to animals that are delegated to secondary legislation are not yet fully investigated or prepared. Sadly, we have been unsuccessful in removing the animals from the scope of the Bill. In the absence of that, we have tabled a series of amendments that would provide a check and balance on any secondary legislation, especially given that some of it will be subject to the negative procedure.
The Government have emphasised that the welfare advisory body provided for in the Bill will be composed of experts in their field. The Opposition think that it seems sensible for the body also to play a role in determining the effectiveness of the Government’s proposal on animals, and that is what the amendment seeks to achieve.
I am conscious that I am responding to the Minister. I heard what she said. I do not entirely agree, but given that I have not explained it very well, we will let this one pass. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Deidre Brock
I beg to move amendment 37, in clause 48, page 30, line 20, at end insert—
“(5A) Regulations may not be made under or by virtue of this section unless a common framework agreement relating to the release and marketing of, and risk assessments relating to, precision bred plants and animals, and the marketing of food and feed produced from such plants and animals, has been agreed between a Minister of the Crown, the Scottish Government and the Welsh Government.
(5B) “Common framework agreement” has the meaning given by section 10(4) of the United Kingdom Internal Market Act 2020.”
This amendment would prevent the operative parts of this Bill coming into force until a common framework agreement on the regulation of precision breeding had been agreed between the UK Government and the Scottish and Welsh Governments.
The Chair
With this it will be convenient to discuss new clause 9— Power of the Scottish Parliament to legislate on the marketing of precision bred organisms—
‘(1) Schedule 1 of the United Kingdom Internal Market Act 2020 is amended as follows.
(2) After paragraph 11 insert—
“Marketing of precision bred organisms
11A The United Kingdom market access principles do not apply to (and sections 2(3) and 5(3) do not affect the operation of) any Act of the Scottish Parliament, or any subordinate legislation made under or by virtue of such an Act, relating to the marketing of—
(a) precision bred organisms, or
(b) food or feed produced from precision bred organisms.”’
Deidre Brock
As has been stated, this is English legislation. As I said on Second Reading, the regulation of genetically modified organisms is a devolved matter—no ifs, no buts. That has been clear from the responses from the Welsh and Scottish Governments. The Scottish Government have been clear in their opposition to the UK Government’s moves on this. They do not presently intend to amend the GMO regulatory regime in Scotland to remove categories of products currently regulated as GMOs while they sensibly await the outcome of the EU’s consultation on whether some gene-edited organisms will be excluded from the GM definition. No one in Scotland wants to see further barriers to trade with our largest trading partner, but as the hon. Member for Cambridge mentioned, there are clear indications in the impact statement that that is a very likely outcome of having different approaches. It should be further noted—we have not really discussed this to any great extent—that the EU is currently considering only plant-based GEOs, not animals.
The potential impact of the Bill on Scotland through the United Kingdom Internal Market Act 2020, as referred to by the Minister, must be recognised. If the Scottish Parliament did not ultimately decide to allow gene edited organisms to be sold, Scotland would still be prevented under the Act from stopping those products being sold in our shops. That, of course, is exactly the kind of scenario that the Scottish National party warned against when the legislation was forced through this place.
As the UK Government’s own impact assessment for the Bill acknowledges, removing gene edited products from England’s regulatory regime for GMOs would mean divergence from the current EU approach. As such, it would have implications for compliance, costs and future trade. New trade barriers could also come in the form of checks and certification requirements on UK food exports entering the EU’s single market, which could affect not only products exported to the EU that contain precision bred plant material, but those in the same product categories that do not—something that, again, emphasises the importance of labelling and traceability, which I will address a little later.
The Scottish Government have made it clear that they intend to stay aligned with EU regulation as far as possible and practicable. The UK Government’s refusal to commit to dynamic alignment with the EU has already led to significant trade impacts and costs for Scottish businesses. For example, Scottish businesses have written to the UK Government on numerous occasions regarding the losses to the multimillion-pound Scottish seed potato industry from being unable to access the EU export market, yet there has been very little progress in re-establishing that trade. There are many other examples I could mention. We do not want to erect further barriers to our largest market, so we are waiting to see the position as the EU progresses its review, including its consultation.
If the EU retains its current opposition to gene editing, there are concerns about, for example, the export of Scottish salmon—a huge export product to Europe, and particularly to France. It has been suggested that products might be considered on a product-by-product basis, but there is little detail for us to scrutinise that and to examine potential costs and logistics challenges. In the meantime, the SNP Scottish Government, and indeed the Welsh Government, simply insist that the devolution settlement is respected.
Andrew Bowie (West Aberdeenshire and Kincardine) (Con)
Nobody disputes that it is within the devolved competencies for the Scottish Government to determine genetic modification in Scotland, but if the European Union did change—we heard in evidence that it is considering doing so, and one of the worries of some of the people who gave evidence was that the UK would be left behind if we did not remove the legislation now—would the SNP be prepared to consider accepting the Bill and working with the UK Government, so that we stick together?
Deidre Brock
That is exactly why the Scottish Government intend to wait for the outcome of the consultation, and why we would like to see the UK Government doing similarly. I would point to the New Zealand Government, who undertook a really extensive consultation with stakeholders, consumers and citizens generally. Ultimately, they chose to continue to include gene edited organisms within their definitions of genetically modified organisms. The outcomes are by no means guaranteed, and I think the precautionary principle should be applied here as well.
New clause 9 would amend the United Kingdom Internal Market Act to ensure that the Scottish Parliament’s authority to legislate in the marketing of precision bred organisms is upheld. Similarly, amendment 37 would prevent the operative parts of the Bill coming into force until a common framework agreement on precision breeding has been agreed between the UK Government and the Scottish and Welsh Governments.
