Wednesday 21st December 2022
(1 year, 11 months ago)
Lords ChamberNational Security Act 2023 View all National Security Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 68-II Second marshalled list for Committee - (19 Dec 2022)
Lord Bethell
“Treason: aiding a hostile foreign power(1) A person commits an offence if the person engages in conduct falling within subsection (2), with the intention to aid—(a) an attack on the United Kingdom by any foreign power,(b) any foreign power that intends to attack the United Kingdom or is engaged in a process of planning or preparing for an attack on the United Kingdom, or(c) any foreign power with whom the United Kingdom is engaged in armed conflict.(2) A person engages in conduct falling within this subsection if the person does any act that is designed to—(a) help carry out an attack or facilitate the carrying out of an attack on the United Kingdom,(b) help the planning of or preparation for an attack on the United Kingdom,(c) aid the military or intelligence operations of a foreign power falling within subsection (1),(d) impede the operations of His Majesty’s forces,(e) prejudice the security and defence of the United Kingdom, or(f) endanger life.(3) A person guilty of an offence under this section must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.”
Lord Bethell (Con)
My Lords, Amendment 37A on treason and aiding a foreign power is in my name and that of the noble Lord, Lord Faulks, who is extremely frustrated that he cannot be here today.
This is an excellent Bill. It is clear from the proceedings in this Chamber that it is welcomed, and I very much echo those sentiments. However, I have moved this amendment because I believe that there is a significant gap in the legislation. An important signal to the British public is needed in an era of hybrid warfare and mass migration. These points were very well made in the Policy Exchange publication Aiding the Enemy, authored by Professor Richard Ekins and current Home Office Minister Tom Tugendhat, with a foreword by my friend the noble and learned Lord, Lord Judge.
We are living in an age of rising great power competition. As noted in the proceedings on this Bill, hostile states such as China and Russia are actively looking to suborn our nationals into actions that undermine our national security. As it stands, the law of treason applies only to international armed conflicts. That is where the gap is. The law of treason should pick out and condemn people who betray the UK where preparations for international armed conflict are being made or where attacks on the UK, such as cyberattacks, may fall short of the threshold required for international armed conflict. This would recognise accurately the wrong being done, which is typically worse than merely mishandling official information, and punish it accordingly. For example, in the Cold War there were British nationals who betrayed our country by passing secrets to the Soviets; they certainly deserved to be punished as traitors but were not because the law of treason was in a poor state. It remains in a poor state now, as a new cold war could be beginning, so it is time that we fixed it.
We need to speak to the hearts and minds of our citizens, to bind the British people and make it clear to those who seek to assist foreign powers to do us harm that they will be designated by law as traitors to their country. This is not about requiring patriotism; it is about the law clearly setting out that to assist a group or country to attack the country in which you are a citizen is a crime. It is for these reasons—that appeal to the heart—that similar arrangements have been recently introduced by other common-law jurisdictions such as Australia, Canada and New Zealand.
I was very struck by the story of Kimberley Miners, who travelled to Syria and returned. She said of her experience living with ISIS:
“People have no idea, but ISIS is actively searching Facebook for vulnerable people. People just like me. These people befriended me, I felt accepted.”
I feel enormous compassion for her but also enormous anger that she was so stupid as to make this decision. If our nationals had a clearer sense of where the boundaries lay, naive people would not make such mistakes.
Treason reform was dropped from the final text of the National Security Bill when it was placed before Parliament, which is a great shame. The consultation on legislation to counter state threats, with which many noble Lords will be familiar, claimed that significant historical analysis would need to be done to enable reform of treason but that that would significantly delay the Bill. I never like the idea that we should avoid good legislation because it is too time-consuming to draft; given the support for this straightforward, clearly drafted measure in many corners of the Committee, I do not think it need delay the Bill or overstress the resources of the MoJ.
One objection to a refresh of the treason laws was made by the excellent Independent Reviewer of Terrorism Legislation, Jonathan Hall KC, who suggested that
“in order to prosecute an individual for aiding a hostile state or organisation, you have to label that state or organisation as such. Doing so could legitimise their cause and give them ‘special status and cachet’.”
I take a different view. Treason is not about labelling your enemies or legitimising their status; they put all their efforts into doing that themselves, without our help or otherwise. Jonathan Hall also suggested that juries would be worried about convicting on such a contentious crime with a controversial history. That is an important point to address, because it is exactly this squeamishness about considering treason a crime that means that we need to bring it back from the legal freezer and make it a commonly understood and demystified concept.
The incidence of treason is not going down—it is quite possibly becoming more frequent. We cannot live in a country in which a sense of social awkwardness prevents prosecution of a heinous crime. Therefore, it would be wise to leave it to the prosecuting authorities to decide which crimes can be most effectively prosecuted, as they are both qualified and rightly responsible to make these decisions. As a parliamentarian, I do not think that good law-making is best achieved by second-guessing juries. There are a number of horrible crimes for which, as noble Lords know, it is sometimes difficult to gain convictions, but we do it because they are important.
I am also conscious of the misuse of treason accusations by autocracies such as Russia. Accusations of treason can be abused and used to silence dissenters, but it is not logical that the misuse of a law by a tin-pot regime elsewhere means that we should not have it in this country, which values the rule of law. The best protection is good, workable legislation. That is why I ask the Minister to reconsider the decision to drop treason provisions from the Bill and to consider supporting this constructive amendment. I beg to move.
Lord Carlile of Berriew (CB)
My Lords, I have great respect for any new clause proposed by the noble Lord, and with the name of the noble Lord, Lord Faulks. It is therefore with some trepidation that I may strike a discordant note. I am almost intimidated by the compelling ad majorem argument which the noble Lord used, and some of the names he referred to in support of his proposal. I read the Policy Exchange document at the time, which seemed to me both ambitious and, to an extent, misguided. I will give four or five reasons why I am of that view.
First, what is described as treason in this proposed new clause is in every instance already prosecutable under existing offences. In my view, duplication of conduct under different headings is a disadvantage to the courts and creates potential difficulties with juries, which are sensitive to the labels that would be placed by conviction upon those prosecuted.
Secondly, the clause refers generally to an “attack”. Does that include cyberattacks, which are now being conducted on a very large scale by countries which have hostile intent towards the United Kingdom? Is it proportionate that a cyberattack should be punishable as treason as opposed to under the available existing legislation?
My third argument is about symbolism in criminal justice legislation. I know that some of us sat in this building in another place during the content of the Westland affair, as a result of which the jury failed to convict somebody who in law had been held by the judge to be guilty of the offence as charged. That is a result we would all wish to avoid. Others here were in very senior official positions during what proved to be a very uncomfortable episode. I look in particular at my noble friend Lord Butler, to whom I give way with pleasure.
Lord Butler of Brockwell (CB)
I think my noble friend is referring to Ponting, not Westland.
Lord Carlile of Berriew (CB)
I thank my noble friend for that correction—yes, it was Ponting, not Westland. I apologise; I had the wrong incident in my mind.
My fourth point is about the life sentence contained in subsection (3) of the proposed new clause. I simply do not like tautologies such as “manifestly unjust” in criminal sentencing provisions. In my view, if there is to be a provision of this kind—we have been told that it has been drafted very carefully—it should not contain tautologous phrases like that. “Unjust” will do very nicely, as far as I am concerned.
My fifth point is about the authority for such a prosecution. The noble Lord, Lord Bethell, referred to the involvement, presumably, of the Director of Public Prosecutions in authorising such a prosecution. However, as drafted, this proposed new clause would permit a private prosecution, which could be stopped by the Director of Public Prosecutions only in certain circumstances. Private prosecutions—often justifiably—are becoming more fashionable and frequent, particularly in fraud cases which the authorities are not able to undertake for reasons of scale and cost. Those are perfectly defensible private prosecutions, as results in the courts have shown. However, the use of private prosecutions for oblique motives in this context seems to be a very realistic possibility. I therefore urge that if we are to have a revised treason offence, it should be prosecutable only with the authority of the Attorney-General.
Finally, the House should pay very close attention—I would say this, as a former Independent Reviewer of Terrorism Legislation—to the views of Jonathan Hall KC, who has considered this matter in detail and with whom I agree. I also simply pose a rhetorical question: who seriously thinks that ISIS would be discouraged in any way whatsoever by the introduction of this clause? The Government are right in the decision they have taken, and I hope that they will stick to their view.
Lord Anderson of Ipswich (CB)
My Lords, it is a pleasure to follow two such clear and thought-provoking speeches. When this House has debated treason offences in recent years, it has generally been in the context of lending support to terrorist groups, particularly in foreign theatres such as Iraq and Syria. It has never seemed to me that there is much point in bringing treason into this. The bristling arsenal of counterterrorism law is already equal to any conceivable type of assistance to terrorism or adherence to a terrorist cause, whatever the nationality of the subject and regardless of the state, if any, against which terrorism is directed. As the noble Lord, Lord Bethell, put it, the boundaries are closely drawn and abundantly clear.
Prosecutions for treason in this area would certainly have the potential to raise the emotional temperature, both for us and for the terrorists themselves. I am against such prosecutions because they are exactly what the terrorists want: to elevate their squalid and immoral behaviour into some sort of noble cause. I remember this point being well made from the Government Front Bench by the noble Baroness, Lady Williams, who is not in her place, shortly after I joined your Lordships’ House in 2018. She said that
“prosecuting terrorists for treason would risk giving their actions a credibility … glamour and political status that they do not deserve. It would indicate that we recognised terrorists as being in some formal sense at war with the state, rather than merely regarding them as dangerous criminals.”—[Official Report, 31/10/2018; col. 1382.]
No doubt this is why militant republicans in Northern Ireland were not given the platform of treason trials but rather prosecuted for murder, firearms and explosives offences and, more recently, catch-all offences such as the preparation of terrorist acts, which carries a maximum sentence of life imprisonment.
If we are looking for simple and effective ways to prosecute foreign terrorist fighters—particularly if they are suspected to have been active in a country where assistance from the authorities in gathering evidence is unlikely to be forthcoming—we would do better to concentrate on the offence of entering or remaining in a designated area, which was pioneered in Denmark and Australia, recommended for consideration in one of my own reports as independent reviewer, and introduced by the Counter-Terrorism and Border Security Act 2019. However, I believe that no terrorist hotspot has ever been designated under that Act, so the provision remains unused.
This amendment moves the debate on, as the noble Lord, Lord Bethell, explained, in that it relates to aiding not terrorism, but hostile foreign powers. The clause would target those who assist the Governments of countries with which we are at war or which wish to attack the UK by unspecified means including, I assume, cyberattacks on our national infrastructure. Unlike its Australian equivalent, which was introduced after 9/11 but is still to be used for the first time, it would relate only to hostile state activity—indeed, hostile state belligerence.
I look forward to hearing the Minister’s view on whether there is a gap in our law regarding assistance to the enemy—or will be one once the Bill, including Clauses 3 and 13, has become law. There might be a gap: I believe that Canada and New Zealand have their own laws against assisting the enemy, though I am not very familiar with them. Our own Foreign Enlistment Act 1870, introduced to restrict mercenary activity in the wake of the American Civil War and Franco-Prussian War, may not be as antiquated as the Treason Act 1351, but it was last used in the aftermath of the 1896 Jameson raid. It should certainly be reviewed if we are thinking of legislating in this area.
As we heard from the noble Lord, Lord Bethell, advocates of a treason law are often motivated by a sense that betrayal—in the words of the Policy Exchange report to which he referred, which was co-authored by the current Security Minister—
“is a specific crime against society and one that deserves punishment.”
I entirely understand that feeling, but betrayal is a regrettable fact of life, and one which we do not consider deserves special punishment in other contexts. The child who kills his parents betrays the family bond, but parricide and matricide are simply types of murder. Those who betray the most sacred bond of all—that of matrimony—may be called adulterers but are not criminalised at all. Can it be said that the bond of citizenship is of a wholly different nature, such that to break it must attract the most severe consequences? I think that is a difficult argument to make, particularly in circumstances where it is now so easy for the Home Secretary to break that bond by depriving people of their citizenship whenever she considers it
“conducive to the public good”.
Incidentally, that is something I hope we will look at some day: in the 15 years to 2020, there were 175 such deprivations on national security grounds alone.
This amendment, interestingly enough, does not follow the Policy Exchange model. Like its enacted but unused Australian equivalent, it has nothing whatever to say about betrayal. It applies to everyone, without limitation to British citizens or even to those who have been given leave to enter and remain in the United Kingdom. I assume it is not intended to apply extraterritorially, or it would criminalise the soldiers of foreign armies, contrary to the principle of combat immunity. But if the amendment is motivated by the desire to punish the betrayal of those who owe allegiance to the Crown, it does not succeed in that aim. Indeed, it is difficult to see why it flies under the banner of treason at all.
My position is simple. If there is a gap in the law as regards material assistance to the enemy, I would be in favour of filling it with an offence punishable by life imprisonment. That offence would be directed to our protection and would therefore apply to all persons within the jurisdiction. Betrayal of a bond of allegiance to the state would be an aggravating factor but not the basis for a separate treason offence, which is needed in neither the terrorism context nor the hostile state context.
Lord Purvis of Tweed (LD)
My Lords, it is a privilege to follow the noble Lord. I share his views and those laid out so well by the noble Lord, Lord Carlile. I thank the noble Lord, Lord Bethell, for allowing us to pose some fundamental questions, but I share the concerns of others who have spoken about whether this amendment answers them. Who are the enemy, and what is an attack? These are not easy questions to answer. I respect those who have worked in our intelligence services and have grappled with these questions over many years. Framing legislation to neatly define who our enemy is at any given time is not easy, nor is it easy to define what an attack is.
From reading the notices provided by MI5 earlier this year and the speeches made by intelligence services leaders, in many respects, it seems that we are under perpetual attack. It is hard to define in the modern sense those grey areas that the noble Lord, Lord Evans, and I discussed on Monday. What is an attack and what is preparatory to an attack? Perpetual cyberactivity can be either an end in itself or preparatory to a bigger effect. In many respects, we are in a state of war with Russia, with hybrid and economic warfare. Our sanctions are not penalties for actions; they are meant deliberately to overtly change the behaviour of a foreign power. I understand the rationale behind the amendment, but it perhaps does not address that clearly. When the noble Lord, Lord Bethell, responds to the debate, I would be grateful if he could clarify the meaning of “an attack”.
I welcome proposed new subsection (2)(e), which references acts that
“prejudice the security and defence of the United Kingdom”.
This is along the lines of what we were arguing for on Monday—trying to sharpen these areas. So we have persuaded someone on this—if not the Minister.
I think this raises another question, which was also raised on Monday. If a foreign intelligence service carries out activity which is not authorised or approved by our intelligence services, the Minister said that that was prejudicial to the safety and interests of the United Kingdom, but he did not say it was unlawful. This now raises an issue that we have to debate further in Committee. Some of the activity which could be defined as attacks or activity against the security and defence of the United Kingdom is not currently unlawful. We need to tackle that.
I close by agreeing very strongly with the noble Lord, Lord Anderson, that either in further consideration of this Bill or separately, we must look at how we interact with the issue of mercenary groups and groups that we would categorise as terrorist groups but that other countries would categorise as civil society groups or NGOs, which are fully funded and equipped by foreign states and operate in other countries, but are threats to UK nationals and UK interests. I travelled to north Iraq many times during the time when Daesh had overtaken Mosul. I saw many groups that were fully funded by Iran operating, sometimes with our compliance, sometimes with our approval and sometimes with our co-operation. At other times, they were operating absolutely against those interests, as with the interaction between some of the terrorist forces and some of the rapid deployment forces. I have seen first-hand in Sudan and elsewhere the Wagner Group, which is fully funded and equipped by Russia. How we cover mercenary and other groups that are not neatly defined within the proscriptions of terrorist legislation is something we also need to tackle. While I do not think this amendment would enable us to tackle this, it has allowed us to raise some of these fundamental questions, so I am grateful.