I would be really grateful if the Minister—I appreciate that she is very new to her post—could offer an explanation for why common framework procedures prior to the Bill’s introduction were not followed before it was introduced. As the Minister will know, the Scottish and Welsh Governments repeatedly requested sight of the draft Bill, but it was introduced to Parliament before that happened. That is simply not the action of a Government who respect devolved Governments, and I would be grateful if the Minister also provided an explanation for that.
Victoria Prentis
On amendment 37, the regulation of GMOs is, as we have heard, a devolved matter. We have invited the Scottish Government and the Welsh Government to join us in bringing forward the Bill. If they took up our offer, it would provide confidence to investors who are looking to support Scottish and Welsh research into precision breeding.
A common framework covering GMO marketing and cultivation was within scope of the common frameworks programme, but all four Administrations agreed that a common framework was not required because the administration and co-ordination of this policy area was provided for through existing inter-governmental arrangements under the GMO concordat. If the DAs were in agreement, we would be willing to revisit that analysis and look again at whether the GMO concordat and the intergovernmental arrangements for which it provides are sufficient for intergovernmental working, and, where relevant, to manage divergence in the regulation of genetic technologies. I would be delighted to take that work further if it is of interest to the DAs.
In addition to engagement between DEFRA and DA genetic technology officials, it is worth noting that precision breeding policy interacts with four of the provisional common frameworks. Engagement among respective officials is also ongoing through the relevant framework fora in those four areas.
As the Committee heard from Professor Bruce Whitelaw of the Roslin Institute, and as has been presented to the Welsh Government and the Scottish Government by the National Farmers Union—I have read the evidence it gave—the provisions in the Bill apply substantively to England, but they have the potential to bring benefits across the UK.
We have introduced the Bill to ensure that we keep up to date with the latest science, and to remove the limitations placed on us by outdated regulation that has not kept pace with scientific development. Amendment 37 would put us at further risk of falling behind other countries, which the NFU was concerned about in the evidence sessions. We will continue to engage with the DAs to address the concerns that they have raised, but I encourage the hon. Lady to embrace the opportunity that the Bill presents to unlock the benefits of scientific research and development and ensure that the UK continues to invest in innovation in the agri-food industry and reap the wider potential benefits from it.
New clause 9 would exclude legislation passed by the Scottish Parliament relating to the marketing of precision bred organisms, and regulations made by the Scottish Government under that legislation, in scope of the UK Internet Market Act 2020 market access principles. There is an established process for considering exclusions to the application of the UKIM market access principles in the common framework areas. That process has been agreed by the UK Government, the Scottish Government, the Welsh Government and the Northern Ireland Executive. The UK Government are fully committed to common frameworks and to taking forward discussions with the Governments of Scotland, Wales and Northern Ireland on the interaction between the proposals in the Bill and UKIM.
As we heard from Dr Ferrier of the NFU, it will be at least five years before products come on to the markets for farmers and growers. We hope that consumers across the whole of the UK will be able to benefit from the research into precision bred plants and animals that the Bill will enable. We therefore urge the hon. Lady to withdraw the amendment so as not to pre-empt the outcome of those discussions.
Deidre Brock
It is kind of the UK Government to want to bring benefit to all of the devolved nations of the UK—a very benevolent approach that I am sure everyone appreciates—but this area is devolved and we should have full control over it.
David Duguid (Banff and Buchan) (Con)
I just want to clarify, should we be surprised that the United Kingdom Government are interested in the rural interests of every nation in the United Kingdom?
Deidre Brock
I am actually very interested in rural interests, as the hon. Gentleman knows, and I am very concerned about the impact on trade with the EU, which is the UK’s largest trading partner, and the impact, potentially, on farmers. The Minister mentioned that it will be five years before commercial benefits can be felt—at least; we were hearing anywhere up to 11 years —so why the rush? Why push this through when we potentially could really impact our trade with Europe?
I do not wish to sound rude about it at all, because I respect the Minister hugely, and particularly the way she has stepped up this afternoon—excellent effort. Given that it sounds as if there is likely to be some movement in discussions on the GMO concordat, perhaps I could arrange a meeting with her, before Report, to discuss that further and get a clearer understanding of what is entailed within those discussions. I would appreciate that very much.
Deidre Brock
The Minister is nodding her head, so I assume that is acceptable. Given that, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 48 ordered to stand part of the Bill.
New Clause 1
Labelling
“(1) A person must not—
(a) market a precision bred organism, or
(b) place food and feed produced from precision bred organisms on the market
unless labelled in accordance with regulations made by the Secretary of State under this section.
(2) Regulations under this section must ensure that the labelling referred to in subsection (1) provides sufficient information to support informed consumer choice, having regard in particular to—
(a) nutritional content,
(b) the potential presence of allergens or other substances which may cause adverse human health impacts, and
(c) the environmental impact of the product.
(3) Before making regulations under this section, the Secretary of State must—
(a) consult representatives of—
(i) consumers,
(ii) food producers,
(iii) suppliers,
(iv) retailers,
(v) growers and farmers,
(vi) the organic sector,
(vii) other persons likely to be affected by the regulations, and
(viii) any other persons the Secretary of State considers appropriate; and
(b) seek the advice of the Food Standards Agency on the information to be required to be provided on labelling.
(4) Section 30 (Interpretation of Part 3) has effect for the purposes of this section as it has effect for the purposes of Part 3.” —(Daniel Zeichner.)
This new clause would require the Secretary of State to make regulations about the labelling of precision bred organisms and food and feed products made from them.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 10—Labelling of food or feed produced by precision bred animals—
“(1) Food or feed produced from a precision bred animal or its progeny that is placed on the market must be labelled to inform prospective purchasers that it has been produced from a precision bred animal or its progeny.
(2) The labelling required under subsection (1) must be in easily visible and clearly legible type and, where packaging is used, it must be placed on the front outer surface of the packaging.
(3) Regulations must lay down the labelling terms to be used to meet the requirements of subsection (1).
(4) Regulations under this section are subject to the affirmative procedure.”