Lord Hope of Craighead (CB)
My Lords, I hesitate to intervene in a debate after speakers who know a great deal more about this subject than I do, but I wonder why “treason” has to go into the heading of this proposed new clause. It does not add anything to the meaning of the words that are there already:
“aiding a hostile foreign power”.
The problem is, if you use the word treason you raise the temperature of the debate, for the reasons mentioned already.
If there is a gap to be filled, as the noble Lord, Lord Anderson, has suggested, I invite the Minister and the noble Lord, Lord Bethell, to drop the word treason. It is unnecessary, as there is enough description in the headnote as it is. For all sorts of reasons, when you use the word treason people think of all sorts of other things. It is unnecessary to get into that debate if you can describe the offence in the remaining words as simply aiding a hostile foreign power. People may say it is treason but you should not label it as such for the purposes of the administration of justice.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I found this a fascinating short debate. It caused me to reflect on my time in this House, which has been a few decades now. Over 20 years ago, I remember sitting in on debates on treason in the Council of Europe, covering the way it would be addressed and the appropriateness of the death penalty within council member states. There were similar debates, although the debates regarding treason have evolved over those decades.
I thank the noble Lord, Lord Bethell, for raising this issue. He referenced the Policy Exchange paper; obviously, thinking is developing in this area, so it is appropriate to have this debate here in Committee. I want to pick up the last point made by the noble and learned Lord, Lord Hope, about the impact of the word “treason” and whether that actually deflects from the purpose of trying to fill the gap in the legislation identified by the noble Lord, Lord Anderson.
I listened to all noble Lords who spoke so interestingly in this debate. The noble Lord, Lord Carlile, made a point about the labels put on particular words and how that may influence juries, as in the example he gave. It caused me to reflect on when, as a magistrate, I was asked to convict somebody of a terrorism offence, which does not happen very often in magistrates’ courts. This particular terrorism offence charge was for graffiti on the Tube. The words used caused me and my colleagues to reflect on the appropriateness of that charge. I think the defendant pleaded guilty to that offence, so all we were doing was sentencing, but we had exactly that discussion about the appropriateness of words in particular contexts. I can see the argument that “treason” is so emotive that it could indeed affect juries’ likelihood of getting convictions.
As I said, this has been a very interesting debate. I have to say to the noble Lord, Lord Bethell, that some very serious points have been made against his amendment. Nevertheless, there is sympathy that there is a gap in the legislation, which may be filled in other ways.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I agree with the noble Lord, Lord Ponsonby, that this has been a fascinating debate on a fascinating subject. I thank my noble friend Lord Bethell for introducing Amendment 37A on treason in his name and that of the noble Lord, Lord Faulks. I will now explain why the Government cannot accept the inclusion of this new clause in the Bill.
As noble Lords who are interested in this subject will have noted, the Government are looking closely at the issue of treason, as stated by the Secretary of State at Second Reading in the other place. The Government have been reviewing the case for and against reform of the UK’s treason laws and that review has not yet concluded. What we can say is that the UK has extensive terrorism laws—the “bristling arsenal” mentioned by the noble Lord, Lord Anderson—which protect the safety of the UK and its citizens from forms of terrorism which might be considered treasonous. However, it would be correct to assert that treason law is outdated and in need of reform in light of the growing threats from foreign state actors. To answer the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope, the Bill provides a suite of measures for where somebody assists an enemy; it just would not be called treason.
I understand the significant history regarding the evolution of treason in the UK. Because of this, arguments have been made in this House and outside that an offence of treason goes further than criminal offences in relation to terrorism and state threats. Treason acknowledges the duty that a citizen has not to betray their state and many consider that a reformed, modernised treason offence would stress the importance of this through a specific criminal offence, reaffirming the bonds of citizenship that we have to the UK and to each other.
This amendment and others relating to treason have been proposed in previous Bills, but considering the role of treason in modern society is a substantial undertaking and one that we are looking at very closely. I acknowledge that this amendment and others seek to address concerns regarding the lack of a usable modern treason offence in the UK, so we welcome debate on this important topic.
Obviously, I reassure the noble Lords, Lord Bethell and Lord Faulks, and others that the Government do take this issue seriously and will listen carefully to the views offered by all noble Lords. However, as noble Lords may know, the Government are currently considering options for a formal review of this issue, including the possibility of the Law Commission conducting a review in this area. This area is complex, as the noble Lords, Lord Carlile and Lord Purvis, so eloquently explained.
I therefore thank my noble friend once again for his amendment but ask him to withdraw Amendment 37A while the Government’s review is ongoing.
Lord Bethell (Con)
My Lords, I am enormously grateful for the thoughtful and detailed debate we have had on this amendment. I will address a few of the points—I cannot address all of them—and I will seek to be brief.
This amendment is not about the past—it is not about Clive Ponting or Lord Haw-Haw and what happened a long time ago—but about the future. The future has states that use as a strategy the suborning of our citizens as an important part of hybrid warfare, at a scale and with a sophistication that we just have not seen for more than a generation—for two generations—and which, given the way in which they do it, we have probably never seen before. That is why this amendment is important: it is to combat a strategic threat from our enemies.
It fills a gap. The suborning of our citizens is not wholly covered by everything in the Bill at the moment, but I take on board the points made by the noble Lords, Lord Carlile and Lord Anderson, and the noble and learned Lord, Lord Hope, and others on this. Duplication is not a sin in drafting laws. I have seen it happen before and I think that there is a gap that could be occupied by an amendment such as this.
A number of noble Lords asked what kind of attack this might cover. It would absolutely cover the contribution to a cyberattack. That is exactly the kind of modern warfare that our enemies are seeking to suborn our citizens to join in on, and therefore we should be thinking very much indeed about all the contributions our citizens could make to hybrid war when we are thinking about this.
As regards the impact on ISIS or a terrorist group, I completely agree with the noble Lord, Lord Carlile, that ISIS is not going to be intimidated. I am more worried about Kimberley—the person who does not know that they are doing something wrong by helping one of our enemies.
Lastly—I will try to keep my comments brief; I appreciate that I have not tackled all of the points—I confess for a moment here to a massive cognitive dissonance. Noble Lords and noble and learned Lords have spoken about their anxieties about the word “treason” as if it was a super-hot piece of vocabulary that was too hot to handle. I simply do not have that sentiment at all; it does not touch me in the same way that it clearly touches others. I thought the noble and learned Lord, Lord Hope, spoke very well about that. Words such as theft, rape and terrorism are important parts of our legal vocabulary. I regard treason as simply akin to any one of those, and the arguments made—
Lord Hope of Craighead (CB)
The problem is—I speak as a former prosecutor—that if you are facing a jury with a charge that has “treason” on it, that elevates the temperature of the debate. It is much easier if you concentrate on the actual words of the offence that you are trying to get the jury to focus on. That is the point. The prosecutor has to decide whether he or she wants to use the word treason at all in the charge. It is better to avoid it if you can get the substance of the defence into ordinary language and get the jury to consider the facts in the light of ordinary language without being diverted by the more exciting “treason”. That is my point.
Lord Bethell (Con)
My Lords, pragmatism is completely right; I understand the noble and learned Lord’s point and I do not doubt his insight in the slightest. I have a slightly different perspective. That seems to be an argument to rehabilitate the thought rather than to avoid the crime. If something is happening that threatens our national security and is a crime, we need to think of ways of communicating that to juries and to prosecutors. In the same way, juries sometimes struggle with “rape” and are sometimes reluctant to convict—but obviously that is not a reason to not take rape to trial. Given the mood of the House, I beg leave to withdraw the amendment.