Daniel Zeichner
I have been referring to new clause 1 throughout the Bill’s passage through Committee. Labour has been clear that we regard labelling as an important part of this new regulatory framework, and it is sadly not really referenced in the Bill, although it is discussed and then dismissed in the impact statement.
The Bill will create a new type of food product on supermarket shelves: the precision bred organism. As I said earlier, it is clear that there is a trend towards consumers wanting more information about their food—what it contains, where it comes from and its environmental impact, which are all important. As I am sure the Minister now knows, and will be tired of hearing, Labour will buy, make and sell more in Britain. How could one do that without knowing how our food is made and where it comes from?
Our new clause 1 would require the Government to introduce regulations to ensure that precision bred food and feed is labelled to provide
“sufficient information to support informed consumer choice, having regard in particular to—
(a) nutritional content,
(b) the potential presence of allergens or other substances which may cause adverse human health impacts, and
(c) the environmental impact of the product.”
It would also require the Secretary of State to consult stakeholder groups before pursuing that and to seek the advice of the Food Standards Agency.
The Government have said time and again that they support nutritional labelling to inform consumers of any allergens or if the nutritional content of a food is changed from its natural state. They must put that in the legislation and make it a commitment in the Bill. We have also heard about the issues of co-existence with other production systems and supply chain tracing, and how the legislation might have an impact on the organic sector. It is important that it is properly consulted, so that whatever labelling regime the Government introduces, it allows for different types of food production to co-exist.
The only information the Government have divulged in writing regarding labelling is their opposition to it, in the impact assessment, based on the costs it could incur for businesses. However in the impact assessment they have not actually calculated the costs and benefits of labelling, so I am unsure how they came to that judgment. Perhaps the Minister can tell us. Indeed, in that part of the impact assessment, around pages 40 and 41, it is interesting that, in paragraph 114, the Government notes that
“maintaining a labelling and tracing system could also have wider benefits, most notably, improved consumer confidence in food products potentially adding value across the food supply chain.”
Well, absolutely.
The impact assessment also states:
“Given uncertainties, as set out above, we have not monetised the estimated annual cost of a labelling and tracing system to business.”
That was identified by the Regulatory Policy Committee, which in its report—which, I have to say, categorised the Bill as “not fit for purpose”—stated:
“The traceability and labelling costs, the primary benefit for the preferred option and which differentiates the two regulatory options considered, is not quantified. As this is the main difference between the two regulatory options, the Department needs to provide some quantification of the scale of the potential impact from this change.”
I would be grateful if the Minister commented on what is, frankly, a pretty damning assessment. I appreciate that she is new to this area and that it may not be possible for her to do so today, but a written assurance that those serious issues will be addressed would be welcome at a later stage.
Further to that, in its written evidence to the Committee, the Nuffield Council on Bioethics noted that the Government’s present stance on labelling
“runs contrary to the findings of many public engagement initiatives that have broached this question... in this context, not labelling amounts to the withholding of information about consumer preferences”.
Katherine Fletcher
In the oral evidence sessions, we heard about not only the costs of implementation but the practical challenge with labelling precision bred organisms, which is that they are scientifically and practically indistinguishable from traditionally bred organisms—that is, the ones that we have, know and love day-to-day. I note that the hon. Gentleman has not touched on a mechanism for how that labelling could be executed. The only practical way that we could know for certain whether a crop, for example, was precision bred would be to insert exogenous DNA for the purpose of labelling, which clearly goes against the spirit of some of the other debates we have had.
Daniel Zeichner
The hon. Lady raises a series of interesting and important points. I do not disagree with what she has said, other than to say that I think it is possible—this came through in some of the evidence as well—to maintain traceability throughout the process if we are careful about how we do it, but we have to set up systems to do so. It is clear from the impact assessment that the Government have thought about this issue, and our view is that to maintain the necessary public confidence it is absolutely right for it to be considered carefully. As such, our new clause would put the structure in place for that discussion to happen. If the hon. Lady looks carefully at what the new clause actually says, she will see that.
I was about to make exactly the same point as the hon. Lady: we understand the challenges that labelling may pose. However, as was said in the impact assessment, the significant benefit it would bring in terms of public trust and supporting consumer choice may well be worth having. Our view is that the Government have not given sufficient thought to the matter nor evaluated it sufficiently, as is admitted in the impact assessment. Our new clause 1 would require them to undertake further consultation on labelling and then introduce an appropriate system.
Victoria Prentis
I know that labelling has been raised as a concern by Committee members and others, and I understand that the new clauses intend to provide information to consumers, so I will try to provide some reassurances on that point.
The Bill is based on the science, and the science tells us that precision bred organisms are equivalent to, and pose no greater risk than, their traditionally bred counterparts. We have received advice from independent scientific experts and heard from many witnesses who considered labelling to be unnecessary in the case of precision breeding. Dr Helen Ferrier of the NFU agreed that it would be “misleading” to consumers to require a compulsory label, as there is no scientific difference. Dr Richard Harrison said,
“I do not think there is any scientific rationale to have additional labelling criteria for gene-edited products, because they are fundamentally indistinguishable from nature.”––[Official Report, Genetic Technology (Precision Breeding) Public Bill Committee, 28 June 2022; c. 63, Q103.]
The Bill is consistent with the science, but also with the approach taken by many international partners around the world that have already legislated in this way. We do not think it is necessary to label based on the technology used.
Much of the proposed new clause is already covered by existing food legislation—in particular, regulation 1169/2011 on the provision of food information to consumers. We know that there are exciting developments to improve the nutritional content of some food, but consumers will want to know of any nutritional or allergen composition that might affect them.
Regulations on the provision of food information to consumers already adequately cover nutritional and allergen labelling, and that does not change because the product is derived from a precision bred organism. We therefore do not think it is necessary to include additional provisions in the Bill. We will respond to the further information that the RPC requests in an enactment 1A, to be brought forwards towards the end of the Bill’s passage through Parliament.
Daniel Zeichner
I listened closely to the Minister and am wondering what an enactment 1A means and when it will happen.
Daniel Zeichner
I am not sure I am totally reassured by that. I would be grateful if the Minister could write to us at some point about how the Government are addressing those criticisms.
Daniel Zeichner
Yes. In a way, we are going round in circles. We entirely understand the scientific arguments, but the question is how we maintain consumer confidence. The Food Standards Agency’s work shows that the public want to know. We believe the public have a right to know, and the question is how that might be done. The most recent advice from the FSA, which I cited earlier, shows that it has been thinking hard about that and may be able to draw distinctions between different types of product coming on to the market. That suggests to me that there is the possibility to provide more consumer information.
I suspect there is a wider debate about labelling, because we want to ensure that the information that we offer to consumers is not so overloaded in so many different areas that it is hard to interpret. That is a legitimate debate, and I am sure we will pursue it. We think it is important that this option remains under consideration in the Bill, and for that reason I want to press new clause 1 to a vote.
Question put, That the clause be read a Second time.
Daniel Zeichner
I beg to move, That the clause be read a Second time.
New clause 2 is another of our attempts to make the introduction of the Bill’s provisions on animals contingent on DEFRA and the Government undertaking the work that we think they need to do before they are ready to bring forward serious and detailed proposals on this issue. The Animal Welfare (Sentience) Act 2022—I suspect there are veterans of its passage here—enshrined the recognition of the sentience of animals into law and established an Animal Sentience Committee whose role is to consider
“whether, or to what extent, the government is having, or has had, all due regard to the ways in which the policy might have an adverse effect on the welfare of animals as sentient beings.”
As I understand it, the Animal Sentience Committee is yet to be established. Perhaps the Minister can provide a timeline for that, because we cannot find any commencement information on it.
The 2022 Act was introduced as part of the Government’s action plan for animal welfare, which they made a lot of and said was the “first of a kind”. The Government made big promises and indicated that the Act was a defining piece of legislation to promote the health and welfare of animals. My question to the Minister is: why did the Government not wait for the Animal Sentience Committee to be established and have time to report on the Bill before introducing it? If they really wanted to recognise the sentience of animals, they would prioritise the committee’s establishment before pressing ahead with legislation that will have a real and significant impact.
The Chair
Before I call the Minister to respond, I should say that I sense there is some confusion among Members about new clause 10. The place to discuss new clause 10 was in the previous debate. The vote on it is at the end because the new clauses are taken in order. I will ask the proposer of new clause 10 whether she wished to move it at that stage. If the hon. Member for Edinburgh North and Leith wants clarification, I am happy to give it to her.
Deidre Brock
I am a little confused, because new clause 10 was grouped with new clause 1 and I thought I would be speaking at the same time as the hon. Member for Cambridge. Forgive me.
The Chair
The debate on new clause 10 should have taken place when new clause 1 was moved. I read out “with which it will be convenient to discuss new clause 10”. The vote on it comes in the order of the new clauses.
Deidre Brock
Given the confusion, I will withdraw any suggestion of a vote.
The Chair
It is my job to keep order and try to make sure that hon. Members ask the Government what they want and make whatever points they want to make. When we come to vote on it, although it will not be completely orderly, if the hon. Lady wishes to make a small number of comments, I will allow it.
Victoria Prentis
The 2022 Act received Royal Assent in April, and work is now under way to establish the Animal Sentience Committee by the end of this year. Applications to the committee have now closed and we are proceeding with the next steps. We very much hope to have the committee up and running by the end of this year. Given that, as the hon. Gentleman said, it will be some years before precision bred animals are anticipated to be released or brought to market, delaying the provisions for 12 months from the date on which the Animal Sentience Committee is established is unnecessary. We fully expect the committee to be established much more than 12 months prior to the first precision bred animals being released or brought to market.
The Government were clear during the passage of the sentience legislation that we would not dictate the Animal Sentience Committee’s work plan. It will be for the committee, once established, to decide which policy decisions it wants to scrutinise, and its expert members will be best placed to know where they can add value to the animal welfare debate. It would be contrary to that important principle if this Bill was used to mandate the committee to produce a report before the provisions in the Bill can be commenced. I therefore urge the hon. Member to withdraw his new clause.
Daniel Zeichner
There is nothing in the new clause to mandate the Animal Sentience Committee to do anything; it would give the committee the opportunity to make a report, should it wish. I would be surprised if it did not wish to do so. The problem is the wider question of the framework of protections, which is clearly under discussion and under review in general. It is now quite a complicated web, and we want to make sure that the new element—the Animal Sentience Committee, which we strongly support—fits in an appropriate manner.
This goes back to the points we made at the start of the Bill Committee, when we questioned why the Government are so determined to include animals in this legislation at this stage when there are so many reasons not to, not least the Government’s own reasons, given that they say it will be some years before the process moves forward. It would be better to separate animals out; we stand by that point and the new clause is a further example of why that would be sensible. I hear what the Minister says, but we will have a vote on it anyway.
Question put, That the clause be read a Second time.
The Chair
With this, it will be convenient to consider the following:
New Clause 4—Accounts and audit—
“(1) The Authority must keep proper accounts and proper records in relation to the accounts and must prepare for each accounting year a statement of accounts.
(2) The annual statement of accounts must comply with any direction given by the Secretary of State, with the approval of the Treasury, as to the information to be contained in the statement, the way in which the information is to be presented or the methods and principles according to which the statement is to be prepared.
(3) Not later than five months after the end of an accounting year, the Authority must send a copy of the statement of accounts for that year to the Secretary of State and to the Comptroller and Auditor General.
(4) The Comptroller and Auditor General must examine, certify and report on every statement of accounts received under subsection (3) above and must lay a copy of the statement and of the report before each House of Parliament.