Lord Sharpe of Epsom
“(1) A person commits an offence if—(a) the person engages in prohibited conduct,(b) the foreign power condition is met in relation to the prohibited conduct, and(c) the person intends the prohibited conduct, or a course of conduct of which it forms part, to have an interference effect.(2) A person commits an offence if—(a) the person engages in prohibited conduct,(b) the foreign power condition is met in relation to the prohibited conduct, and(c) the person is reckless as to whether the prohibited conduct, or a course of conduct of which it forms part, will have an interference effect.(3) A person (“P”) commits an offence if—(a) P engages in a course of conduct with one or more other persons,(b) the foreign power condition is met in relation to conduct of P which forms part of the course of conduct,(c) P intends the course of conduct to have an interference effect,(d) as part of the course of conduct, a person other than P engages in prohibited conduct, and(e) P intends or believes that as part of the course of conduct, a person other than P will engage in prohibited conduct.(4) For the purposes of subsections (1)(c) and (2)(c) a course of conduct includes a course of conduct engaged in by the person alone, or by the person and one or more other persons.(5) Subsections (1) and (2) apply whether the person’s conduct takes place in the United Kingdom or elsewhere.(6) Subsection (3) applies whether P’s conduct or the prohibited conduct takes place in the United Kingdom or elsewhere.”Member’s explanatory statement
This amendment adds two new ways of committing an offence under Clause 13. Under subsection (2) the offence may be committed recklessly. Under subsection (3) it may be committed by a person where another person engages in prohibited conduct, if both are engaged in the same course of conduct.
Lord Sharpe of Epsom (Con)
My Lords, I turn to government Amendments 38, 40, 41 and 42, and Amendments 43, 44, 45 and 45A in this group, tabled by other noble Lords.
The government amendments to Clause 13 are vital to the utility of the offence of foreign interference and will strengthen our response to hostile attacks against our democracy and society. We must stand up to aggression against diaspora communities in the UK, as well as provide further safeguards to help promote a healthy democracy. The aim of the offence of foreign interference is to create a more challenging operating environment for, and to deter and disrupt the activities of, foreign states that seek to undermine UK interests, our institutions, our political system or our rights, and ultimately prejudice our national security.
We know that states around the world, including the UK, conduct open and transparent influence activities, such as using diplomacy to shape and align policy to benefit shared interests. This is a welcome part of transparent international engagement and it is vital to the UK achieving its interests. However, some states seek to further their strategic interests by going further than overt political influence, such as through cultivating and manipulating relationships with individuals and entities in the UK where power and influence lies and using deception to shape public policy-making.
I will now provide further detail on the government amendments in this group. Government Amendments 38, 40, 41 and 42 deal with three key areas. They clarify the original policy intent in making provision for activity that forms a “course of conduct”, provide for the offence to capture reckless conduct, and, finally, provide definitions for the term “political process”. In addition, there are some minor and technical changes to give effect to the above. As regards the effect on the drafting, the original Clause 13 has now become three clauses. That is to make the provisions simpler with the changes that we have made.
On the amendments dealing with a course of conduct, noble Lords will note that the volume of changes appears substantial, but this is not a change of policy. Amendment 38 has given better effect to our policy intent in respect of third-party conduct. We must ensure that we capture scenarios where foreign interference is achieved through the actions of two or more people acting in concert, but where it cannot be proven that all individuals intended their actions alone to have an undesirable effect. A scenario could be where a person, P, works for a foreign power and intends to interfere with a person’s rights in the UK: for example, pressuring members of a diaspora community to stay silent on certain issues. If P subcontracts the prohibited conduct to another person—for instance, coercion of individuals—these amendments would allow us to charge P with an offence of foreign interference.
In respect of amendments to capture reckless conduct, we have carefully considered the comments made in the other place in respect of recklessness, as well as concerns from stakeholders, and consider it appropriate to add this offence. Not having recklessness leaves a gap where someone who is clearly aware they are involved in foreign interference activity but cannot be shown to have intended the relevant effects escapes a potential prosecution, for example because a person is motivated principally by money or a desire to get ahead.
Recklessness is a well-established and well-understood legal principle in the criminal law. A person is reckless when they foresee a risk that their conduct could, under this offence, cause one of the interference effects. A person must also proceed unreasonably in the circumstances with that conduct even when they are aware of the risks of continuing to do so. To be clear, this will not capture a person who has no appreciation of the risks at the time the conduct takes place.
Amendment 41 makes provision for a new clause which now includes the “interference effects”—previously in Clause 13—and adds a definition of “political process”, which will bring greater clarity to the scope of the offence. The interference effects have had to be amended to take account of the addition of reckless conduct. “Manipulate” has been replaced with “interfere” to recognise that a person cannot recklessly manipulate something. We have maintained the high bar to meet an interference effect.
The Government’s position is that the references to
“proceedings of either House of Parliament”
in the government amendment on “Foreign interference: meaning of interference effect” and in Clause 68 on the meaning of political influence does not, and could not, displace the prohibition on impeaching or questioning proceedings in Parliament contained in Article 9 of the Bill of Rights, and is not intended to do this.
The Senior Deputy Speaker (Lord Gardiner of Kimble)
My Lords, if Amendment 38 is agreed to, I will not be able to call Amendment 39 by reason of pre-emption.
Lord Wallace of Saltaire (LD)
My Lords, my name is on Amendments 43 and 44 and Amendment 45A is in my name. I welcome the clarification in the government amendments and stress that this is an important area in which getting the language right is particularly difficult. I speak as a non-lawyer.
When I read the original text, I had my doubts as to the use of “misrepresentation”. I also have serious doubts about the use of the offence of spiritual injury. I recall being a candidate in a very Irish area of Manchester in 1974. My wife and I spent a long evening with the nine Roman Catholic priests in the constituency during which we discussed what were the important issues in the election to them; of course, they were Northern Ireland, abortion and Catholic schools. We certainly hoped that their sermons the weekend before the election would not have a particular bias against voting Liberal. Spiritual injury is an extremely difficult area to get into; I am not sure that it should be in the Bill but I bow to the noble Lord, Lord Carlile, and others to say whether they really think that this is an area where one could prosecute.
We need to be concerned about enforcement and enforceability in this area. I have a strong memory of the noble Lord, Lord Kennedy, coming to supper with us in Saltaire in the middle of a general election campaign. He had come up as an official of the Labour Party to look at some of the problems of election campaigning in Bradford’s constituencies, in particular within the diaspora community in two or three of those constituencies. He was furious about the police’s refusal to intervene because of what they regarded as not only the difficulties of prosecuting but the dangers to social cohesion of attempting to prosecute in such difficult circumstances. We recognise that this is part of the problem we get into in these important clauses.
We on these Benches are in the unusual position of thinking—others might think it too—that this is an area where the Bill is not yet strong enough and where threats to democracy, of which we are now much more aware than we were a few years ago, clearly need to be countered. We have seen the threats to democracy in the United States, with the efforts of former President Trump and his sympathy for authoritarian regimes across the world. We have seen some on the right of the Conservative Party—certainly in what was UKIP but is now Reform UK—who are much more sympathetic to Orbán than they are to the French or Dutch or other countries on the continent. We therefore all need to be sure that our democracy is protected as strongly as it can be from foreign interference.
At Second Reading, I said that I regretted that the Government have refused to follow the recommendation made by the ISC in paragraph 47 of its Russia report: that the Government should agree to publish a further account of the experience of attempted Russian interference in British elections and the referendum campaign, to alert the public to the threat and demonstrate that it is real. We all understand that to do so would be embarrassing for the Conservative Party, but it should accept the embarrassment and publish. We still do not know where the huge amounts of money that Arron Banks has given over the years came from, including, most recently, writing off another £6 million of debt. We are talking about something in the order of £10 million to £15 million that has come from abroad. I have been assured by others who say they know that it must have come from Russia but I—indeed, we—do not know that.
There are some major issues here. I will focus on the money dimension. It does not have to be amounts of that size, although we are all well aware that the British-citizen partners of Russian oligarchs in London have given some very large donations to the Conservative Party in recent years. Again, that is something about which we should be concerned, but think about someone wanting to influence the outcome in a particular constituency. The sums would not have to be that large. For example, if you are concerned about a candidate who is critical of human rights in the particular foreign power from which the diaspora community comes, those sorts of interventions are relatively easy.
We then come to the question of how we make sure that our overseas voters are who they say they are. A large gap was left on this by the Elections Act. I wish to stress to the Minister that a great deal more needs to be done. I raised a question on this the other week. Yesterday, I received a letter answering my criticisms from the Department for Levelling Up, Housing and Communities, which now deals with elections. I suggested that overseas voters do not have adequate checks on who they are and that they will not have them when we extend it to lifetime. The letter said:
“Similar to domestic electors, overseas electors will be subject to identity checks when registering to vote and, if they choose to vote in person, will be required to show an approved form of photographic identification.”