(5) The Secretary of State and the Comptroller and Auditor General may inspect any records relating to the accounts.
(6) In this section “accounting year” means the period beginning with the day when the Authority is established and ending with the following 31st March, or any later period of twelve months ending with the 31st March.”
New Clause 5—Reports to Secretary of State—
“(1) The Authority must prepare and send to the Secretary of State an annual report as soon as practicable after the end of the period of twelve months for which it is prepared.
(2) A report prepared under this section for any period must deal with the activities of the Authority in the period and the activities the Authority proposes to undertake in the succeeding period of twelve months.
(3) The Secretary of State must lay before each House of Parliament a copy of every report received under this section.”
New clause 6—General functions of the Authority—
“(1) The Authority must—
(a) keep under review information about the use of genetic technology in plants and animals and any subsequent development of genetic technology and advise the Secretary of State about those matters,
(b) publicise the services provided to the public by the Authority or provided in pursuance of release notification requirements or marketing authorisations under this Act,
(c) provide, to such extent as it considers appropriate, a code of practice, advice and information for persons to whom release notification requirements or marketing authorisations under this Act apply
(d) maintain a statement of the general principles which it considers should be followed—
(i) in the carrying-on of activities governed by this Act, and
(ii) in the carrying-out of its functions in relation to such activities,
(e) promote, in relation to activities governed by this Act, compliance with—
(i) requirements imposed by or under this Act, and
(ii) the Authority’s code of practice
(f) perform such other functions as may be specified in regulations.
(2) The Authority may, if it thinks fit, charge a fee for any advice provided under subsection (1)(c).”
New Clause 7—Duties in relation to carrying out its functions—
“(1) The Authority must carry out its functions effectively, efficiently and economically.
(2) In carrying out its functions, the Authority must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed).”
New Clause 8—Power to delegate and establish committees—
“(1) The Authority may delegate a function to a committee, to a member or to staff.
(2) The Authority may establish such committees or sub-committees as it thinks fit (whether to advise the Authority or to exercise a function delegated to it by the Authority).
(3) The members of the committees or sub-committees may include persons who are not members of the Authority.
(4) Subsection (1) has effect subject to any enactment requiring a decision to be taken by members of the Authority or by a committee consisting of members of the Authority.”
New Schedule 1—Genetic Technology Authority: Supplementary Provisions—
“Status and capacity
1 The Authority is not to be regarded as the servant or agent of the Crown, or as enjoying any status, privilege or immunity of the Crown; and its property is not to be regarded as property of, or property held on behalf of, the Crown.
2 The Authority has power to do anything which is calculated to facilitate the discharge of its functions, or is incidental or conducive to their discharge, except the power to borrow money.
Expenses
3 The Secretary of State may, with the consent of the Treasury, pay the Authority out of money provided by Parliament such sums as he thinks fit towards its expenses.
Appointment of members
4 (1) All the members of the Authority (including the chairman and deputy chairman who must be appointed as such) must be appointed by the Secretary of State.
(2) The following persons are disqualified for being appointed as chairman or deputy chairman of the Authority—
(a) any person who is, or has been, concerned with the creation, release or marketing of plant or animal organisms, gametes or embryos created using genetic technology, and
(b) any person who is, or has been, directly concerned with commissioning or funding any research involving such creation, release or marketing, or who has actively participated in any decision to do so.
(3) The Secretary of State must secure that at least one-third but fewer than half of the other members of the Authority fall within sub-paragraph (2)(a) or (b), and that at least one member falls within each of paragraphs (a) and (b).
5 (1) A person (“P”) is disqualified for being appointed as chairman, deputy chairman, or as any other member of the Authority if—
(a) P is the subject of a bankruptcy restrictions order,
(b) in the last five years P has been convicted in the United Kingdom, the Channel Islands or the Isle of Man of an offence and has had a qualifying sentence passed on P.
(2) For the purposes of sub-paragraph (1)(b), the date of conviction is to be taken to be the ordinary date on which the period allowed for making an appeal or application expires or, if an appeal or application is made, the date on which the appeal or application is finally disposed of or abandoned or fails by reason of its non-prosecution.
(3) In sub-paragraph (1)(b), the reference to a qualifying sentence is to a sentence of imprisonment for a period of not less than three months (whether suspended or not) without the option of a fine.
Tenure of office
6 (1) Subject to the following provisions of this paragraph and paragraph 7, a person holds and vacates office as a member of the Authority in accordance with the terms of the person’s appointment.
(2) A person may not be appointed as a member of the Authority for more than three years at a time.
(3) A member may at any time resign their office by giving notice to the Secretary of State.
(4) A person who ceases to be a member of the Authority is eligible for re-appointment (whether or not in the same capacity).
(5) A person holding office as chairman, deputy chairman or other member of the Authority is to cease to hold that office if the person becomes disqualified for appointment to it.
(6) If the Secretary of State is satisfied that a member of the Authority—
(a) has been absent from meetings of the Authority for six consecutive months or longer without the permission of the Authority, or
(b) is unable or unfit to discharge the person's functions as chairman, deputy chairman or other member, the Secretary of State may remove the member from office as chairman, deputy chairman or other member.
(7) The Secretary of State may suspend a member from office as chairman, deputy chairman or other member of the Authority if it appears to him that one of the conditions in paragraph (6) is or may be satisfied in relation to the member.
7 (1) This paragraph applies where the Secretary of State decides to suspend a member under paragraph 6(7).
(2) The Secretary of State must give notice to the member of the decision and the suspension takes effect on receipt by the member of the notice.
(3) A notice under subsection (2) is treated as being received by the member—
(a) in a case where it is delivered in person or left at the member's proper address, at the time at which it is delivered or left;
(b) in a case where it is sent by post to the member at that address, on the third day after the day on which it was posted.
(4) The initial period of suspension must not exceed 6 months.
(5) The Secretary of State may review the member's suspension at any time.
(6) The Secretary of State must review the member's suspension if requested in writing by the member to do so, but need not carry out a review less than 3 months after the beginning of the initial period of suspension.
(7) Following a review the Secretary of State may—
(a) revoke the suspension, or
(b) suspend the member for another period of not more than 6 months from the expiry of the current period.
(8) The Secretary of State must revoke the suspension if at any time—
(a) the Secretary of State decides that neither of the conditions mentioned in paragraph 5(5) is satisfied, or
(b) the Secretary of State decides that either of those conditions is satisfied but does not remove the member from office as chairman, deputy chairman or other member of the Authority.
Disqualification of members of Authority for House of Commons and Northern Ireland Assembly
8 In Part II of Schedule 1 to the House of Commons Disqualification Act 1975 and in Part II of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (bodies of which all members are disqualified) the following entry is inserted at the appropriate place in alphabetical order—
“The Genetic Technology Authority”.
Remuneration and pensions of members
9 (1) The Authority may—
(a) pay to the chairman such remuneration, and
(b) pay or make provision for paying to or in respect of the chairman or any other member such pensions, allowances, fees, expenses or gratuities, as the Secretary of State may, with the approval of the Treasury, determine.
(2) Where a person ceases to be a member of the Authority otherwise than on the expiry of their term of office and it appears to the Secretary of State that there are special circumstances which make it right for that person to receive compensation, the Authority may make to that person a payment of such amount as the Secretary of State may, with the consent of the Treasury, determine.
Staff
10 (1) The Authority may appoint such employees as it thinks fit, upon such terms and conditions as the Authority, with the approval of the Secretary of State and the consent of the Treasury, may determine.
(2) The Authority must secure that any employee whose function is, or whose functions include, the inspection of premises is of such character, and is so qualified by training and experience, as to be a suitable person to perform that function.
(3) The Authority must, as regards such of its employees as with the approval of the Secretary of State it may determine, pay to or in respect of them such pensions, allowances or gratuities (including pensions, allowances or gratuities by way of compensation for loss of employment), or provide and maintain for them such pension schemes (whether contributory or not), as may be so determined.
(4) If an employee of the Authority—
(a) is a participant in any pension scheme applicable to that employment, and
(b) becomes a member of the Authority, that employee may, if the Secretary of State so determines, be treated for the purposes of the pension scheme as if the employee’s service as a member of the Authority were service as employee of the Authority, whether or not any benefits are to be payable to or in respect of the employee by virtue of paragraph 7 above.
Proceedings
11 (1) Subject to any provision of this Act, the Authority may regulate its own proceedings, and make such arrangements as it thinks appropriate for the discharge of its functions.
(2) The Authority may pay to the members of any committee or sub-committee such fees and allowances as the Secretary of State may, with the consent of the Treasury, determine.
12 (1) A member of the Authority who is in any way directly or indirectly interested in a release notification or marketing authorisation under this Act shall, as soon as possible after the relevant circumstances have come to the member’s knowledge, disclose the nature of that interest to the Authority.
(2) Any disclosure under sub-paragraph (1) above must be recorded by the Authority.
(3) Except in such circumstances (if any) as may be determined by the Authority under paragraph 9(1) above, the member must not participate after the disclosure in any deliberation or decision of the Authority with respect to the release notification or marketing authorisation, and if the member does so the deliberation or decision is of no effect.
13 The validity of any proceedings of the Authority, or of any committee or sub-committee, is not affected by any vacancy among the members or by any defect in the appointment of a member.
Instruments
14 The fixing of the seal of the Authority must be authenticated by the signature of the chairman or deputy chairman of the Authority or some other member of the Authority authorised by the Authority to act for that purpose.
15 A document purporting to be duly executed under the seal of the Authority, or to be signed on the Authority’s behalf, may be received in evidence and is deemed to be so executed or signed unless the contrary is proved.
Investigation by Parliamentary Commissioner
16 The Authority is subject to investigation by the Parliamentary Commissioner and accordingly, in Schedule 2 to the Parliamentary Commissioner Act 1967 (which lists the authorities subject to investigation under that Act), the following entry is inserted at the appropriate place in alphabetical order—
“Genetic Technology Authority”.”
Daniel Zeichner
I am sure that hon. Members will be happy to know that the finishing line is in sight. However, I am afraid that between now and then there is actually what we think is an extremely important set of suggestions as to how the Bill could be strengthened, because these new clauses and new schedule would establish a genetic technology authority, whose purpose would be as per new clause 6.
Sharp-eyed members of the Committee may recognise the language used in our new clauses, because it is modelled on the legislation introduced to establish the Human Fertilisation and Embryology Authority, the body set up to oversee the use of gametes and embryos in fertility treatment and research. In practice, the new clauses consider many of the wider ethical questions that the topic of genetics throws up, and the practical application of the law based on their expert independent judgment. To some extent, this follows on from my previous comments about the broader landscape of how we regulate these issues.
Several of the stakeholders in this field have argued for, and/or alluded to in our evidence sessions, the establishment of a similar body for gene-editing technology. They include the Nuffield Centre on Bioethics, the Royal Society of Biology and the Royal Society.
The Nuffield Council on Bioethics has raised examples in its report of such ethical dilemmas that the Bill does not address. It says that
“we identified the need for further scrutiny and controls to ensure that animals are not bred in ways that diminish their inherent capacities to enjoy experiences that constitute a good life.”
It also says:
“The case for such a body has only strengthened over time, as a result of developments in breeding practices and the prospect of new breeding technologies such as genome editing. It would ensure that the welfare of founder animals”—
breeding stock—
“would be properly evaluated.”
The report concludes by saying:
“In the current governance architecture in England, there is no existing body with the appropriate powers and relationships to undertake this function”.
That is a really important point. There is no existing body with the appropriate powers and relationships.