The idea that any significant number of overseas voters would wish to vote in a British election in person is laughable. Many of them live thousands of miles away—for example, on the west coast of California, in Bermuda, in Azad Kashmir or in northern Nigeria.
On several occasions, I have visited the Bradford electoral registration office to discuss these questions. Bradford currently has 1,000 overseas electors from more than 30 countries in its five constituencies. It is difficult to check back on whether the identity verification offered in those countries, which is looser than that now required under the photo ID requirements for domestic voters, is real or not.
When someone says that they lived in a particular constituency 30 years ago as a child and are therefore now entitled to vote, and you are doing it all online, verification is not easy. It would be reasonable to ask the consular dimensions of British embassies abroad to play a role in this. I tabled a Written Question for the Foreign Office last year about what role it would be playing in checking the identity of overseas voters. The answer was none. The French have a very different attitude to this; they attempt to maintain some clear links and checks on their citizens in other countries.
The letter from the noble Baroness, Lady Scott of Bybrook, goes on to say that if an overseas elector chooses to vote by post—under the Elections Act, et cetera—then, as this Bill and the Explanatory Notes make clear, they will vote by proxy. Proxy votes will therefore be an important part of this. Rightly, the Elections Act limits the number of proxy votes that any elector can hold to two for domestic voters and four for overseas voters. However, if I were an authoritarian regime in a foreign power with a significant diaspora in the United Kingdom and a significant number of dual nationals back in their country, I would not find it difficult to add several hundred alleged voters to a particular constituency where I wanted to get the MP out, and to arrange for the scattering of those proxy votes among enough people to make a difference—perhaps 500. Some metropolitan constituencies already have over 1,000 overseas voters.
As it happens, there was a fundraising event for the Cities of London & Westminster Liberal Democrats last night. It was a very interesting mix of people, with a range of international links, some of them born in Russia, Kazakhstan, Greece and elsewhere. They have over 1,000 overseas voters on the register already. One could imagine the estimate in general is that the numbers would double as we relax the limitation from 15 years to a lifetime. This is a serious issue.
Amendments 44 and 45A address this serious issue and suggest that it needs further consideration. It may not be of advantage to the Conservative Party to apply tighter controls on where the money comes from. I recognise that, but all of us who are interested in maintaining the quality of our democracy must ensure that money that comes from someone who says that they are a long-time British resident now living in Dubai, Singapore, Bermuda or Panama must be checked very carefully, and the identity of that person must be checked even more carefully if they are giving substantial sums of money. All these issues must be investigated further, and I suggest to the Minister that we need further dialogue on this.
I have a couple of other points to add. One example given in the Explanatory Notes is troll farms. I do not entirely understand that, since troll farms do not have to be in this country, nor do I understand how that comes within the scope of this Bill. Perhaps we could discuss that off the Floor. I strongly support Amendment 45 on introducing the concept of a critical incident, since we understand that, in the age of social media, bitcoin and other things, the potential for foreign interference in our elections has grown exponentially. I hope that this will not be pushed through by the Government without further amendment.
I end where I began, by welcoming the Government’s clarifications in the amendments that they have tabled. But we need considerable further amendment and greater concern about how these intentions are to be caught and enforced before this becomes an adequate part of a new Act.
Lord Carlile of Berriew (CB)
My Lords, Amendment 44 is in my name and that of the noble Lords, Lord Ponsonby and Lord Wallace, who has just spoken. I am reassured that I seem to be keeping better company than is my wont, which gives me some confidence for this amendment.
Before I get to Amendment 44, I want to say that I broadly support the amendments that have been tabled by the Minister, though I have real concerns about the phrase “spiritual injury”. In my inquiries into this, I fed into the internet, by mistake, “spritual injury”. Undeterred, the search engine came up with numerous definitions of spiritual injury. Interestingly, some are related to veteran issues. One of them, which comes from Australia, requires careful listening:
“It is proposed that a Spiritual Injury occurs when an incident or event creates a break in the relationship between an individual and their concept of God.”
It is a brave Government who go into that area.
This reminds me of a dinner I used to have from time to time with Ian Paisley, when I was a Member of the other place. The definition is rather similar to one—which I will not recount—that Ian Paisley once gave me of “conciliation”, which was as incomprehensible as what I have just read. He accompanied it with a comment about poor farmers, and I represented a lot of poor farmers in those days. He said that a poor farmer is one who does not have a Mercedes.
I turn now to my original point and Amendment 44. There is a very good reason for Amendment 44. It is an attempt to put on the political parties some responsibility for what happens to them, and particularly where they obtain their money. Having not been a member of a political party for some years—before that I was a member of a fairly virtuous political party—I believe that the political parties are prepared to take their proper responsibility for this area of their lives, and that they should be taking that responsibility.
There are major concerns about foreign financial influence on political parties. It is capable of being covert and indirect. It would not be right to impose criminal penalties on political parties when other measures are available and effective. I suggest that Amendment 44 is proportionate. It places a proper duty on political parties. It is unsensational; it is not the stuff of headlines. It is placing a responsibility on those political parties. It is trusting of our democratic process. Although there is a great deal of criticism of the political parties, they are all committed to our democratic processes, and, when things go wrong, of the type that we are talking about, on the whole they are willing to take the necessary action to reinforce the confidence of the public. But something needs to be placed in statute that sets out what that responsibility is.
Finally, in my view, the availability of civil remedies is potent enough to deal with these issues. Political parties do not like being sued—understandably—because, as I think all have found in recent years, it is actually very costly and not a good use of resources. They are therefore likely to respond to the threat of civil remedies. I think it disproportionate to place senior officers of political parties under the risk of prosecution in circumstances where they may well not have acted dishonestly but may have acted foolishly. Civil remedies are exactly designed for that sort of situation. So although I heard what the Minister helpfully said at the beginning about this amendment, I invite the Government to consider it carefully, because I think it would instil greater confidence in political parties and strengthen the political process.
Viscount Stansgate (Lab)
My Lords, I hope that I can intervene briefly to ask two questions. I support Amendment 44, but the questions I want to ask relate to government Amendments 38 and 42. If I understand the Minister correctly, subsection 2(c) of Amendment 38 inserts the word “reckless” in order to fill a gap. If so, why does the word “reckless” not appear in his other two amendments, 41 and 42? My second question relates to spiritual injury. What would be the effect if you left out the bit in brackets in subsection 2(e) of Amendment 42? In other words, why is the bit in brackets so crucial?
Lord Purvis of Tweed (LD)
My Lords, I will begin by raising a question with the Minister regarding his amendments, and will then support my noble friend, as a member of a fairly virtuous party, and my noble “also-friend”, who is equally virtuous but not in the party.
The noble Lord, Lord Carlile, rightly raised the question of causing spiritual injury. I would be grateful for a lot more clarification as to what the Government’s background justification and intent is in this regard. I would be happy if the Minister wrote to us before Report, because my reading of the new amendment is that causing spiritual injury to any person is now prohibited conduct, in light of the wording in brackets. As I have indicated previously, I have the great privilege of being able to travel extensively and, as the party’s spokesman on foreign affairs, to engage in many discussions on freedom of religion and no belief, on which the greatly respected noble Lord, Lord Ahmad of Wimbledon, leads in this House. That means that we are engaged in many discussions on the sensitive nature of religion and politics.
My reading of the amendment is that it could make it an offence for someone to engage with me and seek to persuade me of the view on the abolition of apostasy legislation in the Gulf, for example. The death penalty applies in Malaysia, a Commonwealth country, and in Qatar and the UAE, for example, for apostasy. Lobby groups who are campaigning for the abolition of the death penalty or the decriminalisation of apostasy, which has taken place in other Muslim nations, could well be defined by others as causing spiritual injury. Unless the Government have a definition of this—we do not necessarily need to rely on the Australian case, which I too saw on the same search as the noble Lord, Lord Carlile—then those people will be able to say that you are doing them spiritual injury if you wish to undermine their belief in Hudud law, which supports apostasy.
These are extremely sensitive areas which those in our intelligence community have to grapple with, because they are at the heart of the motivation of many people to take forward their political views. The situation is similar with those who seek to reform blasphemy legislation. Blasphemy is a very complex area that interacts with different faiths and laws. My concern is that subsection 2(e) of this amendment could cause considerable difficulties with blasphemy legislation, which has been a fairly delicate legislative area in the past, and with our interactions. I therefore hope that the Minister can provide much greater clarity on this. I would like to know what input the Foreign, Commonwealth and Development Office has had into the amendment regarding the convention on freedom of religion and belief. As a consequence of the amendment, some of our activities could be in contravention of the convention, which refers to freedom of religion and no belief. Therefore, the convention provides for the freedom to challenge what some may hold to be an authentic political view of a religion, but which others may believe to constitute spiritual injury. If the Government intend to prohibit debating political faith—political Islam, political Christianity—then we are on a very dangerous path. I hope that the Minister can reassure me on that.
Turning to donations and Amendments 44 and 43, I support the argument of my noble friend Lord Wallace of Saltaire. The Electoral Commission has been very clear in public statements that we have to make progress on tackling the lack of faith in politics. Lack of transparency in the funding of politics is key to that, which is why the Bill needs to be strengthened. There is now an overwhelming case for greatly enhanced due diligence on the part of political parties in working through the source of donations. As the noble Lord, Lord Carlile, said, there is a balance to be struck. There are those who seek to operate a healthy political system and engage in the political processes with those wishing to fund the parties; equally, we need transparency in those areas where undetermined income is the source of the donation. Importantly, this links to our previous discussions on “grey areas”.
At the moment, a political party could receive a donation from an individual through a bitcoin company which is operated by a national from another country—for example, it is based in the Cayman Islands but the donation comes through a UK national. That is perfectly legal, but there is no way of knowing where that income originated. That could be a live example: a Member of this House is on the global advisory board of a bitcoin company based in the Cayman Islands, so this is not theoretical. Looking at the interaction with the source of the income is important.
There is also a case to be made for enhanced diligence: asking whether companies have made enough money in the UK to fund that loan. I had a quick look at the Electoral Commission database for donations. Of the top 20 donations by companies to all political parties, a number have been through holding companies and there is simply a reference to a donation to the party. There is no mechanism to go beyond that: to state whether that company is solvent or making operating profits. Indeed, two of the companies in question made no operating profits for three years in a row but donated substantial sums to a political party. In other situations, having to investigate unexplained income would be important. We have other areas where due diligence applies—supply chain reforms, modern slavery statements and so on—and I do not see why there cannot be an equivalent regime when companies are interacting in the political realm.
Finally, one area where a very significant loophole needs to be addressed is for those countries which the Government themselves have said are at high risk of money laundering and terrorist financing. I took part in the debates on the money laundering, terrorist financing and transfer of funds regulations, which we have transposed into domestic legislation from the EU. In those regulations, we currently have a list of 25 countries for which it is the law that there is enhanced due diligence of any transactions because a company operates, through any business activities, within them. I remind the Committee that that list includes the Cayman Islands, Gibraltar and the United Arab Emirates.
Lord Evans of Weardale (CB)
My Lords, I support Amendments 44 and 45A. It is striking that in the electoral finance regulations there is a great dissonance between what is required of political parties fighting a democratic election and what would, for instance, be required of not only a bank or financial institution but many charities. I find it difficult to understand why there should be any objection to ensuring that money donated to a political party in the course of a democratic election is susceptible to enhanced due diligence. It is quite reasonable to expect that the origin of those party donations should be visible. As the noble Lord, Lord Purvis of Tweed, pointed out clearly, there are very considerable gaps. I agree with the noble Lord, Lord Wallace of Saltaire, that there is a great deal more to be done regarding electoral finance.
I am the chairman of the Committee on Standards in Public Life, which, within the last two years, undertook a major report on the regulation of electoral finance. In that, we spoke not only to the political parties but to representatives of those involved in the referendum campaign and a whole variety of people who have an interest in this area. We were then able to come forward with a series of recommendations to try to close a number of the loopholes. Many of them do not relate specifically to foreign interference but there is obviously the opportunity for those who would interfere as a foreign state in our electoral procedures to exploit loopholes in the system.
Regrettably, the Government did not wish to accept our recommendations, which I feel was a missed opportunity. The Elections Act, which has now gone through, did not address a number of the areas relating to electoral finance where there are glaring inconsistencies and anomalies. This is a good opportunity—at least in respect of some of those areas, particularly where they relate to foreign interference—to introduce these amendments, which will go some way towards closing some of the very evident loopholes. From that perspective, I strongly support these amendments.
Lord Coaker (Lab)
My Lords, we very much welcome Clauses 13 and 14—or however they are now numbered, given the Government’s amendments—as they introduce new offences of foreign interference, given the potential impact on our democratic processes at every level. That is a further reflection of the way that the Bill takes account of the new national security environment and the changing and emerging threats that we face.
As the Minister helpfully outlined, the main effect of the Government’s amendments will be to broaden the offences to include when a person acts recklessly. It appears that that has been brought in to reflect references to “recklessness” in other offences in the Bill and following debate in the Commons. That is very welcome. Can the Minister explain why it was not part of the original Bill, and what has caused the change of thinking in the department for it to bring forward these amendments?
I will also reflect on some of the discussion from the noble Lords, Lord Carlile and Lord Purvis, and others, on what is meant by proposed new subsection (2)(e), which refers to
“causing spiritual injury to, or placing undue spiritual pressure on, a person”.
For the benefit of the Committee, it would be helpful if the Government could say more about what they intend, what that encompasses and the thinking that lies behind it. That would be helpful to the Committee in the light of the various comments made.
We also support Amendment 43 from the noble Lords, Lord Purvis and Lord Wallace. We very much support the concept of an annual report on how these clauses protect the integrity of the UK’s democratic processes. I also understand and appreciate, as I think the Committee does, the Minister’s comment about how this is about protecting the country’s democratic processes from foreign interference, not from the normal democratic and political discourse that one would expect. I am particularly grateful for that, having been accused of being a communist and a member of the Revolutionary Socialist Party—I do not know whether anyone ever came across that in my file. More recently, for the new heads of various bodies, I have been called a traitor for my views on the EU referendum. So I stand here accused of being a communist on the one hand—in my younger days, it has to be said—and then having moved to being a traitor for my views.
The serious point I am trying to make, in a humorous way, is that political discourse takes place, as do debate and argument. It is really important for us to understand the difference in the Bill’s intention that the Minister pointed out. For that to be read into the record is really important so that it is not misunderstood; it is clearly not what the Government intend.
Amendment 44, in the names of the noble Lords, Lord Carlile and Lord Wallace, and of my noble friend Lord Ponsonby, is really important. It was very well articulated by the noble Lord, Lord Carlile, and the noble Lord, Lord Evans, said that he supports it. There are a lot of arguments for this amendment, but my view is the same as the point the noble Lord, Lord Carlile, made—a really important point, particularly at the current time when there is some disillusionment. Accepting Amendment 44 as part of the Bill would help enormously to instil public confidence, to ensure that people understand that our political parties not only are free from foreign interference through political donation but are seen to be free of it from their statements. Instilling public confidence on that is really important.
I move on to my Amendment 45, which is a probing amendment. I say to the Government that it is not necessarily intended to be added to the Bill, but it deals with an important aspect of this discussion. It is how to deal with the issue of informing the public about what we seek to do and the new threats that they face, and how we raise their awareness of them. There is also the crucial question of how this could be done in real time.
I use the example of Canada to cause us as a Committee to think. Canada has a Critical Election Incident Public Protocol, which lays out a clear and impartial process by which Canadians can be notified of a foreign threat to the integrity of an election. That includes provisions for informing candidates, organisations or election officials whether they have been the known target of an attack. It has processes which state how decisions are made, and by whom, and as to whether a public announcement should be made to alert people to the threat.