Likewise, I was very struck by the evidence from Dr Madeleine Campbell of the British Veterinary Association. She said there needs to be
“an independent body, with suitable expertise to understand and interrogate both the basic science and the animal welfare science, and to understand and explain the ethics around that...it needs to be able to look both proactively and retrospectively at data about the health and welfare of animals…It would be an independent oversight body—in my mind’s eye, very analogous to the Human Fertilisation and Embryology Authority—that can take an independent look at the data and then make recommendations for policy changes in light of that data, as the science develops.”––[Official Report, Genetic Technology (Precision Breeding) Public Bill Committee, 30 June 2022; c. 102, Q164.]
She also made the point that the situation needs to be monitored over time, because sometimes things do not show up immediately, which is the way that the Bill is set up to analyse. As it stands, the Bill does not seem to make provision for that kind of long-term monitoring.
The editing of the DNA of living beings clearly raises many ethical and practical questions. Several have been discussed in this Bill Committee, ranging from intellectual property to animal welfare.
On intellectual property, the potential for the patenting of DNA has been raised. I found the evidence from Bill Angus, of Angus Wheat Consultants Ltd, very compelling. He said that he was
“worried about perhaps an agenda that this could be dominated by large multinationals, although one of the joys of wheat-breeding globally over the last 100-plus years has been the freedom to exchange germplasm. As soon as we start putting constraints on that, as soon as we start having people talking about ownership of genes and ownership of genetic material, or licensing genes that are already in the public domain, it starts to fill me with a great sense of foreboding.”––[Official Report, Genetic Technology (Precision Breeding) Public Bill Committee, 28 June 2022; c. 44, Q74.]
That is exactly the sort of issue a genetic technology authority could look at.
Mr Angus explained the current system for intellectual property with respect to conventionally bred plants, stating that
“company A produces a variety and he introduces a trait into that variety. In two years’ time, once that variety has been added to the UK national list, another breeder can use that trait. That is the freedom to operate. It is really important that this is sustained and that people are not locked out of new developments. What may happen—this is an area I feel quite uncomfortable with—is that we may start to see larger organisations move the goalposts in terms of trying to stop other breeders from using genetic resources that have been developed.”––[Official Report, Genetic Technology (Precision Breeding) Public Bill Committee, 28 June 2022; c. 46, Q77.]
This topic is not covered in the Bill at all. I hope that is because the status quo will be maintained. Will the Minister tell us that today and explain the safeguards in place?
The point serves to highlight the importance of careful deliberation. Based on the evidence I heard from the previous Minister and from DEFRA officials, I am not convinced the requisite time has gone into making the necessary preparations for the Bill. We understand why the Government have moved in haste, but it is for political reasons. That does not make for good legislation or environmental safety.
Labour are pro science and pro innovation. We really want to be able to capitalise on the potential benefits of gene editing here in the UK and see that investment directed here. We need a strong regulatory framework— stronger than what is provided in the Bill—and remain concerned that if we do not get this regulation, companies will decide not to set up their businesses here, to await others and consumers will be nervous. If that happens, far from speeding up the technology, the Bill would have the opposite effect. Doing it right matters; doing it quickly is not the same thing.
The Regulatory Policy Committee has also raised the cost to the system if consumer confidence is not achieved, saying:
“The Department presents the concerns that the public may have with gene edited products, as being driven by misinformation or worse...However, the IA should consider the relationship between public attitudes and public acceptance, with the former typically driving the latter. Consumer sentiment towards gene edited products has real cost implications, even if only as risk to the policy fully realising the benefits”.
I am grateful to organisations such as Beyond GM, who have taught me much about how these technologies are regulated elsewhere in the world, and have highlighted aspects we may learn from.
Australia takes a principles-based approach, with regulations taking into account societal and environmental benefits. In Argentina, gene edited products are evaluated on a case-by-case basis, based on the characteristics of the gene edited products and their potential risks to human health, animals and the environment, as compared to the risks presented by their conventional counterparts. There are other models around the world.
Establishing a proper regulatory body that can look at these issues of consumer confidence, proportionality, environmental safety and the implementation of the legislation could address these issues and make the new system better for everyone. It would be better for the researchers and businesses working in this area, as they can have confidence in the regulatory system and its public acceptance, better for consumers, who will have the confidence to consider buying precision bred products based on informed choices, and better for the country as a whole, with the benefits of the Bill being realised while any potential environmental issues and risks are safeguarded against.
New clause 3 would establish such a body. New clause 4 provides detail of the accounts and auditing of the authority. New clause 5 sets out the annual reporting requirements of the authority. New clause 6 sets out the functions of the authority, which I have already referred to. New clause 7 sets out that the authority must carry out its functions effectively, efficiently and economically. New clause 8 allows the authority to delegate its functions to a committee or member of staff, and new schedule 1 lays out supplementary administrative provisions for the establishment of the authority. This seems to us to be a sensible, proportionate approach that strengthens the Bill and I commend it to the Minister.
Victoria Prentis
I have listened very carefully to what the hon. Gentleman has said and let me give him an alternative solution. We have committed to consider wider regulatory reform of genetic technologies as part of our stepwise approach to developing a more proportionate governance framework in this area. This is a more appropriate context for discussions on an over-arching body, such as a genetic technologies authority, and it is consistent with a recommendation made by the Regulatory Horizons Council in its recent report.
The Bill has a narrower focus, and we know this is not in scope, but science is at the heart of the Bill, which is why I listened so carefully to the considered thoughts of the hon. Gentleman. The Secretary of State is required to make decisions based on the advice of expert committees. We intend ACRE to advise the Secretary of State on whether he should confirm the status of a precision bred organism. That is the committee that advises on genetically modified organisms.