As I said, this is a probing amendment, and I am not an expert on the protocol. I am trying to understand the Government’s view. If we were to believe that foreign interference was taking place, at what point would they think it appropriate, relevant or consistent with the security of our nation for the public to be informed of that? I think the public have a right to be involved, potentially in live time.
I think this raises real difficulties. Let me create a scenario: a general election takes place—let us not use the next year or two; let us say in 10 years’ time—and the Government find that that election is being compromised by foreign interference. What happens? How does the Bill deal with that scenario? We are in Committee, which is when we look at detail. I think there is an important question for the Government about public involvement with respect to their knowledge and awareness of the potential for interference that may take place and what they have a right to know if the Government or the services come to a conclusion that there is foreign interference and that it may be compromising an election, whether it be a general election, a local election or some other part of the democratic process. I think that is an important part of this discussion. I think that, far from it being a weakness for the Government of the day, with the security services and others, to say that they are protecting the integrity of the democratic processes such is their importance, alongside that, should it be necessary for them to alert the public, they should have a system, or protocol to which they can refer, dealing with what the consequences of that would be.
This has been an interesting debate at the heart of another important series of amendments because they seek to protect our democratic processes from the foreign interference the Minister pointed out in his introduction. I look forward to his reply to not only my remarks but to the remarks of other noble Lords.
Lord Sharpe of Epsom (Con)
My Lords, I thank the notably unrevolutionary noble Lord, Lord Coaker, for his support for these amendments. I will address his precise question on whether the amendments on recklessness represent a change in government policy and why they are being introduced now. It was always our intention to capture malign foreign interference activity in all its forms with this offence. After the completion of the Bill’s passage in the other place and in light of the comments made in the Public Bill Committee on the lack of an offence that could be committed recklessly, we retested the offence against the operational and policy requirements and we saw that there were examples of conduct, such as where a person’s intention was not to cause an effect but rather to improve their status within relevant organisations of a foreign power, that were at risk of not being in scope for the offence. I hope that answers the question on why it is being done now.
The noble Viscount, Lord Stansgate, asked three specific questions about why recklessness is present in only one of these offences. The fact is that there are three different ways to commit the offence. New subsections (1) and (2)—inserted by Amendment 38—relate to a person’s intention, and only subsection (2) deals with recklessness.
Amendment 43 seeks to introduce a requirement for the Secretary of State to lay a yearly report, from the date of the National Security Bill gaining Royal Assent, assessing the impact which Clauses 13 and 14 have had on protecting the integrity of the UK’s democratic processes. This amendment duplicates one tabled in the other place. We do not consider it to be appropriate to introduce reporting requirements on the subject in isolation from the existing work on democratic integrity or in isolation from wider consideration of oversight and review mechanisms for the Bill.
Amendment 45 seeks to introduce a mechanism to alert the public to threats to the integrity of elections. We do not consider this to be necessary. Clauses 13 and 14 ensure that there are appropriate criminal sanctions for foreign interference. These provisions sit alongside other non-legislative activity. In advance of democratic events, His Majesty’s Government stand up an election cell to monitor and respond to any emerging issues during the election period. The election cell is led by the Cabinet Office and brings together government departments, the intelligence agencies, the devolved Administrations and external partners to ensure a holistic understanding of risks and to drive any necessary mitigations. The National Cyber Security Centre also meets regularly with the UK’s parliamentary parties and works closely with those responsible for core parts of the UK’s electoral infrastructure. Finally, formally established in 2019, the defending democracy programme is a cross-government programme with the overarching objective to safeguard elections and referendums and related democratic processes in the United Kingdom.
Lord Wallace of Saltaire (LD)
Several speeches have stressed the importance of informing and educating the public about the dangers of foreign interference in British elections. One of the reasons why people like me go on so much about releasing the additional information in the ISC Russia report is precisely to alert and inform the public. The amendment that the Minister has just been discussing is about alerting the public, in the course of an election campaign, if that should be a problem. He mentioned the defending democracy task force. I have found a small number of references to it, but it is not exactly a public body and what it does is so far extremely unclear. What about the public information and public education dimension of what we are discussing?
Lord Sharpe of Epsom (Con)
My Lords, I am dredging my memory a little bit here, but I remember the Security Minister about a month ago outlining much more about defending democracy. I will have to refer back to the comments he made in the other place, but I am pretty sure they deal with the questions that have just been raised by the noble Lord.
Lord Coaker (Lab)
I think this is a really important point about informing and alerting the public in live time. I would be grateful if the Minister could come back having reflected on that for us.
Lord Sharpe of Epsom (Con)
I will certainly have to read all the various information that I can find on the defending democracy programme, which I am pretty sure deals with most of the issues that have just been raised. If I am wrong on that, of course I will make that clear.
Amendment 44 was spoken to by the noble Lords, Lord Coaker, Lord Carlile, Lord Purvis, Lord Evans and others. The amendment seeks to enhance checks on the source of political donations in two ways. First, it seeks to introduce a requirement for political parties to release a policy statement to ensure the identification of donations from foreign powers. Secondly, it requires political parties to include in their annual statement of accounts a statement detailing their risk management approach to donations and the measures in place to prevent the acceptance of impermissible donations. While I understand the intent behind this amendment, let me be clear that UK electoral law already sets out a stringent regime of controls on political donations to ensure that only those with a legitimate interest in UK elections can make political donations and that political donations are transparent. Given that it has been spoken to by most speakers, I am going to go into a bit more detail on this, with the indulgence of the Committee.
Only those with a genuine interest in UK electoral events can make political donations. That includes registered UK electors, including registered overseas electors, UK-registered companies, trade unions and other UK-based entities or otherwise eligible donors, such as Irish citizens meeting prescribed conditions who can donate to parties in Northern Ireland. Parties and other campaigners are prohibited from accepting donations which are not from a permissible or identifiable donor. Failure to return such a donation, either to the donor or the Electoral Commission within 30 days of receipt is an offence and any such donations must be reported to the Electoral Commission. Furthermore, the Elections Act 2022 introduced a restriction on ineligible foreign third-party campaigning above a £700 de minimis threshold.
It is an offence to attempt to evade the rules on donations by concealing information, giving false information or knowingly being involved in an arrangement to facilitate the making of an impermissible donation. This provides a safeguard against impermissible donations via the back door. Political parties must already register donations over a certain value to the Electoral Commission; they are then published online for public scrutiny.
By requiring political parties to detail publicly their approach to mitigating the risk of impermissible donations, proposed new subsection (3) of the noble Lord’s amendment has the effect of providing such donors with the details of mitigations they need to overcome to make an impermissible donation. I am sure that is an unintended consequence, but it is important to oppose this amendment on the grounds that not only do the existing rules mitigate these risks but the amendment itself risks undermining the already strong rules.
Lord Wallace of Saltaire (LD)
My Lords, I apologise for intervening again. The Minister has not addressed the ease with which someone who has not lived in this country for three or more decades can now register, and the difficulty of verifying that they are who they say they are. If he will not address it now, can he write in detail to some of us, or perhaps invite us to a briefing, and make sure that that area will be tightened by the Bill?
Lord Sharpe of Epsom (Con)
My Lords, that is more properly a DLUHC area, in the light of the Act passed recently, but I will certainly have the conversation with my counterpart there and see what that Act says. I am not an expert on that Act, as the noble Lord will probably appreciate.
Lord Purvis of Tweed (LD)
We obviously have a difference of opinion as to whether the current system is stringent. I am curious why, if the trading arm of a political party was operating with a business that had any interest in one of the 26 countries in the money laundering and terrorist financing regulations, it would have to do due diligence, but if it received money that originated from such a country, it would not. Why does the Minister think that is acceptable?
Lord Sharpe of Epsom (Con)
As I outlined in my answer earlier, I believe this is a stringent regime. I am afraid there is a significant difference of opinion. It specifies that only those with a genuine interest in UK electoral events can make political donations. Any donations that are not permissible and not reported will constitute an offence.
I am afraid I will not address the comments by the noble Lord, Lord Wallace, about support for Mr Orbán over the Dutch and French; that certainly does not apply here. His Amendment 45A seeks to add requirements relating to proxy voting. It would be odd and somewhat undemocratic to seek to apply such measures solely to overseas electors, when the same issue could arise for domestic electors. In any event, proxy voters and those seeking to use a proxy are not in a position to determine whether someone is seeking to support a foreign power. It is an impossible ask of them. Adding such requirements risks disfranchising individuals by blocking their ability to find a proxy and undermining the very point of a proxy voting system.
Lord Wallace of Saltaire (LD)
My Lords, I apologise for intervening yet again. My point was simply that the level of controls and identity verification we have now introduced for domestic voters under the Elections Act is noticeably tougher than those for overseas electors. Given that overseas electors are also potential donors, this seems to be a hole that needs to be filled. The Minister says it does not need to be filled. That does not satisfy us.
Lord Sharpe of Epsom (Con)
I am sorry to disagree with the noble Lord, but on this one I do. However, I commit to discussing this further with my counterpart at DLUHC. I will come back to the subject.
Spiritual injury was raised by the noble Lords, Lord Wallace, Lord Anderson and Lord Purvis. I will commit to write on FCDO engagement on this subject; I do not have the answers to those questions. What is spiritual injury and why is it part of this offence? Basically, it mirrors the Elections Act 2022. The term “spiritual injury” covers the potential harmful impact on an individual’s spiritual or religious well-being that could be directly caused by another individual—for example, excluding a person from the membership of an organised belief system or banning them from attending a place of worship. The term “undue spiritual pressure” could include, for example, pressuring a person to commit an act by suggesting that doing so is a duty arising from the spiritual or religious beliefs that a person holds or purports to hold. In addition, “undue spiritual pressure” could refer to conduct by a person that alters, or has the potential to alter, a person’s spiritual standing or well-being.
Reference to “spiritual injury” already exists in the definition of “undue influence” as set out in Section 114A of the Representation of the People Act 1983. Undue spiritual pressure is a new element of undue spiritual influence in the clarified offence in Section 8(4)(e) of the Elections Act, as part of efforts to clarify what types of conduct amount to an undue influence. I hope I have answered that question.
For these reasons, the Government cannot accept this set of amendments. I ask the Committee to accept the Government’s amendments to improve the foreign interference offence.
Lord Carlile of Berriew (CB)
I am sorry to interrupt the Minister and am very grateful to him for giving way. On this question of spiritual injury, has the Lord Chief Justice been consulted as to whether he and the judiciary regard this definition as something that judges can sum up to juries in a clear way? Although the phrase exists elsewhere, it has not been litigated to any great extent and, without a consultation of the judges, may cause great difficulty.
Lord Sharpe of Epsom (Con)
The simple answer is that I do not know, but I will find out and commit to write.
Viscount Stansgate (Lab)
The question I asked related to the bit in brackets. What effect would there be if you omitted that part in brackets?
Lord Sharpe of Epsom (Con)
I think I have already answered in significant detail why that clause has gone into the Bill. I have also answered the specific points that the noble Viscount raised at the start of the debate.
Lord Purvis of Tweed (LD)
This is really important. As the noble Viscount pointed out, this is not about coercion of an individual but about putting into law “causing spiritual injury” to any person, ill-defined as that is, and not just the person to whom the effect of the interference relates. It is of significance that we would be putting in a very considerable offence of causing an undefined spiritual injury to any person. Can the Minister reflect on that and maybe come back to us in writing?
Lord Sharpe of Epsom (Con)
I have heard the feelings about this around the Committee, so of course I commit to do that.
Lord Sharpe of Epsom
““interference effect” has the meaning given by section (Foreign interference: meaning of “interference effect”);“prohibited conduct” has the meaning given by section (Foreign interference: meaning of “prohibited conduct”).”Member’s explanatory statement
This amendment updates the definitions in Clause 13.
Lord Sharpe of Epsom
“Foreign interference: meaning of “interference effect”(1) For the purposes of section 13 an “interference effect” means any of the following effects— (a) interfering with the exercise by a particular person of a Convention right, as it has effect under the law of the United Kingdom,(b) affecting the exercise by any person of their public functions,(c) interfering with whether, or how, any person makes use of services provided in the exercise of public functions,(d) interfering with whether, or how, any person participates in political processes or makes political decisions,(e) interfering with whether, or how, any person participates in legal processes under the law of the United Kingdom, or(f) prejudicing the safety or interests of the United Kingdom.(2) An effect may be an interference effect whether it relates to a specific instance of a matter mentioned in subsection (1), or to the matter in general.(3) In subsection (1)(d) “political processes” means—(a) an election or referendum in the United Kingdom;(b) the proceedings of either House of Parliament, the Northern Ireland Assembly, the Scottish Parliament or Senedd Cymru;(c) the proceedings of a local authority;(d) the proceedings of a UK registered political party.(4) In subsection (1)(d) “political decisions” means a decision of—(a) the government of the United Kingdom, a Northern Ireland Minister, a Northern Ireland department, the Scottish Ministers or the Welsh Ministers;(b) a local authority.(5) In this section—“Convention rights” has the meaning given by section 1 of the Human Rights Act 1998;the“law of the United Kingdom” includes the law of any part of the United Kingdom;“local authority” means—(a) in England—(i) a county council,(ii) a district council,(iii) a London borough council,(iv) a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009,(v) a parish council,(vi) the Council of the Isles of Scilly,(vii) the Common Council of the City of London,(viii) the Sub-Treasurer of the Inner Temple,(ix) the Under Treasurer of the Middle Temple;(b) in Wales, a county council, county borough council or community council;(c) in Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;(d) in Northern Ireland, a district council;“Northern Ireland Minister” includes the First Minister, the deputy First Minister and a junior Minister;“public functions” means functions of a public nature—(a) exercisable in the United Kingdom, or (b) exercisable in a country or territory outside the United Kingdom by a person acting for or on behalf of, or holding office under, the Crown;“UK registered political party” means a political party registered under Part 2 of the Political Parties, Elections and Referendums Act 2000;“Welsh Minister” includes the First Minister, the Counsel General to the Welsh Government and a Deputy Welsh Minister.”Member’s explanatory statement
This new Clause defining “interference effect” replaces Clause 13(2) and (3). Subsection (1)(c) to (e) now use “interfering” not “manipulating” because of the introduction of recklessness in Clause 13, and political processes and decisions are defined. There are drafting changes consequential on Lord Sharpe’s amendments to Clause 13.
“Foreign interference: meaning of “prohibited conduct”(1) Conduct is prohibited conduct for the purposes of section 13 if—(a) it constitutes an offence, or(b) if it takes place in a country or territory outside the United Kingdom, it would constitute an offence if it took place in any part of the United Kingdom.(2) Conduct is prohibited conduct for the purposes of section 13 if it involves coercion of any kind, including coercion by—(a) using or threatening to use violence against a person;(b) damaging or destroying, or threatening to damage or destroy, a person’s property;(c) damaging or threatening to damage a person’s reputation;(d) causing or threatening to cause financial loss to a person;(e) causing spiritual injury to, or placing undue spiritual pressure on, a person,(whether or not that person is the person to whom the interference effect relates).(3) Conduct is prohibited conduct for the purposes of section 13 if it involves making a misrepresentation.(4) A “misrepresentation” is a representation—(a) that a reasonable person would consider to be false or misleading in a way material to the interference effect, and(b) that the person making the representation knows or intends to be false or misleading in a way material to the interference effect.(5) A misrepresentation may be made by making a statement or by any other kind of conduct, and may be express or implied.(6) A misrepresentation may in particular include—(a) a misrepresentation as to a person’s identity or purpose;(b) presenting information in a way which amounts to a misrepresentation, even if some or all of the information is true.(7) In this section “interference effect” has the meaning given by section (Foreign interference: meaning of “interference effect”).”Member’s explanatory statement
This new Clause defines “prohibited conduct”. It replaces Clause 13(4) to (9). There are changes to the opening words of the definition of coercion in subsection (2), and the definition of misrepresentation in subsection (4), as well as drafting changes consequential on Lord Sharpe’s amendments to Clause 13.