ACRE’s opinion formed the basis for our intervention in a pivotal European Court of Justice case in 2018 and for the consultation we held on the regulation of genetic technologies last year. More recently, it has published technical guidance on the distinction between a GMO and a precision bred organism, which is fundamental to this role. This is a complex and controversial area, as the hon. Gentleman acknowledges, and we can expect ACRE to be put under considerable scrutiny, rightly. However, I can assure the hon. Gentleman that the committee operates to the highest standards of impartiality and has the expertise to deal with the task in hand.
I thank the hon. Gentleman for his detailed considerations on this topic but establishing a new independent body is not necessary at this point and does not provide value for money when we have an established committee with a superb track record in this area. However, I acknowledge this is a topic that we are likely to come back to when we consider wider GM regulatory reform in the future.
With your leave, Mr Stringer, as I believe this is the last time I will speak in this Committee, may I do some thank yous, not least to you for coping with a new Minister halfway through the Bill proceedings and for keeping us in order?
I thank my hon. Friend the Member for Bury St Edmunds (Jo Churchill), whose work on the Bill and generally in the Department, on climate change and adaptation in particular, I really value, as I do her personal friendship and help to me over the time she has spent in DEFRA. I very much hope she will be back.
I thank the hon. Members for Cambridge and for Edinburgh North and Leith for their constructive help with the Bill. I would be delighted to discuss the points that arise from our deliberations with them at any point.
Specifically, I thank Laila Sedgwick, Fiona White, Janet Talling, Lizzie Bates, all the Bill team and my private office, who managed to brief me on the Bill so effectively in the few hours we have had available. I also thank the Bill Committee, our Whip—in particular, of course—and, indeed, the Government Whips Office, who have shown extraordinary grit over the past 12 hours. I thank everyone for their work on the Bill.
The Chair
Thank you for those kind words, which were of course completely out of order. I call Daniel Zeichner.
Daniel Zeichner
Thank you, Mr Stringer, and I shall seek to be out of order in a similar way. Before I do so, I will address the points made by the Minister.
There is a fundamental difference of opinion between the two sides of the Committee. Our view is that the Government are being far too deregulatory. We understand why they are doing what they are doing, but we think that they would achieve their objectives more effectively by setting out a stronger regulatory framework. That is probably a fundamental difference of political philosophy, not to be resolved at this point.
I noted with interest the Minister’s comments about possibly coming back to this issue of a wider authority if the Government have opportunity in time to look at the broader issue of genetic modification. I suggest that the better thing to do is to establish that wider body sooner rather than later, so that the overall framework can be established to give the kind of public and investor confidence that I believe is essential if we are to reap the benefits of the technology, while ensuring that the public have confidence that the environmental safeguards are in place.
I am disappointed, though not surprised, that the Minister has rejected our suggestion of a new body. One of the striking things about Parliament is that, often, when things are rejected, they reappear a bit further down the line. There is plenty of evidence to suggest that that would be the right thing to do. We will press for a vote on the new clause. I will not detain the Committee by having votes on the whole string of new clauses; we will make do with one on just new clause 3.
Briefly, however, I make my thanks to you, Mr Stringer, and your fellow Chairs. This has been a well-conducted discussion about a complicated set of issues. I have already expressed my commiserations to the previous Minister, who is not present today, and I congratulate the Minister who is, because it is a tough thing to be dropped into something like this at a very late stage.
I thank the Clerks in particular, Huw Yardley and Abi Samuels, who have done an amazing job in translating our sometimes half-formed ideas—perhaps they used CRISPR-Cas9 to edit them, although whether they managed to remove it again, I do not know. They have managed that with huge good humour and good will, often working rather late.
I thank my colleagues in my office, Rob Wakely and Milly Lynch, who do an amazing job. As Conservative Members may discover at some point in the future, it is quite tough being in opposition sometimes—not terribly well resourced—but I hope that we have done justice to a very complicated set of issues.
I thank colleagues across the Committee. Our debates have been constructive and positive. I particularly thank my hon. Friends and my Whip, and the SNP spokesperson, the hon. Member for Edinburgh North and Leith. The discussion has been carried out with good humour through difficult times. But I do want to go to a vote.
Question put, That the clause be read a Second time.
The Chair
Just so that we are clear, new clauses 4 to 8 and new schedule 1 fall, because they are consequential provisions. Does the hon. Member for Edinburgh North and Leith wish to press new clause 9 to a vote? We debated it with—
Deidre Brock
I said that I would not press new clause 9 but would have further discussions with the Minister. Thank you, Mr Stringer.
The Chair
New clause 9 is not moved. We now come to new clause 10, where I will allow the hon. Lady to say something if she wishes to do so.
Deidre Brock
That is much appreciated, Mr Stringer. I will be brief. I suspect that I have a very good idea of what the Minister would say, if she were to answer, because of her answers to the hon. Member for Cambridge, but I tabled new clause 10 because it would ensure that the sale of precision bred products came with appropriate labelling and traceability.
Having no requirement to label obstructs the enforcement of Scotland’s devolved powers to regulate produce and impedes our intention to align, wherever possible, with the EU. By not requiring labelling of GMO products for sale in England, the UK Government make it much harder to filter products for sale to markets such as Europe. The new clause would therefore ensure clear and visible labelling on the front of the packaging of food or feed from a precision bred animal or its progeny.
We have heard from witnesses that it is scientifically possible to tell precision bred organisms from traditionally bred ones. Nevertheless, it has to be remembered that that is not a unanimous view, across all scientists. I am of the view that transparency and consumer choice are really important and that we need to recognise that citizens are crucial stakeholders in the food system. As we have heard, a recent survey showed that 84% of the public consider it important that all GE products introduced for sale in the UK be labelled as such and 63% of people consider it very important. A mere 8% do not consider it important. The public have a right to know how their food is produced, even if the changes in GE foods that come down the line could have occurred in crops naturally.
It is my belief and that of the Scottish Government that labelling is vital. I will revisit this point on Report. I think it is incredibly important and I want it to be on the record, and then I will perhaps have further discussions with Labour colleagues.
Bill to be reported, without amendment.